Scott Rafferty wrote the following post on the election law listserv, which I reprint here with permission:
- Rick points to Gerry Hebert’s detailed analysis of the distinction between “facial” and “as-applied” challenges in NAMUNDO, arguing that the procedural abandonment of the former might create a way for the Court to avoid a substantive decision in NAMUNDO. I’m inclined to think that the district court was right to construe the amended complaint as retaining a “facial” element and suggest the confusion involves the conflation of several concepts within this dichotomy.
I suggest that we use the term “facial” to mean a number of slight differently things: (1) an exception from standing doctrine for First Amendment plaintiffs prior to any enforcement, (2) self-evident textual invalidity, as opposed to invalidity as a result of consequences, (3) invalidity as a matter of law, without disputable factual arguments, and (4) a rulemaking challenge or other attack on legislative authority, as opposed to an injunction or declaratory relief action.
Dick Fallon has a Harvard Law Review article on facial v. as-applied challenges (and third-party standing) in the First Amendment context, which is a good identification of the issues. 113 Harvard Law Review 1321. Can a pre-enforcement plaintiff challenge a specific application of legislation to its own situation without bearing the burden of a “facial challenge” to show that the four corners of the legislation can never be validly applied? Can a post-enforcement plaintiff obtain declaratory or injunctive relief that goes beyond its own situation? Fallon analyzes these questions as being about the binding nature of precedent and the proper scope of injunctive relief. Facial and as-applied challenges are almost always concurrent, so the distinction – while helpful in explaining why the court grants broad or narrow relief – is seldom dispositive.
However, I have struggled with these terms in the Preminger case, which involves a unique situation in which facial and as-applied challenges are in different courts. The VA banned voter registration, subsequently invoking as Nixon-era regulation giving unfettered discretion not to authorize “demonstrations.” (The APA was not extended to the VA until 1982.) The 1982 Act gives Federal Circuit exclusive jurisdiction over the APA rulemaking challenge, which the 9th Circuit confusingly calls the “facial” challenge. The VA effectively argued that ANY substantive challenge that threatened to invalidate application of the rule outside the specific building (in which the arrest was attempted) was a “facial” challenge – and therefore within the exclusive jurisdiction of the Federal Circuit. Then, they told the Federal Circuit that the “facial challenge” was limited to the four corners of the text, and that the Salerno rule immunized the rule if there was a single application (such as a violent demonstration unrelated to voting registration) that would be constitutional – and that any arguments about voter registration needed to be directed to the district court. When the Federal Circuit sustained the rule, the district court decided that the decision, by validating unfettered discretion, deprived the plaintiffs of further standing to bring the “as applied” challenge – and dismissed without deciding the merits. The 9th Circuit disagreed, finding standing but (assuming a few facts not in evidence) “affirming” on the merits. The district court has invited a motion for relief from judgment, which will be heard the day after Memorial Day in San Jose.
The Salerno rule (from an criminal procedure case) states that a statute cannot be declared unconstitutional on its face unless it is unconstitutional in all its applications. The rule has been dismissed as dicta, as a series of cases have allowed pre-enforcement challenges to First Amendment restrictions. The theory here has been that the EXISTENCE of the restriction, prior to any actual enforcement, could infringe speech. A corollary, in my view, is that a post-enforcement challenge can make arguments that logically imply that the legislation can NEVER be enforced, ie, is invalid “on its face.” In Preminger, we sought a nationwide injunction of the rule (and declaratory relief), arguing that the Federal Circuit’s exclusivity was limited to the formal “setting aside” that removed the rule from the CFR. Otherwise, there would have to be 16,000 as-applied challenges – one for each of the VA’s buildings.
Last year’s Washington State Grange case revived the Salerno rule in the specific context of an election law case. I think this is bad news for those who think courts should decide constitutional challenges before, not after, election disputes or other highly developed fact patterns, such as a declined bailout petition. But it also suggests that Mr. Hebert may be on to something.
(And advice on this month’s Preminger hearing, especially from jurisdictional experts, is always welcome.)