Lost in the shuffle of Supreme Court commentary last week was Los Angeles v. Patel, a case that is ostensibly about unreasonable searches under the Fourth Amendment, but that is, more fundamentally, about the proper structure of judicial review.

(Photo by Chip Somodevilla/Getty Images) The Supreme Court building. (Chip Somodevilla/Getty Images)

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 claimed that 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 chose to challenge the ordinance “on its face.” They did not allege that any particular search was unreasonable; indeed, they did not present the facts of any particular search at all. Los Angeles contended that this “facial” challenge was improper: In its view, a Fourth Amendment challenge must be an “as-applied” challenge.

The case thus presented two questions. The first, threshold question was whether this was a properly structured Fourth Amendment challenge at all. Can a proper Fourth Amendment challenge be purely “facial” in this sense, or are Fourth Amendment challenges always and inherently as-applied?

The second, merits question was — if this is indeed a properly framed Fourth Amendment challenge, then is the Los Angeles ordinance consistent with the Fourth Amendment?

Co-Conspirator Orin Kerr, among others, ably represented Los Angeles. (The city’s brief is available here.) And I represented the Manhattan Institute, which filed an amicus brief in support of Los Angeles on the first question, arguing that a Fourth Amendment challenge is always and inherently as-applied.  Los Angeles — and the Volokh Conspirators — lost on both points.

In this post, I will discuss the court’s holding that “facial challenges can be brought under the Fourth Amendment.” The opinion on this point is disappointing, both because it is wrong and because it misses a perfect opportunity to think deeply about the constitutional structure of judicial review.

The problem begins with methodology. The court’s opinion, per Justice Sonia Sotomayor, is strictly doctrinal — which is to say, the reasoning consists entirely of parsing prior cases. The relevant constitutional clauses, the Fourth Amendment and Article III, are not even quoted, let alone analyzed, and there is no mention of constitutional history or structure.  Now, doctrinal arguments are fine as far as they go, but relying on prior cases can entirely replace analysis of constitutional text and history only if those prior cases themselves did the constitutional analysis. Doctrinal arguments can and should help courts avoid reinventing the wheel, but only if some prior case in fact invented the wheel. As it happens, the distinction between facial and as-applied challenges has been utterly muddled from the moment the Court coined the terms, and none of its cases have actually analyzed the constitutional question of whether the Fourth Amendment authorizes facial challenges to statutes.

In any case, the Court’s doctrinal analysis is unpersuasive even on its own terms. Several cases on which the Court relies (e.g. Vernonia; Skinner; Krull) did not actually sustain purely facial challenges under the Fourth Amendment, and others (e.g. Payton; Torres) are better characterized as as-applied challenges. Meanwhile, the one case that does include a thoughtful sentence directly on point is unceremoniously distinguished away. Sibron v. New York, 392 U. S. 40, 59 (1968) (“[t]he constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case.”).

But the more fundamental point is that none of these cases actually analyzed the underlying question. A string cite is all well and good, but only if, somewhere along the line, the Court actually grappled with constitutional text and history and structure. Otherwise, it is turtles all the way down.

The dissents are better. Justice Antonin Scalia sensibly begins with Article III and an account of judicial power:

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.

This is fine as far as it goes. But what is it that determines the narrowness or breadth of the Court’s reasoning? Why, in particular, is the Court much more receptive to facial challenges — much more inclined, in Scalia’s formulation, to rely on a broad ground of decision — in the First Amendment context than in the Fourth Amendment context?

The answer is at once simple and fundamental, but unfortunately, Scalia only hints at it: “[Bringing a facial challenge] 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.”

Yes, but why? Why are “general, abstract rules” discernible in, for example, the First Amendment context but not in the Fourth? Why is the Fourth Amendment inquiry so “factbound” and the First Amendment inquiry is not?

Scalia does not say, but Justice Samuel Alito hints at the answer. A facial challenge under the first clause of the Fourth Amendment may not be merely “a poor strategic move,” as Scalia says. According to Alito (joined by Justice Clarence Thomas): “There are serious arguments that the Fourth Amendment’s application to warrantless searches and seizures is inherently inconsistent with facial challenges” (emphasis added).

For this proposition, Alito cites two sources, with two revealing parentheticals. First, the case most on point: Sibron v. New York, 392 U. S. 40, 59 (1968) (“[t]he constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case.”). And second, the brief that endeavors to explain why: Brief for Manhattan Institute for Policy Research as Amicus Curiae 33 (“A constitutional claim under the first clause of the Fourth Amendment is never a ‘facial’ challenge, because it is always and inherently a challenge to executive action”) (emphasis added).

The idea here is that one can determine whether a facial or as-applied challenge is appropriate by determining which government actor is bound by the relevant clause and thus who allegedly violated the Constitution.  The First Amendment begins “Congress shall make no law …” and so its subject is obviously Congress. A First Amendment claim is inherently a claim that Congress exceeded its power and violated the Constitution by making a law, on the day that it made a law. For this reason, it makes perfect sense that the Court is much more amenable to “facial challenges” in the First Amendment context. A First Amendment claim cannot be “factbound,” to use Scalia’s formulation, because the alleged constitutional violation, the making of a certain law, is completed by Congress before any enforcement facts arise.

But the first clause of the Fourth Amendment is entirely different. It does not say “Congress shall make no law…,” like the First Amendment. It does not, by its terms, forbid legislative action. Rather, it forbids unreasonable searches and seizures — which are paradigmatically executive actions. Here, enforcement facts are relevant to the constitutional analysis; indeed, here, the enforcement facts, the facts of the search or seizure, are the constitutional violation. This is why Alito’s parenthetical for Sibron is so apt: “[t]he constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case” (emphasis added). In this context, it is the execution of a search (by the executive), not the making of a law (by the legislature), that allegedly violates the Constitution. This is why, in the parenthetical for the next citation, Alito chooses to quote the penultimate sentence of the Manhattan Institute brief: “A constitutional claim under the first clause of the Fourth Amendment is never a ‘facial’ challenge, because it is always and inherently a challenge to executive action”) (emphasis added).

Here is the Summary of Argument section from the Manhattan Institute brief:

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 Manhattan Institute brief is available here, and the Stanford Law Review articles on which it is based, “The Subjects of the Constitution” and “The Objects of the Constitution,” are available here and here.

It is disappointing that the majority did not analyze these arguments — or, really, any other constitutional arguments — in resolving this crucial question. And, to be sure, the dissent does not commit to this analysis either; its bottom line is that even “assuming … facial challenges [under the first clause of the Fourth Amendment] ever make sense conceptually, this particular one fails under basic principles of facial invalidation.”  But it is gratifying to see Alito, joined by Thomas, raise doubts that “such challenges ever make sense conceptually” and to acknowledge the “serious arguments” that they don’t.

In a future case, perhaps they will use these arguments to, at last, clarify the muddled distinction between “facial” and “as-applied” challenges and expressly distinguish them based on who has allegedly violated the Constitution. This deep conceptual issue is just beneath the surface of every single constitutional case. And what is at stake here, ultimately, is nothing less than the proper structure of judicial review.