Facial and As-Applied Challenges to the Individual Mandate of the Patient Protection and the Affordable Care Act

Edward A. Hartnett *

For a time, the law governing facial, as opposed to as-applied, constitutional challenges was, it seemed, simple to state. There was a general rule and a First Amendment exception. The general rule was that facial challenges were rare, disfavored, and could succeed only if the challenger convinced the court that there were no circumstances under which the challenged statute could be constitutionally applied. As the Supreme Court put it in United States v. Salerno, it had “not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment,” and that in all other contexts, a facial challenge could succeed only by showing that “no set of circumstances exists under which the Act would be valid.” The exception, the First Amendment overbreadth doctrine, enabled a challenger to show that, although his own conduct was not constitutionally protected, the statute was sufficiently broad that it also applied to others whose conduct was constitutionally protected, and therefore could not constitutionally be applied to anyone. This overbreadth doctrine was designed to avoid the chilling of free speech.

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*    Richard J. Hughes Professor for Constitutional and Public Law and Service, Seton Hall University School of Law. J.D., 1985, New York University School of Law; A.B., 1982, Harvard College. Thanks to John Jacobi and Frank Pasquale for helpful comments.