Catholic Law Professor Natalie Swenson’s forthcoming article, “Facial Remedies & Facial Reasons,” set to appear in Volume 102 of the Notre Dame Law Review, addresses a key doctrine overlooked in the wake of Trump v. CASA, Inc.—the Supreme Court ruling that declared universal injunctions unlawful under the Judiciary Act of 1789. While most commentators have focused on the decision’s impact on class actions and vacatur under the Administrative Procedure Act, Swenson examines facial challenges, which critics have long deemed risky exercises of judicial power for their apparent ability to strike down political branch actions even as to nonparties.
Swenson pushes back on that view. Drawing on CASA and the Court’s renewed focus on remedies, she argues that the criticism of facial challenges conflates two distinct inquiries: the reasons a statute is facially invalid, and the remedies that follow. Because judicial power is exercised only through judgment and remedy, only through their remedies do courts risk exceeding their Article III power. However, they do not exceed Article III simply by holding a statute facially invalid in their opinions. Her article thus defends facial challenges as legitimate constitutional arguments while proposing reform that keeps the judicial power within its proper scope.