Keith Mack
In the United States, challenging a statute on constitutional grounds is a complex but crucial aspect of the legal system, allowing for the correction of laws that violate constitutional rights. To successfully challenge a statute, individuals must demonstrate a strong understanding of the law, seek assistance from experienced constitutional lawyers, and develop a comprehensive strategy. The process involves filing a complaint in federal court, clearly identifying the statute in question, and explaining how it infringes on constitutional rights. One critical factor is establishing personal harm or standing, which means that the plaintiff is personally and negatively affected by the law. Constitutional challenges often carry broader societal implications, potentially impacting the enforceability of a law for the entire population, and therefore have a higher standard of proof.
| Characteristics | Values |
|---|---|
| Constitutional Challenge to a Statute | Rule 5.1 |
| Rule 5.1 goes beyond the requirements of §2403 and former Rule 24(c) provisions | |
| The court may reject a constitutional challenge at any time | |
| Facial Challenge | A challenge to a statute in which the plaintiff alleges that the legislation is always unconstitutional and therefore void |
| Facial challenges are said to be disfavored by the U.S. Supreme Court | |
| The Supreme Court has placed a higher burden on those wishing to establish a facial challenge | |
| Challenge Constitutionality of Laws | Defendants can challenge the constitutionality of the laws under which they are prosecuted |
| Individuals can raise Tenth Amendment claims that the federal government has overstepped its powers | |
| Someone directly and particularly harmed by a federal law can challenge that law's constitutionality | |
| Privacy Act | Americans can see and correct their information kept on file by the federal government |
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What You'll Learn
- Facial challenges: a statute is always unconstitutional and void
- As-applied challenges: a statute is unconstitutional in a particular instance
- Constitutional challenges: notice and certification required
- Defendants can challenge constitutionality of laws they're prosecuted under
- Privacy Act: right to view and correct personal information held by the government
Facial challenges: a statute is always unconstitutional and void
In the United States, lawsuits that challenge the constitutionality of a statute are classified into two categories: facial challenges and as-applied challenges. A facial challenge claims that a statute is unconstitutional at all times and under all circumstances, with the goal of having a court declare the law "facially invalid". This type of challenge can result in the invalidation of an entire statute, as it alleges that the statute is unconstitutional in its entirety.
In United States v. Stevens, 559 U.S. 460 (2010), the Supreme Court identified two situations in which a plaintiff might prevail in a facial challenge:
- "No set of circumstances exists under which [the statute] would be valid"
- "The statute lacks any 'plainly legitimate sweep'"
Facial challenges are common in claims alleging violations of First Amendment rights. For example, in Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), the Supreme Court found that certain provisions of the Communications Decency Act of 1996 were unconstitutional on their face because they were vague and "substantially overbroad".
Another type of facial challenge is enunciated in the overbreadth doctrine, which applies specifically to First Amendment cases. If a statute includes substantially protected conduct and speech beyond the legitimate scope of the statute, it is considered overbroad and thus void on its face.
Facial challenges are prospective or forward-looking as they can be brought soon after a statute's passage and seek to prevent a law from being enforced, thus protecting an individual's constitutional rights. However, they are generally disfavored by the Supreme Court due to their broader scope and potential to invalidate entire statutes.
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As-applied challenges: a statute is unconstitutional in a particular instance
In the US, lawsuits that challenge the constitutionality of a statute fall into two categories: facial challenges and as-applied challenges. This answer will focus on the latter.
An as-applied challenge is a lawsuit brought about by a plaintiff who believes that a statute or regulation is unconstitutional in a specific context. In other words, the plaintiff argues that the statute is being applied in an unconstitutional manner. Importantly, an as-applied claim can only be made once the statute in question has been applied, and it is therefore always a reactive approach.
In an as-applied challenge, the plaintiff is not arguing that the entire statute is unconstitutional, but rather that it is unconstitutional with respect to a particular set of facts or circumstances. The outcome of a successful as-applied challenge is a ruling that narrows a statute's effect, typically involving modifications to a statute's application rather than its total invalidation.
To initiate an as-applied challenge, the plaintiff must promptly file and serve a notice of constitutional question, which identifies the paper that raises the question and the specific statute in question. If the statute in question is a federal statute, the notice must be served to the Attorney General of the United States, whereas if it is a state statute, it must be served to the state attorney general.
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Constitutional challenges: notice and certification required
In the United States, a constitutional challenge to a statute requires notice and certification. Rule 5.1 of the Federal Rules of Civil Procedure outlines the requirements for this process.
Firstly, a party must promptly file and serve a notice of constitutional question. This notice must be served on the appropriate attorney general, either the United States Attorney General or the state attorney general, depending on whether a federal or state statute is being challenged. The notice should be served by certified or registered mail or by sending it to an electronic address designated by the attorney general. This ensures that the attorney general is notified of the constitutional challenge and has the opportunity to exercise their statutory right to intervene at the earliest possible point in the litigation.
The court is also required to certify a constitutional challenge to the appropriate attorney general. This certification obligation remains even when the constitutionality of a statute is drawn into question by means other than a party's pleading, written motion, or other paper. The court may set a later time for certification, but the 60-day period for intervention generally runs from the earlier of the notice filing or the court's certification.
The attorney general then has the opportunity to intervene within 60 days after the notice is filed or the court certifies the challenge, whichever is earlier. During this time, the court may reject the constitutional challenge but may not enter a final judgment holding the statute unconstitutional. The court's failure to certify does not forfeit a constitutional claim or defense that is otherwise timely asserted.
Rule 5.1 applies to any constitutional challenge to a federal or state statute, regardless of whether it "affects the public interest". This rule ensures that the attorney general can determine whether to intervene on the grounds that the statute affects the public interest.
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Defendants can challenge constitutionality of laws they're prosecuted under
In the United States, defendants can challenge the constitutionality of laws under which they are prosecuted. This can occur when a defendant believes that the statute they are charged under violates their constitutional rights, such as the right to travel or free speech. For example, in the case of Lawrence v. Texas, the defendants were charged in a state court with "deviate sexual intercourse" and moved to dismiss on the grounds that the statute was unconstitutional. The denial was initially upheld by the state's court of appeals, but the US Supreme Court eventually ruled that the statute was indeed unconstitutional.
Another example is the case of Bond v. United States, where Bond pled guilty and was sentenced but appealed her conviction on the ground that the statute at issue violated the Tenth Amendment. Bond argued that her offense was local in nature and not properly subject to federal prosecution. The Third Circuit declined to address the constitutional question, holding that Bond lacked standing to raise a Tenth Amendment challenge. However, the case established that individuals directly harmed by a federal law can challenge its constitutionality.
To challenge the constitutionality of a law, defendants must follow certain procedures. They must promptly file and serve a notice of constitutional question, stating the specific issue and identifying the relevant statute. This notice is directed to the appropriate attorney general, either federal or state, depending on the nature of the statute being challenged. The court may also certify the challenge to the attorney general, providing them with an opportunity to intervene early in the litigation process.
It is important to note that trial courts in the United States have the authority to declare a law unconstitutional. However, the final decision to hold a law invalid is typically made on appeal, where the appellate courts, including the US Supreme Court, can review the constitutionality of the law in question.
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Privacy Act: right to view and correct personal information held by the government
The Privacy Act of 1974, 5 U.S.C. § 552a, establishes a code of fair information practices that govern the collection, maintenance, use, and dissemination of information about individuals that is maintained in systems of records by federal agencies. A system of records is a group of records under the control of an agency from which information is retrieved by the name of the individual or some other identifying number or symbol.
The Privacy Act gives individuals the right to seek access to their own personal records, subject to certain exemptions, and to request correction or amendment of records maintained by federal agencies that are inaccurate, incomplete, untimely, or irrelevant. This includes employment records. It also safeguards confidentiality by limiting or restricting the disclosure of personally identifiable records.
To make a Privacy Act request, individuals can use the DI 4016 Request For Individual Access To Records Protected Under The Privacy Act form, which may also be used by parents or legal guardians seeking access to records. To request disclosure of records to another person or entity, the DI 4017 Consent For Disclosure Of Records Protected Under The Privacy Act form can be used.
Requests for amendment or correction of records must be submitted in writing to the System Manager identified in the applicable System of Records Notices (SORNs), must be signed, and must meet the requirements outlined in the published SORN and DOI Privacy Act regulations at 43 CFR Part 2, Subpart K. System Managers may require additional information, proof of identity, or a notarized statement or statement signed under penalty of perjury confirming the identity of the person who is the subject of the record requested.
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Frequently asked questions
The first step is to file a complaint in federal court, clearly identifying the statute being challenged and explaining how it infringes on your constitutional rights.
A critical factor in such a case is demonstrating personal harm caused by the statute, referred to as "standing." Courts generally mandate plaintiffs to have standing, meaning they are personally affected by the law.
It is important to understand the filing process and distinguish constitutional lawsuits from others, such as personal injury or breach of contract. It is also crucial to identify key issues like standing and ripeness.
The standard of proof in constitutional cases is typically higher than in other types of lawsuits because of the potential impact on established legislation. Successful constitutional challenges can lead to a statute being deemed unenforceable.
You can research federal laws and the law-making process through official government websites. You can look up bills and laws by name, subject, keywords, congressional session, or type of legislation.
