But that is circular. The only reason why cumulative facial analysis "protects congressional power from too much judicial intrusion" is because few statutes are held facially unconstitutional, and few statutes are held facially unconstitutional because their effects are aggregated. If more statutes were held unconstitutional under the commerce clause on their face, then there would be much more pressure to conduct as-applied challenges instead of facial challenges. Consider what would happen if the commerce clause rule was used in first amendment jurisprudence. The court could aggregate all of the valid applications of a statute to justify the facial validity of a statute, then ignore particular invalid applications as "de minimis." That is a bad rule because it tolerates the unconstitutional applications of statutes, but is equally bad for the commerce clause and the first amendment.
At 11:41 AM 7/30/2003 -0400, you wrote:
In general, as-applied challenges are disfavored in the commerce clause area. The Court has held that the validity of a challenged provision under the commerce clause depends upon the aggregate effect of that provision on commerce, and that the diminimis impact of any particular application does not matter. That principle remains viable, at least as to provisions regulating non-commercial activity, post-Lopez. Notice that while we normally think of a preference for as applied challenges as involving judicial deference to democratic branches, in this area, the reverse is true. The insistence of cumulative facial analysis aims to protect Congressional power from too much judicial intrusion.
David M. Driesen Associate Professor Syracuse University College of Law E.I. White Hall Syracuse, NY 13244-1030 (315) 443-4218 Fax (315) 443-4141 [EMAIL PROTECTED]
