"Making Sense of Facial and As-Applied Challenges"

Alex Kreit has posted this very interesting and important draft on SSRN (forthcoming William and Mary Bill of Rights Journal.). Here is the abstract:

This article challenges the conventional understanding of "facial" and "as-applied" challenges. Under the Supreme Court's jurisprudence, constitutional challenges can be sorted into two distinct categories: "facial" and "as-applied." A facial challenge is typically described as "a head-on attack on the legislative judgment, an assertion that the challenged statute violates the Constitution in all, or virtually all, of its applications" and, as a result, is invalid in its entirety. An "as-applied" challenge, by contrast, is one where the litigant "concedes that the statute may be constitutional in many of its applications, but contends that it is not so under the particular circumstances of the case." The two categories are believed to form the foundation for a set of substantive rules that control when a court may strike down a statute in its entirety or only overturn the application of the statute in the case at hand. Under these rules, the law strongly favors as-applied challenges on the grounds that they are more consistent with the goals of resolving concrete disputes and deferring as much as possible to the legislative process.

This account of facial and as-applied challenges is by now a familiar part of the constitutional landscape and is generally accepted in the courts. Yet some of the most basic details about the facial and as-applied categories remain surprisingly unclear. For instance, is the choice between facial and as-applied challenges one that a litigant makes when she brings her claim, or is it one that a court makes when it analyzes her claim? Do the rules regarding facial and as-applied challenges limit the adoption of constitutional tests, such as purpose-based tests, that might lead to the facial invalidation of statutes? Or do they relate to the remedial doctrine of severability, which comes into play only after a court has already applied the relevant constitutional test and found a violation? Is the key to distinguishing between facial and as-applied challenges the extent to which the court relies on the specific facts in the case at hand to reach its decision? If so, when is it appropriate for a court to consider something other than those specific facts? Neither the case law nor the academic literature provides a satisfactory answer to these fundamental problems.

This article contends that these questions remain unanswered because categorizing cases into "facial" and "as-applied" challenges, and relying on these categories to inform case outcomes, is an inherently flawed and fundamentally incoherent undertaking. This is because the fate of a statute in the face of a constitutional challenge depends on distinct considerations that cannot be reduced to a single inquiry or set of rules. The article further argues that the Court, in its attempt to build a universally applicable law of facial and as-applied challenges, has only created unnecessary confusion, by obscuring the real issues that animate results in constitutional cases. The article concludes that we would be better served by abandoning the idea that there is, or can ever be, a "law" of facial and as-applied challenges.

This paper joins Persily and Rosenberg and Douglas as must-reads for those following this issue in the election law field.

Posted by Rick Hasen at November 25, 2009 08:10 AM