Facial Challenge - Facial Versus As-Applied Challenges

Facial Versus As-Applied Challenges

As discussed above, one primary distinction between the two methods of challenging legislation in court is that a facial challenge to a statute seeks to invalidate it in its entirety because every application is unconstitutional, whereas an as-applied challenge seeks to invalidate a particular application of a statute. A second distinction between the two is that a facial challenge may be brought soon after a statute's passage in a legislature; however, an as-applied challenge, as the name suggests, can only be brought once it has been enforced. In this sense, a facial challenge is prospective, or forward looking, because it seeks to prevent a law from being enforced and thus violating someone's constitutional rights, and an as-applied challenge is retrospective, or backward looking, because it seeks to redress a constitutional violation that has already occurred. Since facial challenges have the potential to invalidate a statute in its entirety, they are said to be disfavored. Professor Richard Fallon of Harvard Law School has recently argued that both terms are ambiguous and not as easily distinguishable from one another. Indeed, the U.S. Supreme Court has recently acknowledged this fact. In Citizens United v. Federal Election Commission, it stated, "the distinction between facial and as-applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge."