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Facial v. As-Applied Attacks

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Along with the underlying Fourth Amendment question, Los Angeles v. Patel, decided today by the U.S. Supreme Court, has some interesting discussion about facial versus as-applied attacks on statutes (or ordinances).

Can a court really "strike down" a statute, as we so often casually say when discussing a constitutional case?  No, not really.  Repeal of a statute is a legislative function.  The theory of judicial review, as explained way back in Marbury v. Madison, is that the court must decide the case, and if the higher law of the Constitution points to one result and the lower law of the statute points to the other, the higher law must govern.  That does not wipe the statute off the books, though.  The statute at issue in Marbury gave the Supreme Court the authority to issue writs of mandamus, and it still had that authority under that statute after Marbury as long as it exercised the authority in its appellate jurisdiction, such as issuing it to control a lower court, and not by expanding its original jurisdiction beyond constitutional limits.

But can a court decide that a statute is completely void?
It is possible that a statute in its entirety violates the Constitution and has no constitutional applications.  If Congress enacted a law that said, "The Episcopal Church is hereby established as the Church of the United States," that would be completely void.  That is precisely the statute the Establishment Clause was included in the Bill of Rights to prohibit. 

There are not many such examples, however, and decisions holding that statutes are unconstitutional on their face have been criticized and limited.  In United States v. Salerno (1987), Chief Justice Rehnquist wrote for the Court:  "A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." 

If the Supreme Court had consistently applied that standard, there would be virtually no facial challenges.  It did not, however, and it did not apply the same standard to all areas of law.  In First Amendment cases, for example, the Court would sometimes declare a law was invalid because it was "overbroad," meaning the law would have no effect in any case even though much of the expression covered was well within the power of government to forbid.

How does this apply to the Fourth Amendment prohibition of unreasonable searches and seizures?  The argument that no facial challenges can be made under this provision is based on the idea that every statute authorizing searches will necessarily include some reasonable searches in its scope, and therefore all Fourth Amendment challenges must be to the statute as applied to particular facts.  Today's opinion of the Court by Justice Sotomayor rejects this argument.

Similarly, when addressing a facial challenge to a statute authorizing warrantless searches, the proper focus of the constitutional inquiry is searches that the law actually authorizes, not those for which it is irrelevant. If exigency or a warrant justifies an officer's search, the subject of the search must permit it to proceed irrespective of whether it is authorized by statute. Statutes authorizing warrantless searches also do no work where the subject of a search has consented. Accordingly, the constitutional "applications" that petitioner claims prevent facial relief here are irrelevant to our analysis because they do not involve actual applications of the statute.
In a footnote, the Court rejects an argument by the US Solicitor General that the statute is relevant to searches justified by exigency or a warrant because it applies a penalty to resistance to the search that might not otherwise apply.

Justice Scalia, dissenting, notes that the "facial" versus "as-applied" distinction may be more a function of how the court decides to write its opinion than how the plaintiff frames his claim.

The upshot is that the effect of a given case is a function not of the plaintiff 's characterization of his challenge, but the narrowness or breadth of the ground that the Court relies upon in disposing of it. If a plaintiff elects not to present any case-specific facts in support of a claim that a law is unconstitutional--as is the case here--he will limit the grounds on which a Court may find for him to highly abstract rules that would have broad application in future cases. The decision to do this might be a poor strategic move, especially in a Fourth Amendment case, where the reasonableness of a search is a highly factbound question and general, abstract rules are hard to come by. Cf. Sibron v. New York, 392 U. S. 40, 59 (1968). But even had the plaintiffs in this case presented voluminous facts in a self-styled as-applied challenge, nothing would force this Court to rely upon those facts rather than the broader principle that the Court has chosen to rely upon. I see no reason why a plaintiff 's self-description of his challenge as facial would provide an independent reason to reject it unless we were to delegate to litigants our duty to say what the law is.
Justice Alito also dissents, giving five examples of constitutional applications of this ordinance.  He cites the amicus brief of the Manhattan Institute.  I had not seen that organization file as amicus before, and a docket search turned up no other briefs by it.  Here is the Summary of Argument:

A Fourth Amendment challenge is inherently an as-applied challenge for the simple reason that the Fourth Amendment binds the executive branch and restricts the paradigmatic executive action of searching and seizing.

Courts have not always been perfectly clear about the distinction between facial and as-applied challenges, and this case presents a perfect opportunity to clarify the distinction. What a close reading of the cases reveals is that this distinction simply turns on who has allegedly violated the Constitution. A facial challenge is a challenge to legislative action. An as-applied challenge is a challenge to executive action.

The Constitution empowers and restricts different officials differently. A constitutional claim is a claim that a particular government actor has exceeded a grant of power or transgressed a restriction. But because different government actors are vested with different powers and bound by different restrictions, one cannot determine whether the Constitution has been violated without knowing who has allegedly violated it. The predicates of judicial review inevitably depend upon the subjects of judicial review. Courts sometimes write, euphemistically, of challenges to statutes or ordinances, thus obscuring the subjects of constitutional claims. But the Constitution does not prohibit statutes and ordinances; it prohibits actions--the actions of particular government actors. Thus, every constitutional inquiry properly begins with the subject of the constitutional claim. And the first question in any such inquiry is the who question: who has allegedly violated the Constitution?

The who question establishes the two basic forms of judicial review: "facial challenges" and "as-applied challenges." In the typical constitutional case, the legislature will make a law, the executive will execute it, and someone will claim that his constitutional rights have been violated. The first question to ask such a claimant is who has violated the Constitution? The legislature, by making the law? Or the executive, by executing the law?

This fundamental dichotomy, between judicial review of legislative action and judicial review of executive action, is the organizing dichotomy of constitutional law. It is this dichotomy that is obscured by the anthropomorphic trope that "statutes"--rather than government actors--violate the Constitution. And it is this dichotomy that courts implicitly acknowledge with the distinction between "facial challenges to statutes" and "as-applied challenges to statutes." Properly understood, a "facial challenge" is nothing more nor less than a challenge to legislative action, and an "as-applied challenge" is nothing more nor less than a challenge to executive action.

The Fourth Amendment binds executive officials, forbidding them from executing unreasonable searches and seizures. Fourth Amendment challenges are always and inherently challenges to executive action. Thus, Fourth Amendment challenges are always and inherently fact-specific, "as-applied" challenges.
Counsel of record on this brief is Professor Nicholas Quinn Rosenkranz of Georgetown Law.

1 Comment

I find Justice Alito's reasoning to be the most persuasive. But I tend to agree with most (but no all) of his opinions on criminal law and procedure. He is also one of the most pointed and insightful questioners at oral argument, in my opinion. And doesn't let doctrine obscure common sense.

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