Tuesday, June 23, 2015
Sound the Horne: Justice Sotomayor's description of facial challenges in Patel ought to "escape our approbation"
Among yesterday's four Supreme Court decisions was a Fourth Amendment challenge to a Los Angeles ordinance imposing special record-keeping and law-enforcement-access requirements on the operators of hotels and motels. Justice Sotomayor wrote the opinion for a five-Justice majority holding unconstitutional under the Fourth Amendment the on-demand inspection requirement in Section 41.49(3)(a) of the Los Angeles Municipal Code.
The first section of legal analysis in Justice Sotomayor's opinion for the Court in City of Los Angeles v. Patel is devoted to establishing that "facial challenges under the Fourth Amendment are not categorically barred or especially disfavored."
The alert reader should recognize that something is off beginning with the opinion's opening description of what a "facial challenge" is: "A facial challenge is an attack on a statute itself as opposed to a particular application." This description reflects a common confusion. Within the universe of justiciable cases and controversies, there is no such thing as "an attack on a statute itself." The judicial power is confined to cases and controversies, and these are always about the operation of the laws with respect to persons or things. If the term must be used (and really, legal analysis would be better off if the term were retired), a "facial challenge" is best understood as a challenge asserting that a particular law is unconstitutional in all of its applications.
Even thus understood, the label can be confusing because many so-called facial challenges are just to a single textually discrete section, or subsection, or phrase in a subsection of a statute. Like in City of Los Angeles v. Patel. The provision declared facially unconstitutional yesterday was just one part of a recordkeeping ordinance enacted in 2008. That ordinance, No. 179533, revised the entirety of Section 41.49 of the Los Angeles Municipal Code, which takes up about three and a half pages of text. The purportedly "facially unconstitutional" subsection is 41.49(3)(a), which is only three sentences long. The successful challenge was not to "a statute itself," but to this subsection (and actually just to a part ... read on).
Even a description of facial unconstitutionality just for subsection 41.49(3)(a) appears overbroad in light of the court's reasoning. In the linked version of Ordinance No. 179533, I have x-ed out the portions of § 41.49(3)(a) that conflict with the requirements of the Fourth Amendment as expounded by the Patel majority: " §41.49(3)(a) is facially invalid insofar as it fails to provide any opportunity for precompliance review before a hotel must give its guest registry to the police for inspection." The on-demand inspection requirement is just one-half of one of the three sentences in the subsection. And the best solution may be to leave even that language in, and simply to add "after an opportunity for precompliance review" at the end of the subsection's second sentence. All of which is to say that the text of subsection 41.49(3)(a) is not itself unconstitutional. A statement that it is unconstitutional is shorthand (and sometimes misleading shorthand) for something like "because police reliance on the on-demand inspection authorization in LAMC § 41.49(3)(a) brings about states of affairs in which the Fourth Amendment rights of hotel and motel operators may be violated, no police officer may rely on that authorization unless and until Los Angeles provides an opportunity for pre-compliance review."
Justice Scalia's dissent lays out much of this (and more) in two paragraphs worth quoting in full:
Article III limits our jurisdiction to “Cases” and “Controversies.” Accordingly, “[f]ederal courts may not ‘decide questions that cannot affect the rights of litigants in the case before them’ or give ‘opinion[s] advising what the law would be upon a hypothetical state of facts.’” Chafin v. Chafin, 568 U. S. ___, ___ (2013) (slip op., at 5). To be sure, the reasoning of a decision may suggest that there is no permissible application of a particular statute, Chicago v. Morales, 527 U. S. 41, 77 (1999) (SCALIA, J., dissenting), and under the doctrine of stare decisis, this reasoning—to the extent that it is necessary to the holding—will be binding in all future cases. But in this sense, the facial invalidation of a statute is a logical consequence of the Court’s opinion, not the immediate effect of its judgment. Although we have at times described our holdings as invalidating a law, it is always the application of a law, rather than the law itself, that is before us.
The upshot is that the effect of a given case is a function not of the plaintiff ’s characterization of his challenge, but the narrowness or breadth of the ground that the Court relies upon in disposing of it. If a plaintiff elects not to present any case-specific facts in support of a claim that a law is unconstitutional—as is the case here—he will limit the grounds on which a Court may find for him to highly abstract rules that would have broad application in future cases. The decision to do this might be a poor strategic move, especially in a Fourth Amendment case, where the reasonableness of a search is a highly factbound question and general, abstract rules are hard to come by. Cf. Sibron v. New York, 392 U. S. 40, 59 (1968). But even had the plaintiffs in this case presented voluminous facts in a self-styled as-applied challenge, nothing would force this Court to rely upon those facts rather than the broader principle that the Court has chosen to rely upon. I see no reason why a plaintiff ’s self-description of his challenge as facial would provide an independent reason to reject it unless we were to delegate to litigants our duty to say what the law is.
For whatever it's worth, Justice Scalia's claim that "it is always the application of a law, rather than the law itself, that is before us" is consistent with understanding set forth in Professor Richard Fallon's article on facial challenges cited by Justice Sotomayor's opinion for the Court: Richard H. Fallon, Jr., Fact and Fiction About Facial Challenges, 99 Cal. L. Rev. 915 (2011). While there is much in the article worth digesting, I commend footnote 31 in particular. (For a less conventional, but still orthodox (if perhaps "more Catholic than the Pope") analysis of the problem of partial unconstitutionality more generally, one can check out my article on the topic. I also wrote a shorter take on facial vs. as-applied challenges for a symposium a little while back.)
And now to the first half of this post's awkward title. An error in wording appears to have made its way into Justice Sotomayor's solo dissent yesterday in Horne v. Department of Agriculture. The Justices in the majority held that a government order grabbing the fruit of the vine from raisin producers was a taking that required just compensation. Justice Sotomayor disagreed with the majority's assessment of the government's raisin marketing order as a per se taking. Her dissent states that the Order "should easily escape our approbation." In context, however, Justice Sotomayor probably meant something like "should easily escape our reprobation" or (for something less theologically loaded) "should easily escape our legal condemnation as a per se taking." This is not a big deal, of course; errors like this can easily creep in at the tail end of an editing process, particularly during the frenetic end-of-the-Term push to get opinions out. Fortunately, there is a process for correcting slips in slip opinions, and "approbation" can be amended before the opinion is off probation.