Rahimi, Salerno, and Facial Second Amendment Challenges

There seems to me an unexplained oddity in the Supreme Court’s upcoming case of United States v. Rahimi. The case focuses on the facial validity of 18 U.S.C. § 922(g)(8), which bars gun possession for individuals subject to certain kinds of domestic violence restraining orders. But, as applied to Zackey Rahimi, the statute should be valid. This initial post will consider the nature of the challenge in Rahimi and provide background on the Supreme Court’s approach to facial constitutional challenges (including its seminal 1987 decision in United States v. Salerno) and overbreadth.  In part two, which will run on the blog in the coming days, I’ll consider how this case law applies to Rahimi.

In this case, the Fifth Circuit vacated Rahimi’s conviction for violating the statute. The panel opinion invalidates the law on its face as lacking analogous historical support. Under the statute, an otherwise qualifying domestic violence restraining order can invoke the federal prohibition if it either: (C)(i) “includes a finding that such person represents a credible threat to the physical safety of [an] intimate partner or child,” or (C)(ii) “by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against [an] intimate partner or child that would reasonably be expected to cause bodily injury.” The order against Rahimi did both. Some arguments in the case and some amicus briefs filed in the case, however, concern how an order that only satisfies (C)(ii) might be constitutionally problematic. One amicus brief on behalf of several Second Amendment scholars, for example, argues that the statute is unconstitutional because subsection (C)(ii) does not by its terms require a finding of dangerousness. But because Rahimi’s order did include a credible threat finding under (C)(i), these sorts of arguments raise questions about the viability of a facial challenge when the regulation would survive as applied to the challenger.

The Court’s 1987 Salerno decision holds a number of lessons for thinking about both Rahimi and Second Amendment doctrine more broadly. The case formally concerned whether two defendants could bring a facial constitutional challenge to the Bail Reform Act’s allowance for pretrial detention after a finding of dangerousness. Its lessons include both how notions of dangerousness interact with constitutional rights and—more pertinently for this post—how facial constitutional challenges should be decided. On the first point, the Salerno Court’s repeated references to the government’s compelling interests, to the paramount goals of public safety, and to the explicit conclusion that social welfare can outweigh individual interests, stand in stark contrast to the libertarian, rights-as-trumps framing of Second Amendment rights in Heller and Bruen. So too is Salerno helpful for thinking about the kinds of restrictions that can be placed on the exercise of someone’s rights because they are found to be dangerous after an evidentiary hearing that’s not a full criminal trial and prior to any criminal conviction. But in this post, I want to focus on Salerno’s statement of the standard for facial challenges, what has become known as the “no set of circumstances” test. Under that demanding standard, as some scholars have underscored, “the government need only produce an example in which the statute could be applied constitutionally to defeat the facial challenge.”

In an opinion written by Chief Justice Rehnquist and joined by five other justices, including Justice Scalia, the Salerno Court set out the standard for facial challenges. The facts in Salerno help shed light on Rahimi’s challenge—and the arguments made on his behalf. There, two leaders in the Genovese crime family, Salerno (the boss) and Cafaro (a captain), were charged with a number of federal crimes, including fraud, extortion, and RICO violations. Under the newly enacted Bail Reform Act, the government sought to detain Salerno and Cafaro pending trial. The Act provided that “[i]f, after a hearing pursuant to the provisions of subsection (f), the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community, he shall order the detention of the person prior to trial.” That hearing provided for an arrestee’s right to counsel, right to present evidence and testimony, and right to cross-examine government witnesses. It required the court to find by clear and convincing evidence, in writing, that no bail conditions could “reasonably assure the safety of other persons and the community” before ordering detention.

In support of its effort to secure pretrial detention, the government introduced evidence during the detention hearing that the two men “had participated in wide-ranging conspiracies to aid their illegitimate enterprises through violent means.” The trial court agreed with the government and ordered the men detained. They “appealed, contending that, to the extent that the Bail Reform Act permits pretrial detention on the ground that the arrestee is likely to commit future crimes, it is unconstitutional on its face.” After a Second Circuit panel agreed, the Supreme Court granted review.

At the Supreme Court, Salerno and Cafaro raised Fifth Amendment due process arguments and Eighth Amendment excessive bail challenges to the Act’s provision “permitting pretrial detention on the basis of future dangerousness.” They argued that the Act was facially unconstitutional. The Court began its discussion by underscoring that “[a] facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” (Emphasis added). Proof of some invalid applications is not enough. “The fact that the Bail Reform Act might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment.”

As for the Fifth Amendment argument, the Court first rejected the argument that pretrial detention violated substantive due process by imposing punishment before trial. The Act, said the Court, did not impose punishment but was instead permissibly regulatory. Legislators acted because they “perceived pretrial detention as a potential solution to a pressing societal problem.” And, as to that, the Court emphasized, “[t]here is no doubt that preventing danger to the community is a legitimate regulatory goal.” The provisions were not excessive in relation to that goal, given all of the procedural safeguards during the detention hearing. “We have repeatedly held,” stated the Court, “that the Government’s regulatory interest in community safety can, in appropriate circumstances, outweigh an individual’s liberty interest.” (Pausing briefly here, this passage highlights explicit interest-balancing in a constitutional context—in an opinion authored by arch-conservative Chief Justice Rehnquist and joined by Heller’s author, Justice Scalia.) The Court pointed to emergencies such as wartime as one example, but also noted that “[e]ven outside the exigencies of war, we have found that sufficiently compelling governmental interests can justify detention of dangerous persons,” and then proceeded to point to a variety of civil proceedings in which this preventative detention can occur.

The Court underlined the procedural protections in the statute and the narrow range of suspected perpetrators to which it applied. It was a narrow statute aimed at a narrow class of individuals whom Congress considered especially dangerous. The Court, however, did not dismiss the weighty interest of the individual in his own liberty. “We do not minimize the importance and fundamental nature of this right. But, as our cases hold, this right may, in circumstances where the government’s interest is sufficiently weighty, be subordinated to the greater needs of society.” (Emphasis added.) (It’s difficult again not to stop and reflect on the wildly different rhetoric here from that used in the Supreme Court’s Second Amendment cases. In Heller, Justice Scalia chided Justice Breyer for invoking an interest-balancing approach similar to the one Scalia signed onto in Salerno, saying, “The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.”).

Because the Act provided sufficient procedural protections and applied narrowly, the Court would not invalidate Congress’s judgment that certain people needed to be detained. “We are unwilling to say that this congressional determination, based as it is upon that primary concern of every government—a concern for the safety and indeed the lives of its citizens—on its face violates either the Due Process Clause of the Fifth Amendment or the Excessive Bail Clause of the Eighth Amendment.”

A number of commentators have criticized the standard Salerno set forth—both as a descriptive statement of how the Court analyzes facial challenges and as a normative prescription for how constitutional rights should be adjudicated. Mike Dorf, for example, argues that Salerno’s test “neither accurately reflects the Court’s practice with respect to facial challenges, nor is it consistent with a wide array of legal principles.”  (Others, like Alex Kreit, take more direct aim at the dichotomy between as-applied and facial challenges itself, arguing that it is “an inherently flawed and fundamentally incoherent undertaking.” After all, as Nicholas Rosenkranz notes, “in the last thirty years alone, hundreds of pages of scholarship have tried to make sense of this issue.”) In discussing Salerno, Dorf notes that the rule implies a sort of irrebuttable presumption that a statute’s invalid applications can be severed from its valid ones, but he emphasizes that the question of severability is often more nuanced than that. And sometimes, he argues, the Court rejects wholesale the notion that a law’s invalid applications can be severed. That is true not only in the First Amendment context that Salerno itself acknowledges, but also, Dorf argues, in some equal protection and other fundamental rights cases. It reflects there a concern with a substantially overbroad statute (meaning one with a large number of unconstitutional applications, at least as compared to constitutional ones) chilling protected conduct.

Regardless of what commentators have said, the Supreme Court has still, even recently, relied on the distinction between facial and as-applied challenges and often said Salerno’s test applies in cases outside the First Amendment context. Just last term, in United States v. Hansen, the Court emphasized the difficulty of facial challenges and the exceptional nature of an overbreadth challenge. That case concerned Hansen’s prosecution for encouraging/inducing foreign nationals to reside in the U.S. in violation of the law. He promoted a scam of “adult adoption” that did not exist, but in defense to the prosecution he argued that the statue was invalid as overbroad under the First Amendment. In her opinion for the Court’s majority, Justice Barrett wrote,

An overbreadth challenge is unusual.  For one thing, litigants typically lack standing to assert the constitutional rights of third parties.  See, e.g., Powers v. Ohio, 499 U. S. 400, 410 (1991).  For another, litigants mounting a facial challenge to a statute normally “must establish that no set of circumstances exists under which the [statute] would be valid.”  United States v. Salerno, 481 U. S. 739, 745 (1987) (emphasis added).  Breaking from both of these rules, the overbreadth doctrine instructs a court to hold a statute facially unconstitutional even though it has lawful applications, and even at the behest of someone to whom the statute can be lawfully applied.

She underscored the overbreadth doctrine’s break from the standard rules as justified by concerns about chilling protected expression. But, even in that context, “a law’s unconstitutional applications must be realistic, not fanciful, and their number must be substantially disproportionate to the statute’s lawful sweep. In the absence of a lopsided ratio, courts must handle unconstitutional applications as they usually do—case-by-case.” (Citation omitted).

Notably, Justice Thomas concurred in Hansen to reprise his argument that there should be no First Amendment overbreadth doctrine. The doctrine resembles the rejected proposals for a council of revision in 1789, he argued, and “contemplates that courts can declare laws unconstitutional in the abstract without the law ever being applied against any individual in an unconstitutional manner.” It distorts the judicial role, he said, and, by requiring courts to judge the proportion of constitutional versus unconstitutional applications, “is nothing short of a society-wide policy determination of the sort that legislatures perform.” For Justice Thomas, it seems, there should only be as-applied challenges.

Salerno and the facial constitutional standard may interact in complex ways with Rahimi. Depending on how the Court confronts the question, it may not be relevant at all. In the next post, I’ll consider questions about Rahimi and facial challenges, Second Amendment overbreadth, and the possibility of as-applied challenges under 18 U.S.C. § 922(g)(8).