Differences Between Facial and As-Applied Challenges to the Constitutionality of a Statute
May 21, 2020
Courts in the U.S. classify lawsuits that challenge the constitutionality of a statute into two categories: facial challenges and as-applied challenges. The distinction between the two is clear in many situations, but sometimes it can get murky.
One important distinction involves the plaintiff’s goals and the outcome if the plaintiff prevails in the lawsuit. A facial challenge could result in the invalidation of an entire statute. An as-applied challenge, on the other hand, could lead to a ruling that narrows a statute’s effect. The timing of the lawsuit also differs. Implicit in the term “as-applied challenge” is the requirement that the statute has already taken effect. A plaintiff bringing a facial challenge might be able to file sooner.
Neither term has a distinct legal meaning. The Supreme Court noted in Citizens United v. Federal Election Commission, 558 U.S. 310, 331 (2010), that “the distinction between facial and as-applied challenges” has no “automatic effect” on a case, and it does not “control the pleadings and disposition in every case involving a constitutional challenge.” In Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U.S. 32 (1999), the majority and the dissenting justices did not even agree on which type of challenge was before the Court.
In a facial challenge, a plaintiff is claiming that a statute is unconstitutional at all times and under all circumstances. The goal is usually to have a court declare the law “facially invalid.” The Supreme Court identified two situations in which a plaintiff might prevail in a facial challenge in United States v. Stevens, 559 U.S. 460 (2010):
- “No set of circumstances exists under which [the statute] would be valid”; or
- “The statute lacks any ‘plainly legitimate sweep.’”
Facial challenges are common in claims alleging violations of First Amendment rights. The Supreme Court found, for example, that certain provisions of the Communications Decency Act of 1996 were unconstitutional on their face in Reno v. American Civil Liberties Union, 521 U.S.844 (1997). It found that the challenged provisions were both vague and “substantially overbroad.” The Court established the “substantial overbreadth” doctrine for facial challenges in Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973).
An as-applied challenge alleges that a statute or regulation is unconstitutional in a specific context. A plaintiff in an as-applied challenge is not arguing that the entire statute is unconstitutional, but instead that it is being applied in an unconstitutional manner. The results of as-applied challenges tend to be narrower in scope, involving modifications to a statute’s effect rather than the total invalidation of the statute.
Narrowing vs. Invalidating a Statute
Facial and as-applied challenges differ in the type of relief sought. The Supreme Court has stated on multiple occasions that it favors as-applied challenges over facial challenges. It has expressed a preference for “a narrower remedy” that could “fully protect the litigants,” rather than a much broader facial challenge that would “provide relief to nonparties” by invalidating an entire statute. United States v. Treasury Employees, 513 U.S. 454, 477-78 (1995).
If a facial challenge to a statute occurs before the implementation of the statute, a court may be required to guess at the potential impact of the statute. In Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008), the Court noted that facial challenges “often rest on speculation,” and it asserted that invalidating a statute before it takes effect could “short circuit the democratic process.”
When to Bring a Challenge
The two types of constitutional challenges also differ in terms of when a plaintiff may bring a claim. Since a facial challenge alleges that a statute is unconstitutional in its entirety, a plaintiff could be less constrained in when they can file suit. Facial challenges offer a proactive approach. An as-applied claim is not possible until the statute at issue has been applied. It is, by necessity, reactive.
Sometimes courts have rejected a facial challenge to a statute while allowing an as-applied challenge to the same statute. In striking down a facial challenge, a court might note that a plaintiff could file a new claim if they can demonstrate an unconstitutional application of the statute. In Thomas v. Chicago Park Dist., 534 U.S. 316 (2002), for example, the Supreme Court tossed out a facial challenge to a permitting ordinance for public events, finding that it involved constitutionally appropriate “content-neutral time, place, and manner regulation[s].” If, however, “a pattern of unlawful favoritism appear[ed],” the court was willing to revisit the matter in an as-applied challenge.