facial constitutional challenge in Illinois

2025See People v. Thompson, 2015 IL 118151, ¶ 36 (describing a facial constitutional challenge as a claim that the statute is unconstitutional under any set of facts).

2025This is because “[w]hen a statute is declared facially unconstitutional and void ab initio, it means that the statute was constitutionally infirm from the moment of its enactment and, therefore, unenforceable.” Thompson, 2015 IL 118151, ¶ 32 . ¶ 13 In this case, because defendant raises a facial constitutional challenge, his failure to file a motion to withdraw his guilty plea pursuant to Rule 604(d) does not preclude this court from addressing his constitutional challenge on direct appeal.

2026See People v. Cadengo, 2025 IL App (4th) 240568, ¶ 65 (declining to reconsider Burns); People v. Huff, 2025 IL App (4th) 240762, ¶ 16 (collecting cases reaffirming Burns); People v. Gardner, 2024 IL App (4th) 230443, ¶ 68 (citing Burns and rejecting a defendant’s facial constitutional challenge to the UPWF statute). ¶ 101 Additionally, although some districts of our appellate court have rejected the argument that felons fall outside of Bruen’s scope, those courts have still concluded that constitutional challenges to felon-in-possession statutes nevertheless fail.

2026See People v. Huff, 2025 IL App (4th) 240762, ¶¶ 12-13 (failure to file a motion to withdraw guilty plea did not bar defendant from raising a facial constitutional challenge on direct appeal); see also People v. Johnson, 2025 IL App (1st) 240159-U ; People v. Anderson, 2025 IL App (1st) 240263-U ; People v. Richardson, 2024 IL App (1st) 221508-U ; People v. Allison, 2024 IL App (1st) 230395-U . ¶ 15 All statutes carry a strong presumption of constitutionality and the party challenging the statute must clearly establish its invalidity to overcome this presumption.

2023In re J.W., 204 Ill. 2d 50, 61 (2003). ¶ 14 We begin with the familiar rules controlling the review of a facial constitutional challenge to a statutory provision.

2023In re J.W., 204 Ill. 2d 50, 61 (2003). ¶ 14 We begin with the familiar rules controlling the review of a facial constitutional challenge to a statutory provision.

2014Instead, the party challenging the statute’s facial constitutionality must show that the statute is “impermissibly vague in all of its applications.” People v. Taylor, 138 Ill. 2d 204, 211 (1990). ¶ 49 Plaintiffs also argue that section 10 requires them to obtain, prior to any hiring decisions, financial and scheduling information about potential subcontractors that is in exclusive control of the subcontractor, rendering compliance with the Act’s exemptions impossible.

2014Instead, the party challenging the statute’s facial constitutionality must show that the statute is “impermissibly vague in all of its applications.” People v. Taylor, 138 Ill. 2d 204, 211 (1990). ¶ 49 Plaintiffs also argue that section 10 requires them to obtain, prior to any hiring decisions, financial and scheduling information about potential subcontractors that is in exclusive control of the subcontractor, rendering compliance with the Act’s exemptions impossible.

2024The burden on the challenger is “particularly heavy when *** a facial constitutional challenge is presented.” Bartlow v. Costigan, 2014 IL 115152, ¶ 18 . “[A]n as- applied challenge requires a showing that the statute is unconstitutional as it applies to the specific facts and circumstances of the challenging party.” People v. Harris, 2018 IL 121932, ¶ 38 (citing People ex rel.

2021However, that is not the case before this court ***.” Id. at 341 . ¶ 17 In People v. Harris, 2018 IL 121932, ¶¶ 1, 16, 50 , a defendant sentenced to a mandatory 76 years’ imprisonment for first degree murder, attempted first degree murder, and aggravated battery with a firearm committed when he was 18 years old asked our supreme court “ ‘to extend the bright line rule of Miller to young adults ages 18 to 21.’ ” However, the Harris court rejected the facial constitutional challenge and declined to extend Miller.

2023An as-applied claim is fundamentally different in that it “challenges a legislative enactment as applied to the specific facts of a plaintiff’s case.” Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 318 (2008). - 15 - No. 1-22-1081 ¶ 38 Plaintiffs did not allege that any provision of the Cannabis Act was unconstitutional in all circumstances, and instead alleged only that the Cannabis Act is invalid as-applied to their applications.

2020Plaintiffs are making a facial constitutional challenge to the tax ordinances at issue. ¶ 47 “A facial challenge to the constitutionality of a legislative enactment is the most difficult challenge to raise successfully [citation], because an enactment is facially invalid only if no set of circumstances exist under which it would be valid.” Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 305-06 (2008).

2026In Burns, 2024 IL App (4th) 230428, ¶ 21 , we found the defendant’s facial constitutional challenge to the UPWF statute lacked merit, holding Bruen’s “historical-tradition test” applied only to regulations affecting the possession of firearms by law abiding citizens.

2024See People v. Thomas, 2024 IL App (4th) 240315-U, ¶ 23 (following the majority of cases in finding that Bruen does not apply to convicted felons); People v. McNeal, 2024 IL App (1st) 231051-U, ¶¶ 20-21 (finding the defendant’s facial constitutional challenge to the armed habitual criminal statute failed because Bruen does not apply to laws regulating firearm possession by felons); People v. Gardner, 2024 IL App (4th) 230443, ¶ 68 (finding that Bruen does not apply to felons); People v. Burns, 2024 IL App (4th) 230428, ¶ 21 (finding the second amendment only protects law-abiding citizens and th

2026See People v. Cadengo, 2025 IL App (4th) 240568, ¶ 65 (declining to reconsider Burns); People v. Huff, 2025 IL App (4th) 240762, ¶ 16 (collecting cases reaffirming Burns); People v. Gardner, 2024 IL App (4th) 230443, ¶ 68 (citing Burns and rejecting a defendant’s facial constitutional challenge to the UPWF statute). ¶ 101 Additionally, although some districts of our appellate court have rejected the argument that felons fall outside of Bruen’s scope, those courts have still concluded that constitutional challenges to felon-in-possession statutes nevertheless fail.

2024See People v. Thomas, 2024 IL App (4th) 240315-U, ¶ 23 (following the majority of cases in finding that Bruen does not apply to convicted felons); People v. McNeal, 2024 IL App (1st) 231051-U, ¶¶ 20-21 (finding the defendant’s facial constitutional challenge to the armed habitual criminal statute failed because Bruen does not apply to laws regulating firearm possession by felons); People v. Gardner, 2024 IL App (4th) 230443, ¶ 68 (finding that Bruen does not apply to felons); People v. Burns, 2024 IL App (4th) 230428, ¶ 21 (finding the second amendment only protects law-abiding citizens and th

2017See Fulton, 2016 IL App (1st) 141765, ¶ 19 . -12- 1-15-0146 the threat of violence that arises when repeat offenders possess firearms.’ ” Fulton, 2016 IL App (1st) 141765, ¶ 31 (quoting Johnson, 2015 IL App (1st) 133663, ¶ 27 ). ¶ 31 Defendant acknowledges our decisions in Johnson and Fulton, but urges this court not to follow those decisions.

2017See Fulton, 2016 IL App (1st) 141765, ¶ 19 . -7- in one very unlikely set of circumstances does not render the statute unconstitutional on its face.’ ” Fulton, 2016 IL App (1st) 141765, ¶ 23 (quoting Johnson, 2015 IL App (1st) 133663, ¶ 27 ). ¶ 30 In finding the armed habitual criminal statute constitutional, we emphasized that the statute did not overreach or criminalize wholly innocent conduct, reasoning: “[A] twice-convicted felon’s possession of a firearm is not ‘wholly innocent’ and is, in fact, exactly what the legislature was seeking to prevent in passing the armed habitual criminal sta

2017See Fulton, 2016 IL App (1st) 141765, ¶ 19 . -12- 1-15-0146 the threat of violence that arises when repeat offenders possess firearms.’ ” Fulton, 2016 IL App (1st) 141765, ¶ 31 (quoting Johnson, 2015 IL App (1st) 133663, ¶ 27 ). ¶ 31 Defendant acknowledges our decisions in Johnson and Fulton, but urges this court not to follow those decisions.

2017See Fulton, 2016 IL App (1st) 141765, ¶ 19 . -12- 1-15-0146 the threat of violence that arises when repeat offenders possess firearms.’ ” Fulton, 2016 IL App (1st) 141765, ¶ 31 (quoting Johnson, 2015 IL App (1st) 133663, ¶ 27 ). ¶ 31 Defendant acknowledges our decisions in Johnson and Fulton, but urges this court not to follow those decisions.

2016In a facial challenge, a court examines whether the statute or ordinance at issue contains “an inescapable flaw that renders the *** statute unconstitutional under every circumstance.” One 1998 GMC, 2011 IL 110236, ¶ 58 . “[A] challenge to the facial validity of a statute is the most difficult challenge to mount successfully because an enactment is invalid on its face only if no set of circumstances exists under which it would be valid.” One 1998 GMC, 2011 IL 110236, ¶ 20 (citing Napleton, 229 Ill. 2d at 305-06 ); see also In re M.T., 221 Ill. 2d 517, 536 (2006) (“Successfully making a facial

2015In a facial challenge, a court examines whether the statute or ordinance at issue contains “an inescapable flaw that renders the *** statute unconstitutional under every circumstance.” One 1998 GMC, 2011 IL 110236, ¶ 58 . “[A] challenge to the facial validity of a statute is the most difficult challenge to mount successfully because an enactment is invalid on its face only if no set of circumstances exists under which it would be valid.” One 1998 GMC, 2011 IL 110236, ¶ 20 (citing Napleton, 229 Ill. 2d at 305-06 ); see also In re M.T., 221 Ill. 2d 517 , 10 No. 1-14-3822 536 (2006) (“Successfull

2016A court will affirm the constitutionality of a statute or ordinance if it is “reasonably capable of such a determination” and “will resolve any doubt as to the statute’s construction in favor of its validity.” One 1998 GMC, 2011 IL 110236, ¶ 20 (citing People v. Johnson, 225 Ill. 2d 573, 584 (2007), and People v. Boeckmann, 238 Ill. 2d 1, 6-7 (2010)). ¶ 29 We note that plaintiff’s challenge to the Ordinance is a facial constitutional challenge.

2015A court will affirm the constitutionality of a statute or ordinance if it is “reasonably capable of such a determination” and “will resolve any doubt as to the statute’s construction in favor of its validity.” One 1998 GMC, 2011 IL 110236, ¶ 20 (citing People v. Johnson, 225 Ill. 2d 573, 584 (2007), and People v. Boeckmann, 238 Ill. 2d 1, 6-7 (2010)). ¶ 29 We note that plaintiff’s challenge to the Ordinance is a facial constitutional challenge.

2016A court will affirm the constitutionality of a statute or ordinance if it is “reasonably capable of such a determination” and “will resolve any doubt as to the statute’s construction in favor of its validity.” One 1998 GMC, 2011 IL 110236, ¶ 20 (citing People v. Johnson, 225 Ill. 2d 573, 584 (2007), and People v. Boeckmann, 238 Ill. 2d 1, 6-7 (2010)). ¶ 29 We note that plaintiff’s challenge to the Ordinance is a facial constitutional challenge.

2015A court will affirm the constitutionality of a statute or ordinance if it is “reasonably capable of such a determination” and “will resolve any doubt as to the statute’s construction in favor of its validity.” One 1998 GMC, 2011 IL 110236, ¶ 20 (citing People v. Johnson, 225 Ill. 2d 573, 584 (2007), and People v. Boeckmann, 238 Ill. 2d 1, 6-7 (2010)). ¶ 29 We note that plaintiff’s challenge to the Ordinance is a facial constitutional challenge.

2023Castaneda v. Illinois Human Rights Comm’n, 132 Ill. 2d 304, 309 (1989). ¶ 56 The plaintiffs assert that their complaint alleges a facial constitutional challenge that is cognizable regardless of whether they have pursued an administrative review claim.

2019Instead, they again raise what we call the futility exception, albeit a slight variation on it, where the exhaustion requirement is waived because the administrative action “cannot provide an adequate remedy.” Castaneda, 132 Ill. 2d at 308–09. ¶ 78 We see this claim differently than the other due process claims.

2018McElwain v. Office of the Illinois Secretary of State , 2015 IL 117170 , ¶ 14, 396 Ill.Dec. 1 , 39 N.E.3d 550 (stating the presumption in the context of an as-applied constitutional challenge); People v. Kitch , 239 Ill. 2d 452 , 466, 347 Ill.Dec. 655 , 942 N.E.2d 1235 (2011) (stating the presumption in the context of a facial constitutional challenge).

2018McElwain v. Office of the Illinois Secretary of State , 2015 IL 117170 , ¶ 14, 396 Ill.Dec. 1 , 39 N.E.3d 550 (stating the presumption in the context of an as-applied constitutional challenge); People v. Kitch , 239 Ill. 2d 452 , 466, 347 Ill.Dec. 655 , 942 N.E.2d 1235 (2011) (stating the presumption in the context of a facial constitutional challenge).

2018McElwain v. Office of the Illinois Secretary of State , 2015 IL 117170 , ¶ 14, 396 Ill.Dec. 1 , 39 N.E.3d 550 (stating the presumption in the context of an as-applied constitutional challenge); People v. Kitch , 239 Ill. 2d 452 , 466, 347 Ill.Dec. 655 , 942 N.E.2d 1235 (2011) (stating the presumption in the context of a facial constitutional challenge).

2018McElwain v. Office of the Illinois Secretary of State , 2015 IL 117170 , ¶ 14, 396 Ill.Dec. 1 , 39 N.E.3d 550 (stating the presumption in the context of an as-applied constitutional challenge); People v. Kitch , 239 Ill. 2d 452 , 466, 347 Ill.Dec. 655 , 942 N.E.2d 1235 (2011) (stating the presumption in the context of a facial constitutional challenge).

2026See People v. Cadengo, 2025 IL App (4th) 240568, ¶ 65 (declining to reconsider Burns); People v. Huff, 2025 IL App (4th) 240762, ¶ 16 (collecting cases reaffirming Burns); People v. Gardner, 2024 IL App (4th) 230443, ¶ 68 (citing Burns and rejecting a defendant’s facial constitutional challenge to the UPWF statute). ¶ 101 Additionally, although some districts of our appellate court have rejected the argument that felons fall outside of Bruen’s scope, those courts have still concluded that constitutional challenges to felon-in-possession statutes nevertheless fail.

2026Therefore, we address only the facial constitutionality of the statute and pass no judgment on whether it was unconstitutionally applied in this case. ¶ 29 Statutes are presumed to be constitutional, and the party challenging the constitutionality of a statute “bears the burden of rebutting this presumption and clearly establishing a constitutional violation.” People v. Funches, 212 Ill. 2d 334, 339 (2004).

2026For this reason, a facial constitutional challenge is the “most difficult challenge to mount successfully.” United States v. Salerno, 481 U.S. 739, 745 (1987).