12
MOODY v. NETCHOICE, LLC
THOMAS, J., concurring in judgment
ture interpretations of statutes in areas where their constitutional application might be cloudy.” Raines, 362 U. S., at
22. In short, facial challenges ask courts to resolve potentially thorny constitutional questions with little factual
background and briefing by a party who may not be affected
by the outcome.
C
The problems with facial challenges are particularly evident in the two cases before us. Even though the trade associations challenge two state laws, the state actors have
been left out of the picture. State officials had no opportunity to tailor the laws’ enforcement. Nor could the legislatures amend the statutes before they were preliminarily
enjoined. In addition, neither set of state courts had a
chance to interpret their own State’s law or “accord [that]
law a limiting construction to avoid constitutional questions.” Washington State Grange, 552 U. S., at 450. Instead, federal courts construed these novel state laws in the
first instance. And, they did so with little factual record to
assist them. The trade associations’ reliance on our questionable associational-standing doctrine is partially to
blame.2 But, the fact that the trade associations raise facial
challenges has undeniably played a significant role. With
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2 The trade associations do not allege that they are subject to H. B. 20
and S. B. 7072, but have brought suit to vindicate the rights of their
members. There is thus not a single party in these suits that is actually
regulated by the challenged statutes and can explain how specific provisions will infringe on their First Amendment rights. Instead, the trade
associations assert their understanding of how the challenged statutes
will regulate nonparties.
As I have recently explained, “[a]ssociational standing raises constitutional concerns.” See FDA v. Alliance for Hippocratic Medicine, 602 U. S.
367, 399 (2024) (concurring opinion). Associational standing appears to
conflict with Article III’s injury and redressability requirements in many
of the same ways as facial challenges. I have serious doubts that either
trade association has standing to vicariously assert a member’s injury.
See id., at 400.