An article written by Luke Meier, assistant professor of law at Baylor Law School, is generating academic interest in various publications. "Facial Challenges and Separation of Powers," which was published in the Indiana Law Journal in 2010, was recently cited, and discussed, in the Hart and Wechsler's "The Federal Courts and the Federal System" 2011 Supplement. This casebook is widely recognized as the preeminent casebook on Federal Courts. In addition, the article has been cited and discussed in very recent law review articles in the California Law Review, the Arizona Law Review, and the Hastings Law Journal.
Professor Tom Campbell, in his Hastings Law Journal article "Severability of Statutes," compares the thesis advanced by Meier to that of renowned constitutional scholar Laurence Tribe, concluding that Meier's argument is "irrefutable" while Tribe's argument "fail[s]."
In the article, Meier argues that federal courts are constitutionally compelled to consider the constitutionality of a statute on its face when the power of Congress to pass the law has been challenged. "Under the separation of powers principles enunciated in I.N.S. v. Chadha and Clinton v. New York, federal courts are not free to ignore the 'finely wrought' procedures described in the Constitution for the creation of federal law by 'picking and choosing' constitutional applications from unconstitutional applications of the federal statute, at least when the statute has been challenged as exceeding Congress's enumerated powers in the Constitution. The separation of powers principles of I.N.S. and Clinton, which preclude a 'legislative veto' or an executive 'line item veto' should similarly preclude a 'judicial application veto' of a law that has been challenged as exceeding Congress's Constitutional authority."
The abstract and full text of the article can be found at http://ssrn.com/abstract=1399405.