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The Timing Of Facial Challenges, Timothy Sandefur

Akron Law Review

My purpose here is to separate out the different conceptual categories whose overlap has led to these mistakes. In brief, the facial/as-applied distinction has nothing to do with the accrual or ripeness of a cause of action challenging the constitutionality of a law. The accrual date of facial and as-applied challenges is identical (with some exceptions, as we shall see), and mere enactment is rarely, if ever, the ripening event or the moment of accrual for a case in which a party mounts a facial challenge to a law. The distinction between facial and as-applied challenges is, so to speak, …