In this case we consider a facial challenge to section 317.5 of title 16 of the California Code of Regulations (section 317.5), which authorizes the State Board of Chiropractic Examiners (Board) to require a disciplined chiropractor to reimburse the Board for the reasonable costs of investigation and enforcement. As the majority acknowledges, section 317.5 is similar to other provisions that apply to proceedings before most, if not all, professional disciplinary agencies in California. (See maj. opn., ante, at p. 38.)
Section 317.5 and similar provisions are based on a simple premise. Incentives matter. Free or undervalued goods are overused. Thus, the creation of disincentives to discourage the overuse of public goods is both an equitable necessity and an economic imperative. Legislative bodies at all levels of government have implemented fee- and cost-shifting schemes that require litigants to decide whether their claim is worth pursuing. (See Abdul-Akbar v. McKelvie (3d Cir. 2001) 239 F.3d 307, 318; Flint v. Haynes (4th Cir. 1981) 651 F.2d 970, 973.) Such schemes are generally uncontroversial unless they effectively deny access to indigents (Boddie v. Connecticut (1971) 401 U.S. 371, 380-381 [91 S.Ct. 780, 787-788, 28 L.Ed.2d 113]; Lindsey v. Normet (1972) 405 U.S. 56, 78-79 [92 S.Ct. 862, 876-877, 31 L.Ed.2d 36]), or are so confiscatory, ruinous or otherwise prohibitive that they deny due process (California Teachers Assn. v. State of California (1999) 20 Cal.4th 327, 363 [84 Cal.Rptr.2d 425, 975 P.2d 622] (dis. opn. of Werdegar, J.) (CTA)).
*50If that were still the law in California, Mr. Zuckerman would have no argument here. The question concerning the constitutionality of section 317.5 arises as a result of this court’s decision in CTA, supra, 20 Cal.4th 327, in which a majority óf this court held such disincentives to be unconstitutional. Reaching that conclusion required considerable effort. Ordinarily, we evaluate the merits of a facial challenge by considering only the text of the measure itself, not its application to the particular circumstances of an individual. (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084 [40 Cal.Rptr.2d 402, 892 P.2d 1145].) ‘“To support a determination of facial unconstitutionality, voiding the statute as a whole, [plaintiffs] cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute .... Rather, [plaintiffs] must demonstrate that the act’s provisions inevitably pose a present total and fatal conflict with the applicable constitutional prohibitions.’” (American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 421 [66 Cal.Rptr.2d 210, 940 P.2d 797] (dis. opn. of Brown, J.), quoting Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 180-181 [172 Cal.Rptr. 487, 624 P.2d 1215]; Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 60-61 [51 Cal.Rptr.2d 837, 913 P.2d 1046]; Tobe v. City of Santa Ana, at p. 1084; Arcadia Unified School Dist. v. State Dept. of Education (1992) 2 Cal.4th 251, 267 [5 Cal.Rptr.2d 545, 825 P.2d 438].)
While purporting to apply that stringent standard, the majority in CTA sustained a facial challenge to an Education Code section that permitted the state to charge half the cost of a hearing, including the cost of the adjudicator, to a dismissed teacher who demanded the hearing, if the dismissal is ultimately upheld. This court found the provision facially invalid despite the fact that the teacher had a full hearing. The plaintiff could not show a total and fatal conflict with his right to due process because he had been deprived of nothing to which he was constitutionally entitled. He simply decided he did not wish to pay half the cost of the hearing after his dismissal was upheld. Nevertheless, the court invalidated the statute because it created “an incentive to pursue only cost-effective strategies and tactics” (CTA, supra, 20 Cal.4th 237, 359 (dis. opn. of Werdegar, J.)), and that, in the majority’s view, impermissibly discouraged ultimately unsuccessful efforts. To put it another way, this court held that a litigant who defends against a threatened infringement by the state of a constitutionally protected interest is entitled, as a function of due process, to have the taxpayers foot the entire bill, even in a losing cause.
I did not agree with the CTA decision in 1999; I do not agree with it now. But Mr. Zuckerman’s logic in relying on it cannot be faulted. Although section 317.5 is a reimbursement statute that applies regardless of whether *51the disciplined chiropractor requests a hearing, its provision that the disciplined chiropractor may be required to pay costs after charges are filed creates the same kind of disincentive this court rejected in CTA. In this case, however, the majority does not find the regulation facially invalid. I agree. The court does not stop there, however; it engrafts a raft of CTH-inspired “requirements” that effectively eviscerate the regulation. Having used CTA to turn the due process requirement upside down, the court now uses this case to turn the standard for determining facial validity inside out. Litigants challenging the facial validity of a statute will no longer be required to show that a provision is unconstitutional under any and all circumstances. Instead, the government will be required to show that no conceivable application could lead to an unconstitutional result.
Moreover, the subjective, amorphous, and miserably inexact standards the court imposes on this Board (see maj. opn., ante, at p. 45), and that will presumably apply to all similar provisions, will no doubt lead to interminable litigation over the accuracy of the Board’s assessment. Terms like “potentially meritorious,” “subjective good faith” and “colorable challenge,” not to mention “relatively innocuous misconduct,” are notoriously difficult concepts on which to get a firm grasp. Indeed, in CTA, this court rejected the argument that constitutional infirmities in Education Code section 44944, subdivision (e) should be challenged on a case-by-case basis because an assessment of the probable merit of the teacher’s position would be a virtual impossibility. (CTA, supra, 20 Cal.4th at p. 350.) We now issue an open invitation to endless litigation, which will necessarily overwhelm any benefit to be gained from section 317.5’s disincentive—what’s left of it.
Let us not be coy. Disincentives have a chilling effect. That is their purpose. However, creating economic disincentives to ration a scarce public resource like the administrative review process is not necessarily the same as impermissibly chilling the exercise of a constitutional right. (See, e.g., Jenkins v. Anderson (1980) 447 U.S. 231, 236 [100 S.Ct. 2124, 2128, 65 L.Ed.2d 86] [the Constitution does not forbid “ ‘every government-imposed choice . . . that has the effect of discouraging the exercise of constitutional rights’ ”]; see Corbitt v. New Jersey (1978) 439 U.S. 212, 218 [99 S.Ct. 492, 497, 58 L.Ed.2d 466]; In re Green (D.C. Cir. 1981) 669 F.2d 779, 786; People v. Amor (1974) 12 Cal.3d 20, 28 [114 Cal.Rptr. 765, 523 P.2d 1173].)
In CTA, a teacher whose dismissal was upheld at an administrative hearing requested by the teacher was asked to pay half the cost of the hearing. The purpose of the law was to “ ‘discourag[e] meritless administrative proceedings’ ” and “ ‘prevent[] groundless challenges to disciplinary proceedings.’ ” (CTA, supra, 20 Cal.4th at p. 341.) To my mind, that purpose was not only *52unobjectionable, but entirely laudable. And a statute need not operate perfectly to pass constitutional muster, particularly a facial challenge. (Kasler v. Lockyer (2000) 23 Cal.4th 472, 502 [97 Cal.Rptr.2d 334, 2 P.3d 581].) Constitutional constraints require neither a perfect nor a best available fit between a statute’s goals and the means employed in that statute to further that goal. (Abdul-Akbar v. McKelvie, supra, 239 F.3d at p. 319.)
The state fisc is limited; the demands on it are limitless. In 1999,1 was not prepared to say that providing free administrative appeals to teachers with groundless claims was more important than, for example, providing smaller classes for elementary school students or repairing aging school facilities. Today, I am not prepared to say that the profligate waste of time, energy, and judicial talent pursuing the majority’s ideal of the perfectly calibrated administrative response is mandated in every case by the due process clause. Due process does not mean perfect process; it means reasonable process.
Because I believe CTA was wrongly decided and this case just compounds the problem, I concur only in the result.