This Comment will argue that an as applied approach allows the executive branch, whether at the state or federal level, to encroach into the legislative realm by rendering a statute unconstitutional as a result of the way the statute is administered. Section II of this Comment will begin by examining the history of the as applied and on its face double jeopardy approaches during the last 20 years. After a close examination of the decisions in Halper and Hudson in sections II.B and II.C, this Comment will explain why the holding of Hudson, though correct in its result, was not based on sound reasoning. In section II.D, this Comment will examine the Young decision and its departure from the mandates of Hudson. With the Ninth Circuit's holding in Young in direct conflict with the Washington State Supreme Court's holdings in Cambpell and Turay, section III will argue that the United States Supreme Court should overturn Young on separation of powers grounds. Finally, section III will also address the differences between an as applied challenge in the double jeopardy context and an as applied challenge in other constitutional contexts.
Todd W. Wyatt, Double Jeopardy and Punishment: Why an As Applied Approach, As Applied to Separation of Powers Doctrines, Is Unconstitutional, 24 SEATTLE U. L. REV. 107 (2000).