Justice Thomas concurred in two of the opinions released by the Supreme Court last Monday, in both cases pressing originalist points beyond the scope of the arguments. In Trump v. United States, while agreeing with the majority's view of immunity, he adds:
I write separately to highlight another way in which this prosecution may violate our constitutional structure. In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States. But, I am not sure that any office for the Special Counsel has been “established by Law,” as the Constitution requires. Art. II, §2, cl. 2. By requiring that Congress create federal offices “by Law,” the Constitution imposes an important check against the President—he cannot create offices at his pleasure. If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President.
No former President has faced criminal prosecution for his acts while in office in the more than 200 years since the founding of our country. And, that is so despite numerous past Presidents taking actions that many would argue constitute crimes. If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people. The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding.
As Thomas notes later, there needs to be a statute establishing the office of Special Counsel and authorizing the Attorney General (as one of the "Heads of Departments") to make the appointment. The relevant provision is Article II. Section 2:
[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Department.
Steven Calabresi made this argument here at the end of last year, and Josh Blackman and Seth Barrett Tillman have made it in the Trump documents case, as recounted here. It seems right to me, at least in the abstract. I don't have an opinion on whether there is actually a statute that satisfies the appointments clause in this case.
Second, in the NetChoice cases, Thomas concurred in the judgment (which sent the cases back to the court of appeals for reconsideration):
I write separately to add two observations on the merits and to highlight a more fundamental jurisdictional problem. The trade associations have brought facial challenges alleging that H. B. 20 and S. B. 7072 are unconstitutional in many or all of their applications. But, Article III of the Constitution permits federal courts to exercise judicial power only over “Cases” and “Controversies.” Accordingly, federal courts can decide whether a statute is constitutional only as applied to the parties before them—they lack authority to deem a statute “facially” unconstitutional.
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Rather than allege that the statutes impermissibly regulate them, the trade associations assert that H. B. 20 and S. B. 7072 are actually unconstitutional in most or all of their applications. This type of challenge, called a facial challenge, is “an attack on a statute itself as opposed to a
particular application.” Los Angeles v. Patel, 576 U. S. 409, 415 (2015).
Facial challenges are fundamentally at odds with Article III. Because Article III limits federal courts’ judicial power to cases or controversies, federal courts “lac[k] the power to
pronounce that [a] statute is unconstitutional” as applied to nonparties. Americans for Prosperity Foundation v. Bonta, 594 U. S. 595, 621 (2021) (THOMAS, J., concurring in part
and concurring in judgment) (internal quotation marks omitted). Entertaining facial challenges in spite of that limitation arrogates powers reserved to the political branches
and disturbs the relationship between the Federal Government and the States. The practice of adjudicating facial challenges creates practical concerns as well. Facial challenges’ dubious historical roots further confirm that the doctrine should have no place in our jurisprudence.
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Facial challenges conflict with Article III’s case-or-controversy requirement because they ask a federal court to decide whether a statute might conflict with the Constitution in cases that are not before the court. To bring a facial challenge under our precedents, a plaintiff must ordinarily “establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U. S. 739, 745 (1987). In the First Amendment context, we have sometimes applied an even looser standard, called the overbreadth doctrine. The overbreadth doctrine requires a plaintiff to establish only that a statute “prohibits a substantial amount of protected speech,” “relative to [its] plainly legitimate sweep.” United States v. Williams, 553 U. S. 285, 292 (2008).
Facial challenges ask courts to issue holdings that are rarely, if ever, required to resolve a single case or controversy. The only way a plaintiff gets into a federal court is by showing that he “personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.” Blum v. Yaretsky, 457 U. S. 991, 999 (1982) (internal quotation marks omitted). And, the only remedy a plaintiff should leave a federal court with is one “limited to the inadequacy that produced the injury in fact that the plaintiff has established.” Lewis v. Casey, 518 U. S. 343, 357 (1996). Accordingly, once a court decides whether a statute can be validly enforced against the plaintiff who challenges it, that case or controversy is resolved. Either the court remedies the plaintiff's injury, or it determines that the statute may be constitutionally applied to the plaintiff.
Proceeding to decide the merits of possible constitutional challenges that could be brought by other plaintiffs is not necessary to resolve that case. Instead, any holding with respect to potential future plaintiffs would be “no more than an advisory opinion—which a federal court should never issue at all, and especially should not issue with regard to a constitutional question, as to which we seek to avoid even nonadvisory opinions.” Chicago v. Morales, 527 U. S. 41, 77 (1999) (Scalia, J., dissenting) (citation omitted).
Intuitively, this seems right to me, although I don't understand facial challenges enough to be sure. At least, I think the Court should explain why there is such a thing as a facial challenge, why it's needed, and how it is consistent with the judicial role. My sense is that this doctrine is widely not understood.
Posted at 6:35 AM