Page:Russell Bucklew v. Anne L. Precythe, Director, Missouri Department of Corrections.pdf/21

18 from further problems too—problems that neither Mr. Bucklew nor the dissent even attempts to address.

Take this one. A facial challenge is really just a claim that the law or policy at issue is unconstitutional in all its applications. So classifying a lawsuit as facial or as-applied affects the extent to which the invalidity of the challenged law must be demonstrated and the corresponding “breadth of the remedy,” but it does not speak at all to the substantive rule of law necessary to establish a constitutional violation. Citizens United v. Federal Election Comm’n, 558 U. S. 310, 331 (2010). Surely it would be strange for the same words of the Constitution to bear entirely different meanings depending only on how broad a remedy the plaintiff chooses to seek. See Gross v. United States, 771 F. 3d 10, 14–15 (CADC 2014) (“‘[T]he substantive rule of law is the same for both [facial and as-applied] challenges’”); ''Brooklyn Legal Servs. Corp. v. Legal Servs. Corp.'', 462 F. 3d 219, 228 (CA2 2006) (the facial/as-applied distinction affects “the extent to which the invalidity of a statute need be demonstrated,” not “the substantive rule of law to be used”). And surely, too, it must count for something that we have found not a single court decision in over 200 years suggesting that the Eighth Amendment’s meaning shifts in this way. To the contrary, our precedent suggests just the opposite. In the related context of an Eighth Amendment challenge to conditions of confinement, we have seen “no basis whatever” for applying a different legal standard to “deprivations inflicted upon all prisoners” and those “inflicted upon particular prisoners.” Wilson v. Seiter, 501 U. S. 294, 299, n. 1 (1991).

Here’s yet another problem with Mr. Bucklew’s argument: It invites pleading games. The line between facial and as-applied challenges can sometimes prove “amorphous,” Elgin v. Department of Treasury, 567 U. S. 1, 15 (2012), and “not so well defined,” Citizens United, 558 U. S., at 331. Consider an example. Suppose an inmate