American University Law Review Volume 48 | Issue 2 Article 2 1998 Overcoming Overbreadth: Facial Challenges and the Valid Rule Requirement Marc E. Isserles Follow this and additional works at: http://digitalcommons.wcl.american.edu/aulr Part of the Constitutional Law Commons Recommended Citation Isserles, Marc E. “Overcoming Overbreadth: Facial Challenges and the Valid Rule Requirement.” American University Law Review 48, no.2 (December, 1998): 359-464. This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University Law Review by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Overcoming Overbreadth: Facial Challenges and the Valid Rule Requirement Keywords United States v. Salerno, Supreme Court, Planned Parenthood v. Casey, First Amendment This article is available in American University Law Review: http://digitalcommons.wcl.american.edu/aulr/vol48/iss2/2 OVERCOMING OVERBREADTH: FACIAL CHALLENGES AND THE VALID RULE REQUIREMENT * MARC E. ISSERLES TABLE OF CONTENTS Introduction........................................................................................ 360 I. “Overbreadth Facial Challenges” and the As-Applied Re- gime........................................................................................... 365 II. Salerno’s “No Set of Circumstances” Facial Challenge Test: The Prevailing Interpretation .................................................. 371 A. The Critique of Salerno ...................................................... 371 B. The Overbreadth Assumption .......................................... 375 C. Abandoning the Overbreadth Assumption...................... 382 III. Reconsidering Salerno’s “No Set of Circumstances”................ 385 A. Valid Rule Facial Challenges Explained........................... 386 1. A summary sketch ........................................................ 386 2. The First Amendment: Two forms of facial chal- lenges ............................................................................ 388 B. Reinterpreting Salerno as a Descriptive Claim About a Statute Whose Terms State an Invalid Rule of Law ......... 395 1. Salerno is consistent with the rules of the as-applied regime........................................................................... 396 2. Salerno’s “no set of circumstances” was not unnec- essary dictum ................................................................ 397 3. Salerno is consistent with the Supreme Court’s past facial challenge practice .............................................. 409 4. Salerno is not draconian nor does it unjustifiably privilege First Amendment challengers ...................... 415 C. The Limits of Valid Rule Theory: Overbreadth Doc- trine and the Narrow Tailoring Requirement.................. 416 * J.D., 1998, Harvard Law School. Special thanks to Richard Fallon, whose guidance and insight truly made this Article possible. Thanks also to Michael Dorf and Henry Monaghan for reading the manuscript and offering helpful comments and criticisms. Finally, thanks to Anne Harkavy, Kimo Peluso, and Joshua Waldman for their thoughtful suggestions, constant dia- logue, and encouragement. 359 IV. The Preconditions for a Successful Valid Rule Facial Chal- lenge.......................................................................................... 421 A. Identifying an Invalid Rule of Law.................................... 423 1. The litigant’s facial challenge must fairly be identi- fied as a valid rule facial challenge.............................. 425 2. The statutory terms themselves must trigger consti- tutional scrutiny under the applicable doctrinal test................................................................................. 428 3. The doctrinal test triggered must analyze the con- stitutional validity of the statutory terms and not the validity of specific statutory applications .............. 438 a. Some straightforward doctrinal tests ..................... 440 b. Harder doctrinal tests............................................. 443 B. The Preconditions and the Question of Remedy ............ 451 Conclusion: A Proposal...................................................................... 456 INTRODUCTION Litigants in the federal courts can attack the constitutionality of legislative enactments in two ways: they can bring a facial challenge to the law, alleging that it is unconstitutional in all of its applications, or they can bring an as-applied challenge, alleging that the law is un- constitutional as applied to the particular facts that their case pres- ents.1 Although the rhetoric of “nullification” (i.e., that a facially in- valid statute is null and void) continues to accentuate artificially the differences between facial and as-applied challenges,2 the differences 1. See Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 STAN. L. REV. 235, 236 (1994). 2. See Ada v. Guam Soc’y of Obstetricians & Gynecologists, 506 U.S. 1011, 1012 (1992) (Scalia, J., dissenting from denial of cert.) (stating that a court’s holding that a statute is facially unconstitutional renders the statute “utterly inoperative”); John Christopher Ford, The Casey Standard for Evaluating Facial Attacks on Abortion Statutes, 95 MICH. L. REV. 1443, 1444 (1997) (“Successful facial challenges, in short, nullify a state law.”). As others have remarked, state- ments invoking the concept of nullification are somewhat exaggerated, given that state officials need only obtain a narrowing construction from a state court to continue enforcing a state stat- ute that the Supreme Court has held facially unconstitutional. See Richard H. Fallon, Jr., Mak- ing Sense of Overbreadth, 100 YALE L.J. 853, 854 (1991) (remarking that the vocabulary of “void- ness” and similar terms do more to mislead than to describe); see also Osborne v. Ohio, 495 U.S. 103, 115-16 (1990) (noting the possibility of a narrow construction of the statute). But see Mat- thew D. Adler, Rights Against Rules: The Moral Structure of American Constitutional Law, 97 MICH. L. REV. 1, 149-50 (1998) (arguing for a more robust notion of facial invalidation). A lower federal court’s ruling that a state statute is facially unconstitutional has even less ef- fect on the state’s power to enforce its own statutes because the coordinate relationship be- tween state and lower federal courts dictates that a federal court’s ruling extends only to the parties before the court. See Fallon, supra, at 853-54 & nn.5-6. On the other hand, to the extent that state officials do not often seek such narrowing constructions after the Supreme Court’s facial rulings, see Ford, supra, at 1444 n.11, or state officials cease enforcement of statutes when even a lower federal court holds a statute facially invalid, see Fallon, supra, at 888 n.219, the ef- fects of a successful facial challenge may be more severe in practice than these rules indicate. are quite real and important.3 A ruling that a statute is unconstitu- tional on its face implicates a relatively robust role for the federal courts in reviewing legislative enactments.4 Such a role is in substan- tial tension with core principles underpinning Article III courts that require resolution of concrete disputes, general deference to the leg- islative process, and determination of constitutional questions as a matter of last resort and on a limited basis.5 As the Supreme Court has made clear on numerous occasions, facial challenges are appro- priate, if at all, only in exceptional circumstances.6 In United States v. Salerno,7 the Supreme Court set forth what ap- peared to be a general test governing facial challenges in the federal courts. The Court stated that to succeed on a facial challenge the challenger labors under a “heavy burden” and “must establish that no Moreover, in cases in which the Supreme Court holds a federal statute facially invalid, the lower federal courts and the state courts are bound by the Court’s ruling and cannot avoid that hold- ing through a subsequent narrowing construction. See United States v. Petrillo, 332 U.S. 1, 6 (1947); Fallon, supra, at 853 n.3. In part because of these competing considerations, this Article will use the term “facial invalidation” to describe a federal court’s pronouncement that a statute is facially unconstitutional, with full recognition that the effect of such a pronouncement may be at most provisional. 3. See Ada, 506 U.S. at 1013. Facial invalidation based on overbreadth impermissibly interferes with the state proc- ess of refining and limiting—through judicial decision or enforcement discretion— statutes that cannot be constitutionally applied in all cases covered by their language. And it prevents the state . from punishing people who violate a prohibition that is, in the context in which is applied, entirely constitutional. Id.; see Fallon, supra note 2, at 877-84 (analyzing the various costs of a facial overbreadth hold- ing). For jurisdictional purposes, the distinction is perhaps less important today than it once was. See Dorf, supra note 1, at 294 n.265 (explaining that congressional elimination of almost all of the Court’s mandatory appellate jurisdiction brought an end to the previous importance that the distinction between as-applied and facial challenges had in identifying cases appropriate