In the US (federal) legal system, is a party to a legal procedure (criminal, civil, etc.) which is not, directly and in itself, concerned with the constitutionality of any law or regulation - challenge constitutionality as an argument for or against some decision during the procedure?

An example (phrased in layman's terms, since I'm a layman when it comes to US law): A person sues the federal government for damages, and wants to base their lawsuit on government submissions to FISA; so, they argue that the secrecy of those, mandated by law, is unconstitutional. Does the court have the authority to entertain the question of this constitutionality (assuming that higher instances have not already set down binding precedent)?

PS - Not that it's very relevant, but in Israeli law, this is called "indirect assault" (less literal translations: "indirect challenge") of constitutionality, and is possible in theory, though not so much in practice.

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    I thought this was a chess question when I saw it in the HNQ list
    – Aaron F
    Commented Oct 5, 2021 at 10:46
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    @AaronF: One of the famous quotes from the very first criminal case brought before the Israeli supreme court is by then-President Zmora, who said: "The criminal procedure must not take the form of a chess game, in which one wrong move determines the outcome - the criminal procedure must be [rough translation here] a trial in the light." Ain-Peh 1/48 Frederick William Sylvester vs the Attorney General.
    – einpoklum
    Commented Oct 5, 2021 at 13:11
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    The answer below is correct. Conceptually, U.S. law distinguishes between "facial" challenges to the constitutionality of a law or governmental action, and "as applied" challenges, although both have to be raised in the trial court and any court, even traffic court in most cases, has a right and duty to address constitutional claims.
    – ohwilleke
    Commented Oct 6, 2021 at 2:18

1 Answer 1


There is no "different legal procedure" for challenging the constitutionality of a law. The only way to do so is through the process that this question contemplates: to argue that the law is unconstitutional in a civil or criminal trial. Whether the law bears directly on the matter at trial or only on ancillary matters such as discovery, the court has the power to find the law unconstitutional and to issue orders accordingly.

The extent to which such a ruling binds other courts depends on which court issues the ruling.

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    Unlike in, say, France, where there is a QPC (Question Prioritaire de Constitutionalité) procedure. Commented Oct 5, 2021 at 4:07
  • And a lower-instance judge can declare the law unconstitutional in such a case and rule accordingly on the main matter at hand?
    – einpoklum
    Commented Oct 5, 2021 at 5:41
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    @einpoklum yes. Suppose a federal agent had some evidence that was the product of an unconstitutional search that had been conducted under some statutory authorization such as "officers can conduct warrantless searches of people within 100 yards of a federal facility." The lower court judge can rule that this provision is unconstitutional and exclude the evidence from the trial. In fact, if the defendant does not argue at trial that the law is unconstitutional, then that argument is generally not permitted on appeal.
    – phoog
    Commented Oct 5, 2021 at 6:43
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    @phoog: Oh, that's interesting... in Israel, you are generally permitted new "legal" arguments on appeal, but no new "factual" arguments.
    – einpoklum
    Commented Oct 5, 2021 at 6:57
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    @AzorAhai-him- Just to be complicated, while phoog is correct that the general rule is that constitutional issues can't be raised for the first time on appeal, there are exceptions to that rule for issues of subject-matter jurisdiction, like standing, and for "structural error", as well as a few less notable exceptions.
    – ohwilleke
    Commented Oct 6, 2021 at 2:16

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