Facial Challenges, Remedies, and the Judicial Power
Document Type
Article
Publication Date
2025
Abstract
The era of big remedies is over. In Trump v. CASA, Inc., the Supreme Court last Term held universal injunctions to be unlawful under the Judiciary Act of 1789. But the decision was just one piece of a larger remedial renaissance at the Court, a doctrinal reorientation accompanied by a deeper theoretical and practical shift towards a more formalist understanding of the judicial power as the ability to determine the rights of parties to concrete disputes properly before the court. While CASA commentators have been quick to identify certain doctrines implicated by the decision and its theoretical logic, such as class actions and vacatur under the Administrative Procedure Act, this Article examines a thus-far neglected frontier for the Court's remedial revolution: facial challenges. Much like universal injunctions, facial challenges have been attacked as dangerous exercises of the judicial power, allowing courts to "strike down" actions of the political branches across the board, even as to nonparties. But drawing on the theoretical insights from CASA and other cases from the Court's "remedial turn," this Article demonstrates facial challenges do no such thing. Rather, this understanding of facial challenges erroneously conflates two separate inquiries: the reasons for a statute's facial invalidity, and the remedies that supposedly result in the statute's facial invalidation. It is only in the latter, through a judgment and remedy, that a court exercises the judicial power, so only by purporting to invalidate statutes as to nonparties does a court push the bounds of Article III. Litigants thus remain free to argue that a statute is facially invalid, even if a court holding as much would create precedent that would apply to nonparties. This Article's disaggregation of reason and remedy on this novel frontier of facial challenge doctrine does two important things at once. It defends facial challenges as arguments for unconstitutionality, while simultaneously offering reform that aligns the doctrine with the Court's formalist desire to return the judicial power to its proper constitutional scope.
Recommended Citation
Natalie R. Schmidt, Facial Challenges, Remedies, and the Judicial Power, 75 Cath. U. L. Rev. 150 (2025).
