Making Sense of Facial and As-Applied Challenges

By Kreit, Alex | The William and Mary Bill of Rights Journal, March 2010 | Go to article overview

Making Sense of Facial and As-Applied Challenges


Kreit, Alex, The William and Mary Bill of Rights Journal


INTRODUCTION

In the conventional account of the basic principles of constitutional adjudication, constitutional challenges can be sorted into two distinct categories: "facial" challenges and "as-applied" challenges.1 A facial attack is typically described as one where "no application of the statute would be constitutional."2 In contrast, courts define an asapplied challenge as one "under which the plaintiff argues that a statute, even though generally constitutional, operates unconstitutionally as to him or her because of the plaintiffs particular circumstances."3

This facial and as-applied distinction provides more than a simple descriptive account of two different results that a court might reach in a given case. Instead, the categories are believed to form the foundation for a set of substantive rules that determine when a court may employ one type of challenge or the other - when a court may strike down a statute in its entirety or only overturn the application of the statute in the case at hand.4 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.5 Facial challenges, on the other hand, should be used sparingly and only in exceptional circumstances.6 Perhaps the most well-known, succinct, and controversial7 formulation of this idea was the Supreme Court's statement in United States v. Salerno that a "facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully" and will only succeed if a litigant can "establish that no set of circumstances exists under which the Act would be valid."8

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.9 Nevertheless, some of the most basic details regarding the characteristics of the facial and as-applied challenges categories and, in particular, how the preference for as-applied challenges actually operates, remain surprisingly unclear.10 For instance, do the rules regarding facial and as-applied challenges concern substantive constitutional law by limiting the adoption and use of constitutional tests that might lead to the facial invalidation of statutes?1 1 Or do they relate exclusively to the remedial doctrine of severability,12 which comes into play only after a court has applied the relevant constitutional test and found a violation?13 Or both?14 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?15 If so, when is it appropriate for a court to consider something other than those specific facts? Is the choice between a facial and as-applied challenge one that the litigant makes when she brings her claim,16 or is it one that a court makes when it addresses her claim? Neither the case law, nor the academic literature, provides a satisfactory answer to these problems.17

This Article argues that these important questions remain unanswered because categorizing constitutional cases into "facial" and "as-applied" challenges, and relying on these categories to shape doctrine and 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 - specifically, the relevant substantive doctrine and the remedial severability rules - that cannot be reduced to a single inquiry or set of rules. Conflating these independent concepts with one another under the "facial" and "as-applied" rubric has only served to confuse each and obscure the real issues that animate the outcome in a given case. Moreover, the as-applied and facial dichotomy has contributed to the increasing lack of clarity across constitutional law by creating an inconsistent and unwarranted presumption against the adoption of robust constitutional tests on the grounds that they might result in facial invalidation of statutes. …

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