WEBVTT 00:00:00.000 --> 00:00:03.100 You know, whenever a massive controversial new 00:00:03.100 --> 00:00:06.440 law hits the news, maybe you are watching the 00:00:06.440 --> 00:00:08.960 signing ceremony on TV, right? Oh, yeah. The 00:00:08.960 --> 00:00:11.160 cameras are flashing. The politicians are all 00:00:11.160 --> 00:00:13.039 smiling and shaking. Well, exactly. There is 00:00:13.039 --> 00:00:15.640 this immediate expectation that the fight is 00:00:15.640 --> 00:00:18.859 over. Like, the law is the law now. Right. People 00:00:18.859 --> 00:00:21.260 think it's a done deal. But the reality is, the 00:00:21.260 --> 00:00:24.640 second that ink dries, an invisible ticking clock 00:00:24.640 --> 00:00:28.719 begins. Somewhere, a team of lawyers is already 00:00:28.719 --> 00:00:31.420 preparing to challenge that exact law in court 00:00:31.420 --> 00:00:35.119 and how they choose to attack it. That choice 00:00:35.119 --> 00:00:37.579 literally changes the course of American history. 00:00:37.979 --> 00:00:39.679 Yeah, the signing of the legislation is really 00:00:39.679 --> 00:00:41.600 just the opening bell. I mean, the courtroom 00:00:41.600 --> 00:00:43.820 is where the actual boundaries of that law are 00:00:43.820 --> 00:00:46.299 drawn or where the law is just completely dismantled. 00:00:46.429 --> 00:00:48.909 And that dismantling process is exactly what 00:00:48.909 --> 00:00:51.289 we are looking at today. Welcome to today's deep 00:00:51.289 --> 00:00:54.149 dive. We are pulling from an incredibly dense 00:00:54.149 --> 00:00:57.170 but frankly fascinating Wikipedia article focused 00:00:57.170 --> 00:00:59.829 on a very specific concept in U .S. constitutional 00:00:59.829 --> 00:01:02.189 law called the facial challenge. It's a heavy 00:01:02.189 --> 00:01:04.890 topic for sure. It really is. But our mission 00:01:04.890 --> 00:01:07.670 today is to shortcut all that intense legal jargon 00:01:07.670 --> 00:01:11.129 for you. We are going to act as your expert guides 00:01:11.129 --> 00:01:13.370 to the hidden mechanics of the Supreme Court. 00:01:13.810 --> 00:01:16.109 Because once you understand this concept, you 00:01:16.109 --> 00:01:18.650 are going to see exactly what is really happening 00:01:18.650 --> 00:01:21.469 beneath the surface the next time a major piece 00:01:21.469 --> 00:01:24.209 of legislation is contested in the news. And 00:01:24.209 --> 00:01:26.030 just a quick note before we really get going 00:01:26.030 --> 00:01:28.650 here, we're going to be talking about some highly 00:01:28.650 --> 00:01:31.230 polarizing historical cases today. Right. You 00:01:31.230 --> 00:01:34.109 know, from abortion laws to Obamacare. Right. 00:01:34.430 --> 00:01:36.939 Just to be perfectly clear, We aren't endorsing 00:01:36.939 --> 00:01:39.780 any political viewpoints or taking sides on the 00:01:39.780 --> 00:01:42.319 actual laws themselves. We are just acting as 00:01:42.319 --> 00:01:44.359 neutral guides, looking at the legal mechanics 00:01:44.359 --> 00:01:46.819 of how these laws are fought over in court. Absolutely. 00:01:47.359 --> 00:01:49.739 OK, let's unpack this. We have two main ways 00:01:49.739 --> 00:01:52.739 a lawyer can attack a law, right? A facial challenge 00:01:52.739 --> 00:01:55.790 and an as -applied challenge. Yeah. To understand 00:01:55.790 --> 00:01:58.069 why the Supreme Court either, you know, heavily 00:01:58.069 --> 00:02:00.650 restricts or entirely relies on a certain legal 00:02:00.650 --> 00:02:03.049 tactic, we really need to look at the basic tools 00:02:03.049 --> 00:02:05.370 in the legal toolbox. Let's start with the core 00:02:05.370 --> 00:02:06.870 difference between those two challenges. Okay, 00:02:07.010 --> 00:02:09.729 lay it on me. So a facial challenge is when a 00:02:09.729 --> 00:02:12.189 plaintiff goes into court and alleges that a 00:02:12.189 --> 00:02:14.870 piece of legislation is always unconstitutional. 00:02:15.669 --> 00:02:18.349 Always. Under every possible circumstance. Wait, 00:02:18.349 --> 00:02:21.569 always. Which means if they win, the law is completely 00:02:21.569 --> 00:02:24.810 void. Like it's just... Gone. Exactly. If a facial 00:02:24.810 --> 00:02:27.689 challenge is successful, the court declares the 00:02:27.689 --> 00:02:30.610 statute facially invalid and it is struck down 00:02:30.610 --> 00:02:32.590 in its entirety. It is just wiped off the books. 00:02:32.789 --> 00:02:35.810 Wow. Okay. Now contrast that with an as applied 00:02:35.810 --> 00:02:38.689 challenge. In an as applied challenge, the plaintiff 00:02:38.689 --> 00:02:40.909 isn't saying the whole law is inherently bad. 00:02:41.349 --> 00:02:43.449 They're alleging that a particular application 00:02:43.449 --> 00:02:47.710 of the statute how it was used against them specifically 00:02:47.710 --> 00:02:50.669 in their unique circumstances is unconstitutional. 00:02:51.009 --> 00:02:52.569 Right, so they're making it personal. Yeah, exactly. 00:02:53.030 --> 00:02:54.969 And a successful as applied challenge doesn't 00:02:54.969 --> 00:02:57.229 strike the whole law down, it just narrows the 00:02:57.229 --> 00:02:59.569 circumstances in which the statute can be constitutionally 00:02:59.569 --> 00:03:02.030 applied moving forward. Okay, so to visualize 00:03:02.030 --> 00:03:04.069 this, a facial challenge is basically like taking 00:03:04.069 --> 00:03:06.289 a sledgehammer to a building. I like that analogy. 00:03:06.509 --> 00:03:08.689 Thanks. While an as -applied challenge is more 00:03:08.689 --> 00:03:11.949 like using a scalpel to just remove one bad room. 00:03:12.310 --> 00:03:14.969 That captures the dynamic perfectly. The facial 00:03:14.969 --> 00:03:17.909 challenge brings the entire structure down. The 00:03:17.909 --> 00:03:21.330 as -applied challenge carefully excises the unconstitutional 00:03:21.330 --> 00:03:24.289 application, but the rest of the statutory framework 00:03:24.289 --> 00:03:27.550 survives. But does the entire law really just 00:03:27.550 --> 00:03:29.229 disappear that easily with the sledgehammer? 00:03:30.069 --> 00:03:31.610 Because I mean, looking at how the legal system 00:03:31.610 --> 00:03:33.650 actually operates, it's rarely that clean of 00:03:33.650 --> 00:03:36.050 a break, right? The courts don't just hand out 00:03:36.050 --> 00:03:38.650 demolition permits to anyone who asks. No, they 00:03:38.650 --> 00:03:40.689 definitely don't. The Supreme Court is actually 00:03:40.689 --> 00:03:43.349 quite hesitant to allow that total destruction. 00:03:43.580 --> 00:03:46.360 The source text points out specific cases like 00:03:46.360 --> 00:03:49.879 Gonzalez v. Carhart or Crawford v. Marion County 00:03:49.879 --> 00:03:53.020 Election Board where the court explicitly rejected 00:03:53.020 --> 00:03:55.300 a facial challenge. So they just said no to the 00:03:55.300 --> 00:03:58.120 sledgehammer. Pretty much. The justices basically 00:03:58.120 --> 00:04:00.180 looked at the law and said, we are not knocking 00:04:00.180 --> 00:04:02.639 this whole framework down. But in those same 00:04:02.639 --> 00:04:05.699 rulings, the court or the concurring justices 00:04:05.699 --> 00:04:08.219 intimated that the upheld statute might still 00:04:08.219 --> 00:04:11.300 be vulnerable to a future precisus applied challenge. 00:04:11.530 --> 00:04:14.069 They essentially told the lawyers to put the 00:04:14.069 --> 00:04:16.709 sledgehammer away, but invited them to come back 00:04:16.709 --> 00:04:18.870 later with a scalpel once they had a specific 00:04:18.870 --> 00:04:21.449 victim. We won't destroy it now, but show us 00:04:21.449 --> 00:04:23.370 exactly where it hurt someone later, and we'll 00:04:23.370 --> 00:04:27.089 talk. That is so interesting. And that brings 00:04:27.089 --> 00:04:29.790 us to the next massive distinction between these 00:04:29.790 --> 00:04:32.029 two tactics, because it's not just about the 00:04:32.029 --> 00:04:34.790 size of the impact, is it? No, not at all. It 00:04:34.790 --> 00:04:37.250 is fundamentally about the timeline. We're talking 00:04:37.250 --> 00:04:39.370 about when you are actually allowed to bring 00:04:39.370 --> 00:04:42.310 these lawsuits to the court. Right. The temporal 00:04:42.310 --> 00:04:44.689 difference, the timeline of when you can file, 00:04:45.230 --> 00:04:47.970 is arguably just as important as the outcome 00:04:47.970 --> 00:04:50.959 itself. A facial challenge is perspective. It 00:04:50.959 --> 00:04:52.860 is forward looking. Forward looking. Yeah. Meaning 00:04:52.860 --> 00:04:54.759 you can bring a facial challenge soon after a 00:04:54.759 --> 00:04:57.240 statute passes the legislature before anyone 00:04:57.240 --> 00:04:59.639 has actually been punished by it. The goal is 00:04:59.639 --> 00:05:02.480 prevent the law from ever being enforced to stop 00:05:02.480 --> 00:05:05.019 a constitutional violation before it even happens. 00:05:05.360 --> 00:05:07.920 So you see the law pass. You say this is entirely 00:05:07.920 --> 00:05:11.439 unconstitutional and you sue to stop it in its 00:05:11.439 --> 00:05:13.779 tracks before a single citizen is actually affected 00:05:13.779 --> 00:05:17.269 by it. Exactly. But. And as applied challenge 00:05:17.269 --> 00:05:20.629 is retrospective. It's backward looking. It can 00:05:20.629 --> 00:05:22.689 only be brought once the law has actually been 00:05:22.689 --> 00:05:25.089 enforced against someone. Oh, I see. It seeks 00:05:25.089 --> 00:05:28.089 to redress a constitutional violation that has 00:05:28.089 --> 00:05:30.410 already occurred. Yeah. You need a plaintiff 00:05:30.410 --> 00:05:33.370 who has suffered a concrete injury. You know, 00:05:33.490 --> 00:05:36.370 someone who was fined or arrested or actually 00:05:36.370 --> 00:05:39.009 denied a right. Wait, if that's the case, why 00:05:39.009 --> 00:05:41.649 would any lawyer or advocacy group ever choose 00:05:41.649 --> 00:05:43.910 the retrospective route? What do you mean? Well, 00:05:43.910 --> 00:05:46.089 think about it for you, the listener. If your 00:05:46.089 --> 00:05:47.990 job is to protect people from a law you believe 00:05:47.990 --> 00:05:50.329 is unjust, why would you sit around and wait 00:05:50.329 --> 00:05:52.670 for someone to actually get hurt? Like wait for 00:05:52.670 --> 00:05:55.529 someone to be arrested or fined just so you can 00:05:55.529 --> 00:05:58.129 use the scalpel to fix a violation that already 00:05:58.129 --> 00:06:00.290 happened? Right, yeah. Wouldn't you always grab 00:06:00.290 --> 00:06:02.170 the forward -looking option the moment the law 00:06:02.170 --> 00:06:04.370 passes and just smash it before anyone suffers? 00:06:04.709 --> 00:06:07.430 I mean... Logically, yes. If you want to protect 00:06:07.430 --> 00:06:09.949 rights, you want to act preventatively. And the 00:06:09.949 --> 00:06:12.889 reality of the legal system is that lawyers absolutely 00:06:12.889 --> 00:06:15.930 try to use the preventative, forward -looking 00:06:15.930 --> 00:06:18.509 tactic all the time. OK, so they do try. They 00:06:18.509 --> 00:06:20.449 definitely try. They want to nip the law in the 00:06:20.449 --> 00:06:23.730 bud. But the Supreme Court has set up these massive, 00:06:23.930 --> 00:06:27.009 almost insurmountable barricades to stop them 00:06:27.009 --> 00:06:30.170 from doing so. The court strongly disfavors this 00:06:30.170 --> 00:06:33.079 approach. Why do they hate it so much? Because 00:06:33.079 --> 00:06:36.459 invalidating entire pieces of legislation carries 00:06:36.459 --> 00:06:39.540 such sweeping consequences. The Supreme Court 00:06:39.540 --> 00:06:42.259 has explicitly declared that facial challenges 00:06:42.259 --> 00:06:44.970 should be used rarely. The source material gives 00:06:44.970 --> 00:06:47.589 us some really specific insight into the court's 00:06:47.589 --> 00:06:50.129 reasoning here, actually. There is a case mentioned, 00:06:50.509 --> 00:06:53.389 Washington State Grange v. Washington State Republican 00:06:53.389 --> 00:06:55.910 Party, where the Supreme Court actually laid 00:06:55.910 --> 00:06:58.050 out their philosophical reasons for why they 00:06:58.050 --> 00:07:00.170 put up these barricades. Yeah, they listed three 00:07:00.170 --> 00:07:02.209 major pillars of their philosophy in that case. 00:07:02.490 --> 00:07:05.250 The first is the problem of speculation. Speculation. 00:07:05.389 --> 00:07:07.670 Right. When you challenge a law right after it 00:07:07.670 --> 00:07:10.129 passes, before it has been enforced, you are 00:07:10.129 --> 00:07:12.910 dealing with pure hypotheticals. The court noted 00:07:12.910 --> 00:07:16.110 in In another case, Sabri v. United States, the 00:07:16.110 --> 00:07:18.209 facial challenges raised the risk of premature 00:07:18.209 --> 00:07:20.829 interpretation based on factually bare -bones 00:07:20.829 --> 00:07:27.689 records. You are asking the court to imagine 00:07:27.689 --> 00:07:30.970 how the law might be misused in the future instead 00:07:30.970 --> 00:07:33.490 of showing them real evidence of how it actually 00:07:33.490 --> 00:07:36.050 was misused in the real world. Exactly. You are 00:07:36.050 --> 00:07:38.610 basically asking judges to be fortune tellers. 00:07:38.930 --> 00:07:40.910 They're sitting in a courtroom trying to dream 00:07:40.910 --> 00:07:43.709 up every possible scenario where a law might 00:07:43.709 --> 00:07:46.410 be applied, which is an incredibly difficult 00:07:46.410 --> 00:07:49.970 and honestly error prone way to do jurisprudence. 00:07:50.170 --> 00:07:52.089 Yeah, that makes sense. What's the second pillar? 00:07:52.310 --> 00:07:54.410 The second reason is a core principle called 00:07:54.379 --> 00:07:57.620 judicial restraint. There was a famous concurring 00:07:57.620 --> 00:08:01.379 opinion by Justice Brandeis in Ashwander v. Tennessee 00:08:01.379 --> 00:08:03.379 Valley Authority. Oh, I've heard of that one. 00:08:03.459 --> 00:08:05.819 Yeah, it's a big one. He argued that courts should 00:08:05.819 --> 00:08:07.939 never anticipate a question of constitutional 00:08:07.939 --> 00:08:10.660 law before it's absolutely necessary to decide 00:08:10.660 --> 00:08:13.660 it. Furthermore, they shouldn't formulate a rule 00:08:13.660 --> 00:08:16.220 of constitutional law broader than the precise 00:08:16.220 --> 00:08:19.220 facts require. So basically, don't answer questions 00:08:19.220 --> 00:08:21.480 you haven't formally been asked and don't make 00:08:21.480 --> 00:08:23.439 sweeping rules when a narrow ruling will do the 00:08:23.439 --> 00:08:25.720 trick. Just keep your head down and judge the 00:08:25.720 --> 00:08:27.860 specific facts, the specific injury right in 00:08:27.860 --> 00:08:29.819 front of you. That is the essence of judicial 00:08:29.819 --> 00:08:32.500 restraint. Yes. And the third reason the court 00:08:32.500 --> 00:08:35.440 limits these broad challenges is perhaps the 00:08:35.440 --> 00:08:38.500 most profound of all, the democratic process. 00:08:38.759 --> 00:08:41.240 OK, how does that factor in? As the court stated 00:08:41.240 --> 00:08:43.879 in Ayat v Planned Parenthood of Northern New 00:08:43.879 --> 00:08:47.500 England, striking down a whole law threatens 00:08:47.500 --> 00:08:50.679 to short circuit the democratic process. We have 00:08:50.679 --> 00:08:54.220 to keep in mind that a ruling of unconstitutionality 00:08:54.220 --> 00:08:57.000 frustrates the intent of the elected representatives 00:08:57.000 --> 00:08:58.960 of the people. Right, because the legislature 00:08:58.960 --> 00:09:01.299 wrote the law embodying the will of the voters. 00:09:01.700 --> 00:09:04.389 Exactly. for a panel of unelected judges to just 00:09:04.389 --> 00:09:07.350 step in and erase it entirely. That's a tremendous 00:09:07.350 --> 00:09:10.029 exercise of power, and it creates massive friction 00:09:10.029 --> 00:09:12.629 in a democracy. But they don't just write essays 00:09:12.629 --> 00:09:15.070 about why they dislike it, though. They translate 00:09:15.070 --> 00:09:17.730 that philosophy into actual courtroom rules by 00:09:17.730 --> 00:09:20.250 making it incredibly difficult to pull off. Like, 00:09:20.509 --> 00:09:23.269 they set the burden of proof so astronomically 00:09:23.269 --> 00:09:25.759 high. Oh, absolutely. If you want to win a facial 00:09:25.759 --> 00:09:27.899 challenge, it is not enough to show that the 00:09:27.899 --> 00:09:30.299 law might be unconstitutional sometimes, or even 00:09:30.299 --> 00:09:32.460 most of the time. Wait, really? Most of the time 00:09:32.460 --> 00:09:35.600 isn't enough. Nope. The Supreme Court established 00:09:35.600 --> 00:09:39.100 in U .S. v. Salerno that to succeed... The challenger 00:09:39.100 --> 00:09:42.139 has to establish that no set of circumstances 00:09:42.139 --> 00:09:44.639 exists under which the statute would be valid. 00:09:44.899 --> 00:09:48.419 No set of circumstances. Wow. That means if the 00:09:48.419 --> 00:09:50.539 government's lawyers can stand up in court and 00:09:50.539 --> 00:09:54.039 invent just one single highly specific hypothetical 00:09:54.039 --> 00:09:56.159 scenario where the law could be applied legally, 00:09:56.919 --> 00:09:59.759 the whole challenge fails. It's a nearly impossible 00:09:59.759 --> 00:10:03.139 standard to meet. Or as it was phrased in Washington 00:10:03.139 --> 00:10:05.899 v. Luxburg, you have to prove the statute lacks 00:10:05.899 --> 00:10:09.519 any Plainly legitimate sweep. Plainly legitimate 00:10:09.519 --> 00:10:12.179 sweep. Right. If there is even a sliver of legitimate 00:10:12.179 --> 00:10:14.820 application, the law stays on the books and you 00:10:14.820 --> 00:10:16.779 just have to wait for someone to be injured to 00:10:16.779 --> 00:10:18.960 bring an as -applied challenge. Hold on though. 00:10:19.279 --> 00:10:21.539 If the court is so worried about the democratic 00:10:21.539 --> 00:10:23.980 process and so worried about judicial restraint, 00:10:24.080 --> 00:10:26.120 why are they ever willing to do this? Couldn't 00:10:26.120 --> 00:10:28.360 you argue that leaving eight in my bad law on 00:10:28.360 --> 00:10:30.759 the books has a chilling effect on someone's 00:10:30.759 --> 00:10:32.460 rights? What do you mean by chilling effect? 00:10:32.679 --> 00:10:35.419 Like, if a state passes a law that violates the 00:10:35.419 --> 00:10:37.620 Commerce Clause, that chills business, right? 00:10:38.100 --> 00:10:40.159 If they pass a law violating the Fourth Amendment, 00:10:40.440 --> 00:10:43.230 that chills privacy. But reading through the 00:10:43.230 --> 00:10:46.350 source material, there is a very specific, almost 00:10:46.350 --> 00:10:49.750 sacred exception to this rule, and it only applies 00:10:49.750 --> 00:10:51.529 to the First Amendment. Yes, the First Amendment 00:10:51.529 --> 00:10:54.149 card out. Why is free speech the only sacred 00:10:54.149 --> 00:10:55.889 exception where they drop all these rules about 00:10:55.889 --> 00:10:57.970 judicial restraint and just bring out the sledgehammer? 00:10:58.350 --> 00:11:00.529 What's fascinating here is how the court views 00:11:00.529 --> 00:11:04.470 the unique fragility of free expression. In First 00:11:04.470 --> 00:11:06.509 Amendment cases, the court created this concept 00:11:06.509 --> 00:11:09.029 called the overbreath doctrine. The overbreath 00:11:09.029 --> 00:11:10.769 doctrine. OK, break that down for us. Imagine 00:11:10.769 --> 00:11:13.029 a statute that does have a legitimate reach. 00:11:13.750 --> 00:11:16.509 Let's say a city passes a law to prevent aggressive 00:11:16.509 --> 00:11:19.509 panhandling that blocks traffic. The law genuinely 00:11:19.509 --> 00:11:21.970 stops a public safety hazard. Sure. Nobody wants 00:11:21.970 --> 00:11:24.230 blocked traffic. Right. So under the Salerno 00:11:24.230 --> 00:11:26.289 standard, we just talked about the no set of 00:11:26.289 --> 00:11:29.149 circumstances standard, a facial challenge against 00:11:29.149 --> 00:11:32.129 this law should fail because the law clearly 00:11:32.129 --> 00:11:35.330 has some valid constitutional applications regarding 00:11:35.330 --> 00:11:37.629 traffic safety. The government points to the 00:11:37.629 --> 00:11:40.340 traffic safety. shows the plainly legitimate 00:11:40.340 --> 00:11:44.759 sweep and the law survives. Exactly. But if that 00:11:44.759 --> 00:11:47.559 same statute reaches too far and accidentally 00:11:47.559 --> 00:11:49.500 includes wording that restricts a substantial 00:11:49.500 --> 00:11:52.159 amount of protected conduct, like, say, peaceful 00:11:52.159 --> 00:11:54.539 protesting on a sidewalk or handing out political 00:11:54.539 --> 00:11:57.960 leaflets, it's considered overbroad. And if it's 00:11:57.960 --> 00:12:00.860 overbroad? If it is overbroad, The court says 00:12:00.860 --> 00:12:04.019 it is void on its face. The logic is that free 00:12:04.019 --> 00:12:06.580 speech is so vulnerable that we simply cannot 00:12:06.580 --> 00:12:09.440 afford to wait for the retrospective fix. We 00:12:09.440 --> 00:12:11.580 can't wait for a peaceful protester to actually 00:12:11.580 --> 00:12:13.899 get arrested and go through a two -year trial 00:12:13.899 --> 00:12:15.799 to vindicate their rights. Because just having 00:12:15.799 --> 00:12:19.340 the law exist scares people. Yes. The mere existence 00:12:19.340 --> 00:12:21.860 of an over -broad speech law creates that chilling 00:12:21.860 --> 00:12:24.340 effect you mentioned. People will censor themselves 00:12:24.340 --> 00:12:26.679 at a fear of arrest. So to protect the public 00:12:26.679 --> 00:12:29.259 discourse, the court is suddenly perfectly willing 00:12:29.259 --> 00:12:31.340 to strike down the whole statute prospectively. 00:12:32.039 --> 00:12:34.320 bypassing all their usual hesitation. The court 00:12:34.320 --> 00:12:36.519 basically values the breathing room for free 00:12:36.519 --> 00:12:39.059 speed more than it values saving a poorly written 00:12:39.059 --> 00:12:41.700 law. That's a great way to put it. It is a total 00:12:41.700 --> 00:12:44.799 departure from their usual strict rules, which 00:12:44.799 --> 00:12:46.840 brings us to the twist in our deep dive. Oh, 00:12:46.860 --> 00:12:48.720 here we go. Yeah, here's where it gets really 00:12:48.720 --> 00:12:51.320 interesting. We've just spent all this time establishing 00:12:51.320 --> 00:12:54.159 that the Supreme Court claims to hate facial 00:12:54.159 --> 00:12:57.440 challenges. They set impossible standards like 00:12:57.440 --> 00:13:01.379 no set of circumstances. They lecture about judicial 00:13:01.379 --> 00:13:04.059 restraint and the democratic process. They say 00:13:04.059 --> 00:13:06.639 it should only be used rarely, mostly just to 00:13:06.639 --> 00:13:08.539 protect free speech. Right, that's their official 00:13:08.539 --> 00:13:11.419 story. But if we actually look at history, do 00:13:11.419 --> 00:13:14.059 they practice what they preach? If we look at 00:13:14.059 --> 00:13:17.019 the empirical evidence, the answer is a resounding 00:13:17.019 --> 00:13:21.320 no. There is a deeply contrary position to the 00:13:21.320 --> 00:13:24.799 court's official stance, and it exposes a massive 00:13:24.799 --> 00:13:26.879 contradiction in American jurisprudence. This 00:13:26.879 --> 00:13:29.259 is where the source brings in legal scholar Richard 00:13:29.259 --> 00:13:32.379 H. Fallon Jr., who published an article in 2011 00:13:32.379 --> 00:13:34.740 that basically called out the Supreme Court's 00:13:34.740 --> 00:13:36.840 bluff. Yeah, Fallon looked at the actual data 00:13:36.840 --> 00:13:39.840 and pointed out that if we look at massive society 00:13:39.840 --> 00:13:42.100 -altering cases, the Supreme Court didn't use 00:13:42.100 --> 00:13:45.179 scalpels at all. They use the exact blunt instrument 00:13:45.179 --> 00:13:48.360 they claim to hate. The sledgehammer. The sledgehammer. 00:13:49.299 --> 00:13:51.460 Fallon argued that the Supreme Court resorts 00:13:51.460 --> 00:13:54.799 to facial challenges to invalidate statutes way 00:13:54.799 --> 00:13:57.740 more regularly than they admit. It's not just 00:13:57.740 --> 00:14:00.600 a rare tool reserved for First Amendment over 00:14:00.600 --> 00:14:02.899 -breath. Let's look at the actual mechanics of 00:14:02.899 --> 00:14:05.779 some of the most monumental history -altering 00:14:05.779 --> 00:14:08.740 Supreme Court decisions. Take Brown v. Board 00:14:08.740 --> 00:14:11.870 of Education. Wow, okay. The landmark ruling 00:14:11.870 --> 00:14:14.009 under the equal protection clause that ended 00:14:14.009 --> 00:14:16.549 segregated schooling, that was a facial challenge. 00:14:16.610 --> 00:14:19.049 That was fundamentally a successful facial challenge. 00:14:19.289 --> 00:14:21.230 The court didn't just look at one specific school 00:14:21.230 --> 00:14:23.789 district at the peak of Kansas and say, the way 00:14:23.789 --> 00:14:26.549 you applied this segregation law to this specific 00:14:26.549 --> 00:14:29.029 student is unconstitutional, so we are going 00:14:29.029 --> 00:14:31.309 to narrow this one law. No, they went way bigger 00:14:31.309 --> 00:14:34.049 than that. They struck down the entire statutory 00:14:34.049 --> 00:14:36.409 framework of segregated schooling on its face. 00:14:36.590 --> 00:14:39.169 They declared that separate educational facilities 00:14:39.169 --> 00:14:42.570 are inherently unequal. There was no set of circumstances 00:14:42.570 --> 00:14:44.950 where segregation could be applied legally. They 00:14:44.950 --> 00:14:47.570 voided the concept entirely. That is incredible. 00:14:47.669 --> 00:14:50.090 And it's not just equal rights, right? The text 00:14:50.090 --> 00:14:53.750 mentions United States v. Lopez. Yes. A massive 00:14:53.750 --> 00:14:55.970 case under the Commerce Clause where the court 00:14:55.970 --> 00:14:58.309 struck down the Federal Gun -Free School Zones 00:14:58.309 --> 00:15:02.039 Act of 1990. In this instance, Congress tried 00:15:02.039 --> 00:15:04.639 to use its power to regulate interstate commerce 00:15:04.639 --> 00:15:08.159 to ban guns in local school zones. And what did 00:15:08.159 --> 00:15:10.360 the court do? When the Supreme Court reviewed 00:15:10.360 --> 00:15:12.720 it, they didn't carve out exceptions or narrow 00:15:12.720 --> 00:15:16.019 the law's application. They invalidated it entirely 00:15:16.019 --> 00:15:19.080 on its face because they ruled Congress lacked 00:15:19.080 --> 00:15:20.940 the constitutional authority to pass it in the 00:15:20.940 --> 00:15:23.740 first place. When a legislature acts completely 00:15:23.740 --> 00:15:26.419 outside its jurisdiction, there is no plainly 00:15:26.419 --> 00:15:30.000 legitimate sweep. The entire law is void. So 00:15:30.000 --> 00:15:32.399 the very tool they claim is too speculative, 00:15:32.799 --> 00:15:35.320 too anti -democratic, and lacks judicial restraint 00:15:35.320 --> 00:15:37.860 is the exact same tool they use to fundamentally 00:15:37.860 --> 00:15:40.279 reshape American society in equal protection 00:15:40.279 --> 00:15:42.600 and in checking federal power. It really makes 00:15:42.600 --> 00:15:44.759 you think, doesn't it? And Fallon's article goes 00:15:44.759 --> 00:15:47.139 even deeper. He points out that facial challenges 00:15:47.139 --> 00:15:49.340 aren't just limited to these massive headline 00:15:49.340 --> 00:15:51.779 -grabbing constitutional showdowns. They are 00:15:51.779 --> 00:15:54.519 actually baked into the standard, everyday ways 00:15:54.519 --> 00:15:57.320 the court evaluates laws. Like what? A perfect 00:15:57.320 --> 00:16:00.340 example is the rational basis test. Oh, okay. 00:16:00.559 --> 00:16:03.340 Explain how the rational basis test works, because 00:16:03.340 --> 00:16:05.919 on paper it sounds like the easiest test for 00:16:05.919 --> 00:16:08.480 a law to pass. How does that act as a hidden 00:16:08.480 --> 00:16:10.820 facial challenge? Well, the rational basis test 00:16:10.820 --> 00:16:13.000 is the lowest level of scrutiny a court applies 00:16:13.000 --> 00:16:16.759 to a law. To survive this test, a statute simply 00:16:16.759 --> 00:16:20.059 has to posit some rational relation to a legitimate 00:16:20.059 --> 00:16:22.019 state interest. So the government just has to 00:16:22.019 --> 00:16:23.960 show they had a logical, legitimate reason for 00:16:23.960 --> 00:16:26.259 passing the law. It's a very low bar. Very low. 00:16:26.860 --> 00:16:29.659 But... Consider what happens if a court decides 00:16:29.659 --> 00:16:33.379 a statute fails this test. If a law lacks an 00:16:33.379 --> 00:16:35.779 and why rational relation to a legitimate state 00:16:35.779 --> 00:16:38.000 interest, the court is essentially saying the 00:16:38.000 --> 00:16:40.080 law is completely irrational. It is arbitrary. 00:16:40.519 --> 00:16:43.179 And if a law is 100 % irrational, there is obviously 00:16:43.179 --> 00:16:45.639 no set of circumstances where it could be validly 00:16:45.639 --> 00:16:47.759 applied. Exactly the point. When a law fails 00:16:47.759 --> 00:16:50.919 the rational basis test, it fails entirely. The 00:16:50.919 --> 00:16:53.059 court has quietly executed a facial challenge 00:16:53.059 --> 00:16:55.860 and voided the statute without necessarily using 00:16:55.860 --> 00:16:58.570 the dramatic terminology. They struck the whole 00:16:58.570 --> 00:17:00.350 thing down while pretending it was just a routine 00:17:00.350 --> 00:17:02.429 inspection. It's not like the Supreme Court is 00:17:02.429 --> 00:17:04.769 entirely blind to this contradiction, right? 00:17:04.829 --> 00:17:06.690 I mean, the source notes they've actually admitted 00:17:06.690 --> 00:17:09.650 the line between these challenges is incredibly 00:17:09.650 --> 00:17:12.849 blurry. They have. In the highly controversial 00:17:12.849 --> 00:17:16.769 2010 case Citizens United v. Federal Election 00:17:16.769 --> 00:17:19.930 Commission, the Supreme Court openly acknowledged 00:17:19.930 --> 00:17:23.210 the messiness. What did they say? They stated 00:17:23.210 --> 00:17:26.769 in their own ruling that The distinction between 00:17:26.769 --> 00:17:30.130 facial and as applied challenges is not so well 00:17:30.130 --> 00:17:33.309 defined that it has some automatic effect or 00:17:33.309 --> 00:17:35.369 that it must always control the pleadings and 00:17:35.369 --> 00:17:38.190 disposition in every case involving a constitutional 00:17:38.190 --> 00:17:40.769 challenge. That is basically the Supreme Court 00:17:40.769 --> 00:17:42.890 shrugging and saying, yeah, the rules we made 00:17:42.890 --> 00:17:45.009 up about strict standards and burdens of proof, 00:17:45.130 --> 00:17:47.690 we don't always follow them. They bend the definitions 00:17:47.690 --> 00:17:49.630 when it suits the disposition of the case in 00:17:49.630 --> 00:17:51.130 front of them. That certainly looks that way. 00:17:51.289 --> 00:17:53.710 And we continue to see this play out in modern 00:17:53.710 --> 00:17:56.589 legal battles. The text explicitly points out 00:17:56.589 --> 00:17:59.089 that in 2011, there was a major facial challenge 00:17:59.089 --> 00:18:01.410 to the insurance mandate portion of the Patient 00:18:01.410 --> 00:18:04.589 Protection and Affordable Care Act, or Obamacare. 00:18:04.849 --> 00:18:07.529 Right. One of the most significant pieces of 00:18:07.529 --> 00:18:10.990 legislation in a generation. And the challengers 00:18:10.990 --> 00:18:13.849 didn't wait around to see how the insurance mandate 00:18:13.849 --> 00:18:15.970 would be applied to specific individuals. They 00:18:15.970 --> 00:18:17.549 went straight for the sledgehammer. They went 00:18:17.549 --> 00:18:19.509 straight for the facial challenge. They tried 00:18:19.509 --> 00:18:21.930 to tear the whole mandate down prospectively 00:18:21.930 --> 00:18:23.650 before it could take root in the health care 00:18:23.650 --> 00:18:27.150 system. It perfectly illustrates that when the 00:18:27.150 --> 00:18:29.710 stakes are highest, when the ideological battles 00:18:29.710 --> 00:18:32.849 over federal power are fiercest, nobody wants 00:18:32.849 --> 00:18:35.890 to wait for a retrospective injury. Everyone 00:18:35.890 --> 00:18:38.849 reaches for the forward looking approach, regardless 00:18:38.849 --> 00:18:41.210 of how much the Supreme Court claims to disfavor 00:18:41.210 --> 00:18:44.430 it. So what does this all mean for you, the listener? 00:18:44.650 --> 00:18:47.369 Why should you care about this highly technical 00:18:47.369 --> 00:18:49.809 legal terminology? Because the next time you 00:18:49.809 --> 00:18:51.809 turn on the news and you see a massive new law 00:18:51.809 --> 00:18:54.210 being contested, whether it is about health care, 00:18:54.509 --> 00:18:56.829 election integrity, or environmental regulations, 00:18:57.230 --> 00:18:58.970 you aren't just going to hear the political talking 00:18:58.970 --> 00:19:00.970 points anymore. You'll see the strategy behind 00:19:00.970 --> 00:19:04.880 it. Exactly. You are going to instantly recognize 00:19:04.880 --> 00:19:07.519 the strategic chess match being playing beneath 00:19:07.519 --> 00:19:10.000 the surface. You will look at the lawsuit and 00:19:10.000 --> 00:19:12.500 know exactly what the lawyers are trying to do. 00:19:12.799 --> 00:19:15.359 You'll understand the immense, almost impossible 00:19:15.359 --> 00:19:17.900 burden of proof the Supreme Court requires to 00:19:17.900 --> 00:19:20.920 actually win that total knockout blow. And you'll 00:19:20.920 --> 00:19:23.180 spot the hypocrisy when the court suddenly decides 00:19:23.180 --> 00:19:25.799 to lower that drawbridge for a case they care 00:19:25.799 --> 00:19:28.819 about. And if we connect this to the bigger picture... 00:19:28.910 --> 00:19:32.410 This entire dynamic leaves us with a really important 00:19:32.410 --> 00:19:34.670 question to ponder, especially as we look to 00:19:34.670 --> 00:19:36.950 the future. Oh, absolutely. We've established 00:19:36.950 --> 00:19:39.849 that the Supreme Court explicitly claims to disfavor 00:19:39.849 --> 00:19:42.630 facial challenges out of respect for the democratic 00:19:42.630 --> 00:19:45.329 process, right? They demand that lawyers wait 00:19:45.329 --> 00:19:47.650 for someone to be injured so they can apply a 00:19:47.650 --> 00:19:50.470 narrow retrospective fix. But we also learned 00:19:50.470 --> 00:19:53.789 they secretly rely on this very tactic to strike 00:19:53.789 --> 00:19:56.609 down laws in their biggest, most historic landmark 00:19:56.609 --> 00:19:59.359 cases. It leaves you wondering when the highest 00:19:59.359 --> 00:20:01.700 court in the land tells lawyers to use a scalpel, 00:20:02.039 --> 00:20:03.880 but keeps reaching for the sledgehammer themselves 00:20:03.880 --> 00:20:06.759 to make history. Does the stated rule exist to 00:20:06.759 --> 00:20:09.259 actually guide justice? Or simply to give the 00:20:09.259 --> 00:20:11.380 court an easy excuse to dismiss the cases they'd 00:20:11.380 --> 00:20:12.200 rather not deal with?