Fallback law

Columbia Law Review

Volumn 107, Issue 2, 2007, Pages 303-373

  Dorf, Michael C ^a  

^a Columbia University School of Law ^*  (United States)

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EID: 33947671939     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (265)

1. E.g., People v. Liberta, 474 N.E.2d 567, 578 (N.Y. 1984) (declaring portion of statute unconstitutional and stating that "[t]his court's task is to discern what course the Legislature would have chosen to follow if it had foreseen our conclusions as to" statute's unconstitutionality). Liberta is discussed below. See infra note 9 and accompanying text; infra text accompanying note 21.
2. A typical example is section 406 of the Immigration and Nationality Act, which stated: "If any particular provision of this Act, or the application thereof to any person or circumstance, is held invalid, the remainder of the Act and the application of such provision to other persons or circumstances shall not be affected thereby." Ch. 477, § 406, 66 Stat. 163, 281 (1952) (codified as amended at 8 U.S.C. § 1101 note (2000) (Separability)). This language was held controlling of the severability question in INS v. Chadha, 462 U.S. 919, 932 (1983).
3. Pub. L. No. 99-177, § 274(f), 99 Stat. 1037, 1100.
4. 478 U.S. 714, 734-36 (1986).
5. 543 U.S. 220 (2005).
6. Id. at 244 (Stevens, J., opinion of the Court). The Guidelines were a product of the Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987 (codified as amended in scattered sections of 18 and 28 U.S.C.).
7. 543 U.S. at 258-65 (Breyer, J., opinion of the Court) (invalidating 18 U.S.C. § 3553(b)(1) (Supp. IV 2004) and id. § 3742(e) (2000 & Supp. IV 2004)).
8. Id. at 245 (noting that Court's holding rendered Federal Sentencing Guidelines "effectively advisory").
9. See People v. Liberta, 474 N.E.2d 567, 578-79 (N.Y. 1984) (severing marital exemption from rape statute).
10. For an excellent elaboration of this point, see Emily Sherwin, Rules and Judicial Review, 6 Legal Theory 299, 302 (2000) ("When a court finds an unconstitutional application to be severable from other valid applications, what remains after severance is a new, narrower law.").
11. Bowsher v. Synar, 478 U.S. 714, 735 (1986) (quoting Buckley v. Valeo, 424 U.S. 1, 108 (1976) (per curiam) (quoting Champlin Ref. Co. v. Corp. Comm'n, 286 U.S. 210, 234 (1932))). Both Buckley and Champlin Refining involved severability rather than substitutive fallback provisions.
12. Consider section 201(a) of the Bipartisan Campaign Reform Act of 2002 (BCRA), which defines "electioneering communication" for purposes of various reporting and spending requirements, and contains a fallback definition which would go into effect if the principal definition were found to "be constitutionally insufficient by final judicial decision." 2 U.S.C. § 434(f)(3)(A)(ii) (Supp. IV 2004). In McConnell v. FEC, the Supreme Court upheld the primary definition and thus had no occasion to address the validity of the fallback. 540 U.S. 93, 189-94 (2003). However, four Justices would have ruled that the definition and the fallback were both invalid. See id. at 277-78 (Thomas, J., concurring in part and dissenting in part); id. at 337-38 (Kennedy, J., joined by Rehnquist, C.J., and, in relevant part, Scalia, J., concurring in part and dissenting in part).
13. Bowsher, 478 U.S. at 717-18.
14. Id. at 732-34.
15. Id. at 727-32.
16. Id. at 718-19.
17. 19 U.S.C. § 1516a(g)(7)(B) (2000).
18. See 10 U.S.C. § 654 (2000) (providing "[p]olicy concerning homosexuality in the armed forces").
19. For a game-theoretical discussion of the broader concept of legislative threats, see generally Guy Halfteck, Legislative Threats (Feb. 2006) (unpublished manuscript, on file with the Columbia Law Review), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=887729.
20. See, e.g., Alexander M. Bickel, The Supreme Court, 1960 Term - Foreword: The Passive Virtues, 75 Harv. L. Rev. 40, 50 (1961) ("[V]ery often [the Supreme Court] engages in a Socratic dialogue with the other institutions and with society as a whole concerning the necessity for this or that measure, for this or that compromise.");
21. Robert C. Post & Reva B. Siegel, Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel, 110 Yale L.J. 441, 517-21 (2000) (analyzing interaction between Congress and Supreme Court in modern civil rights era and concluding first that "the Court will sometimes require the assistance of Congress to succeed in the . . . task of constitutional interpretation," and second that "because Congress, as a popular legislative body, is well situated to perceive and express evolving cultural norms, Congress's understanding of equality is a vital resource for the Court to consider as it interprets the Equal Protection Clause");
22. cf. Jürgen Habermas, Moral Consciousness and Communicative Action 198 (Christian Lenhardt & Shierry Weber Nicholsen trans., MIT Press 1990) (1983) (offering "practical discourse" among "all concerned" as the "warrant of the rightness (or fairness) of any conceivable normative agreement" that argumentative decisionmaking reaches).
23. For a critique of dialogue, see Richard A. Posner, The Supreme Court, 2004 Term - Foreword: A Political Court, 119 Harv. L. Rev. 31, 82 (2005) ("It is apparent in [Bickel's] account who is Socrates and who are Socrates's stooges . . . ."). For further discussion of the dialectic view, see infra Part IV.B.
24. See supra note 9 and accompanying text.
25. I explore the bounds of this assumption below. See infra Part IV.
26. A legislature concerned about this problem might well prefer delegation of responsibility for a fallback solution to a sympathetic administrative agency than to the court that, by hypothesis, is going to find the original provision invalid. Congress did just this with regard to judicial review of regulations governing certain discrimination claims brought by federal employees in 2 U.S.C. § 1409 (2000) and 28 U.S.C. § 3902 (2000), each of which provides: "If the court determines that the regulation is invalid, the court shall apply, to the extent necessary and appropriate, the most relevant substantive executive agency regulation promulgated to implement the statutory provisions with respect to which the invalid regulation was issued."
27. Bd. of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, 570-71 (1987).
28. Cf. id. at 576 (rejecting proposed saving construction that would have limited ban to "expressive activity unrelated to airport-related purposes" because "the vagueness of this suggested construction itself presents serious constitutional difficulty"). For a discussion of how a narrowing cure for overbreadth can create the new disease of vagueness, see Laurence H. Tribe, American Constitutional Law § 12-32, at 1036-37 (2d ed. 1988).
29. See, e.g., Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99 (1982) (noting that Court's vagueness jurisprudence has "expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe"); Smith v. Goguen, 415 U.S. 566, 573 & n.10 (1974) (explaining that "[w]here a statute's literal scope . . . is capable of reaching expression sheltered by the First Amendment, the [vagueness] doctrine demands a greater degree of specificity than in other contexts," such as "purely economic regulation").
30. Ayotte v. Planned Parenthood of N. New Eng., 126 S. Ct. 961, 968 (2006) (first alteration in original) (quoting Virginia v. Am. Booksellers Ass'n, 484 U.S. 383, 397 (1988)).
31. See, e.g., Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Feb. 25, 1975, 39 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 1 (46-47) (F.R.G.) (requiring legislature to employ criminal sanctions for early abortions, subject to exceptions). For an English-language summary emphasizing the interplay between the West German Constitutional Court and the legislature, see Gerald L. Neuman, Casey in the Mirror: Abortion, Abuse and the Right to Protection in the United States and Germany, 43 Am. J. Comp. L. 273, 274-78 (1995).
32. One recent example is the decision by the New Jersey Supreme Court allowing the state legislature 180 days to amend state laws to open the institution of marriage to same-sex couples or to provide same-sex couples with the option of civil unions with all of the same benefits as marriage. See Lewis v. Harris, 908 A.2d 196, 224 (N.J. 2006).
33. When a court orders the legislature to act to satisfy a constitutional duty, it must allow some time for compliance. This lag can lead to practical difficulties, as two episodes illustrate. Following its holding that de jure racially segregated schools violate the Equal Protection Clause in Brown v. Board of Education, 347 U.S. 483, 493 (1954), the Supreme Court did not insist on immediate compliance with its holding, instead demanding that state and local officials act "with all deliberate speed." Brown v. Bd. of Educ., 349 U.S. 294, 301 (1955). That formula was taken by many to permit foot dragging, Richard Klugar, Simple Justice 752-53 (1976), leading the Court, thirteen years later, to demand a desegregation plan "that promises realistically to work, and promises realistically to work now." Green v. County Sch. Bd., 391 U.S. 430, 439 (1968). Likewise, in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982), a plurality of the Court invalidated the provision of the Bankruptcy Reform Act of 1978, Pub. L. No. 95-598, tit. II, sec. 241(a), § 1471, 92 Stat. 2549, 2668-69, that assigned to bankruptcy court judges business that, the Court held, could only be given to Article III judges. However, the Court stayed entry of judgment for six months to "afford Congress an opportunity to reconstitute the bankruptcy courts or to adopt other valid means of adjudication, without impairing the interim administration of the bankruptcy laws." 458 U.S. at 88 (plurality opinion). Congress did not act with sufficient alacrity, and so the district courts stepped in by adopting rules that restored bankruptcy court jurisdiction over those cases that fell outside the Article III core, reserving for themselves the power to issue binding orders in cases demanding an Article III judge (absent consent of the parties). See White Motor Corp. v. Citibank, N.A., 704 F.2d 254, 261 (6th Cir. 1983) (sustaining district court's interim rule). For a proposal for expanded use of the judicial remand to the legislature, albeit only as a cure for constitutional desuetude, see Guido Calabresi, A Common Law for the Age of Statutes 16-21 (1982).
34. Consider two arguable examples. First, some states permit personal jurisdiction in their courts on the basis of statutorily enumerated criteria, with the caveat that, in addition to the enumerated criteria, jurisdiction may be based on any ground consistent with the Constitution. See, e.g., 735 Ill. Comp. Stat. Ann. 5/2-209(c) (West 2003) ("A court may also exercise jurisdiction on any other basis now or hereafter permitted by the Illinois Constitution and the Constitution of the United States."); La. Rev. Stat. Ann. § 13:3201(B) (2006) ("In addition to the provisions of Subsection A, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States."). Second, Alabama law authorizes two methods of execution, but further specifies that in the event that they are found to violate the Eighth Amendment, any constitutionally valid method may be used. Ala. Code § 15-18-82.1(c) (LexisNexis Supp. 2005) (authorizing death by "any constitutional method of execution" in event that electrocution or lethal injection is held invalid on state or federal constitutional grounds).
35. I documented this point over a decade ago. See Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235 app. (1994) [hereinafter Dorf, Challenges]. Having not come across any indication of substantial change at the federal level or in any state, I do not repeat the exercise here. I do note, however, that although the formal tests treat applications as no less severable than provisions, judges and Justices find application severability more troubling in practice because it can require them to craft substantive provisions where the legislature has crafted none.
36. See Transcript of Oral Argument at 27-29, Ayotte, 126 S. Ct. 961 (No. 04-1144), available at http://www.supremecourtus.gov/oral_arguments/ argument_transcripts/04-1144.pdf (on file with the Columbia Law Review) (quoting Justice Ginsburg as saying that "'there is usually great caution on the part of the Court from tampering with the statute. . . . [Courts] feel much more comfortable cutting something out than putting something in.'"); see also supra text accompanying note 27. Perhaps in practice the presumption of severability is stronger for invalid provisions than for invalid applications.
37. North American Free Trade Agreement Implementation Act, 19 U.S.C. § 2411 (2000) (authorizing U.S. Trade Representative to penalize unfair trade practices); id. § 3312(a)(2)(B) (preserving authority granted by § 2411); North American Free Trade Agreement, U.S.-Can.-Mex., art. 1902(1), Dec. 17, 1992, 32 I.L.M. 605, 682 [hereinafter NAFTA].
38. 19 U.S.C. § 1516a(g); NAFTA, supra note 33, art. 1904.
39. NAFTA, supra note 33, art. 1904(2), (3).
40. 19 U.S.C. § 1516a(g)(7)(A).
41. Id.; NAFTA, supra note 33, art. 1904(11).
42. 19 U.S.C. § 1516a(g)(7)(B). Binational panel decisions can be reviewed by (binational) "extraordinary challenge committees," whose decisions are also not subject to Article III review, see NAFTA, supra note 33, annex 1904.13 ("Extraordinary Challenge Procedure"), and may be accepted as a whole by the President under the fallback provision. For my purposes, no loss of generality results from omitting discussion of extraordinary challenge committees.
43. See, e.g., Field v. Clark, 143 U.S. 649, 680-94 (1892) (upholding President's congressionally delegated power to suspend operation of free trade laws, resulting in tariffs upon certain imported goods).
44. See 5 U.S.C. § 553 (2000) (providing procedures for agency rulemaking).
45. 19 U.S.C. § 1516a(g)(7)(B) (providing that if BNP system is held unconstitutional, "the President is authorized on behalf of the United States to accept, as a whole, the decision of a binational panel or extraordinary challenge committee" (emphasis added)).
46. The discretion conferred on the President by the Civil Aeronautics Act of 1938, ch. 601, tit. VIII, § 801, 52 Stat. 973, 1014, would be a sufficient ground for distinguishing Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103 (1948), but not for distinguishing Dalton v. Specter, 511 U.S. 462 (1994), in which the President could only approve or disapprove in their entirety the recommendations of the Defense Base Closure and Realignment Commission. Id. at 470 (holding that such constraint on President's discretion is "immaterial"). Yet there is a more important similarity between these two cases that distinguishes them both from the NAFTA case. In Chicago & Southern and Dalton, the issue was whether judicial review of agency action for conformity with federal procedural statutes was available where presidential approval was required for the agency's recommendations to go into effect. Neither case involved a claim of unconstitutional conduct by the agency, and the Dalton Court specifically allowed that this distinction could be critical. Id. at 471-72.
47. See United States v. Booker, 543 U.S. 220, 258-65 (2005) (Breyer, J., opinion of the Court); supra notes 5-8 and accompanying text (discussing Booker).
48. See Clinton v. City of New York, 524 U.S. 417, 439-40, 447 (1998) (invalidating Line Item Veto Act, 2 U.S.C. §§ 691-692 (2000), because "[t]here are important differences between the President's 'return' of a bill pursuant to Article I, § 7," which requires him to "approve all the parts of a Bill, or reject it in toto," and the line item veto, which "gives the President the unilateral power to change the text of duly enacted statutes" (internal quotation marks omitted)).
49. Bowsher v. Synar, 478 U.S. 714, 726 (1986) ("Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment. . . . [T]he Constitution does not permit Congress to execute the laws; it follows that Congress cannot grant to an officer under its control what it does not possess.").
50. Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. No. 99-177, § 274(f) (2), 99 Stat. 1037, 1100.
51. See Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 135 (1810) (affirming principle that "one legislature cannot abridge the powers of a succeeding legislature"); see also Lockhart v. United States, 126 S. Ct. 699, 703-04 (2005) (Scalia, J., concurring) (arguing that, under principle announced in Fletcher, so-called legislative "express-reference" or "express-statement" requirements should not be given effect); United States v. Winstar Corp., 518 U.S. 839, 871-80 (1996) (plurality opinion) (discussing unmistakability doctrine and its origins in English law principle that "one legislature may not bind the legislative authority of its successors").
52. E.g., Reply Brief of the Speaker and Bipartisan Leadership Group of the House of Representatives, Intervenors-Appellants at *1, Bowsher, 478 U.S. 714 (Nos. 85-1377 to 85-1379), 1986 WL 728086 (stating that "the provision which vested the statutorily-prescribed mathematical calculations of the cuts in the independent Comptroller General" was enacted "in order to 'wall' off that accounting function from political manipulation").
53. U.S. Const. art. II, § 2.
54. See Coal. for Fair Lumber Imps., Executive Comm. v. United States, No. 05-1366, 2006 WL 3590188, at *2 (D.C. Cir. Dec. 12, 2006) (listing constitutional challenges); Brief of Petitioner Coalition for Fair Lumber Imports Executive Committee at 48-52, Fair Lumber Imps., 2006 WL 3590188 (No. 05-1366) (Appointments Clause argument); id. at 36-48 (Article III argument); Reply Brief of Petitioner Coalition for Fair Lumber Imports Executive Committee at 24-28, Fair Lumber Imps., 2006 WL 3590188 (No. 05-1366) (Appointments Clause argument); id. at 17-23 (Article III argument). In my capacity as counsel for the Coalition, I coauthored these briefs.
55. Perhaps we might say that adoption as a whole would be valid if it could be shown that the President would have made exactly the same decision as the binational panel, even if he had been delegated the discretion to make whatever tariff decision he wished. But such a rule would itself invite judicial scrutiny of the President's motives that principles of separation of powers would likely condemn. Cf. Dalton v. Specter, 511 U.S. 462, 474-76 (1994) (rejecting abuse-of-discretion review of President's decisions and citing cases in support).
56. Bowsher, 478 U.S. at 721-27.
57. Whether maintaining control over the budget cutter was in fact one of the goals of the original legislation was itself contested in Bowsher. Compare id. at 725 n.4 (contrasting degree of control Congress exercised over Comptroller General with lesser control it exercised over independent bodies), with id. at 785 (Blackmun, J., dissenting) (arguing that Congress assigned budget-cutting task to Comptroller General because it expected him to act independently).
58. See id. at 776-78, 783-87 (Blackmun, J., dissenting) (arguing that proper remedy for unconstitutional scheme in Bowsher was invalidation of statutory provisions that allowed Congress to directly participate in removal of Comptroller General).
59. Pub. L. No. 101-647, § 1702, 104 Stat. 4789, 4844-45 (codified as amended at 18 U.S.C. § 922(q) (2000)).
60. 514 U.S. 549 (1995).
61. See id. at 562. Indeed, the current version of the GFSZA contains just such a jurisdictional element. The original Act of 1990 read: "It shall be unlawful for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone." § 1702(b)(1), 104 Stat. at 4844. Amended a year after Lopez in 1996, the law now reads: "It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone." Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104-208, sec. 657, § 922(q)(2)(A), 110 Stat. 3009, 3009-369 to -370 (1996) (codified as amended at 18 U.S.C. § 922(q)(2)(A)).
62. 413 U.S. 15, 23-26 (1973).
63. U.S. Const. amend. I.
64. Id. amend. V; id. amend. XIV, § 1; see, e.g., Johnson v. California, 545 U.S. 162, 168-73 (2005) (explaining how discriminatory purpose in use of peremptory juror strikes can violate Constitution).
65. 319 U.S. 624 (1943) (invalidating compulsory recitation of Pledge of Allegiance in public schools).
66. See Elk Grove Unified Sch. Dist. v. Newdow (Newdow II), 542 U.S. 1, 8 (2004) (reviewing challenge to school district's policy of daily Pledge of Allegiance recitation and noting that "[c]onsistent with our case law, the School District permits students who object on religious grounds to abstain from the recitation" (citing Barnette, 319 U.S. 624)).
67. See Newdow v. U.S. Cong. (Newdow I), 328 F.3d 466, 490 (9th Cir. 2003) ("[T]he school district's policy and practice of teacher-led recitation of the Pledge, with the inclusion of the added words 'under God,' violates the Establishment Clause."), rev'd on standing grounds sub nom. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1.
68. In the Supreme Court, only three Justices would have reached the merits, and only one of them, Justice O'Connor, squarely considered the objection that the Pledge serves an impermissible purpose of advancing religion. In her view, this argument failed because the original congressional purpose was secular and "the subsequent social and cultural history of the Pledge shows that its original secular character was not transformed by its amendment." Newdow II, 542 U.S. at 41 (O'Connor, J., concurring in the judgment). Justice O'Connor did not address the purpose of the California legislature or the Elk Grove Unified School District in adopting, respectively, the state law and the district policy that required the recitation of the Pledge. Neither did the Ninth Circuit, which found that the school district's policy impermissibly "coerce[d] a religious act," Newdow I, 328 F.3d at 487, although it did note some questionable language in the House Judiciary Committee's report that accompanied the 1954 amendment. Id. at 488 n.7 (quoting H.R. Rep. No. 83-1693, at 3 (1954), reprinted in 1954 U.S.C.C.A.N. 2339, 2341).
69. See Christopher Eisgruber & Lawrence Sager, Religious Freedom and the Constitution 152 (2007) (proposing "under Law" alternative as constitutionally permissible option).
70. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 270 n.21 (1977) ("Proof that the decision . . . was motivated in part by a racially discriminatory purpose would not necessarily have required invalidation of the challenged decision. Such proof would . . . [shift] the burden [to the government] of establishing that the same decision would have resulted even had the impermissible purpose not been considered.").
71. See Exxon Corp. v. Hunt, 475 U.S. 355, 376 (1986) (remanding to state court for determination of whether provisions of state law that served purposes that were preempted by Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Pub. L. No. 96-510, 94 Stat. 2767 (codified as amended in scattered sections of 42 U.S.C.), were severable from other provisions of same law that served valid purposes).
72. It is not unrealistic to suppose that federal, state, and local bodies would use fallback provisions to push the edge of the envelope of what the courts permit in the area of the Establishment Clause. See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 297, 301 (2000) (invalidating on Establishment Clause grounds official prayer at public school football games and noting that school district in question had made adoption of one version of prayer policy contingent on court enjoining even more problematic version of policy).
73. See, e.g., Mitchell v. Helms, 530 U.S. 793, 809 (2000) (plurality opinion) ("If the religious, irreligious, and areligious are all alike eligible for governmental aid, no one would conclude that any indoctrination that any particular recipient conducts has been done at the behest of the government.").
74. See Edwards v. Aguillard, 482 U.S. 578, 636-39 (1987) (Scalia, J., dissenting) ("[W]hile it is possible to discern the objective 'purpose' of a statute . . . or even the formal motivation for a statute where that is explicitly set forth . . . , discerning the subjective motivation of those enacting the statute is, to be honest, almost always an impossible task."); United States v. O'Brien, 391 U.S. 367, 383 (1968) ("Inquiries into congressional motives or purposes are a hazardous matter."). See generally Laurence H. Tribe, The Mystery of Motive, Private and Public: Some Notes Inspired by the Problems of Hate Crime and Animal Sacrifice, 1993 Sup. Ct. Rev. 1 (exploring puzzles created by motive tests in legislation and constitutional doctrine).
75. 472 U.S. 38, 56-57 & nn.43-44, 59-60 (1985) (noting court filing by Governor and testimony by legislation's prime sponsor).
76. See id. at 66 (Powell, J., concurring) (remarking upon state's failure "to identify any nonreligious reason for the statute's enactment").
77. See McCreary County v. ACLU of Ky., 125 S. Ct. 2722, 2736-37 (2005) (finding impermissible purpose of advancing religion in Ten Commandments display based on evolution of that display over time, even if last act by county viewed in isolation could be characterized as secular in nature).
78. For freestanding discussions of the ability of severability to purge the taint of an invalid provision, see Michael C. Dorf, The Heterogeneity of Rights, 6 Legal Theory 269, 279-91 (2000) (arguing that questions about facial challenges can typically be reduced to questions about severability);
79. Mark L. Movsesian, Severability in Statutes and Contracts, 30 Ga. L. Rev. 41, 73-82 (1995) (proposing "textual" approach to replace current "contractual" approach).
80. E.g., 1 Pa. Cons. Stat. Ann. § 1925 (West 1995) ("The provisions of every statute shall be severable.").
81. Act of June 14, 1954, ch. 297, 68 Stat. 249 (codified as amended at 4 U.S.C. § 4 (2000 & Supp. IV 2004)).
82. See Richard H. Fallon, Jr., Commentary, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1351-52 (2000) [hereinafter Fallon, As-Applied] (arguing that constitutional limits on severability arise out of doctrine-specific requirements that some rules be fully specified when enacted).
83. See Eckles v. State, 760 P.2d 846, 849 n.3 (Or. 1988) ("[A] provision of law that takes effect only upon a judicial declaration of the invalidity of another provision of law violates . . . the Oregon Constitution . . . .").
84. See Or. Const. art. I, § 21 (forbidding enactment of any law "the taking effect of which shall be made to depend upon any authority, except as provided in [the Oregon] Constitution").
85. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 474 (2001) ("In the history of the Court we have found the requisite 'intelligible principle' lacking in only two statutes . . . .").
86. See id. (citing examples).
87. See, e.g., INS v. Chadha, 462 U.S. 919, 931-32 (1983) (severing invalid provision of challenged statute and declaring that "invalid portions of a statute are to be severed '[u]nless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not'" (alteration in original) (some internal quotation marks omitted) (quoting Buckley v. Valeo, 424 U.S. 1, 108 (1976) (per curiam))).
88. See infra notes 84-86 and accompanying text.
89. 126 S. Ct. 961, 967 (2006).
90. Id. at 969.
91. See supra note 32.
92. See infra Part V.F.
93. In response to a draft of this Article, my colleague Scott Hemphill suggested that a coercive fallback is not really a fallback at all, in the sense of a provision or provisions designed to substitute for the original legislation. I agree with that characterization, but think that the judgment that a fallback is intended to be coercive rather than substitutive must be the conclusion, rather than the starting point, of the analysis of a seemingly coercive fallback. The principal task of this Part of the Article is to formulate a test for distinguishing genuine substitutive fallbacks from coercive measures that take the nominal form of fallbacks.
94. Act of Apr. 29, 1802, ch. 31, 2 Stat. 156.
95. See Michael W. McConnell, The Story of Marbury v. Madison: Making Defeat Look Like Victory, in Constitutional Law Stories 13, 21-22 (Michael C. Dorf ed., 2004).
96. The Judicial Circuits Act of 1866, ch. 210, § 1, 14 Stat. 209, 209, limited the number of Supreme Court Justices to seven, while the Judiciary Act of 1869, ch. 22, § 1, 16 Stat. 44, 44, restored it to nine.
97. See Franklin D. Roosevelt, Fireside Chat on the "Court Packing" Bill (Mar. 9, 1937), in Selected Speeches, Messages, Press Conferences, and Letters 171, 178-79 (Basil Rauch ed., 1957).
98. See, e.g., Congressional Accountability for Judicial Activism Act of 2004, H.R. 3920, 108th Cong. § 2 (2004) (proposing, in bill introduced by U.S. Representative Ron Lewis (R-KY), that "Congress may, if two thirds of each House agree, reverse a judgment of the United States Supreme Court - (1) if that judgment is handed down after the date of the enactment of this Act; and (2) to the extent that judgment concerns the constitutionality of an Act of Congress"); see also Katharine Q. Seelye, House G.O.P. Begins Listing a Few Judges to Impeach, N.Y. Times, Mar. 14, 1997, at A24 (reporting that Representative Tom DeLay listed, among others, Judge Harold Baer, Jr. as possible candidate for impeachment for his ruling on suppression of evidence in Washington Heights drugs case).
99. These are legislative examples of what Mark Tushnet aptly calls "constitutional hardball." Mark Tushnet, Constitutional Hardball, 37 J. Marshall L. Rev. 523, 523 (2004).
100. See Cal. Health & Safety Code § 44091.2 (West 2006).
101. See Jordan v. Dep't of Motor Vehicles, 89 Cal. Rptr. 2d 333, 336-40 (Ct. App. 1999) (summarizing proceedings in trial court).
102. The California Code provided that: It is the intent of the Legislature that if the impact fee . . . is ruled unconstitutional by an appellate court or the California Supreme Court, or if the state is in any manner prevented by either of those courts from imposing or collecting the fee, the [low-income] repair assistance program . . . and any voluntary vehicle retirement program implemented by the department not be supported by money appropriated from the General Fund. Cal. Health & Safety Code § 44091.2.
103. The Act provided that, as of July 1998, $2 of the then-$6 fee paid by owners of new vehicles exempt from inspection requirements would be used to fund the low-income repair assistance program in the event that the discriminatory tax was found invalid. Act of Oct. 8, 1997, ch. 802, § 9, 1997 Cal. Legis. Serv. 4332, 4339 (West).
104. U.S. Const. art. VI.
105. That case was Jordan, 89 Cal. Rptr. 2d 333. See also supra text accompanying note 95.
106. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 240 (1995) (forbidding Congress from requiring federal courts to reopen final judgments).
107. See, e.g., People v. Bunn, 37 P.3d 380, 382, 394 (Cal. 2002) (holding that Plaut, 514 U.S. 211, is "persuasive for purposes of interpreting California's separation of powers clause," Cal. Const. art. III, § 3).
108. See supra note 96. As it turned out, the legislature never did follow through on the threat. After the appellate court's ruling affirming the trial court's invalidation of the impact fee, Jordan, 89 Cal. Rptr. 2d 333, the Governor decided not to appeal, and fees were refunded. See Cal. Rev. & Tax. Code § 6262 note (West 2006).
109. The principal difference is that the California legislation threatened not to take certain action - namely, appropriating general funds - and in that sense was more like a traditional fallback, whereas other threats would require further affirmative acts of the legislature in order to be carried out.
110. See supra notes 89-90 and accompanying text.
111. See Nixon v. United States, 506 U.S. 224, 226 (1993) (finding nonjusticiable former federal judge's claim that Senate's reliance on committee procedures for trying and convicting him after impeachment was unconstitutional).
112. See Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1364-65 (1953) (fearing "destr[uction of] the essential role of the Supreme Court in the constitutional plan");
113. Laurence H. Tribe, Commentary, Jurisdictional Gerrymandering: Zoning Disfavored Rights Out of the Federal Courts, 16 Harv. C.R.-C.L. L. Rev. 129 passim (1981) (asserting that there are internal and external limits on Congress's ability to reduce federal jurisdiction).
114. Although characterizing such action as a last resort, federal courts have not hesitated to order state legislative bodies to appropriate funds where failure to do so amounts to a constitutional violation. See, e.g., Missouri v. Jenkins, 495 U.S. 33, 57 (1990) ("It is therefore clear that a local government with taxing authority may be ordered to levy taxes in excess of the limit set by state statute where there is reason based in the Constitution for not observing the statutory limitation."). An order to Congress to appropriate funds, however, would raise separation of powers concerns. See Rochester Pure Waters Dist. v. EPA, 960 F.2d 180, 185 (D.C. Cir. 1992) (per curiam) (reversing order to federal government to allocate funds on ground that "[t]he Appropriations Clause of the Constitution vests Congress with exclusive power over the federal purse" (citing U.S. Const. art. I, § 9, cl. 7; Cincinnati Soap Co. v. United States, 301 U.S. 308, 321 (1937))). Perhaps those separation of powers concerns could be overcome to remedy a violation of the independence of the Article III judiciary, which itself is a matter of separation of powers.
115. See discussion supra Part I.D.
116. 5 U.S. (1 Cranch) 299, 309 (1803) (upholding Repeal Act, discussed supra text accompanying notes 89-90).
117. 74 U.S. (7 Wall.) 506, 513-14 (1868) (dismissing habeas petition after Congress repealed jurisdiction over it; stating that in cases challenging jurisdiction stripping, "[w]e are not at liberty to inquire into the motives of the legislature").
118. In Hamdan v. Rumsfeld, the Court found it unnecessary to decide whether the Constitution forbids Congress to withdraw appellate jurisdiction over a pending habeas petition. 126 S. Ct. 2749, 2764 (2006) (holding that "[o]rdinary principles of statutory construction suffice to" resolve jurisdictional question).
119. See Larry D. Kramer, The People Themselves 27 (2004).
120. Pub. L. No. 104-199, 110 Stat. 2419 (1996) (codified at 1 U.S.C. § 7 (2000) and 28 U.S.C. § 1738C (2000)).
121. See Richard B. Russell National School Lunch Act, 42 U.S.C. §§ 1751-1769i (2000 & Supp. III 2003).
122. See Romer v. Evans, 517 U.S. 620, 634-35 (1996) ("'[I]f the constitutional conception of equal protection of the laws means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.'" (alterations in original) (some internal quotation marks omitted) (quoting U.S. Dep't of Agric. v. Moreno, 413 U.S. 528, 534 (1973))); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446-47 (1985); Olech v. Vill. of Willowbrook, 160 F.3d 386, 387-88 (7th Cir. 1998) (holding that plaintiff had legally sufficient cause of action where she claimed that municipality temporarily denied her equal access to water in retaliation for plaintiff's prior successful lawsuit against municipality), aff'd on other grounds, 528 U.S. 562 (2000) (per curiam). For an excellent discussion of purpose scrutiny, see generally Ashutosh Bhagwat, Purpose Scrutiny in Constitutional Analysis, 85 Cal. L. Rev. 297 (1997).
123. Compare Nordlinger v. Hahn, 505 U.S. 1, 17-18 (1992) (upholding, under rational basis scrutiny, acquisition-value real property valuation scheme), with Allegheny Pittsburgh Coal Co. v. County Comm'n, 488 U.S. 336, 344-46 (1989) (striking down on equal protection grounds acquisition-value based practices of tax assessor, where state law mandated that type of property at issue be taxed uniformly throughout state according to estimated market value).
124. As worded, the DOMA Fallback has the draconian consequence of cutting school lunch funding even if a district court ruling invalidating a provision or application is subsequently reversed on appeal. I address the complexities introduced by the decentralized nature of American judicial review in Part V.D, infra, and thus have not cluttered the discussion here with caveats about which court's rulings would trigger the fallback.
125. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 728 (1997) (rejecting due process challenge, in part, because state's law was "rationally related to legitimate government interests").
126. See, e.g., FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 313-14 (1993) ("In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.").
127. See, e.g., Bowen v. Gilliard, 483 U.S. 587, 598-99 (1987) (upholding congressional legislation against constitutional challenge because, in part, it "unquestionably serves Congress' goal of decreasing federal expenditures").
128. See Beach Commc'ns, 508 U.S. at 314-15 ("On rational-basis review, . . . those attacking the rationality of the legislative classification have the burden to negative every conceivable basis which might support it. . . . [I]t is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature." (citations and internal quotation marks omitted)).
129. See South Dakota v. Dole, 483 U.S. 203, 207-08 (1987) ("[O]ur cases have suggested . . . that conditions on federal grants might be illegitimate if they are unrelated 'to the federal interest in particular national projects or programs.'" (quoting Massachusetts v. United States, 435 U.S. 444, 461 (1978) (plurality opinion))).
130. See id. at 211 (considering whether Congress's spending program was unconstitutionally "coercive").
131. See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (plurality opinion).
132. See Richard H. Fallon, Jr., The Supreme Court, 1996 Term - Foreword: Implementing the Constitution, 111 Harv. L. Rev. 54, 57 (1997) ("Identifying the 'meaning' of the Constitution is not the Court's only function. A crucial mission of the Court is to implement the Constitution successfully. In service of this mission, the Court often must craft doctrine that is driven by the Constitution, but does not reflect the Constitution's meaning precisely.").
133. In the federalism context, the Supreme Court has stated: By forcing state governments to absorb the financial burden of implementing a federal regulatory program, Members of Congress can take credit for 'solving' problems without having to ask their constituents to pay for the solutions with higher federal taxes. And even when the States are not forced to absorb the costs of implementing a federal program, they are still put in the position of taking the blame for its burdensomeness and for its defects. Printz v. United States, 521 U.S. 898, 930 (1997); see also New York v. United States, 505 U.S. 144, 168 (1992) ("[W]here the Federal Government compels States to regulate, the accountability of both state and federal officials is diminished."). For critiques of the accountability argument in these cases, see Evan H. Caminker, State Sovereignty and Subordinacy: May Congress Commandeer State Officers to Implement Federal Law?, 95 Colum. L. Rev. 1001, 1061-74 (1995);
134. Roderick M. Hills, Jr., The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and "Dual Sovereignty" Doesn't, 96 Mich. L. Rev. 813, 824-30 (1998).
135. 483 U.S. at 211.
136. Id. at 207-08.
137. Id. at 213-15 (O'Connor, J., dissenting) ("[Congress] is not entitled to insist as a condition of the use of highway funds that the State impose or change regulations in other areas of the State's social and economic life because of an attenuated or tangential relationship to highway use or safety.").
138. Id. at 215-18 (arguing that conditions tied to federal expenditures, if justified solely by spending power, must "relat[e] to how federal moneys [are] to be expended").
139. Lynn A. Baker, Conditional Federal Spending After Lopez, 95 Colum. L. Rev. 1911, 1962-63 (1995).
140. See Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (2000) ("No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.").
141. See 42 U.S.C. § 402(e) (defining eligibility for widows' insurance benefits); id. § 402(f) (defining eligibility for widowers' insurance benefits).
142. See Palmer v. Thompson, 403 U.S. 217, 219 (1971) (upholding closing of public swimming pool in response to desegregation order).
143. See Romer v. Evans, 517 U.S. 620, 632 (1996) (striking down state constitutional amendment because, in part, "[the] sheer breadth [of the amendment] is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects").
144. Cf. id. at 636 (Scalia, J., dissenting) ("The Court has mistaken a Kulturkampf for a fit of spite.").
145. See Heckler v. Mathews, 465 U.S. 728, 731 (1984) (describing 42 U.S.C. § 402 as it existed before the Social Security Act Amendments of 1977, Pub. L. No. 95-216, 91 Stat. 1509 (codified as amended in scattered sections of 2, 26, and 42 U.S.C.)).
146. See Califano v. Goldfarb, 430 U.S. 199 (1977) (holding sex-based classification scheme for widowers unconstitutional under equal protection component of Due Process Clause of Fifth Amendment); Jablon v. Sec'y of Health, Educ. & Welfare, 399 F. Supp. 118 (D. Md. 1975) (holding sex-based classification scheme for husbands unconstitutional under equal protection component of Due Process Clause of Fifth Amendment), aff'd, 430 U.S. 924 (1977); Silbowitz v. Sec'y of Health, Educ. & Welfare, 397 F. Supp. 862 (S.D. Fla. 1975) (same), aff'd, 430 U.S. 924 (1977).
147. See Mathews, 465 U.S. at 733.
148. See id. at 734 (referring to provision as "severability clause," which it was for other purposes).
149. Cf. Heimberger v. Sch. Dist. of Saginaw, 881 F.2d 242, 243-44, 246 (6th Cir. 1989) (dismissing plaintiffs' claim for lack of jurisdiction on redressability grounds because school district's backup policy would "exacerbate[ ] rather than relieve[ ] [plaintiffs'] alleged injury").
150. 465 U.S. at 737-40 (determining that plaintiff had standing); id. at 748-51 (upholding statute against equal protection challenge).
151. Indeed, the Mathews district court took just this view, holding that the nonseverability clause was unconstitutional because it was "'not an expression of the true Congressional intent, but instead [was] an adroit attempt to discourage the bringing of an action by destroying standing.'" Id. at 737 (quoting unpublished appendix).
152. Id. at 731-33, 742 (stating that Congress's elimination of dependency requirement in response to Califano v. Goldfarb, 430 U.S. 199 (1977), caused it to be concerned that "increasing the number of individuals entitled to spousal benefits . . . could create a serious fiscal problem for the Social Security trust fund").
153. For an arguable real life example, see Stilp v. Commonwealth, 905 A.2d 918, 978-80 (Pa. 2006) (disregarding nonseverability clause that tied judicial compensation to unconstitutional provision increasing reimbursements to legislators for expenses without receipts, on ground that nonseverability clause appeared to be coercive); see also Fred Kameny, Are Inseverability Clauses Constitutional?, 68 Alb. L. Rev. 997, 997-99 (2005) (anticipating result in Stilp on ground that nonseverability clause illegitimately threatened judges' own compensation).
154. But see Michael D. Shumsky, Severability, Inseverability, and the Rule of Law, 41 Harv. J. on Legis. 227, 267-69 (2004) (arguing that courts should enforce clear nonseverability provisions).
155. See supra notes 89-93 and accompanying text. As Barry Friedman has argued at length, whether Congress or other political actors attack the Court in any particular era depends on a range of factors, including the strength of the Court. Barry Friedman, The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five, 112 Yale L.J. 153 (2002) (distinguishing academic debates about legitimacy of judicial review from popular critiques of the practice, which tend to be tied closely to the merits);
156. Barry Friedman, The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy, 73 N.Y.U. L. Rev. 333 (1998) (noting how attacks on legitimacy of judicial review waxed and waned in nineteenth century).
157. See, e.g., Mark Tushnet, Taking the Constitution Away from the Courts passim (2000) [hereinafter Tushnet, Taking]; Jeremy Waldron, The Core of the Case Against Judicial Review, 115 Yale L.J. 1346, 1395-401 (2006) (challenging supposedly simplistic notions about "tyranny of the majority" as basis for judicial review). As I have noted elsewhere, in a legal system such as our own, in which the Constitution contains at least part of the rule of recognition, the ability of courts to interpret the Constitution cannot be entirely eliminated.
158. See Matthew D. Adler & Michael C. Dorf, Constitutional Existence Conditions and Judicial Review, 89 Va. L. Rev. 1105, 1201 (2003) ("[T]he Constitution simply cannot be taken away from the courts.").
159. See, e.g., Lawrence G. Sager, Justice in Plainclothes 31-35 (2004) (arguing as empirical matter that courts behave as legislatures' partners, not agents, when interpreting many legislative schemes); id. at 114-17 (arguing that Supreme Court should allow Congress greater flexibility when exercising Fourteenth Amendment, Section Five enforcement power because Court's institutional limitations lead to underenforcement of Constitution's substantive provisions);
160. Michael C. Dorf & Barry Friedman, Shared Constitutional Interpretation, 2000 Sup. Ct. Rev. 61, 81-83 (arguing that there is "a sensitive and difficult constitutional line between appropriate [congressional] testing of constitutional bounds and defiance," but that "in the end the say is the Court's"); Post & Siegel, supra note 20, at 517-21.
161. See, e.g., Larry Alexander & Frederick Schauer, Defending Judicial Supremacy: A Reply, 17 Const. Comment. 455, 482 (2000) (arguing that rule of law requires "a single and authoritative interpreter" to realize values of "coordination and settlement," and concluding that Supreme Court best serves that role);
162. Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 Harv. L. Rev. 1359, 1369-81 (1997) [hereinafter Alexander & Schauer, Extrajudicial] (arguing that authoritative judiciary is best institution to achieve constitutional values of stability and settlement and is best able to remove "transcendent questions from short-term majoritarian control").
163. Broadly speaking, I take the "cooperative" view. See Dorf & Friedman, supra note 148, at 107 (providing example of when it would be appropriate for Court to alter settled jurisprudence and "show respect for the capacity of political actors to improve upon the Court's own judgment about what satisfies the constitutional standards it has announced"); Michael C. Dorf, The Domain of Reflexive Law, 103 Colum. L. Rev. 384, 400 (2003) (book review) (arguing that if courts are to be responsive to popular, evolving understandings of rights, they should give deference to "bipartisan majorities in Congress [that] expand constitutional understandings of" various rights).
164. For simplicity, in the balance of this section, I shall refer to Congress, although much of what I say applies as well to state legislatures.
165. Lincoln stated: [I]f the policy of the Government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), reprinted in Abraham Lincoln: His Speeches and Writings 579, 585-86 (Roy P. Basler ed., 1969);
166. accord Edwin Meese III, The Law of the Constitution, 61 Tul. L. Rev. 979, 983 (1987) (asserting that constitutional decisions of Supreme Court do "not establish a supreme law of the land that is binding on all persons and parts of government henceforth and forevermore").
167. For scholarly approval of this view, see, for example, Sanford Levinson, Could Meese Be Right This Time?, 61 Tul. L. Rev. 1071, 1077 (1987) (contending that under Meese's theory, Constitution can serve "as a public source of social understanding" by enabling "all citizens to share in the debates about the meaning of our tenuously shared life"); Michael W. McConnell, Comment, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harv. L. Rev. 153, 181-83 (1997) (arguing that Section Five of Fourteenth Amendment "was born of the conviction that Congress - no less than the courts - has the duty and the authority to interpret the Constitution");
168. Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217, 272-84 (1994) [hereinafter Paulsen, Most Dangerous Branch] (approving Lincoln's reasoning and actions as "perfectly consistent with the Constitution's scheme of independent, co-equal branches").
169. 60 U.S. (19 How.) 393 (1857); see also Abraham Lincoln, The Dred Scott Decision: Speech at Springfield, Illinois (June 26, 1857) [hereinafter, Lincoln, The Dred Scott Decision], reprinted in Abraham Lincoln: His Speeches and Writings, supra note 152, at 352, 355-57.
170. See infra notes 180-181 and accompanying text; cf. Paulsen, Most Dangerous Branch, supra note 152, at 274-75 ("Congress may 'nonacquiesce' in holdings of unconstitutionality by re-passing legislation, sometimes in slightly altered form, in order to have the issue of its constitutionality relitigated.").
171. Pub. L. No. 108-105, § 2, 117 Stat. 1201, 1201-06 (codified at 18 U.S.C. § 1531 note (Supp. IV 2004)).
172. 530 U.S. 914 (2000).
173. § 2(3)-(7), (13), (14), 117 Stat. at 1201-06.
174. Id. § 2(8)-(12), 117 Stat. at 1202-03.
175. See Planned Parenthood Fed'n of Am., Inc. v. Gonzales, 435 F.3d 1163 (9th Cir. 2006), cert. granted, 126 S. Ct. 2901 (2006) (mem.); Carhart v. Gonzales, 413 F.3d 791 (8th Cir. 2005), cert. granted, 126 S. Ct. 1314 (2006) (mem.).
176. See § 2(8)-(12), 117 Stat. at 1202-03 (citing Turner Broad. Sys., Inc. v. FCC (Turner II), 520 U.S. 180, 195-96 (1997); Turner Broad. Sys., Inc. v. FCC (Turner I), 512 U.S. 622, 665-66 (1994) (plurality opinion); Katzenbach v. Morgan, 384 U.S. 641, 653 (1966); City of Rome v. United States, 472 F. Supp. 221, 238 (D.D.C. 1979), aff'd, 446 U.S. 156 (1980).
177. Turner I, 512 U.S. at 666 (plurality opinion) (quoting Sable Commc'ns of Cal., Inc. v. FCC, 492 U.S. 115, 129 (1989)).
178. For example, after the Court's doctrinally straightforward but politically unpopular decision in Texas v. Johnson, 491 U.S. 397 (1989), which invalidated a Texas law banning flag desecration, Congress quickly enacted a federal ban that the government defended on the grounds that, inter alia, the Court should "reconsider [its] rejection in Johnson of the claim that flag burning as a mode of expression, like obscenity or 'fighting words,' does not enjoy the full protection of the First Amendment." United States v. Eichman, 496 U.S. 310, 315 (1990). The Court rejected the proposal out of hand. See id. ("This we decline to do."); see also City of Boerne v. Flores, 521 U.S. 507, 536 (1997) ("[Congress's] conclusions are entitled to much deference. . . . [Its] discretion is not unlimited, however . . . .").
179. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 867 (1992) ("[T]o overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question.").
180. Let us put aside the claim of some philosophers that one cannot meaningfully distinguish between fact and value. See, e.g., Hilary Putnam, The Many Faces of Realism 62-71 (1987);
181. Richard Rorty, Consequences of Pragmatism, at xvi (1982);
182. Richard Rorty, Philosophy and the Mirror of Nature 363-65, 387 (1979).
183. Lincoln, The Dred Scott Decision, supra note 153, at 357 ("I have said, in substance, that the Dred Scott decision was, in part, based on assumed historical facts which were not really true.").
184. Id. at 362 ("My good friends, read that carefully over some leisure hour, and ponder well upon it - see what a mere wreck - mangled ruin - it makes of our once glorious Declaration."). Although progressive in his day, Lincoln's speech is jarring to twenty-first century sensibilities for, among other things, his argument that extension of slavery into the territories should be opposed on the ground that with slavery comes miscegenation. See id. at 364 ("I have said that the separation of the races is the only perfect preventive of amalgamation.").
185. In Matthew Adler's terminology, Lincolnians would thus count as deep popular constitutionalists. Matthew D. Adler, Popular Constitutionalism and the Rule of Recognition: Whose Practices Ground U.S. Law?, 100 Nw. U. L. Rev. 719, 722, 798-99 (2006) ("The [deep] 'popular constitutionalist,' faced with official resistance to the claim that officials should defer to citizen constitutional views, would surely be tempted to appeal to citizen opinion on the very issue of constitutional authority.").
186. See, e.g., Dorf & Friedman, supra note 148, at 83 ("Of course, in the end the say is the Court's.").
187. See Calabresi, supra note 30, at 16-21 (proposing "constitutional remand" and purporting to find authority for practice in Supreme Court precedent).
188. See Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982, ch. 11, § 33 (U.K.) (permitting national and provincial legislatures to continue a law in effect for five years notwithstanding its judicial invalidation). The Ottawa parliament has never invoked its power under the notwithstanding clause, although legislators have frequently threatened to do so, and provincial legislatures have in fact used the clause. For example, the Quebec Parliament overrode the Canadian Supreme Court's invalidation of provisions of a language law. See Ford v. Quebec, [1988] 2 S.C.R. 712.
189. In the United Kingdom, the Law Lords and other specified courts can review an act of Parliament and issue a "declaration of incompatibility" with the Human Rights Act of 1998, but Parliament retains the final decision whether to change the law in accordance with the Court's holding. See Human Rights Act, 1998, c. 42, § 4 (U.K.).
190. See Quill v. Vacco, 80 F.3d 716, 735, 738-43 (2d Cir. 1996) (Calabresi, J., concurring) (voting to strike down state ban on assisted suicide where enforcement had "fallen into virtual desuetude," while reserving judgment on validity of ban if state were to "reenact [the ban] while articulating the reasons for the distinctions it makes in the laws, and expressing the grounds for the prohibitions themselves"), rev'd, 521 U.S. 793 (1997).
191. See Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 459 (1897) (articulating bad-man principle).
192. See Alexander & Schauer, Extrajudicial, supra note 149, at 1387 (arguing that nonjudicial officials, no less than lower court judges, can and should subjugate their understanding of Constitution to that of Supreme Court).
193. 358 U.S. 1, 18 (1958) ("[Marbury v. Madison] declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system." (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803))).
194. Id. The word I have replaced by an ellipsis is "state," but it is clear that the Justices would apply the same principle to acts of Congress. See City of Boerne v. Flores, 521 U.S. 507, 529 (1997) ("If Congress could define its own powers by altering the Fourteenth Amendment's meaning, no longer would the Constitution be 'superior paramount law, unchangeable by ordinary means.'" (quoting Marbury, 5 U.S. (1 Cranch) at 177)).
195. See, e.g., Tushnet, Taking, supra note 147, at 8 ("The Little Rock case presented a particularly appealing setting for asserting judicial supremacy. . . . But there are other cases where strong assertions of judicial supremacy are less appealing. The notorious Dred Scott case makes the point.").
196. See, e.g., Alexander & Schauer, Extrajudicial, supra note 149, at 1362 ("[W]e defend Cooper and its assertion of judicial primacy without qualification . . . .").
197. Thus, there is no judicially enforceable doctrine requiring Congress to deliberate. But see Victor Goldfeld, Note, Legislative Due Process and Simple Interest Group Politics: Ensuring Minimal Deliberation Through Judicial Review of Congressional Processes, 79 N.Y.U. L. Rev. 367 (2004) (arguing for such doctrine). However, a variety of doctrines may have the effect of providing Congress with incentives to deliberate. These include clear statement rules, see, e.g., Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991) ("If Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute." (brackets and internal quotation marks omitted)), and judicial deference to congressional findings of fact based on congressional hearings. See, e.g., United States v. Lopez, 514 U.S. 549, 563 (1995) (explaining that Congress has no obligation to make formal findings but that such findings could help Court "to evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye").
198. This law was titled the Women's Health and Human Life Protection Act and was codified at S.D. Codified Laws §§ 22-17-7 to -12 (2006).
199. See Monica Davey, South Dakota Rejects Abortion Ban as Ballot Measures Nationwide Draw Voters to Polls, N.Y. Times, Nov. 8, 2006, at P8. We can assume that the legislators who voted for the bill expected it to be challenged in the courts, not the voting booth. See Cynthia Gorney, Reversing Roe, New Yorker, June 26, 2006, at 47, 47 ("The legislators who wrote [the bill] . . . assumed that it would face an immediate legal challenge; that a federal judge would declare it unconstitutional and block its enforcement before the . . . startup date; and that it would then begin a journey through the appellate system and toward the Supreme Court."); id. (quoting "outspoken defender[ ]" of law, State Senator Bill Napoli, as saying: "'We only wanted to challenge Roe v. Wade[, 410 U.S. 113 (1973)].'").
200. South Dakota courts apply a presumption of "separability." See Simpson v. Tobin, 367 N.W.2d 757, 768 (S.D. 1985).
201. See Fallon, As-Applied, supra note 77, at 1347 n.132, 1350.
202. For additional arguments for disallowing severability to cure overly broad abortion restrictions, see Dorf, Challenges, supra note 32, at 270-71.
203. See United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947) (explaining so-called Hand formula).
204. The maximum marginal tax rate on ordinary income is currently thirty-five percent, see 26 U.S.C. § 1(i)(2) (2000 & Supp. IV 2004), while the maximum rate for capital gains is twenty-eight percent, and usually lower, even for high-income earners, see id. § 1(h)(1)(E) (2000).
205. See Michelle Arnopol Cecil, Toward Adding Further Complexity to the Internal Revenue Code: A New Paradigm for the Deductibility of Capital Losses, 1999 U. Ill. L. Rev. 1083, 1084 ("Those provisions in the [Internal Revenue] Code pertaining to capital gains and losses alone account for a significant amount of its complexity.").
206. See 2 U.S.C. § 434(b) (2000).
207. In the Court's most recent pronouncement on the subject, three Justices criticized current doctrine as permitting too-strict limits on campaign contributions. See Randall v. Sorrell, 126 S. Ct. 2479, 2501 (2006) (Kennedy, J., concurring in the judgment); id. at 2501-06 (Thomas, J., joined by Scalia, J., concurring in the judgment). A fourth Justice hinted that he might be willing to reexamine Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), if the issue were squarely presented. See Randall, 126 S. Ct. at 2500-01 (Alito, J., concurring in part and concurring in the judgment) ("Whether or not a case can be made for reexamining Buckley in whole or in part, what matters is that respondents do not do so here, and so I think it unnecessary to reach the issue."). We can imagine that personnel changes or intimations of a possible change of heart from current Justices lead Congress to worry that five Justices would be willing to overrule campaign finance case law.
208. See Bruce Ackerman & Ian Ayres, Voting with Dollars (2002).
209. Id. passim.
210. Id. at 26-30.
211. Due process requires fair notice that conduct is criminal. See, e.g., City of Chicago v. Morales, 527 U.S. 41, 56 (1999) (plurality opinion) (explaining that statute may violate void-for-vagueness doctrine either because it fails to provide sufficient notice or because "it may authorize and even encourage arbitrary and discriminatory enforcement"); Kolender v. Lawson, 461 U.S. 352, 357 (1983) ("[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement."); Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972) (holding that everyone is "'entitled to be informed as to what the State commands or forbids'" (quoting Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939))). Similarly, fears that speakers will self-censor are said to justify a parallel limit on the vagueness of laws abridging speech. See, e.g., Ashcroft v. Free Speech Coal., 535 U.S. 234, 244 (2002) ("The Constitution gives significant protection from overbroad laws that chill speech within the First Amendment's vast and privileged sphere."); Broadrick v. Oklahoma, 413 U.S. 601, 611-12 (1973) (recognizing need for "breathing space" that underwrites First Amendment vagueness and overbreadth doctrines).
212. See, e.g., 19 U.S.C. § 1516a(g)(7)(B) (2000) ("In the event that the provisions of subparagraph (A) are held unconstitutional . . . , the provisions of this subparagraph shall take effect."); Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. No. 99-177, § 274(f)(1), 99 Stat. 1037, 1100 ("In the event that any of the reporting procedures described in section 251 are invalidated, then any report . . . shall be transmitted . . . ."); Ala. Code § 15-18-82.1(c) (LexisNexis Supp. 2005) ("If electrocution or lethal injection is held to be unconstitutional by [certain courts under certain circumstances], all persons sentenced to death for a capital crime shall be executed by any constitutional method of execution.").
213. See generally Jill E. Fisch, Retroactivity and Legal Change: An Equilibrium Approach, 110 Harv. L. Rev. 1055 (1997) (cataloguing and analyzing various ways in which laws can have retroactive effect).
214. Cal. Health & Safety Code § 44091.2 (West 2006). Still more unusual in its precision is the Alabama death penalty fallback provision, which states: If electrocution or lethal injection is held to be unconstitutional by the Alabama Supreme Court under the Constitution of Alabama of 1901, or held to be unconstitutional by the United States Supreme Court under the United States Constitution, or if the United States Supreme Court declines to review any judgment holding a method of execution to be unconstitutional under the United States Constitution made by the Alabama Supreme Court or the United States Court of Appeals that has jurisdiction over Alabama, all persons sentenced to death for a capital crime shall be executed by any constitutional method of execution. Ala. Code § 15-18-82.1(c).
215. 2 U.S.C. § 434(f)(3)(A)(ii) (Supp. IV 2004).
216. Id. § 437h note (Judicial Review) ("The action shall be filed in the United States District Court for the District of Columbia and shall be heard by a 3-judge court convened pursuant to section 2284 of title 28, United States Code." (internal quotation marks omitted)).
217. See 28 U.S.C. § 1257(a) (2000) (granting Supreme Court jurisdiction over cases following "[f]inal judgments" of state high courts); id. § 1291 ("The courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the district courts of the United States . . . ." (emphasis added)).
218. It would be more sensible for Congress to grant the Supreme Court original jurisdiction over challenges to laws containing fallbacks, but Marbury v. Madison precludes this option. 5 U.S. (1 Cranch) 137, 174 (1803) (construing Article III to forbid Congress from expanding Supreme Court's original jurisdiction). Indeed, if Congress could fast track such challenges directly to the Supreme Court, the justification for writing a fallback in the first place would diminish, because the temporal gap between judicial invalidation and legislative response would narrow: As soon as the Court invalidated the original provision, Congress could begin its deliberations regarding new legislation.
219. See Act of June 27, 1988, Pub. L. No. 100-352, 102 Stat. 662 (eliminating mandatory jurisdiction provisions in 28 U.S.C. §§ 1254, 1257, 1258).
220. E.g., Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 477-78 (1981) ("[S]tate courts may assume subject-matter jurisdiction over a federal cause of action absent provision by Congress to the contrary or disabling incompatibility between the federal claim and state-court adjudication.").
221. See supra note 196 and accompanying text.
222. The Supreme Court has long held that cases validly in federal court but presenting no federal question are not within its appellate jurisdiction. See Michigan v. Long, 463 U.S. 1032, 1041-42 (1983) ("The principle that we will not review judgments of state courts that rest on adequate and independent state grounds is based, in part, on 'the limitations of our own jurisdiction.'" (quoting Herb v. Pitcairn, 324 U.S. 117, 125 (1945))).
223. See, e.g., Neary v. Regents of the Univ. of Cal., 834 P.2d 119, 124 (Cal. 1992) (observing that California trial court decisions create no binding precedent); 18 James Wm. Moore et al., Moore's Federal Practice ¶ 134.02[1][d] (3d ed. 2006) ("A decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case." (citing Old Republic Ins. Co. v. Chuhak & Tecson, P.C., 84 F.3d 998, 1003 (7th Cir. 1996))).
224. See Fallon, As-Applied, supra note 77, at 1339 ("A court has no power to remove a law from the statute books. When a court rules that a statute is invalid - whether as applied, in part, or on its face - the legal force of its decision resides in doctrines of claim and issue preclusion and of precedent." (footnotes omitted)).
225. 18 Moore et al., supra note 205, ¶ 134.02[1][c] ("The published decision of a panel of a court of appeals is a decision of the court and carries the weight of stare decisis."); id. ¶ 134.02[2] ("[T]he district courts in a circuit owe obedience to a decision of the court of appeals in that circuit and ordinarily must follow it until the court of appeals overrules it.").
226. See Etcheverry v. Tri-Ag Serv., Inc., 993 P.2d 366, 368 (Cal. 2000) ("While we are not bound by decisions of the lower federal courts, even on federal questions, they are persuasive and entitled to great weight.").
227. Under Harlow v. Fitzgerald, a civil rights plaintiff can only overcome the qualified immunity that protects enforcement officers if the former alleges a violation of a "clearly established . . . constitutional right[ ]." 457 U.S. 800, 818 (1982). Nothing in the Court's cases indicates that a decision of a state court or lower federal court cannot clearly establish a right. Compare id., with 28 U.S.C. § 2254(d)(1) (2000) (permitting habeas petitioner in state custody to obtain relief in federal court only upon establishing that his conviction rests on "a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States").
228. See Fed. R. Civ. P. 23 (governing federal class actions and requiring that class satisfy requirements of numerosity, commonality, typicality, and adequacy of representation).
229. See City of Los Angeles v. Lyons, 461 U.S. 95, 105-06 (1983) (requiring class action plaintiff to demonstrate likelihood of future injury at defendants' hands to establish standing for injunctive relief).
230. See discussion supra Part V.B.
231. Martin v. Wilks, 490 U.S. 755, 761 (1989) (quoting Hansberry v. Lee, 311 U.S. 32, 40 (1940)).
232. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (discussing "irreducible constitutional minimum of standing"); Warth v. Seldin, 422 U.S. 490, 500-01 (1975) (differentiating between Congress's authority to alter prudential standing limits and its inability to reduce Article III's standing requirements).
233. Compare Fed. R. Civ. P. 4(k)(1)(A) ("Service of a summons or filing a waiver of service is effective to establish jurisdiction over the person of a defendant . . . who could be subjected to the jurisdiction of a court of general jurisdiction in the state in which the district court is located . . . ."), with Fed. R. Civ. P. 4(k)(1)(D) ("Service of a summons or filing a waiver of service is effective to establish jurisdiction over the person of a defendant . . . when authorized by a statute of the United States.").
234. 16 Moore et al., supra note 205, ¶ 108.120 ("[T]he source of constitutional due process limits on the exercise of federal court jurisdiction is the Due Process Clause of the Fifth Amendment . . . .").
235. See Lockerty v. Phillips, 319 U.S. 182, 187 (1943) ("Article III left Congress free to establish inferior federal courts or not as it thought appropriate. It could have declined to create any such courts, leaving suitors to the remedies afforded by state courts, with such appellate review by this Court as Congress might prescribe."); Cary v. Curtis, 44 U.S. (3 How.) 236, 245 (1845) (discussing Congress's plenary power over lower federal courts' jurisdiction); Paul M. Bator, Congressional Power over the Jurisdiction of the Federal Courts, 27 Vill. L. Rev. 1030, 1030 (1982) ("The Constitutional text itself makes clear that Congress is free to decide that there should be no lower federal courts at all."). See generally Richard H. Fallon, Jr. et al., Hart and Wechsler's The Federal Courts and the Federal System 330-37 (5th ed. 2003) (exploring debate over Congress's power to control lower federal courts' jurisdiction).
236. U.S. Const. art. III, § 1.
237. See Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 Colum. L. Rev. 723, 754-55 (1988) (raising but not answering question whether Congress could require Supreme Court to disregard precedent); Michael Stokes Paulsen, Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey?, 109 Yale L.J. 1535 (2000) (arguing that federal statute abrogating stare decisis would be valid).
238. The NAFTA Implementation Act authorizes a facial constitutional challenge to the binational panel provisions of NAFTA to be filed exclusively as an original action in the United States Court of Appeals for the D.C. Circuit, 19 U.S.C. § 1516a(g)(4)(A) (2000), with automatic review of that court's decision by the Supreme Court. Id. § 1516a(g)(4)(H). Invalidation under this procedure triggers the NAFTA fallback. Id. § 1516a(g)(7)(B). Similarly, sections 403(a)(1) and (3) of BCRA, which appear at 2 U.S.C. § 437h note (Supp. IV 2004) (Judicial Review), provide that any action for declaratory or injunctive relief challenging BCRA "shall be filed in the United States District Court for the District of Columbia and shall be heard by a 3-judge court . . . . A final decision in the action shall be reviewable only by appeal directly to the Supreme Court of the United States." And the Gramm-Rudman-Hollings Act was to similar effect. See 2 U.S.C. § 922(a)(5) (2000) ("Any action brought under [the expedited review provisions] shall be heard and determined by a three-judge court in accordance with section 2284 of title 28."). In turn, 28 U.S.C. § 2284 (2000) sets out the composition and procedures of the three-judge district court panels, and 28 U.S.C. § 1253 establishes the direct right of appeal from these panels to the Supreme Court.
239. See supra text accompanying notes 202-204.
240. Ayotte v. Planned Parenthood of N. New Eng., 126 S. Ct. 961, 967 (2006) (citing United States v. Raines, 362 U.S. 17, 20-22 (1960)).
241. See, e.g., Dorf, Challenges, supra note 32, at 251-83; Fallon, As-Applied, supra note 77, at 1342-59; Marc E. Isserles, Overcoming Overbreadth: Facial Challenges and the Valid Rule Requirement, 48 Am. U. L. Rev. 359, 421-56 (1998).
242. 424 U.S. 319 (1976).
243. Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004) (plurality opinion) (quoting Mathews, 424 U.S. at 335). The Court further explains: "The Mathews calculus then contemplates a judicious balancing of these concerns, through an analysis of 'the risk of an erroneous deprivation' of the private interest if the process were reduced and the 'probable value, if any, of additional or substitute procedural safeguards.'" Id. (quoting Mathews, 424 U.S. at 335).
244. See Goldberg v. Kelly, 397 U.S. 254, 264 (1970) ("[W]hen welfare is discontinued, only a pre-termination evidentiary hearing provides the recipient with procedural due process.").
245. Consider a gruesome example. A number of states have laws providing that in the event that the primary method of execution shall be found unconstitutional, some alternative method shall be used. See Ala. Code § 15-18-82.1(c) (LexisNexis Supp. 2005) (authorizing death by "any constitutional method of execution" in event that electrocution or lethal injection is held invalid on state or federal constitutional grounds); Ark. Code Ann. § 5-4-617(b) (2006) (providing for electrocution as fallback method of execution); 725 Ill. Comp. Stat. Ann. 5/119-5(a)(2) (West 2006) (same). These fallback execution laws do not distinguish between facial and as-applied invalidation of the primary method of execution. Yet it is possible for a method of execution to be facially valid but to constitute cruel and unusual punishment in particular circumstances. Thus, in Rupe v. Wood, the district court found that death by hanging was not facially unconstitutional but that hanging an obese inmate violates the Eighth Amendment because of the significant risk of decapitation. 863 F. Supp. 1307, 1314-15 (W.D. Wash. 1994), vacated as moot, 93 F.3d 1434 (9th Cir. 1996). At the time, Washington law provided that a condemned inmate would be hanged unless he chose lethal injection. See Wood, 93 F.3d at 1438. Because Rupe had not affirmatively chosen lethal injection, arguably he could not be executed by any state-approved method. Clearly, however, the state legislature's preference would have been to execute him by lethal injection in the event that he failed to elect a method and a court invalidated the default method. Had the legislature anticipated this particular as-applied invalidation, it might have written a fallback ensuring that in the event of as-applied or facial invalidation of one or more methods of execution, the condemned would be executed by a permissible method. As it happened, while the appeal was pending, the Washington legislature changed the default method to lethal injection, resulting in the dismissal of the constitutional challenge to hanging as moot. Id. at 1438-39.
246. I limit my discussion of this question to federal court because the Article III standing doctrine does not apply in state courts. See ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989) ("[T]he constraints of Article III do not apply to state courts, and accordingly the state courts are not bound by the limitations of a case or controversy or other federal rules of justiciability even when they address issues of federal law . . . ."). Similar issues arise in states with parallel justiciability limits. For a detailed discussion of states' justiciability doctrines, see generally Helen Hershkoff, State Courts and the "Passive Virtues": Rethinking the Judicial Function, 114 Harv. L. Rev. 1833 (2001).
247. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) ("[I]t must be 'likely,' as opposed to merely 'speculative,' that the injury will be 'redressed by a favorable decision.'" (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38, 43 (1976))).
248. See supra note 141 and accompanying text.
249. For a discussion of the third-party standing doctrine, see Craig v. Boren, 429 U.S. 190, 192-97 (1976).
250. This assumption will not always hold. We can imagine provisions such that F and P prohibit the exact same conduct but the constitutionally significant differences between them relate to structures or procedures, rather than prohibited conduct. See discussion supra Part I.B.
251. See, e.g., Dorf, Challenges, supra note 32, at 261-64; Richard H. Fallon, Jr., Making Sense of Overbreadth, 100 Yale L.J. 853, 867-75 (1991).
252. See Matthew D. Adler, Rights, Rules, and the Structure of Constitutional Adjudication: A Response to Professor Fallon, 113 Harv. L. Rev. 1371, 1402-06 (2000) (discussing valid-rule principle in both strong and weak forms, and concluding that both are "incorrect"); Dorf, Challenges, supra note 32, at 242-49 (providing rationales to support valid-rule principle); Henry Paul Monaghan, Overbreadth, 1981 Sup. Ct. Rev. 1, 3 ("Under 'conventional' standing principles, a litigant has always had the right to be judged in accordance with a constitutionally valid rule of law.").
253. See Dorf, Challenges, supra note 32, at 278.
254. See Allen v. Wright, 468 U.S. 737, 750-51 (1984) (distinguishing between prudential standing limits, including third-party standing, and constitutionally required limits, including redressability).
255. Fallon, As-Applied, supra note 77, at 1351 ("[D]emands for relatively full specification and limits on severability are aspects of the particular constitutional tests developed by the Supreme Court to enforce specific constitutional provisions . . . .").
256. 501 U.S. 312, 337-38 (1991) (Marshall, J., dissenting).
257. Id. at 338.
258. See Saucier v. Katz, 533 U.S. 194, 201 (2001) (setting forth this order of operations).
259. See id. (stating that Court's reasoning in resolving threshold inquiry "is the process for the law's elaboration from case to case," and that "[t]he law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer's conduct was unlawful in the circumstances of the case").
260. See William A. Fletcher, The Structure of Standing, 98 Yale L.J. 221, 224 (1988) ("[C]urrent standing law is a relatively recent creation.").
261. See, e.g., FEC v. Beaumont, 539 U.S. 146, 156 (2003) (describing 2 U.S.C. § 441b (Supp. IV 2004) as "the law" in as-applied First Amendment challenge); see also U.S.C. § 441b note (2000) (Amendments) (noting prior amendment to law).
262. See supra notes 233, 237 and accompanying text.
263. The classic modern statement comes from United States v. Carolene Products Co.: [T]he existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators. 304 U.S. 144, 152 (1938).
264. See, e.g., City of Boerne v. Flores, 521 U.S. 507, 536 (1997) (concluding that Religious Freedom Restoration Act of 1993 (RFRA), Pub. L. No. 103-141, 107 Stat. 1488, "was designed to control cases and controversies, such as the one before [the Court]; but as the provisions of the federal statute here invoked are beyond congressional authority, it is this Court's precedent, not RFRA, which must control").
265. But not entirely unrealistic. Where a constitutional test requires "narrow tailoring," the fallback may alert the court to the possibility that the original provision is overbroad. See McConnell v. FEC, 251 F. Supp. 2d 176, 367-68 (D.D.C. 2003) (Henderson, J., concurring in the judgment in part and dissenting in part) ("The wording - indeed the very inclusion in the statute - of the fall-back definition informs any interpretation of the primary definition . . . ."). But the argument may well be flawed in that a law can be narrowly tailored even if another, less effective, law would trench less on constitutional interests. As John Hart Ely explained, it is nearly always possible for a law that burdens expression to burden expression at least a little less by achieving a little less of its otherwise-valid objective; accordingly, the least-restrictive-means test is really a balancing test. John Hart Ely, Comment, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 Harv. L. Rev. 1482, 1484-90 (1975). Further, insofar as a fallback provision does show that an original provision fails narrow tailoring, that would be equally true if the fallback had not been enacted but had instead been merely hypothesized by the parties challenging the law.