12
CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
Finally, the majority suggests that though the scope of
Citizens United’s claim may be narrow, a facial ruling is
necessary as a matter of remedy. Relying on a law review
article, it asserts that Citizens United’s dismissal of the
facial challenge does not prevent us “ ‘from making
broader pronouncements of invalidity in properly “as
applied” cases.’ ” Ante, at 14 (quoting Fallon, As-Applied
and Facial Challenges and Third-Party Standing, 113
Harv. L. Rev. 1321, 1339 (2000) (hereinafter Fallon));
accord, ante, at 5 (opinion of ROBERTS, C. J.) (“Regardless
whether we label Citizens United’s claim a ‘facial’ or ‘as
applied’ challenge, the consequences of the Court’s deci
sion are the same”). The majority is on firmer conceptual
ground here. Yet even if one accepts this part of Professor
Fallon’s thesis, one must proceed to ask which as-applied
challenges, if successful, will “properly” invite or entail
invalidation of the underlying statute.10 The paradigmatic
case is a judicial determination that the legislature acted
with an impermissible purpose in enacting a provision, as
this carries the necessary implication that all future as
applied challenges to the provision must prevail. See
Fallon 1339–1340.
Citizens United’s as-applied challenge was not of this
sort. Until this Court ordered reargument, its contention
was that BCRA §203 could not lawfully be applied to a
——————
invert it.
10 Professor Fallon proposes an intricate answer to this question that
the majority ignores. Fallon 1327–1359. It bears mention that our
colleagues have previously cited Professor Fallon’s article for the exact
opposite point from the one they wish to make today. In Gonzales v.
Carhart, 550 U. S. 124 (2007), the Court explained that “[i]t is neither
our obligation nor within our traditional institutional role to resolve
questions of constitutionality with respect to each potential situation
that might develop,” and “[f]or this reason, ‘[a]s-applied challenges are
the basic building blocks of constitutional adjudication.’ ” Id., at 168
(opinion for the Court by KENNEDY, J.) (quoting Fallon 1328 (second
alteration in original)).