California Law Review VOL. 9 AUGUST 201 I No. 4 Copyright 0 2011 by California Law Review, Inc., a California Nonprofit Corporation Fact and Fiction About Facial Challenges Richard H. Fallon, Jr.* The Justices of the U.S. Supreme Court have frequently insisted that 'facial challenges" to the validity ofstatutes are and ought to be rare. Based partly on an empirical survey of all cases decided by the Court during six selected Terms, this Article reveals that assumption to be empiricallyfalse and normatively mistaken. Error on this point reflects broader confusions and misunderstandings. For example, it is not true that only a few especially stringent constitutional tests ftame facial challenges. Even the rationalbasis test sometimes yields the conclusion that statutes are invalid in toto. The conventional wisdom also errs in positing that the Supreme Court can cure a statute'sfacialdefects merely by invoking a general "presumption of severability" under which, in a future case, any of a statute's invalid applicationscan be separatedfrom valid ones. Besides revising the conventional wisdom about facial challenges, this Article locates the root of misunderstanding in the rhetoric of a relatively small number of much-cited cases. It also begins the reconstructive task of explaining when facial challenges do and do not succeed. That explanation has three parts. First, there is a crucial linkage between rulings of facial invalidity and the breadth of the reasons that the Supreme Court gives in upholding constitutional challenges. Second, the Court is often inattentive to severability issues, and its practice must be understood accordingly. Copyright © 2011 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. * Ralph S. Tyler, Jr. Professor of Constitutional Law, Harvard Law School. I am grateful to Mike Dorf, John Manning, Dan Meltzer, and Gillian Metzger for extremely helpful comments on an earlier draft and to Mark Savignac, Previn Warren, and Seth Wiener for excellent research assistance. 915 916 CALIFORNIA LAW REVIEW [Vol. 99:915 Although this Article advances important rationalizing generalizations, it explains why the Court's approach to severability cannot be captured in rigid rules. Third, many Supreme Court decisions rejectingfacial challenges are best understood as finding facial challenges to be unripe, rather than categoricallyunavailable. Introduction....................................... ..... 917 I. Defining As-Applied and Facial Challenges: Ambiguities at the Threshold. ........................................ 922 II. Foundations of the Conventional but Fallacious Understanding................ 926 A. Foundations of the Conventional Wisdom ................ 926 1. Yazoo & Mississippi Valley Railroadv. Jackson Vinegar Co...........................................926 2. United States v. Raines . ...................... ...... 928 3. Brockett v. Spokane Arcades, Inc............. ........ 930 4. United States v. Salerno. .................... ........ 930 B. Recent Cases ............................. ...... 931 1. Sabri v. United States...................................931 2. United States v. Georgia ................... ........ 932 3. Ayotte v. PlannedParenthood ofNorthern New England.......933 4. Gonzales v. Carhart ........................ ...... 934 III. Constitutional Doctrine and the Near Ubiquity of Facial Challenges.......935 A. Facial Challenges Hiding in Plain Sight.......... ....... 935 B. An Empirical Survey of All Cases in Six Supreme Court Terms ...940 1. Empirical Findings ............................. 941 2. Preliminary Discussion .......................... 941 C. The Conventional Wisdom Reappraised........... ...... 942 1. Facial Challenges Are Not Rare or Categorically Suspect ...... 942 2. The Court Does Not Always Insist on Considering As- Applied Challenges First ................... ..... 946 3. Facial Challenges Are Not Limited to Stringent Constitutional Tests ................... ........ 948 4. The Court Does Not Apply an Unqualified or Consistent Presumption of Severability. ................. ..... 948 IV. Making (Some) Sense of Supreme Court Practice in Rebuffing and Upholding Facial Challenges ...................... ..... 949 A. The Role of Reasons ........................ ...... 950 B. The Role of Severability ..................... ....... 953 C. The Role of Ripeness ....................... ....... 959 Conclusion: Problems with Facial Challenges and the Court's Response......963 Appendix......................................... ..... 966 A. Conceptual and Practical Challenges............ .. ................... 967 B. Methodological Choices ....................... ..... 969 C. Term-by-Term Categorizations of Cases ........... ...... 971 2011] FACT AND FICTIONABOUT FACIAL CHALLENGES 9 17 INTRODUCTION The question of when statutes should be subject to "facial" rather than to "as-applied" challenges is currently a subject of hot debate, both in the Supreme Court and among commentators.' Especially in the years since John Roberts became Chief Justice, High Court opinions have often displayed an acute self-consciousness about the distinction between facial and as-applied challenges.2 The Justices have lectured not only the lower courts, but also each other, about when facial challenges are and are not appropriate.3 Without exception, the lectures rest on the assumption that facial challenges are and ought to be rare. That assumption is false as an empirical matter and highly dubious as a normative proposition. What is more, misunderstanding on this point reflects more general myopia and confusion with respect to facial challenges in the Supreme Court, perhaps most especially, but by no means exclusively, among the Justices themselves. Nearly across the board, the conventional wisdom regarding facial challenges-some of which I have myself endorsed in prior writing4-iS more wrong than right. It errs with respect to at least four important points. First, as I have asserted already, facial challenges to statutes are common, not anomalous.5 To provide one measure of the frequency of facial challenges, my research assistants and I examined every case decided by the Supreme 1. For recent scholarly discussions, see, for example, Luke Meier, Facial Challenges and the Separation of Powers, 85 IND. L.J. 1557 (2010); Gillian Metzger, Facial and As-Applied Challenges Under the Roberts Court, 36 FORDHAM URB. L.J. 773, 798 (2009); Nathaniel Persily & Jennifer S. Rosenberg, Defacing Democracy: The Changing Nature and Rising Importance of As-Applied Challenges in the Supreme Court's Recent Election Law Decisions,93 MINN. L. REV. 1644 (2009); Nicholas Quinn Rosenkranz, The Subjects of the Constitution, 62 STAN. L. REV. 1209, 1273-79 (2010); Symposium, The Roberts Court: DistinguishingAs-Applied Versus Facial Challenges, 30 HASTINGS CONST. L.Q. 563 (2009); Kevin C. Walsh, Partial Unconstitutionality, 85 N.Y.U. L. REV. 738 (2010). 2. See, e.g., Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876, 892-96 (2010); Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450 (2008); Gonzales v. Carhart, 550 U.S. 124, 156-68 (2007); Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320,328-31(2006). 3. Compare Citizens United, 130 S. Ct. at 892-96 (asserting the appropriateness of entertaining a facial challenge to a statute regulating political speech) (majority opinion) with id at 932-38 (maintaining that challengers had only presented, and the Court should only address, an as-applied challenge) (Stevens, J., dissenting). 4. See Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 HARV. L. REV. 1321 (2000). 5. But see Wash. State Grange, 552 U.S. at 450 ("[F]acial challenges are disfavored."); Sabri v. United States, 541 U.S. 600, 608 (2004) ("recalling that facial challenges are best when infrequent"); RICHARD H. FALLON, JR., JOHN F. MANNING, DANIEL J. MELTZER, & DAVID L. SHAPIRO, HART AND WECHSLER's THE FEDERAL COURTS AND THE FEDERAL SYSTEM 163 (6th ed. 2009) (referring to "the Court's characteristic refusal to adjudicate facial challenges") [hereinafter HART & WECHSLER]; Persily & Rosenberg, supra note 1, at 1644 (noting the Supreme Court's "strong preference for as-applied challenges" in various contexts). 918 CALIFORNIA LAW REVIEW [Vol. 99:915 Court in the 2009, 2004, 1999, 1994, 1989, and 1984 Terms. In all of those Terms, the Court adjudicated more facial challenges on the merits than it did as-applied challenges. Another, equally convincing measure of the frequency of facial challenges emerges from an informal survey of leading Supreme Court cases establishing and applying doctrinal tests,7 many if not most of which direct attention to a statute on its face, not as applied. Consider, for example, the test applied to invalidate an affirmative action program in City ofRichmond v. J.A. Croson Co. By the Court's own analysis, the City of Richmond could have awarded preferences to identified victims of past racial discrimination.9 Yet the Court's test assessed the constitutionality of the program on its face, not as-applied, and produced the conclusion that the program was invalid.'0 Similar determinations of facial invalidity have occurred, frequently without comment, in cases from Brown v. Board of Education" under the Equal Protection Clause to Brandenburg v. Ohiol2 under the First Amendment to United States v. Lopez13 under the Commerce