Invalid on its Face

• Author: Jonathan D. Varat
• Pages: 1399-1400

Page 1399

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

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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...