"Facial" or "as applied"?

In the Volokh Conspiracy a post argues that a facial challenge to the constitutionality of an action, seeking to strike down the entire statute, is based on who committed that constitutional violation, specifically Congress, by passing the act.

The issue is being misframed. To understand constitutionality we need to examine all the main interrogatives: who, what, how, when, where, why, whom, and whither (what impact or significance). We need to return to the basics.

We start with a challenge to some action. Initially, we know what the action was but not the authority for it. That remains to be determined.

The party that committed the action claims he was enforcing a “law”. Now we have to determine whether it was in fact a “law” (what) and whether he (who) had the authority to enforce it (how) on that occasion (when) and place (where) and whether actions of the complainant made the “law” applicable (why) and perhaps whether his enforcement served the public good (whither).

The question of whether it was a “law” does rest on the fact issue of whether it was Congress (who) that adopted it. Perhaps it was not Congress. Perhaps it was a false report by the congressional clerk that Congress passed it when in fact they didn’t even vote on it. Or perhaps it was “adopted” by some administrator with no legislative authority for it. We may have largely abandoned the Nondelegation Doctrine but even so there usually has to be some delegation of some authority from Congress.

So in principle an alleged violation of the First Amendment could turn on the “who” question of whether it was Congress that adopted it, but it is more likely to turn on the “what” question of whether either the act itself, or the application of it, was an abridgement of speech, press, assembly, petition, or an establishing of religion.

It is misframing to characterize the violation as facial because it was Congress that did it. It is probably not a matter of “who” but of “what”, and it comes down to whether the mere passage of an act can violate a right, or whether the violation does not occur until the act is applied to some situation.

Now it can certainly be argued, and many if not most of the Founders might have argued, that we all have a right not to have our officials violate the Constitution, regardless of whether such violation is carried into execution against anyone. The mere existence of the unconstitutional legislation is an injury, in this view, and anyone should have standing to bring a judicial claim for at least declaratory and perhaps injunctive relief. But courts have come to disfavor such complaints as a prudential matter.

Therefore, the facial/applied distinction is not really about “who”. It is about “what” and perhaps “how”, “when”, “where”, “why”, “whom”, or “whither”.

The question comes down to whether the court has judicial notice of how a statute may be applied constitutionally. If the government can show that, then it comes down to the constitutionality of when, where, why, against whom, and perhaps whither in the particular case. That becomes an “as applied” issue. If, on the other hand, no constitutional application of it is presented to the court, it is not up to the court to give itself notice of such, and the facial challenge is that no such constitutional applications exist, or that they are so unlikely or obscure that the prudent decision is to strike down the entire statute so the court doesn’t have to deal with more cases under it.

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