The Facial Challenge Analysis In Rahimi Seems Inconsistent with Lopez

Why did Lopez, who was paid $40 to bring a gun to a school, succeed on a facial challenge, but the Court wouldn't even consider Rahimi's circumstances?

Alfonso Lopez and Zakey Rahimi share much in common. They both lived in Texas. They both possessed a firearm in violation of federal law. They both moved to dismiss their indictment on the ground that the federal law was unconstitutional. The Fifth Circuit agreed to dismiss both indictments. Both of their cases were appealed to the Supreme Court. And Justice Thomas agreed with both of their claims. That's where the similarities stop.

In United States v. Lopez, Chief Justice Rehnquist "struck down" the Gun-Free School Zones Act, without considering whether it may be constitutional as applied to Mr. Lopez. But for Mr. Rahimi, the Supreme Court treated his motion to dismiss as a facial challenge, and only considered whether Section 922(g)(8) could be validly applied to him. How to explain this disparate treatment?

Let's start with the facts of Lopez. All know that the Court declared the federal statute unconstitutional because the mere possession of a gun in a school was not "economic activity," and thus lacked a sufficient nexus with interstate commerce. But what most people do not know is that someone paid Lopez $40 to give the gun to someone at the school. By any definition, that payment is an economic transaction that would clearly satisfy the Lopez test. (Indeed, Gonzales v. Raich was a good vehicle because money did not change hands.) Here is how the Solicitor General described the facts in the Lopez merits brief:

2. On March 10, 1992, respondent, then a twelfth-grade student at Edison High School in San Antonio, Texas, arrived at school in possession of a concealed .38 caliber handgun, together with five bullets. In response to an anonymous tip, school officials confronted respondent, who admitted that he was carrying the weapon. He explained that an individual he identified as "Gilbert" had given him the gun to deliver to another individual after school for use in what respondent described as a "gang war." Respondent stated that he was to receive $40 for delivering the weapon. See Pet. App. 2a. [U.S. v. Lopez, 1994 WL 242541, at *6–7 (U.S.Pet.Brief,1994).]

Congress could have criminalized Lopez's actions, even under the new Lopez test. But the Court still accepted Lopez's motion to dismiss the indictment as a facial challenge, and declared the statute unconstitutional in all regards. Perhaps the Court found that because the statute lacked a jurisdictional hook, it didn't matter whether Lopez's individual conduct fell within the scope of the interstate commerce power. Judge Ho hinted at this possibility in Footnote 10 of his Kersee concurrence (which I wrote about here). I am uncertain because neither the SG's brief, nor Chief Justice Rehnquist's opinion, mentioned Salerno. The issue was simply not addressed.

Fast forward to Rahimi. The Solicitor General's opening brief did not even mention Salerno or any arguments concerning facial challenges. Rahimi's merits brief only mentions the facial challenge in passing. The SG's reply brief devotes a single paragraph to the facial challenge:

Moreover, Rahimi brought, and the Fifth Circuit sustained, a facial challenge to Section 922(g)(8). See Pet. App. 2a. On such a challenge, "the challenger must establish that no set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 745 (1987). Objections to applying Section 922(g)(8) to other factual scenarios, see Resp. Br. 46-47, cannot justify invalidating the statute on its face or as applied to Rahimi. Facial invalidation would be particularly inappropriate given that Section 922(g)(8) is subject to a severability clause, which states that the invalidation of one of the statute's applications does not affect "the application of such provision to other persons not similarly situated or to other circumstances." 18 U.S.C. 928.

During the oral argument, Justice Gorsuch asked SG Prelogar several questions about the facial challenge. And he posed the same question to Matthew Wright, counsel for Rahimi. This issue was on Gorsuch's mind. Wright directly compared his case to Lopez.

Neil Gorsuch: And the same thing when it comes to temporary dispossession. I understand your concern about permanent dispossession, but, again, that isn't what's necessarily before us in a facial challenge, where we have to ask is it unconstitutional in all of its applications, right?

J. Matthew Wright: Your Honor, that -- that test for faciality, I -- I think, is primarily remedial. It typically comes up in the civil context where someone is suing to enjoin the enforcement of a statute and -- and so the Salerno test it's called, you know, comes into play as to, typically, that assumes there is a valid application or a space of valid application of the statute, and then the complaint is either there's too much outside or my case is outside or something like that. Ours is a facial challenge in the way that Lopez was a facial challenge, where the facts of Lopez were clearly within Congress's power under the Commerce Clause.

This Court found the facts of that case were Person A was going to pay Lopez $40 to give that gun to Person C after school. That's within the commerce power, but the statute itself was not within Congress's power to enact.

And so that statute failed as it then existed, the pre-amendment version of the Gun-Free School Zones Act, on its face.

That argument obviously did not persuade Justice Gorsuch, whose solo concurrence relied almost entirely on Salerno.

Later during the argument, Chief Justice Roberts returned to the theme:

John G. Roberts, Jr.: Well, but it -- it's a facial challenge.

J. Matthew Wright: Right.

John G. Roberts, Jr.: And I understand your answer to say that there will be circumstances where someone could be shown to be sufficiently dangerous that the firearm can be taken from him.

J. Matthew Wright: Yes.

John G. Roberts, Jr.:
And why isn't that the end of the case?

J. Matthew Wright: Because --

John G. Roberts, Jr.
All you need to do is show that there are circumstances in which the statute can be constitutionally applied.

And that was the end of Rahimi's case.

The Lopez Court entertained a wide-range of hypotheticals why the Gun-Free School Zone Act, and indeed non-existent legislation, would be unconstitutional--even as Lopez himself was paid to deliver the gun! But in Rahimi, the Court narrowly construed the motion to dismiss the indictment as a "facial challenge," and refused to even consider any other applications in which the statute might be unconstitutional--even the very circumstances that the criminal defendant faced. Rahimi had the burden to show that the statute was unconstitutional in every circumstance, but Lopez did not have that burden. I often find myself writing that different litigants seem to have different burdens at the Supreme Court.

I am not an expert in this area, and I've been unable to find any clear guidance. Those who specialize in federal criminal defense may have some insights here. Please drop me a line. But at the very least, I see a tension between how the Court treated Lopez's challenge and how the Court treated Rahimi's challenge.

Comments

[Brett Bellmore]

I believe Lopez was a "magic words" case; Congress hadn't bothered actually including an interstate commerce finding, so the Court declined to invent a commerce clause basis for the law. It was shortly after reenacted with such a finding, and is still law today.

[MaddogEngineer]

Yes, that was my immediate reaction to this latest Blackman hot take. The particulars are not at all similar. Lopez was decided as a rather straight forward enumerated power question which did not implicate 2A, not the scope of a fundamental right.

[MaddogEngineer]

This is just more shoddy outcome-based punditry by Blackman.

[TheAmazingEmu]

I've said recently that I thought he would argue in bad faith, but I'm starting to think he's just an idiot. The differences are obvious and easily explained by virtually every comment posted so far. I'm not sure how he missed the distinction.

[Jon S]

He is not an "idiot" just because he didn't get that distinction. These are tricky issues and it's not like he's a constitutional law professor or anything . . .

[Jon S]

Like, I might feel differently if his personal website stated in a headline with a picture that: "Josh Blackman is a national thought leader on constitutional law and the United States Supreme Court."

[Noscitur a sociis]

It was shortly after reenacted with such a finding, and is still law today.

More importantly, the amended law included an actual interstate commerce requirement as an element of the offense.

[Brett Bellmore]

"(A) It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone."

Given the way that bolded clause is typically interpreted, there are no firearms it doesn't cover.

[Noscitur a sociis]

That's true!

[David Nieporent]

You are mistaken. The re-enacted law in Lopez did not merely add "findings." Rather, it added the interstate commerce factor as an element of the crime.

[Brett Bellmore]

An element that would never NOT be found under any set of circumstances, given those findings. You could dig up iron ore in your backyard, make charcoal of a tree growing there, and beat out the parts of your gun on a home made forge with a rock, and they'd still claim you were affecting interstate commerce.

[David Nieporent]

They'd still claim that, but as an element of the crime the jury would have to find it.

[Sarcastr0]

How functionalist of you Brett.

[Brett Bellmore]

You know my position on the interstate commerce clause: "Affect" has nothing to do with it, it's the commerce itself that Congress is authorized to regulate, not the winds and the tides.

But, per this law, that it's a gun means it automatically satisfies that element, and that's how it would likely play out in court, too, unless you luck into having me on your jury.

Mostly it doesn't play out in court at all, of course, because the DOJ is not at all confident that the reenacted law would survive judicial review, so they're very careful to avoid generating test cases.

[Dr. Ed 2]

Some people are more equal than others.

Here it is a case where the gun was KNOWN to be intended for a criminal purpose (gang war), as opposed to a domestic violence restraining order and the possibility that a gun MIGHT BE so used.

[Noscitur a sociis]

refused to even consider any other applications in which the statute might be unconstitutional–even the very circumstances that the criminal defendant faced.

What's the basis for this last claim? I don't see anything in either Rahimi's brief or the dissent suggesting that any of the specifics of Rahimi's situation would have made the statute more problematic. (If anything, his specifics—like his clear dangerousness or the fact that he agreed to the protective order and its no-firearm provision—make application to him more appropriate!)

[loki13]

I've read the OP several times, and I still don't understand the argument.

[Noscitur a sociis]

The difference (to the extent there is one) is, I think, explained by the bases for the challenge. Rahimi argued that there was a special rule (the Second Amendment) that prevented Congress from passing this statute. That's the context where the Salerno rule comes into play. Lopez, by contrast, was arguing that Congress didn't have any authority to enact the statute in the first place because it was outside the scope of any enumerated power. In that situation, it's not really availing the say that the challenged law is okay, because Congress could had an enumerated power to enact a different statute that would have still captured the conduct. (As noted above, that's exactly what Congress promptly did after Lopez.)

[TheAmazingEmu]

The difference is one case concerned the scope of Congress's power to pass a law, the other concerned the scope of an individual right in the face of a law.

For Lopez, the Court held that Congress could not use the Interstate Commerce Clause to create a criminal offense unrelated to interstate commerce. Even if the facts of a specific case involved commerce, the criminal offense did not.

By contrast, this law is presumed valid unless it conflicts with an individual Constitutional right. In a facial challenge, the argument is the law always conflicts with an individual right. However, if the law is at least sometimes constitutional, that argument fails.

That's why there's a fairly intuitive difference here.

[not guilty]

At the time United States v. Lopez, 514 U.S. 549 (1995), was litigated, possession of a firearm had not been recognized as an individual constitutional right. Any Second Amendment challenge would have been futile. OTOH, if enactment of the criminal statute was beyond the scope of any enumerated power of Congress, any challenge brought on that basis would necessarily be a facial challenge. There would ipso facto be no set of circumstances under which the challenged statute would be valid.

In addition, Zackey Rahimi pleaded guilty in the District Court, while Alfonso Lopez, Jr. was convicted after a bench trial. Rahimi’s plea waived any as applied challenge, as well as any other defects which were not litigated pretrial.

[MGDC]

I haven't read Lopez so I may be assuming something, but I think the difference might be this: If a criminal law is constitutional only if it contains a certain element, then the statute is unconstitutional in every application if it does not require that element. In Lopez, the statute was only constitutional if it contained an element that established a jurisdictional nexus. The statute didn't require proof of any such nexus to convict, so it was unconstitutional every time someone was prosecuted for it--even if that facts would have supported a nexus. I don't mean to say this is a perfectly satisfying explanation or without some circularity, but that is a recognized doctrine in criminal law.

[Dilan Esper]

I think that's right.

[ReaderY]

Looez did not make a facial challenge. He was a defendant in a criminal case. Big difference.

The reason why Lopez won is that the United States never alleged that Lopez acted possessed the gun for money, and the Jury never found this as a fact. Because the state did not allege and jury did not find any facts that would authorize the United Stares to make his conduct a crime, his acquittal is straightforward. In this country, the prosecution has to allege facts and the facts have to be found by a jury to convict on them. An appelate court has no business upholding a conviction because it believed in the existenceof unalleged, untriied, uncross-examined, undefended, unproven facts.

In Rahimi, however, the United States had alleged and the jury had found all the facts necessary to constitutionally convict him. The US alleged the necessary connection to interstate commerce, for example. Totally different situation. It therefore doesn’t matter if the statute might be unconstitutional on some other set of facts applied to someone else.

The difference is obvious.

The basic problem with the the law in Lopez

[JimM47]

>The reason why Lopez won is that the United States never alleged that Lopez acted possessed the gun for money, and the Jury never found this as a fact.

As to what the United States alleged: the fifth circuit recited that “Lopez was to receive $40 for his services” in its summary of the proceedings below. United States v. Lopez, 2 F.3d 1342, 1345 (5th Cir. 1993). So, I presume that the United States did indeed “allege[] that Lopez ... possessed the gun for money.”

As to what the Jury never found: “[T]he omission of an element is subject to harmless-error analysis.” Neder v. United States, 527 U.S. 1, 10 (1999). So, if the problem was that the jury never found that Lopez possessed the gun for money, then the Supreme Court should have engaged in harmless-error analysis. It didn’t; and neither did the circuit court. I don’t think that was an error.

No, I think the issue was indeed that “the source of constitutional authority to enact the legislation [wa]s not manifest on the face of the bill.” Lopez, 2 F.3d at 1360 (quoting Congressional Record). Lopez was a facial challenge because the defect in the statute was apparent from the face of the statute. No facts about Lopez himself were required to identify it. The statute needed to have a jurisdictional basis in its text, and it didn’t. So Lopez brought “an attack on a statute itself as opposed to a particular application.” City of Los Angeles, Calif. v. Patel, 576 U.S. 409, 415 (2015).

[ReaderY]

Not at all. Harmless error analysis applies when the statute makes out a constitutionally prohibitable crime but the jury doesn’t address it. Here, the statute doesn’t make out a constitutionally prohibitable crime.

It’s not a facial challenge. As applied to Lopez, the statute was unconstitutional because it did not purport to regulate interstate commerce and hence does not invoke any fedsral power. It has to do that.

[JimM47]

>Harmless error analysis applies when the statute makes out a constitutionally prohibitable crime but the jury doesn’t address it. Here, the statute doesn’t make out a constitutionally prohibitable crime.

100% agree. That was my point. You have restated it well.

>It’s not a facial challenge.

That's where I disagree. The "plaintiff elect[ed] not to present any case-specific facts in support of a claim that a law is unconstitutional" so he "limit[ed] the grounds on which a Court may find for him to highly abstract rules that would have broad application in future cases." City of Los Angeles, Calif. v. Patel, 576 U.S. 409, 430 (2015) (Scalia, J., concurring). He succeeded by "establish[ing] that [the] law is unconstitutional in all of its applications.” Patel, 576 U.S. at 418 (majority) (cleaned up). That's a facial challenge.

>As applied to Lopez, the statute was unconstitutional

The fact that a statute would also be unconstitutional as-applied does not negate that a challenge is facial. Except when you can take advantage of doctrines like the First Amendment overbreadth doctrine, the fact that you succeed at a facial challenge means that the statute is unconstitutional as applied to you. That's because the statute is unconstitutional in all applications.

[ReaderY]

Suppose a statute provides a death penalty for littering simplicitor. Suppose somebody killed somebody during the course of literimg, was charged with littering, the prosecutor inked in that the litering occured during the course of a murder, and the defendant was given the death penalty.

Would the obvious appeal arguement be a mere facial challenge? I don’t think so. In capital cases, statutes have to specifically cover conduct for which the death penalty is constitutionally permissable. Capital statutes have to be narrowly tailored. A state can’t invoke its death penalty power without clearly directing it to a constitutionally permissable use.

The Interstate Commerce Power works like that. It’s easy for Congress to invoke and direct its power, it’s practically a matter of putting some magic words in the statute. But it still has to be done. Congress still has to make findings that the activity it prohibits is within its Commerce Clause powers, and provide a specific nexus to interstate commerce as an element of the crime.

In Lopez, an interstate commerce nexus wasn’t an element of the crime at all. Harmless error analysis only applies to actual elements of crimes that are actually specified in tbe statute. Prosecutors and judges can’t just invent their own and add their own new elements to make unconstitutional statutes constitutional as revised.

[JimM47]

What you are describing in your litter-death-penalty hypothetical is a facial challenge. A very meritorious facial challenge.

As you say, the “statute[ itself] ha[s] to specifically cover conduct for which the death penalty is constitutionally permissible.” That’s a requirement that applies to all applications of the statute.

Likewise, you are correct to state that "Congress still has to ... provide a specific nexus to interstate commerce as an element of the crime." That is likewise a requirement that applies to all applications of the statute.

[Scribe]

"Why did Lopez, who was paid $40 to bring a gun to a school, succeed on a facial challenge, but the Court wouldn't even consider Rahimi's circumstances?"
1. Sheldon Whitehouse was not yet a US Senator.
2. John Roberts had not proven himself to be easily berated - by out-of-court-speechifying - into giving Democrats what they want in Supreme Court decisions. (Roberts proved he could be in the Obamacare case.)

What? You need more?