The Volokh Conspiracy
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On March 3, at 10 a.m., the Supreme Court will hear arguments in Los Angeles v. Patel, a fascinating case about the proper structure of a Fourth Amendment challenge.
Los Angeles has an ordinance that requires hotels to maintain certain records about their guests and to produce those records for police officers upon request – which is to say, the officer need not necessarily have a warrant or any particular suspicion. Hoteliers claim this regime violates the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Oddly, though, the hoteliers have chosen to challenge the ordinance "on its face." They do not allege that any particular search was unreasonable; indeed, they do not present the facts of any particular search at all. Los Angeles contends that this "facial" challenge is improper: In its view, a Fourth Amendment challenge must be an "as-applied" challenge. (Los Angeles has the great good fortune to be represented, in part, by our own co-Conspirator Orin Kerr; the Los Angeles brief is available here.) The case thus presents the question of whether a Fourth Amendment challenge can be purely "facial" or must be "as-applied."
On the surface, this is merely a technical question about proper pleading of a Fourth Amendment case. But on another level, this case is of enormous theoretical importance far beyond the Fourth Amendment. I have argued that this vexed distinction between "facial" and "as-applied" challenges is actually a window into the basic constitutional structure of judicial review.
In that regard, I have filed an amicus brief on behalf of the Manhattan Institute (with MI's Jim Copland), arguing that a Fourth Amendment challenge must always be "as-applied". Here is the summary of argument:
A Fourth Amendment challenge is inherently an as-applied challenge for the simple reason that the Fourth Amendment binds the executive branch and restricts the paradigmatic executive action of searching and seizing.
Courts have not always been perfectly clear about the distinction between facial and as-applied challenges, and this case presents a perfect opportunity to clarify the distinction. What a close reading of the cases reveals is that this distinction simply turns on who has allegedly violated the Constitution. A facial challenge is a challenge to legislative action. An as-applied challenge is a challenge to executive action.
The Constitution empowers and restricts different officials differently. A constitutional claim is a claim that a particular government actor has exceeded a grant of power or transgressed a restriction. But because different government actors are vested with different powers and bound by different restrictions, one cannot determine whether the Constitution has been violated without knowing who has allegedly violated it. The predicates of judicial review inevitably depend upon the subjects of judicial review. Courts sometimes write, euphemistically, of challenges to statutes or ordinances, thus obscuring the subjects of constitutional claims. But the Constitution does not prohibit statutes and ordinances; it prohibits actions-the actions of particular government actors. Thus, every constitutional inquiry properly begins with the subject of the constitutional claim. And the first question in any such inquiry is the who question: who has allegedly violated the Constitution?
The who question establishes the two basic forms of judicial review: "facial challenges" and "as-applied challenges." In the typical constitutional case, the legislature will make a law, the executive will execute it, and someone will claim that his constitutional rights have been violated. The first question to ask such a claimant is who has violated the Constitution? The legislature, by making the law? Or the executive, by executing the law?
This fundamental dichotomy, between judicial review of legislative action and judicial review of executive action, is the organizing dichotomy of constitutional law. It is this dichotomy that is obscured by the anthropomorphic trope that "statutes"-rather than government actors-violate the Constitution. And it is this dichotomy that courts implicitly acknowledge with the distinction between "facial challenges to statutes" and "as-applied challenges to statutes." Properly understood, a "facial challenge" is nothing more nor less than a challenge to legislative action, and an "as-applied challenge" is nothing more nor less than a challenge to executive action.
The Fourth Amendment binds executive officials, forbidding them from executing unreasonable searches and seizures. Fourth Amendment challenges are always and inherently challenges to executive action. Thus, Fourth Amendment challenges are always and inherently fact-specific, "as-applied" challenges.
The entire brief is available here. The Stanford Law Review articles on which the brief is based, "The Subjects of the Constitution" and "The Objects of the Constitution," are available here and here.