Cecily Zamora
In the United States, challenging a law in court involves initiating a lawsuit that questions the constitutionality of a statute. This process typically requires the assistance of a seasoned constitutional lawyer to navigate the complexities and higher standards of proof inherent in constitutional cases. The lawsuit can be classified as either a facial challenge or an as-applied challenge, with facial challenges claiming that a statute is unconstitutional in all circumstances, while as-applied challenges argue for a narrowed interpretation of the statute. To successfully challenge a law, one must demonstrate standing, meaning they have been personally harmed or impacted by the law, and identify the appropriate defendant, typically the government entity or official responsible for enforcing the statute.
| Characteristics | Values |
|---|---|
| Type of challenge | Facial or as-applied |
| Type of relief sought | Narrower remedy or broader facial challenge |
| Plaintiff's goals | Invalidation of an entire statute or a ruling that narrows a statute's effect |
| Timing of the lawsuit | Before or after the statute has taken effect |
| Standing | Demonstrating personal harm caused by the statute |
| Ripeness | Harm is actual or imminent, not hypothetical or speculative |
| Evidence | Solid evidence and expert testimony, including constitutional provisions, court precedents, or legal scholars' opinions |
| Defendant | Government entity or official responsible for enforcing the statute |
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Constitutional challenges
Facial Challenges
A facial challenge claims that a statute is unconstitutional at all times and under all circumstances. The plaintiff's goal is usually to have the court declare the law "facially invalid". Facial challenges can result in the invalidation of an entire statute. For example, in Reno v. American Civil Liberties Union, the Supreme Court found certain provisions of the Communications Decency Act of 1996 to be unconstitutional on their face. The Court established the "substantial overbreadth" doctrine for facial challenges in Broadrick v. Oklahoma.
As-Applied Challenges
An as-applied challenge, on the other hand, alleges that a statute is being applied in an unconstitutional manner in a specific context. This type of challenge seeks to narrow a statute's effect rather than invalidate it entirely. For example, in Thomas v. Chicago Park Dist., the Supreme Court rejected a facial challenge to a permitting ordinance but indicated it would be willing to revisit the matter in an as-applied challenge if a pattern of unlawful favoritism appeared.
Procedural Requirements for Constitutional Challenges
Rule 5.1 of the Federal Rules of Civil Procedure sets out the procedural requirements for constitutional challenges to a statute. It requires any party filing a pleading, written motion, or other paper drawing into question the constitutionality of a federal or state statute to promptly file and serve a notice of constitutional question on the United States Attorney General or state attorney general. This notice allows the attorney general to intervene at the earliest possible point in the litigation. The court may reject a constitutional challenge at any time but cannot enter a final judgment holding a statute unconstitutional before the attorney general has responded or the intervention period has expired.
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Facial and as-applied challenges
In the United States, lawsuits that challenge the constitutionality of a statute are classified into two categories: facial challenges and as-applied challenges.
Facial Challenges
In a facial challenge, a plaintiff claims that a statute is unconstitutional at all times and under all circumstances. The goal is usually to have a court declare the law "facially invalid" and invalidate it in its entirety. Facial challenges are often based on the argument that the statute violates protected rights, such as free speech or equal protection, in a way that cannot be severed from the rest of the statute.
The Supreme Court has established a high burden for facial challenges, requiring plaintiffs to demonstrate that "no set of circumstances exists under which [the statute] would be valid" or that the statute lacks any "plainly legitimate sweep." This is because facial challenges are considered speculative and potentially contrary to the democratic process, as they may seek to invalidate a law before it has taken effect. As such, the Supreme Court has expressed a preference for as-applied challenges over facial challenges.
As-Applied Challenges
As-applied challenges, on the other hand, argue that a statute is unconstitutional in a specific context or as applied to a particular set of facts. In other words, the plaintiff alleges that the statute is being applied in an unconstitutional manner, rather than arguing that the entire statute is unconstitutional. As-applied challenges tend to result in narrower rulings that modify the statute's effect rather than invalidating it entirely.
The timing of the lawsuit is also different between the two types of challenges. Facial challenges can be brought soon after a statute's passage, even before it has taken effect, while as-applied challenges can only be brought once the statute has been enforced.
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The role of the attorney general
The Attorney General is the chief legal officer of a state, commonwealth, the District of Columbia, or a territory of the United States. Their role varies depending on the jurisdiction, but typically includes serving as a counsellor to state government agencies and legislatures and representing the public interest.
One of the key roles of the Attorney General is to act as a public advocate in areas such as child support enforcement, consumer protection, antitrust, and utility regulation. They are also responsible for defending the state's laws and constitution. For example, in Pennsylvania, the Attorney General is duty-bound "to uphold and defend the constitutionality of all statutes". In contrast, some states may empower their Attorney General to concede the invalidity of state law in the face of a challenge.
In the context of challenging a law in court, the Attorney General must be notified of any constitutional challenges to federal or state statutes. This is done through a notice of constitutional question, which allows the Attorney General to exercise their statutory right to intervene at the earliest possible point in the litigation. The Attorney General can also bring suit to vindicate federal law and ensure that federal statutes are not construed to authorize suits against them.
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Standing and harm
Standing refers to the capacity of a party to bring a lawsuit to court. To have standing, a party must demonstrate a sufficient connection to and harm from the law or action being challenged. In other words, they must show that they have been harmed by the law or action in question.
At the federal level in the US, legal actions cannot be brought simply because an individual or group disagrees with a government action or law. Federal courts only have the authority to resolve actual disputes. In Lujan v. Defenders of Wildlife (90-1424), 504 U.S. 555 (1992), the Supreme Court created a three-part test to determine whether a party has standing to sue:
- Injury in Fact: The plaintiff must have suffered an "injury in fact," meaning the injury is of a legally protected interest that is concrete and particularised, and actual or imminent.
- Causation: The injury must be fairly traceable to the challenged action of the defendant and not the result of some third party not before the court.
- Redressability: It must be likely that a favourable decision by the court will redress the injury. Mere speculation is not enough.
In a personal injury claim, for example, the plaintiff must show that they have suffered bodily harm due to another party's negligence. The court can then order the defendant to pay damages, such as medical bills, lost wages, and pain and suffering.
Harm, in a legal context, can refer to a few different things. Irreparable harm, for instance, is a legal term that refers to harm or injury that cannot be adequately compensated or remedied by any monetary award or damages. It is a necessary requirement for a court to grant a preliminary injunction or temporary restraining order. The party seeking the injunction must usually prove that they will suffer irreparable harm if the injunction is not granted. Examples of irreparable harm include injury to reputation or goodwill in cases of defamation, deprivation of constitutional rights, sports-related harm, and professional harm.
Another context in which the term 'harm' is used is in the classification of lawsuits challenging the constitutionality of a statute. These can be classified into two categories: facial challenges and as-applied challenges. Facial challenges claim that a statute is unconstitutional at all times and under all circumstances, with the goal of having a court declare the law "facially invalid". On the other hand, as-applied challenges seek a ruling that narrows a statute's effect and require that the statute has already taken effect.
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Standard of proof
The standard of proof in an American court is the threshold that must be met for a party to successfully prove a fact or claim in a criminal or civil case. The burden of proof falls on the party seeking to prove a fact in court, and there are different standards for different circumstances.
In criminal cases, the prosecution bears the burden of proving the defendant's guilt beyond a reasonable doubt. This is the highest legal standard of proof, requiring the judge or jury to have an abiding conviction that the charge is true. It is more than just probable cause or a reasonable suspicion, which are lower standards used to justify investigative stops or searches.
In civil cases, the standard of proof is typically the preponderance of the evidence or balance of probabilities. This means that the plaintiff must show that the disputed fact is more likely than not. This standard is also used in administrative hearings and some family court determinations, such as child support and custody cases.
When challenging the constitutionality of a statute, there are two main types of challenges: facial challenges and as-applied challenges. A facial challenge claims that a statute is unconstitutional at all times and under all circumstances, seeking to have it declared facially invalid. On the other hand, an as-applied challenge argues that the statute is unconstitutional as applied to a specific set of circumstances, seeking to narrow its effect rather than invalidate it entirely.
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Frequently asked questions
Any party can challenge a law in an American court by filing a pleading, written motion, or other paper drawing into question the constitutionality of a federal or state statute. However, it is recommended to seek professional assistance from a seasoned constitutional lawyer.
Courts in the U.S. classify lawsuits that challenge the constitutionality of a statute 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, while an as-applied challenge could lead to a ruling that narrows a statute's effect.
It is essential to understand the complexities involved and seek professional legal advice. Some key considerations include identifying the correct defendant, typically the government entity or official responsible for enforcing the statute, and demonstrating "standing," which means showing how the statute personally affects or harms the plaintiff.
One example of a successful constitutional challenge is the landmark case Obergefell v. Hodges, which legalized same-sex marriage nationwide. Other examples include Reno v. American Civil Liberties Union, where certain provisions of the Communications Decency Act of 1996 were found to be unconstitutional, and Brown v. Board of Education, which addressed laws disproportionately burdening a protected class.
