Also known as:as-applied challenge · as applied challenge · as applied challenges · as-applied · as applied
Written by attorneys — see sources below.
A method of constitutional attack in which a party contends that a statute or regulation violates the Constitution solely in its application to the party's own facts rather than in all possible applications. The challenger must demonstrate that the law produces an unconstitutional result when enforced against the specific conduct or circumstances at issue. Success invalidates the law only as to that party and leaves the statute intact for other situations.
See Our Sources
How its tested
Common Examples
6
Zoning Restriction On Parcel Use
Arthur Abrams owns a corner lot in a residential zone. He applies for a permit to build a small commercial structure that would generate rental income. City officials deny the permit under the zoning ordinance. Abrams sues, arguing that the ordinance as enforced against his particular parcel bears no substantial relation to public health or safety and arbitrarily strips him of beneficial use. The court examines the ordinance's application to his land alone and grants relief limited to that parcel.
Trust Revocability Determination
Abigail Alvarez creates a trust funded with her personal assets and later seeks to revoke it without trustee consent. The trustee objects, claiming an adverse interest blocks revocation. Alvarez files suit asserting that the statute governing trust revocation violates due process as applied to her situation because she retains sole power to revoke without needing consent from anyone holding an adverse interest. The court resolves the dispute by applying the constitutional standard only to her trust instrument and her status as settlor.
Aisha Ahmed nominates herself for the board of Alliance Holdings. The bylaws require nominees to have served as an officer within the prior five years. Ahmed challenges the bylaw as applied to her candidacy, contending that the qualification violates equal protection when measured against her actual experience and the corporation's needs. The court assesses the bylaw's constitutional validity solely in the context of her nomination and the company's circumstances.
Agency Rulemaking Procedure
Aaron Adams operates a nuclear facility subject to new licensing rules issued by an agency. He petitions for review, claiming the rules were adopted without adequate procedures when applied to his plant's unique operational history. The court evaluates whether the agency's process satisfied statutory requirements only as applied to Adams's license application rather than striking the rules in their entirety.
Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc.467 U.S. 837, 843, 104 S. Ct. 2778, 2781, 81 L. Ed. 2d 694 (1984)
In 1967 the Atomic Energy Commission granted Vermont Yankee a construction permit for a nuclear power plant in Vernon, Vermont, after the required adjudicatory hearing and reviews. Vermont Yankee later applied for an operating license; NRDC intervened and objected to exclusion of fuel-reprocessing and waste-disposal impacts from the hearing. In November 1972 the Commission opened a separate rulemaking proceeding on those fuel-cycle issues, noticed two alternative approaches based on its Environmental Survey, and conducted a February 1973 hearing at which more than forty participants submitted comments but no discovery or cross-examination occurred. In April 1974 the Commission adopted a rule assigning numerical values to fuel-cycle impacts and applied it prospectively.
In January 1969 Consumers Power applied for permits to build two nuclear reactors in Midland, Michigan. After staff and ACRS review, Saginaw and Mapleton intervened and raised 119 environmental contentions, including seventeen on energy conservation. The Licensing Board held hearings on radiological issues, the staff issued a final environmental impact statement in March 1972, and further hearings occurred in May and June 1972; Saginaw declined to participate in the later hearings or submit proposed findings. The Licensing Board granted the construction permit, the Appeal Board affirmed, and the Commission declined further review. In November 1973 the Commission ruled in another case that energy-conservation evidence meeting threshold tests could be considered, but it later refused Saginaw's motion to reopen the Consumers Power record.
NRDC appealed the Vermont Yankee license and rule to the D.C. Circuit; Saginaw and others appealed the Consumers Power permit. In 1976 the Court of Appeals remanded both matters, holding the fuel-cycle rulemaking procedures inadequate, the Consumers Power environmental impact statement defective for omitting energy conservation, and the ACRS report insufficiently explained. The Supreme Court granted certiorari in 1977.
The Commission is the successor agency to the Atomic Energy Commission under the Energy Reorganization Act of 1974. All licensing proceedings followed the two-stage process of construction permit followed by operating license under the Atomic Energy Act of 1954, with NEPA environmental reviews added after 1969.
Anita Ali purchases land previously used for agriculture. The village applies a residential zoning classification that prevents her planned industrial development. Ali sues, asserting that the classification as enforced against her parcel lacks a substantial relation to public welfare and deprives her of reasonable use. The court scrutinizes the ordinance's application to her specific property and grants targeted relief.
Village of Euclid Ohio v. Ambler Realty Co.272 U.S. 365, 47 S.Ct. 114, 71 L.Ed 303 (1926)
The Village of Euclid is an Ohio municipal corporation that adjoins and is practically a suburb of the City of Cleveland. Its estimated population is between 5,000 and 10,000, and its area spans from twelve to fourteen square miles, with the greater part consisting of farm lands or unimproved acreage. It lies roughly in the form of a parallelogram measuring approximately three and one-half miles each way and is traversed east and west by three principal highways and two railroads.
Ambler Realty Co. owns a tract of land containing 68 acres situated in the westerly end of the village. This tract abuts on Euclid Avenue to the south and the Nickel Plate railroad to the north. Adjoining this tract on both the east and the west, restricted residential plats have been laid out upon which residences have been erected.
On November 13, 1922, the Village Council adopted an ordinance establishing a comprehensive zoning plan. The ordinance divides the village into six use districts denominated U-1 to U-6, three height districts denominated H-1 to H-3, and four area districts denominated A-1 to A-4. Appellee's tract is classified as U-2 for the first 620 feet north of Euclid Avenue, U-3 for the next 130 feet, and U-6 for the remainder.
Enforcement of the ordinance is entrusted to the inspector of buildings under rules and regulations of the board of zoning appeals. The board holds public meetings, keeps minutes of its proceedings, and possesses authority to interpret the ordinance in cases of practical difficulty or unnecessary hardship, while penalties are prescribed for violations. Ambler Realty Co. filed suit alleging that the tract has been held for years for sale and development for industrial uses for which it is especially adapted. The bill further alleged that unrestricted market value is about $10,000 per acre but limited to residential purposes the value does not exceed $2,500 per acre, that the first 200 feet back from Euclid Avenue has a value of $150 per front foot if unrestricted but not in excess of $50 per front foot if limited to residential uses, and that the ordinance confiscates and destroys a great part of its value while deterring prospective buyers. The bill sought an injunction restraining enforcement of the ordinance.
The district court overruled a motion to dismiss on the ground that the suit was premature. The district court held the ordinance unconstitutional and void and enjoined its enforcement.
Anthony Arnold publishes an editorial criticizing a public official. The official sues for defamation under state common law. Arnold defends by arguing that the actual-malice standard must govern the claim as applied to his speech because the publication addressed a matter of public concern. The court determines whether the First Amendment limits liability only in the context of this particular publication and speaker.
New York Times v. Sullivan376 U.S. 254 (1964)
L. B. Sullivan is one of three elected Commissioners of the City of Montgomery, Alabama. He has duties including supervision of the Police Department. He brought this civil libel action against the New York Times Company and four individual petitioners who were Alabama clergymen. The suit sought $500,000 in damages based on a full-page advertisement entitled "Heed Their Rising Voices" that appeared in the New York Times on March 29, 1960. A jury in the Circuit Court of Montgomery County awarded Sullivan the full amount claimed against all petitioners. The Supreme Court of Alabama affirmed the judgment.
The advertisement was signed by the Committee to Defend Martin Luther King and the Struggle for Freedom in the South. It described widespread non-violent demonstrations by Southern Negro students and an unprecedented wave of terror against them. Two paragraphs formed the basis of the claim. One alleged that after students sang on the State Capitol steps their leaders were expelled, truckloads of police ringed the Alabama State College Campus, and the dining hall was padlocked to starve students into submission. The other stated that Southern violators had bombed Dr. King's home, assaulted him, arrested him seven times, and charged him with perjury. The text appeared over the names of 64 persons. It was endorsed by the individual petitioners among others.
Sullivan contended that the references to police referred to him in his supervisory capacity. Six Montgomery residents testified that they read the statements as referring to him. However, several statements were inaccurate. The students sang the National Anthem rather than "My Country, 'Tis of Thee." The expulsions were for a different incident. The dining hall was not padlocked. Dr. King had been arrested only four times. The bombings occurred before Sullivan's tenure with police efforts to apprehend the perpetrators.
The Times published the advertisement for approximately $4800. It acted upon an order from a New York advertising agency. The agency provided a letter from A. Philip Randolph certifying authorization. The Times made no efforts to confirm its accuracy against its own news files.
Sullivan served written demands for retraction on the petitioners pursuant to Alabama law. None of the individual petitioners responded as they had not authorized use of their names. The Times did not retract. It published a retraction only upon demand by Governor John Patterson after learning more facts. The Supreme Court granted certiorari to the separate petitions of the individual petitioners and the Times due to the importance of the constitutional issues involved.
How does an as-applied challenge differ from a facial challenge?
An as-applied challenge attacks a law only as enforced against the challenger's own facts and seeks relief limited to that party. A facial challenge seeks to invalidate the law in all applications. Courts prefer as-applied challenges when the facts permit because they avoid unnecessary invalidation of statutes.
When may a party bring an as-applied challenge to a disclosure requirement?
A party may bring an as-applied challenge to a disclosure requirement by showing a reasonable probability that compelled disclosure will subject contributors to threats, harassment, or reprisals. If that showing succeeds, the requirement cannot be enforced against that party even if it remains valid in other contexts.
Can an as-applied challenge succeed against a voter-identification law?
Yes. Although facial challenges to voter-identification laws have been rejected, as-applied challenges have succeeded in several states when the law imposes severe burdens on particular voters without adequate justification. The court examines the burden on the specific plaintiffs rather than the law's general operation.
as applied
to a particular plaintiff, but not unconstitutional as a whole, is not simply "struck down" but is, instead, declared unconstitutional