Facial v. As Applied Challenges in Doe v. Reed

June 24th, 2010

Chief Justice Roberts engages in an interesting discussion in Doe v. Reed regarding whether the case should be characterized as a facial or an as applied challenge:

The parties disagree about whether Count I is properlyviewed as a facial or as-applied challenge. Compare Reply Brief for Petitioners 8 (“Count I expressly made an as-applied challenge”), with Brief for Respondent Reed 1 (“This is a facial challenge to Washington’s Public RecordsAct”). It obviously has characteristics of both: The claim is “as applied” in the sense that it does not seek to strike the PRA in all its applications, but only to the extent it coversreferendum petitions. The claim is “facial” in that it is not limited to plaintiffs’ particular case, but challenges appli-cation of the law more broadly to all referendum petitions.
The label is not what matters. The important point isthat plaintiffs’ claim and the relief that would follow—aninjunction barring the secretary of state “from makingreferendum petitions available to the public,” App. 16(Complaint Count I)—reach beyond the particular circum-stances of these plaintiffs. They must therefore satisfy ourstandards for a facial challenge to the extent of that reach. See United States v. Stevens, 559 U. S. ___, ___ (2010) (slip op., at 10).

Also today, Justice Scalia, joined by Justices Kennedy and Thomas, expressed his doubt over the validity of facial challenges in Skilling v. United States:

A brief word about the appropriate remedy. As I noted supra, at 2, Skilling has argued that §1346 cannot beconstitutionally applied to him because it affords no definition of the right whose deprivation it prohibits. Thoughthis reasoning is categorical, it does not make Skilling’schallenge a “facial” one, in the sense that it seeks invalidation of the statute in all its applications, as opposed topreventing its enforcement against him. I continue to doubt whether “striking down” a statute is ever an appropriate exercise of our Article III power. See Chicago v. Morales, 527 U. S. 41, 77 (1999) (SCALIA, J., dissenting).In the present case, the universality of the infirmity Skilling identifies in §1346 may mean that if he wins, anyoneelse prosecuted under the statute will win as well, see Smith, supra, at 576–578. But Skilling only asks that his conviction be reversed, Brief for Petitioner 57–58, so the remedy he seeks is not facial invalidation.

I would therefore reverse Skilling’s conviction under§1346 on the ground that it fails to define the conduct it prohibits. The fate of the statute in future prosecutions—obvious from my reasoning in the case—would be a matter for stare decisis.