Facial Challenge - Facial Challenge

Facial Challenge

Because a successful facial challenge carries with it greater consequences than an as-applied challenge, i.e., the entire legislation is invalidated, the U.S. Supreme Court has declared facial challenges disfavored and should, therefore, be used rarely. In Washington State Grange v. Washington State Republican Party, the U.S. Supreme Court stated several reasons for disfavoring facial challenges.

"Claims of facial invalidity often rest on speculation. As a consequence, they raise the risk of “premature interpretation of statutes on the basis of factually barebones records.” Sabri v. United States, 541 U.S. 600, 609 (2004) (internal quotation marks and brackets omitted). Facial challenges also run contrary to the fundamental principle of judicial restraint that courts should neither “ ‘anticipate a question of constitutional law in advance of the necessity of deciding it’ ” nor “ ‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’ ”Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring). Finally, facial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution. We must keep in mind that “ ‘ ruling of unconstitutionality frustrates the intent of the elected representatives of the people.’ ” Ayotte v. Planned Parenthood of Northern New Eng., 546 U.S. 320, 329 (2006)."

Due to the speculative, possibly premature, and anti-democratic nature of judicial review of a facial challenge, the Supreme Court has placed a higher burden on those wishing to establish a facial challenge. Recently in U.S. v. Stevens, it stated, "To succeed in a typical facial attack, would have to establish “that no set of circumstances exists under which would be valid,” United States v. Salerno, 481 U.S. 739, 745 (1987), or that the statute lacks any “plainly legitimate sweep,” Washington v. Glucksberg, 521 U.S. 702, 740, n. 7 (1997) (STEVENS, J., concurring in judgments) (internal quotation marks omitted).