facial challenges and the Fourth Amendment

My friend Matt Price (a filmmaker here in L.A. — check out trailers for his latest horror-comedy) sent me this interesting Volokh Conspiracy post-mortem on Los Angeles v. Patel, a case involving an L.A. ordinance requiring hotel operators to keep records about their guests and make those records available to the LAPD. Nicholas Quinn Rosenkranz suggests that the Court missed an opportunity to articulate a simple standard for determining when “facial” challenges” to a law are appropriate, as opposed to “as-applied” challenges:

The idea here is that one can determine whether a facial or as-applied challenge is appropriate by determining which government actor is bound by the relevant clause and thus who allegedly violated the Constitution. The First Amendment begins “Congress shall make no law …” and so its subject is obviously Congress. A First Amendment claim is inherently a claim that Congress exceeded its power and violated the Constitution by making a law, on the day that it made a law. For this reason, it makes perfect sense that the Court is much more amenable to “facial challenges” in the First Amendment context. A First Amendment claim cannot be “factbound,” to use Scalia’s formulation, because the alleged constitutional violation, the making of a certain law, is completed by Congress before any enforcement facts arise.

But the first clause of the Fourth Amendment is entirely different. It does not say “Congress shall make no law…,” like the First Amendment. It does not, by its terms, forbid legislative action. Rather, it forbids unreasonable searches and seizures — which are paradigmatically executive actions. Here, enforcement facts are relevant to the constitutional analysis; indeed, here, the enforcement facts, the facts of the search or seizure, are the constitutional violation. This is why Alito’s parenthetical for Sibron is so apt: “[t]he constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case” (emphasis added). In this context, it is the execution of a search (by the executive), not the making of a law (by the legislature), that allegedly violates the Constitution. This is why, in the parenthetical for the next citation, Alito chooses to quote the penultimate sentence of the Manhattan Institute brief: “A constitutional claim under the first clause of the Fourth Amendment is never a ‘facial’ challenge, because it is always and inherently a challenge to executive action”) (emphasis added).

This is an intriguing idea, but I’m not sure the reliance on “who” (i.e., the branch of government that acts) actually does the work we want it to do in all cases.

To start with, no one actually thinks that the First Amendment only applies to legislatures. If the L.A. Parks Department has an internal, written policy (not authorized by the Legislature) of never allowing socialists to demonstrate in the parks, that policy would be unconstitutional. It would probably also be subject to a facial challenge.

Similarly, it seems to me no big leap to say that a legislative body could pass a law that would have no purpose other than authorizing Fourth Amendment violations, and I see no reason why that could not be subject to a facial challenge as well. For example, a legislature could pass a law authorizing searches of houses according to normal warrant procedures when there is probable cause, and then pass a separate law authorizing warrants for house searches when there is not probable cause, as long as three officers agree that there is reasonable suspicion of a crime (a lesser standard of proof). (Let us assume that there is some mechanism to prevent use of the law in situations where it would be constitutional — perhaps the officers and the magistrate must both certify that there really is no probable cause before invoking the reasonable suspicion provision.) The latter law would serve no purpose except to evade the strictures of the Fourth Amendment, and I see no reason why it could not be subjected to a facial challenge and entirely invalidated.

Matt raised a second issue in his Facebook message to me: “It’s a loaded gun; why do we have to wait for them to pull the trigger before we take them to court?” That question does illustrate a quandary posed by my suggestion that some laws could be facially invalid under the Fourth Amendment: does anyone have standing to challenge my hypothetical law before their house is searched?

I discussed standing when I did my “Blogging Fed Courts” series a couple of years ago:

Article III gives federal courts jurisdiction over “cases” and “controversies.” The terms are not defined, but collectively “cases and controversies” have been taken to be a mere subset of “all things you might be upset about.” In other words, you can’t bring an action in federal court just because you’re pissed off about something. Even if you’re totally right about it. You have to present a “case or controversy,” involving yourself, which the court could lawfully resolve.

The ability to successfully bring suit is usually called “standing.” (It’s a noun — you “have standing” to bring the suit.)

Here are the rules for standing. You have to have been personally injured. Your injury has to be “cognizable” by the courts — there may be injuries that, though real, the court is not prepared to acknowledge. The injury has to be “fairly traceable” to the conduct of the party you want to sue. And it has to be “redressable” by the courts — that is, the remedy you’re seeking in the suit has to be something that would actually fix the problem.

So, to answer Matt’s “loaded gun” question, the answer is that generally you have to have suffered an “injury” before courts can hear your case. It turns out, though, that this is a rule more honor’d in the breach when it comes to the First Amendment. Consistent with Rosenkrantz’s notion that a First Amendment violation occurs the moment a legislature legislates, one can have standing to bring a First Amendment complaint even when one has not yet engaged in the protected speech. The idea is that if you wish to speak, but are afraid to do so because of legal consequences (if your desired to speak is “chilled,” as the cases often say), that is enough to count as an “injury” under the First Amendment.

But the same argument doesn’t necessarily hold for our hypothetical warrant law. There is no particular lawful activity being chilled. (Being chilled in one’s desire to keep contraband doesn’t count, because, according to the Supreme Court, “any interest in possessing contraband cannot be deemed ‘legitimate.'”) There is no constitutionally protected activity being prevented, and so it would be hard to make a case for standing prior to an actual search.

As to standing, then, I think Rosenkranz’s legislative/executive distinction makes sense — there really can be a “loaded gun” lying around, and we can’t do anything about it until the executive branch picks it up and uses it.

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