Comments on: Abortion: narrowing the focus

By: Steve

Steve — Thu, 01 Dec 2005 21:04:46 +0000

After what five Justices did to 18 U.S.C. Â§ 3553 in United States v. Booker, does anyone find it ironic that the plaintiffs in Ayotte argued vehemently that engrafting an emergency exception onto the statute would violate separation of powers principles? Given what the Booker remedial majority did, this Court appears to have no qualms about re-writing unconstitutional statutes. The only difference here is that the Court would be re-writing an unconstitutional STATE statute, and federalism principles usually preclude a federal court — let alone the US Supreme Court — from re-writing a state statute.

By: cjd

cjd — Wed, 30 Nov 2005 21:10:45 +0000

I’m not contesting this; I’m simply wondering why it’s distintuishable from Casey:

“The analysis does not end with the one percent of women upon whom the statute operates; it begins there. Legislation is measured for consistency with the Constitution by its impact on those whose conduct it affects. . . . The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.”

In the light of this, why does the one-in-a-thousand comment matter?

By: Simon

Simon — Wed, 30 Nov 2005 21:07:07 +0000

"The disagreement is whether this particular statute satisfies the conditions for being facially invalidated." But the condition for facial invalidity - per Salerno - is that a facial challenge can only be sustained if there are no conditions in which it could constitutionally be applied, right? Are there any circumstances in which this act could be applied constitutionally? And if so, how can a facial challenge survive?

By: Marc Shepherd

Marc Shepherd — Wed, 30 Nov 2005 20:52:46 +0000

It’s an established principle that the Court can declare a statute unconstitutional on its face. I don’t think there is any current Justice who says that the Court can *never* do this.

The disagreement is whether this particular statute satisfies the conditions for being facially invalidated. I believe every Justice agrees that such cases exist; the dispute is whether this is one of them.

By: Kent Scheidegger

Kent Scheidegger — Wed, 30 Nov 2005 20:24:53 +0000

It is very problematic, not only in abortion cases, but throughout the whole range of judicial review of statutes. Nothing in the Constitution gives the judicial branch of government the authority to “throw out” a statute. The judiciary decides cases. If, in a particular case, the Constitution requires one result and the statute another, the higher law prevails. Yet the statute is (or should be) still a statute, and it should govern cases in which it does not conflict with the Constitution.

Marbury did not throw out the Judiciary Act of 1789, or even the particular section at issue. It simply said that in a case where the statute said the Court had jurisdiction but the Constitution said it did not, it did not. Case dismissed. That is where the legitimate power of judicial review ends.

By: cjd

cjd — Wed, 30 Nov 2005 19:00:35 +0000

Maybe I’m not up on this as much as I should be, but why all the focus on overbreadth, i.e. how problematic it is to throw out a statute based on a facial challenge when there’s only a 1-in-a-thousand chance it could be applied unconstitutionally? Souter’s first question to Paul Clement was, why is this different from _Casey_? Why is it, and if it isn’t, why were so many questions to Gen. Ayotte about this facial challenge question?

By: Kent Scheidegger

Kent Scheidegger — Wed, 30 Nov 2005 18:11:22 +0000

News reports indicate that the question of facial versus “as applied” challenge to the New Hampshire statute was a major theme of the argument. Can someone who was there comment on that?