Invalid on its Face

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Legislation may be unconstitutional as applied to all, some, or none of the behavior it addresses. Usually, affected parties challenge a law's constitutionality only as applied to their own behavior. Occasionally, they claim a law is constitutionally invalid on its face—and therefore unenforceable against anyone, including them—because it would be unconstitutional ever to apply it. A penal law is invalid on its face, for example, when it so vaguely describes the conduct outlawed that it cannot give fair warning to anyone, or when every act the law prohibits is constitutionally protected. A challenge to such a law would present no standing problem. Sometimes, however, a litigant will assert that, regardless of whether a law is constitutional as applied to him it should be held invalid on its face because its coverage includes unconstitutional regulation of others.

Normally a federal court will deny standing to raise such a facial challenge when the law constitutionally regulates the would-be challenger, for the court perceives the claim as a request to go beyond the case before it. Responding to the request would require the court to decide what other situations the law governs—frequently an unresolved question of statutory interpretation—and then to decide whether some of the law's unapplied coverage would be unconstitutional. If the court should conclude that part of the law is invalid and part valid, it would have to decide whether the legislative framers would want the valid part to stand separately or the whole law to fall. Finally, if the law is constitutional as applied to the litigant, but would be unconstitutional in hypothetical application to others, the court may still have to decide whether to hold the law facially invalid despite a legislative desire to have the law's valid applications stand.

Formidable considerations militate against judicial rulings that laws are facially invalid. judicial review originates in the need to apply constitutional law to decide the case before the court, and a corollary principle requires courts to refrain from deciding hypothetical questions. When a court focuses only on the situation before it, it minimizes the need for unnecessary decisions of issues of both statutory and constitutional interpretation, and avoids considering other possible applications of the law in a factual vacuum. Finally, a conclusion of facial invalidity would prevent the valid enforcement of the law against a party whom the legislature intended to regulate. Normally, then, the Supreme Court denies a litigant standing to assert the unconstitutionality of legislation as it would be applied to others, except when the most compelling reasons are present.

The reason most often found compelling is the need to protect the freedom of expression of persons not before the court whom the law might inhibit. That was the rationale, for example, of thornhill v. alabama (1940). Specifically, the first amendment doctrines of overbreadth and vagueness sometimes permit one whose conduct the law constitutionally could reach to escape punishment, arguing that the law is invalid on its face because its seeming application to others discourages their protected expression. Intense controversy surrounds these facial challenges, however, largely because of differing perceptions of how inhibiting such laws really are. In areas involving other fundamental freedoms, such as the right to travel, facial challenges have occasionally been successful, as in aptheker v. secretary of state (1964), again to protect persons who are never likely to be before a court from having their liberty circumscribed by the seeming applicability of an unconstitutional regulation.

A court will hold a law invalid on its face only in a case of necessity: where the law's very existence may affect the exercise of cherished liberties by nonparties lacking opportunity or willingness to challenge them, and where the inhibiting feature of the law cannot easily be cured by statutory interpretation. Absent such conditions federal courts will not, at the request of one whose behavior may constitutionally be regulated, decide how a law might apply and whether the law's potential application to other situations warrants holding it invalid on its face. The degree to which the Supreme Court permits facial challenges to legislation directly reflects the Justices' collective perception of the Court's institutional role in enforcing the Constitution. Narrow views of that role incline the Court to restrict facial challenges; a broader view commends it to entertain and encourage such a challenge in the interest of assuring the constitutional governance of society beyond the immediate case.

Jonathan D. Varat