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