The Timing of Facial Challenges

Abstract

There appears to be considerable confusion among the bar and on the bench as to when a plaintiff may or may not file a lawsuit challenging the facial constitutionality of a law. Many practitioners and judges have come to the erroneous conclusion that facial challenges to the validity of laws must be filed within a certain time frame after the challenged law is enacted, or risk being barred by the statute of limitations. This error - which springs largely from a confusion with regulatory takings law - has not only led courts to dismiss valid facial arguments as timely, but has also led them to take the mistaken position that statutes of limitations do not apply at all to First Amendment cases, or to misconstrue past cases in which laws were found facially invalid as being as-applied challenges. Worst of all, many practitioners are under the misimpression that a facial challenge is time barred one or two years after the challenged statute is enacted. This is not correct.

This article attempts to separate out the different conceptual categories whose overlap has led to such mistakes. In brief, the facial/as-applied distinction has nothing to do with the accrual or the ripeness of a cause of action. Because the accrual date of facial and as-applied challenges are identical (with some specific exceptions), mere enactment is rarely if ever the moment when a facial challenge accrues. The distinction between facial and as-applied challenges is a way of characterizing the merits of a constitutional challenge, but it has no relation to jurisdictional questions such as accrual, ripeness, or statutes of limitations. A plaintiff may challenge a law's validity at any time with the limitations period after that law has injured her, whether she chooses to argue that the law is facially unconstitutional or only unconstitutional as applied in her case.

Keywords: facial challenge, as-applied challenge, statute of limitations, ripeness, time barred

JEL Classification: K10, K19