The D.C. Circuit issued no opinions this week. But that doesn’t mean there is no news. For instance, Adam Feldman suggested yesterday that Judge Brett Kavanaugh may be “The Next Nominee to the Supreme Court.”* Likewise, Judge Raymond Kethledge of the Sixth Circuit published a significant essay about Chevron — in which he discusses his opinion in United States v. NorCal Tea Party Patriots. What’s the connection to the D.C. Circuit? Well, as I’ve explained before, the Sixth Circuit explicitly disagreed with the D.C. Circuit.

I want to focus, however, on a speech given this week by Judge A. Raymond Randolph at the Center for the Study of the Administrative State. Unfortunately, it does not appear that his remarks are available online. But I was there and can report on his key theme: facial challenges to regulations. Be warned, however. This analysis will not be the most exhilarating thing you read today. Indeed, perhaps only the nerds of the world — those of us who are “unstylish, unattractive, or socially inept” (I’m glad that definition says “or”) — will care. But you know what? You should be a nerd! And the nerds at the Supreme Court should pay attention to what Judge Randolph has to say.

In particular, he alluded to the majority opinion he authored in a 2001 case called Amfac Resorts v. Dep’t Of the Interior (which is red-flagged in Westlaw). Here is the key discussion (I apologize for its length, but it’s necessary to understand the issue):

[E]ach of the concessioners maintains that the Park Service’s regulation is “facially invalid because [it denies] altogether the possibility of implied contractual rights in individual cases” and prevents “any concessioner in a future proceeding from offering specific evidence of a bargained-for and mutually-agreed upon contractual renewal right. If even one concessioner has such evidence, the regulations denying those rights across-the-board are unlawful.” Brief for Appellants at 26, 27. In other words, although the regulation is valid as applied to dozens of concession contracts, it is invalid because of the possibility that one concessioner might have an implied — that is, an unwritten — preferential right of renewal. The argument, aimed at the validity of the regulation on its face, does not accurately state the law.

In United States v. Salerno, the Supreme Court stated:

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. The fact that the [statute] 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.

Justice Stevens believes that only the second sentence of the Salerno excerpt states the governing principle for facial challenges. He and Justice Scalia have debated whether the first sentence from Salerno — what has become known as the “no-set-of-circumstances” test — is instead controlling. … For our part, we have invoked Salerno’s no-set-of-circumstances test to reject facial constitutional challenges. …

The facial attack on § 51.102 is not, of course, on the basis that the regulation is unconstitutional. The claim is that § 51.102 conflicts with § 415 of the 1998 Act. In National Mining Ass’n v. Army Corps of Engineers, we declined to adopt the Salerno test in a comparable case, stating that the “Supreme Court has never adopted a `no set of circumstances’ test to assess the validity of a regulation challenged as facially incompatible with governing statutory law.”

Our examination of Supreme Court precedent in National Mining apparently overlooked Reno v. Flores. There a class of alien juveniles, arrested on suspicion of being deportable and then detained pending deportation hearings, claimed that a regulation preventing their release except to close relatives violated the Due Process Clause and conflicted with the underlying statute. The Court, speaking through Justice Scalia, described the case as involving only a facial challenge to the regulation and then held as follows: “To prevail in such a facial challenge, respondents `must establish that no set of circumstances exists under which the [regulation] would be valid.’ United States v. Salerno, 481 U.S. 739, 745 (1987). That is true as to both the constitutional challenges … and the statutory challenge ….” … See also Marc E. Isserles, Overcoming Overbreadth: Facial Challenges and the Valid Rule Requirement.

When an intervening Supreme Court decision alters the law of the circuit, a panel of our court must follow the Court’s decision in all later cases. … But here the Supreme Court decision was not intervening; it was rendered before National Mining. Whether despite Reno v. Flores, National Mining therefore must stand as circuit law unless and until the full court overrules it is a question unnecessary for us to answer. … National Mining dealt only with the no-set-of-circumstances formulation of Salerno. It did not mention NCIR, the opinion cited in Reno v. Flores for the proposition that Salerno applied to statutory challenges. Justice Stevens, writing for the Court in NCIR, held: “That the regulation may be invalid as applied in some cases, however, does not mean that the regulation is facially invalid because it is without statutory authority.” NCIR, without citing Salerno, echoed in a non-constitutional setting the sentence in Salerno following the no-set-of-circumstances test — “The fact that the [statute] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid.” …

Either formulation — the no-set-of-circumstances test adopted from Salerno in Reno v. Flores, or the less strict NCIR standard — may pose potential problems for judicial review of agency regulations, especially in this circuit. Lacking a rule-making record containing evidence relating to the rule’s application to a particular entity, petitioners ordinarily mount only facial attacks, often on the ground that the agency’s product conflicts with the statute. In such cases, the consequence of upholding the regulation because it is not invalid in all its applications (Reno v. Flores), or because it is invalid in only some of its applications (NCIR), may be that petitioners would have to make their challenge in another circuit and in another setting, in defense of an enforcement action for instance. Some of the statutes governing jurisdiction prescribe a specific time period for judicial review of regulations, restrict venue to our circuit, and may prohibit review outside the time period, except in limited circumstances. … Although one court has held that the Clean Air Act deprived it of jurisdiction to review EPA regulations when they are applied, … we have ruled that preclusion must be explicit for review to be barred in an enforcement action, see Indep. Cmty. Bankers of Am. v. Bd. of Governors of Fed. Reserve Sys., and that even express preclusion may not operate when the issue would have been unripe during the period of statutory review. See Clean Air Implementation Project v. EPA. Perhaps the congressional intent reflected in judicial review provisions such as § 7607(b) of the Clean Air Act may also demand adjustments in the Reno v. Flores or NCIR test for reviewing facial attacks on regulations, assuming the tests are not constitutionally compelled ….

Whatever the outcome in such cases, the situation here is not comparable. Our circuit does not have exclusive jurisdiction over Park Service regulations, and judicial review is not confined to a particular time period ….

With this in mind, we return to the concessioners’ assertion that if “even one concessioner has [evidence showing an implied right of renewal], the regulations denying those rights across-the-board are unlawful.” Brief for Appellants at 27. We do not need to choose between Reno v. Flores or NCIR to dispose of that contention. Not even First Amendment overbreadth analysis — which embodies a far more difficult standard for laws to satisfy than the one the Court formulated in Salerno — would render a law facially invalid because of the prospect of a single invalid application. … That there might be one invalid application is therefore far from enough to make the regulation unlawful under any of the standards we have mentioned.

(Obviously, my emphasis added.)

According to Judge Randolph, how all of this should be sorted out has not yet been resolved. Randolph did note that Professor Ron Levin’s scholarship on this point merits close attention. In particular, Professor Levin has observed:

[T]he Flores doctrine is especially troubling in the context of statutes that have preclusion provisions like the ones analyzed in this Article. If a regulated party’s argument against the facial validity of a regulation can be thrown out of court at the time of promulgation under Flores, and then thrown out again at the time of implementation because of the preclusion statute, the result could be that he cannot have his argument heard in court at any stage of the process, which seems patently unacceptable.

This is not a subject I’ve thought deeply about. My instinct is the same as Professor Levin’s. In any event, the fact that Judge Randolph thinks this issue merits attention is interesting. Students: I suspect there is a note to be written.

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* Perhaps surprisingly, now-retired Judge Janice Rogers Brown is listed as a “moderate.” I’m not sure what that means. Indeed, I’m wary of such ideological scores for judges, although I realize they are quite common in the world of political science. My concern is this: When it comes to judging, what does it even mean to be a “conservative” or a “liberal”? There is–or at least ought to be–a difference between judges and legislators.

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