That’s what United States v. Szabo (9th Cir. July 28, 2014) (2-to-1) seems to imply. William J. Szabo was prosecuted for violating a Veterans Administration regulation banning “disturbances” at VA facilities. The panel unanimously found that the regulation was constitutional as applied to Szabo’s speech, “because his conduct involved a ‘true threat’ of violence.” But Szabo also claimed that the speech restriction was unconstitutionally overbroad — something that is generally allowed in First Amendment cases.

Yet the majority held that Szabo couldn’t bring this challenge, because a federal statute expressly provided that such regulations could only be challenged in the U.S. Court of Appeals for the Federal Circuit. Szabo was arguing that the regulation was unconstitutionally overbroad before the federal district court that tried him, and then before the Ninth Circuit; that, the court held, was impermissible. “‘[So long as] Congress provides for a ‘special statutory review proceeding’ in one specific court, challenges to the administrative action must take place in the designated forum.'”

This would potentially have quite broad implications. It would let Congress shunt all overbreadth objections to federal regulations to a specialized court, and thus bar First Amendment overbreadth defenses in federal prosecutions for violating particular regulations, far outside the specific area of VA regulations or even regulations dealing with conduct on federal property.

And I think it would also let Congress similarly bar First Amendment overbreadth defenses in all federal criminal prosecutions, simply by providing that any challenges to the constitutionality of a statute be brought before a specialized court. The First Amendment overbreadth defense available in federal criminal cases would thus be basically optional, freely removable at Congress’s discretion.

I’m inclined to think that this can’t be right, and that Judge Dorothy Nelson’s dissent on this point is basically correct; here’s an excerpt (some paragraph breaks added and some deleted):

[A] pre-emptive civil lawsuit in the Federal Circuit would not have provided an “adequate” opportunity for review…. Here, Szabo is an indigent criminal defendant, and thus he had a right to appointed counsel to assist him with his defense. Because this right is “fundamental and essential to a fair trial,” review in the Federal Circuit could be “adequate to the case” only if Szabo also had a right to appointed counsel in those proceedings. But no such right exists.

While Szabo did enjoy the assistance of counsel in his criminal proceedings, the majority’s holding would cause Szabo to confront the power and sophistication of the United States on his own. This amounts to a deprivation of the right to counsel, and therefore pre-enforcement Federal Circuit review would not have provided an “adequate” opportunity for review.

[Moreover,] even if it were legally possible for Szabo to obtain pre-enforcement review in the Federal Circuit, the majority cannot dispute the evident impracticality and unrealistic nature of this scenario. Szabo is an indigent criminal defendant who had neither the means nor the motive to pursue a pre-emptive lawsuit in a court on the other side of the country. By concluding that Szabo nonetheless had a prior “opportunity” to obtain judicial review, the majority has ventured to the boundaries of that word’s meaning.

By adopting this interpretation of the term “opportunity,” the majority’s holding contravenes the principle that constitutional judicial review is presumed to be available unless Congress’ contrary intent is clear. In 5 U.S.C. § 703, Congress has set out an ambiguous standard under which jurisdiction to conduct judicial review exists in enforcement proceedings unless the defendant had a prior and adequate opportunity for review. The hazy line drawn by this statute stands in marked contrast to instances where Congress has made its intent clear….

The majority’s interpretation of 38 U.S.C. § 502 and 5 U.S.C. § 703 leads it to the novel holding that Congress may prevent federal courts from applying the Constitution in an entire class of criminal cases. The majority does not cite a case where a criminal defendant has been barred under comparable circumstances from challenging the constitutionality of the law he is accused of violating. Although the majority relies heavily on [Yakus v. United States], the Yakus Court explicitly stated that it had “no occasion to decide whether one charged with criminal violation of a … regulation may defend on the ground that the regulation is unconstitutional on its face.” Yakus v. United States, 321 U.S. 414, 446-47 (1944).

While this exceptional form of jurisdiction stripping might be appropriate in a narrow set of circumstances, the majority’s holding appears to apply broadly. The breadth of this holding raises several questions. What constitutional defenses can Congress require a criminal defendant to raise in the Federal Circuit? Could Congress require criminal defendants to raise all constitutional challenges to statutes and regulations in this way? The majority neither acknowledges nor addresses these questions. My concern is that the majority’s broad holding appears to approve unprecedented changes in how judicial review is conducted….

[B]y concluding that Congress may require courts to enforce criminal law but broadly strip them of the authority to apply constitutional law, the majority’s holding violates Article III of the Constitution. Constitutional review is integral to our conception of justice and judicial power. An individual charged with a crime expects that he will be tried before a court with full authority to protect his rights by applying the law of the United States. The majority casts doubt upon these expectations, and I cannot agree.