As Justice O'Connor recognized in her separate opinion in
CSS: “The benefit conferred by the Reform Act—an adjustment in status to lawful temporary resident alien ...—readily can be conceptualized as a ‘license’ or ‘certificate’ to remain in the United States, or a ‘variance’ from the immigration laws.”
Id. at ––––, 113 S.Ct. at 2502. Professors Davis and Pierce have similarly observed that “[t]he reasoning in the majority opinion [in
CSS ] seems sufficiently broad to preclude pre-application judicial review of any rule that purports to describe criteria for obtaining any form of government benefit, e.g., ... any license, or exemption from any regulatory obligation.” 2 Kenneth C. Davis & Richard J. Pierce, Jr., Administrative Law Treatise § 15.14, at 383 (3d ed. 1994). This is because people who are entitled to apply for a license don't face a Hobson's choice of foregoing the regulated activity or suffering the penalties for undertaking it; they have third option, namely applying for a license. Licensing regulations are therefore better understood, not as “impos[ing] ... penalties for violating a [ ] newly imposed restriction, but [as] limit[ing] access to a benefit ... not automatically bestowed on eligible” entities.
CSS, 509 U.S. at 58, 113 S.Ct. at 2496. Outside the First Amendment context, therefore, a facial challenge to an administrative licensing scheme isn't ripe unless the challenger has applied for and been denied a license.