You know, whenever a massive controversial new
law hits the news, maybe you are watching the
signing ceremony on TV, right? Oh, yeah. The
cameras are flashing. The politicians are all
smiling and shaking. Well, exactly. There is
this immediate expectation that the fight is
over. Like, the law is the law now. Right. People
think it's a done deal. But the reality is, the
second that ink dries, an invisible ticking clock
begins. Somewhere, a team of lawyers is already
preparing to challenge that exact law in court
and how they choose to attack it. That choice
literally changes the course of American history.
Yeah, the signing of the legislation is really
just the opening bell. I mean, the courtroom
is where the actual boundaries of that law are
drawn or where the law is just completely dismantled.
And that dismantling process is exactly what
we are looking at today. Welcome to today's deep
dive. We are pulling from an incredibly dense
but frankly fascinating Wikipedia article focused
on a very specific concept in U .S. constitutional
law called the facial challenge. It's a heavy
topic for sure. It really is. But our mission
today is to shortcut all that intense legal jargon
for you. We are going to act as your expert guides
to the hidden mechanics of the Supreme Court.
Because once you understand this concept, you
are going to see exactly what is really happening
beneath the surface the next time a major piece
of legislation is contested in the news. And
just a quick note before we really get going
here, we're going to be talking about some highly
polarizing historical cases today. Right. You
know, from abortion laws to Obamacare. Right.
Just to be perfectly clear, We aren't endorsing
any political viewpoints or taking sides on the
actual laws themselves. We are just acting as
neutral guides, looking at the legal mechanics
of how these laws are fought over in court. Absolutely.
OK, let's unpack this. We have two main ways
a lawyer can attack a law, right? A facial challenge
and an as -applied challenge. Yeah. To understand
why the Supreme Court either, you know, heavily
restricts or entirely relies on a certain legal
tactic, we really need to look at the basic tools
in the legal toolbox. Let's start with the core
difference between those two challenges. Okay,
lay it on me. So a facial challenge is when a
plaintiff goes into court and alleges that a
piece of legislation is always unconstitutional.
Always. Under every possible circumstance. Wait,
always. Which means if they win, the law is completely
void. Like it's just... Gone. Exactly. If a facial
challenge is successful, the court declares the
statute facially invalid and it is struck down
in its entirety. It is just wiped off the books.
Wow. Okay. Now contrast that with an as applied
challenge. In an as applied challenge, the plaintiff
isn't saying the whole law is inherently bad.
They're alleging that a particular application
of the statute how it was used against them specifically
in their unique circumstances is unconstitutional.
Right, so they're making it personal. Yeah, exactly.
And a successful as applied challenge doesn't
strike the whole law down, it just narrows the
circumstances in which the statute can be constitutionally
applied moving forward. Okay, so to visualize
this, a facial challenge is basically like taking
a sledgehammer to a building. I like that analogy.
Thanks. While an as -applied challenge is more
like using a scalpel to just remove one bad room.
That captures the dynamic perfectly. The facial
challenge brings the entire structure down. The
as -applied challenge carefully excises the unconstitutional
application, but the rest of the statutory framework
survives. But does the entire law really just
disappear that easily with the sledgehammer?
Because I mean, looking at how the legal system
actually operates, it's rarely that clean of
a break, right? The courts don't just hand out
demolition permits to anyone who asks. No, they
definitely don't. The Supreme Court is actually
quite hesitant to allow that total destruction.
The source text points out specific cases like
Gonzalez v. Carhart or Crawford v. Marion County
Election Board where the court explicitly rejected
a facial challenge. So they just said no to the
sledgehammer. Pretty much. The justices basically
looked at the law and said, we are not knocking
this whole framework down. But in those same
rulings, the court or the concurring justices
intimated that the upheld statute might still
be vulnerable to a future precisus applied challenge.
They essentially told the lawyers to put the
sledgehammer away, but invited them to come back
later with a scalpel once they had a specific
victim. We won't destroy it now, but show us
exactly where it hurt someone later, and we'll
talk. That is so interesting. And that brings
us to the next massive distinction between these
two tactics, because it's not just about the
size of the impact, is it? No, not at all. It
is fundamentally about the timeline. We're talking
about when you are actually allowed to bring
these lawsuits to the court. Right. The temporal
difference, the timeline of when you can file,
is arguably just as important as the outcome
itself. A facial challenge is perspective. It
is forward looking. Forward looking. Yeah. Meaning
you can bring a facial challenge soon after a
statute passes the legislature before anyone
has actually been punished by it. The goal is
prevent the law from ever being enforced to stop
a constitutional violation before it even happens.
So you see the law pass. You say this is entirely
unconstitutional and you sue to stop it in its
tracks before a single citizen is actually affected
by it. Exactly. But. And as applied challenge
is retrospective. It's backward looking. It can
only be brought once the law has actually been
enforced against someone. Oh, I see. It seeks
to redress a constitutional violation that has
already occurred. Yeah. You need a plaintiff
who has suffered a concrete injury. You know,
someone who was fined or arrested or actually
denied a right. Wait, if that's the case, why
would any lawyer or advocacy group ever choose
the retrospective route? What do you mean? Well,
think about it for you, the listener. If your
job is to protect people from a law you believe
is unjust, why would you sit around and wait
for someone to actually get hurt? Like wait for
someone to be arrested or fined just so you can
use the scalpel to fix a violation that already
happened? Right, yeah. Wouldn't you always grab
the forward -looking option the moment the law
passes and just smash it before anyone suffers?
I mean... Logically, yes. If you want to protect
rights, you want to act preventatively. And the
reality of the legal system is that lawyers absolutely
try to use the preventative, forward -looking
tactic all the time. OK, so they do try. They
definitely try. They want to nip the law in the
bud. But the Supreme Court has set up these massive,
almost insurmountable barricades to stop them
from doing so. The court strongly disfavors this
approach. Why do they hate it so much? Because
invalidating entire pieces of legislation carries
such sweeping consequences. The Supreme Court
has explicitly declared that facial challenges
should be used rarely. The source material gives
us some really specific insight into the court's
reasoning here, actually. There is a case mentioned,
Washington State Grange v. Washington State Republican
Party, where the Supreme Court actually laid
out their philosophical reasons for why they
put up these barricades. Yeah, they listed three
major pillars of their philosophy in that case.
The first is the problem of speculation. Speculation.
Right. When you challenge a law right after it
passes, before it has been enforced, you are
dealing with pure hypotheticals. The court noted
in In another case, Sabri v. United States, the
facial challenges raised the risk of premature
interpretation based on factually bare -bones
records. You are asking the court to imagine
how the law might be misused in the future instead
of showing them real evidence of how it actually
was misused in the real world. Exactly. You are
basically asking judges to be fortune tellers.
They're sitting in a courtroom trying to dream
up every possible scenario where a law might
be applied, which is an incredibly difficult
and honestly error prone way to do jurisprudence.
Yeah, that makes sense. What's the second pillar?
The second reason is a core principle called
judicial restraint. There was a famous concurring
opinion by Justice Brandeis in Ashwander v. Tennessee
Valley Authority. Oh, I've heard of that one.
Yeah, it's a big one. He argued that courts should
never anticipate a question of constitutional
law before it's absolutely necessary to decide
it. Furthermore, they shouldn't formulate a rule
of constitutional law broader than the precise
facts require. So basically, don't answer questions
you haven't formally been asked and don't make
sweeping rules when a narrow ruling will do the
trick. Just keep your head down and judge the
specific facts, the specific injury right in
front of you. That is the essence of judicial
restraint. Yes. And the third reason the court
limits these broad challenges is perhaps the
most profound of all, the democratic process.
OK, how does that factor in? As the court stated
in Ayat v Planned Parenthood of Northern New
England, striking down a whole law threatens
to short circuit the democratic process. We have
to keep in mind that a ruling of unconstitutionality
frustrates the intent of the elected representatives
of the people. Right, because the legislature
wrote the law embodying the will of the voters.
Exactly. for a panel of unelected judges to just
step in and erase it entirely. That's a tremendous
exercise of power, and it creates massive friction
in a democracy. But they don't just write essays
about why they dislike it, though. They translate
that philosophy into actual courtroom rules by
making it incredibly difficult to pull off. Like,
they set the burden of proof so astronomically
high. Oh, absolutely. If you want to win a facial
challenge, it is not enough to show that the
law might be unconstitutional sometimes, or even
most of the time. Wait, really? Most of the time
isn't enough. Nope. The Supreme Court established
in U .S. v. Salerno that to succeed... The challenger
has to establish that no set of circumstances
exists under which the statute would be valid.
No set of circumstances. Wow. That means if the
government's lawyers can stand up in court and
invent just one single highly specific hypothetical
scenario where the law could be applied legally,
the whole challenge fails. It's a nearly impossible
standard to meet. Or as it was phrased in Washington
v. Luxburg, you have to prove the statute lacks
any Plainly legitimate sweep. Plainly legitimate
sweep. Right. If there is even a sliver of legitimate
application, the law stays on the books and you
just have to wait for someone to be injured to
bring an as -applied challenge. Hold on though.
If the court is so worried about the democratic
process and so worried about judicial restraint,
why are they ever willing to do this? Couldn't
you argue that leaving eight in my bad law on
the books has a chilling effect on someone's
rights? What do you mean by chilling effect?
Like, if a state passes a law that violates the
Commerce Clause, that chills business, right?
If they pass a law violating the Fourth Amendment,
that chills privacy. But reading through the
source material, there is a very specific, almost
sacred exception to this rule, and it only applies
to the First Amendment. Yes, the First Amendment
card out. Why is free speech the only sacred
exception where they drop all these rules about
judicial restraint and just bring out the sledgehammer?
What's fascinating here is how the court views
the unique fragility of free expression. In First
Amendment cases, the court created this concept
called the overbreath doctrine. The overbreath
doctrine. OK, break that down for us. Imagine
a statute that does have a legitimate reach.
Let's say a city passes a law to prevent aggressive
panhandling that blocks traffic. The law genuinely
stops a public safety hazard. Sure. Nobody wants
blocked traffic. Right. So under the Salerno
standard, we just talked about the no set of
circumstances standard, a facial challenge against
this law should fail because the law clearly
has some valid constitutional applications regarding
traffic safety. The government points to the
traffic safety. shows the plainly legitimate
sweep and the law survives. Exactly. But if that
same statute reaches too far and accidentally
includes wording that restricts a substantial
amount of protected conduct, like, say, peaceful
protesting on a sidewalk or handing out political
leaflets, it's considered overbroad. And if it's
overbroad? If it is overbroad, The court says
it is void on its face. The logic is that free
speech is so vulnerable that we simply cannot
afford to wait for the retrospective fix. We
can't wait for a peaceful protester to actually
get arrested and go through a two -year trial
to vindicate their rights. Because just having
the law exist scares people. Yes. The mere existence
of an over -broad speech law creates that chilling
effect you mentioned. People will censor themselves
at a fear of arrest. So to protect the public
discourse, the court is suddenly perfectly willing
to strike down the whole statute prospectively.
bypassing all their usual hesitation. The court
basically values the breathing room for free
speed more than it values saving a poorly written
law. That's a great way to put it. It is a total
departure from their usual strict rules, which
brings us to the twist in our deep dive. Oh,
here we go. Yeah, here's where it gets really
interesting. We've just spent all this time establishing
that the Supreme Court claims to hate facial
challenges. They set impossible standards like
no set of circumstances. They lecture about judicial
restraint and the democratic process. They say
it should only be used rarely, mostly just to
protect free speech. Right, that's their official
story. But if we actually look at history, do
they practice what they preach? If we look at
the empirical evidence, the answer is a resounding
no. There is a deeply contrary position to the
court's official stance, and it exposes a massive
contradiction in American jurisprudence. This
is where the source brings in legal scholar Richard
H. Fallon Jr., who published an article in 2011
that basically called out the Supreme Court's
bluff. Yeah, Fallon looked at the actual data
and pointed out that if we look at massive society
-altering cases, the Supreme Court didn't use
scalpels at all. They use the exact blunt instrument
they claim to hate. The sledgehammer. The sledgehammer.
Fallon argued that the Supreme Court resorts
to facial challenges to invalidate statutes way
more regularly than they admit. It's not just
a rare tool reserved for First Amendment over
-breath. Let's look at the actual mechanics of
some of the most monumental history -altering
Supreme Court decisions. Take Brown v. Board
of Education. Wow, okay. The landmark ruling
under the equal protection clause that ended
segregated schooling, that was a facial challenge.
That was fundamentally a successful facial challenge.
The court didn't just look at one specific school
district at the peak of Kansas and say, the way
you applied this segregation law to this specific
student is unconstitutional, so we are going
to narrow this one law. No, they went way bigger
than that. They struck down the entire statutory
framework of segregated schooling on its face.
They declared that separate educational facilities
are inherently unequal. There was no set of circumstances
where segregation could be applied legally. They
voided the concept entirely. That is incredible.
And it's not just equal rights, right? The text
mentions United States v. Lopez. Yes. A massive
case under the Commerce Clause where the court
struck down the Federal Gun -Free School Zones
Act of 1990. In this instance, Congress tried
to use its power to regulate interstate commerce
to ban guns in local school zones. And what did
the court do? When the Supreme Court reviewed
it, they didn't carve out exceptions or narrow
the law's application. They invalidated it entirely
on its face because they ruled Congress lacked
the constitutional authority to pass it in the
first place. When a legislature acts completely
outside its jurisdiction, there is no plainly
legitimate sweep. The entire law is void. So
the very tool they claim is too speculative,
too anti -democratic, and lacks judicial restraint
is the exact same tool they use to fundamentally
reshape American society in equal protection
and in checking federal power. It really makes
you think, doesn't it? And Fallon's article goes
even deeper. He points out that facial challenges
aren't just limited to these massive headline
-grabbing constitutional showdowns. They are
actually baked into the standard, everyday ways
the court evaluates laws. Like what? A perfect
example is the rational basis test. Oh, okay.
Explain how the rational basis test works, because
on paper it sounds like the easiest test for
a law to pass. How does that act as a hidden
facial challenge? Well, the rational basis test
is the lowest level of scrutiny a court applies
to a law. To survive this test, a statute simply
has to posit some rational relation to a legitimate
state interest. So the government just has to
show they had a logical, legitimate reason for
passing the law. It's a very low bar. Very low.
But... Consider what happens if a court decides
a statute fails this test. If a law lacks an
and why rational relation to a legitimate state
interest, the court is essentially saying the
law is completely irrational. It is arbitrary.
And if a law is 100 % irrational, there is obviously
no set of circumstances where it could be validly
applied. Exactly the point. When a law fails
the rational basis test, it fails entirely. The
court has quietly executed a facial challenge
and voided the statute without necessarily using
the dramatic terminology. They struck the whole
thing down while pretending it was just a routine
inspection. It's not like the Supreme Court is
entirely blind to this contradiction, right?
I mean, the source notes they've actually admitted
the line between these challenges is incredibly
blurry. They have. In the highly controversial
2010 case Citizens United v. Federal Election
Commission, the Supreme Court openly acknowledged
the messiness. What did they say? They stated
in their own ruling that 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. That is basically the Supreme Court
shrugging and saying, yeah, the rules we made
up about strict standards and burdens of proof,
we don't always follow them. They bend the definitions
when it suits the disposition of the case in
front of them. That certainly looks that way.
And we continue to see this play out in modern
legal battles. The text explicitly points out
that in 2011, there was a major facial challenge
to the insurance mandate portion of the Patient
Protection and Affordable Care Act, or Obamacare.
Right. One of the most significant pieces of
legislation in a generation. And the challengers
didn't wait around to see how the insurance mandate
would be applied to specific individuals. They
went straight for the sledgehammer. They went
straight for the facial challenge. They tried
to tear the whole mandate down prospectively
before it could take root in the health care
system. It perfectly illustrates that when the
stakes are highest, when the ideological battles
over federal power are fiercest, nobody wants
to wait for a retrospective injury. Everyone
reaches for the forward looking approach, regardless
of how much the Supreme Court claims to disfavor
it. So what does this all mean for you, the listener?
Why should you care about this highly technical
legal terminology? Because the next time you
turn on the news and you see a massive new law
being contested, whether it is about health care,
election integrity, or environmental regulations,
you aren't just going to hear the political talking
points anymore. You'll see the strategy behind
it. Exactly. You are going to instantly recognize
the strategic chess match being playing beneath
the surface. You will look at the lawsuit and
know exactly what the lawyers are trying to do.
You'll understand the immense, almost impossible
burden of proof the Supreme Court requires to
actually win that total knockout blow. And you'll
spot the hypocrisy when the court suddenly decides
to lower that drawbridge for a case they care
about. And if we connect this to the bigger picture...
This entire dynamic leaves us with a really important
question to ponder, especially as we look to
the future. Oh, absolutely. We've established
that the Supreme Court explicitly claims to disfavor
facial challenges out of respect for the democratic
process, right? They demand that lawyers wait
for someone to be injured so they can apply a
narrow retrospective fix. But we also learned
they secretly rely on this very tactic to strike
down laws in their biggest, most historic landmark
cases. It leaves you wondering when the highest
court in the land tells lawyers to use a scalpel,
but keeps reaching for the sledgehammer themselves
to make history. Does the stated rule exist to
actually guide justice? Or simply to give the
court an easy excuse to dismiss the cases they'd
rather not deal with?