Petition for Writ - Stephen Halbrook

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requirement.” 10
Id. at 55.
Morales rejected the view that “to mount a successful facial
challenge, a plaintiff must ‘establish that no set of circumstances
exists under which the Act would be valid.’” Id. at 55 n.22, citing
United States v. Salerno, 481 U.S. 739, 745 (1987). “To the
extent we have consistently articulated a clear standard for facial
challenges, it is not the Salerno formulation, which has never been
the decisive factor in any decision of this Court, including Salerno
itself . . . .” 11 Id. at 55 n.22. “Since we . . . conclude that
vagueness permeates the ordinance, a facial challenge is
appropriate.” Id.
Justice O’Connor concurred that the “ordinance is
unconstitutionally vague because it lacks sufficient minimal standards
to guide law enforcement officers.” Id. at 65-66 (O’Connor, J.,
concurring). Similarly, Justice Breyer denied that the ruling violated
the “rules governing facial challenges,” concluding that “the
ordinance violates the Constitution because it delegates too much
discretion to a police officer to decide whom to order to move on,
and in what circumstances.” Id. at 71 (Breyer, J., concurring).
“[I]f every application of the ordinance represents an exercise of
unlimited discretion, then the ordinance is invalid in all its
applications.” Id. Finding examples where a vague law might apply
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“Vagueness may invalidate a criminal law for either of two
independent reasons. First, it may fail to provide the kind of notice that will
enable ordinary people to understand what conduct it prohibits; second, it
may authorize and even encourage arbitrary and discriminatory
enforcement.” Id. at 56.
11
Salerno concerned the constitutionality of the Bail Reform Act
and presented no issue of vagueness.