concurring in part and dissenting in part.
I generally agree with the majority’s well-reasoned rejection of appellant’s claim that section 1.218(a)(14) of the VA regulations is facially unconstitutional insofar as it regulates the flying of flags in VA cemeteries. However, I dissent to the extent that the majority, in purporting to resolve an overbreadth claim, addresses the constitutionality of other aspects of this VA regulation, aspects that have not even been challenged before the VA itself.
I
Section 1.218(a)(14) of the VA regulations appears to be grossly overbroad. Indeed, it reads like a law school examination question in which law students are invited to find the maximum number of serious constitutional issues raised by a hypothetical ordinance. By barring unauthorized “partisan activities,” defined as “those involving commentary or actions in support of, or in opposition to, or attempting to influence, any current policy of the Government of the United States, or any private group, association, or enterprise,” 38 C.F.R. § 1.218(a)(14)(ii) (2001), the regulation appears to bar political discussions by patients at a VA hospital or by employees at the VA headquarters building, even though such activities, are constitutionally protected. See Rankin v. McPherson, 483 U.S. 378, 388-89, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987) (finding discharge of county employee unconstitutional where employee made inappropriate comment to coworker regarding attempted assassination of President Reagan). It bars the unauthorized use of “coarse” or “abusive” language, even though the Supreme Court has held such terminology in statutes to be unconstitutionally vague. Gooding v. Wilson, 405 U.S. 518, 525-28, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972) (finding statute prohibiting “abusive” language unconstitutionally vague and overbroad). It appears to bar unauthorized “picketing” or orations on sidewalks that are part of VA facilities, even though such conduct is protected. United States v. Grace, 461 U.S. 171, 183, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983) (finding section of federal statute prohibiting picketing and leafleting on sidewalks surrounding Supreme Court building unconstitutional). If we were compelled by the overbreadth doctrine to consider the facial constitutionality of this regulation in all contexts, I would likely find it unconstitutional because it is substantially over-broad.
The majority writes that “we know of no rule that would preclude our consideration of Mr. Griffin’s non-flag allegations once his constitutional challenge to 38 C.F.R. § 1.218(a)(14) is properly before this court.” Ante at 1318. I respectfully disagree. I think we are not obligated, or even permitted, by the Supreme Court’s First Amendment jurisprudence to consider the hypothetical applications of this regulation in deciding the constitutionality of *1332the portion of the regulation reaching Griffin’s conduct. As Justice Scalia has noted, the overbreadth doctrine is in some tension with the Article III case and controversy requirement. City of Chicago v. Morales, 527 U.S. 41, 77, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (Scalia, J., dissenting) (“[F]or the Court ... to go further and pronounce that the statute is unconstitutional in all applications ... [sjeems to me no more than an advisory opinion.... ”). Often a determination that a statute is fatally overbroad means simply that the statute is unconstitutional in the context of the particular controversy, the unconstitutional portion is significant, and the constitutional part cannot be severed from the unconstitutional parts. See Ashcroft v. Free Speech Coalition, — U.S. -, -, 122 S.Ct. 1389, 1406, 152 L.Ed.2d 403 (2002). But the overbreadth doctrine may also sometimes allow the court to hold a statute unconstitutional without explicitly determining whether, in the language of the seminal Thornhill v. Alabama decision, “the evidence ... could ever support a conviction founded upon different and more precise charges.” 310 U.S. 88, 96, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). Even at its outer reaches, when used in this sense the overbreadth doctrine does no more than permit a regulated party to challenge a permit system without seeking a permit, City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 755-56, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988); Lovell v. City of Griffin, 303 U.S. 444, 452-53, 58 S.Ct. 666, 82 L.Ed. 949 (1938); or permit a regulated party to challenge a licensing scheme for movie obscenity without first submitting the film in question for approval, Freedman v. Maryland, 380 U.S. 51, 54-56, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965); or permit a regulated party to challenge a statutory scheme allowing state judges to prohibit the future exhibition of motion pictures that have not yet been found obscene, regardless of whether the film in question is obscene, Vance v. Universal Amusement Co., 445 U.S. 308, 316-17, 100 S.Ct. 1156, 63 L.Ed.2d 413 (1980) (per curiam). See also Laurence H. Tribe, American Constitutional Law § 12-35 (2d ed.1988); 4 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law § 20.46 (3d ed.1999).
The overbreadth doctrine does not give a First Amendment plaintiff or this court a roving warrant to invalidate an entire statute, ordinance, or regulation simply because portions that have nothing to do with the controversy at hand may be unconstitutional. For example, in United States v. Grace, 461 U.S. 171, 175-76, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983), the Court held that it should not address portions of a federal statute prohibiting demonstrations on the Supreme Court grounds, and confined its review to the portion of the statute reaching the conduct of the particular parties before it. The statute at issue in Grace prohibited two distinct activities: (1) “ ‘to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds;’ ” and (2) “ ‘to display therein any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement.’ ” Id. at 175, 103 S.Ct. 1702 (quoting 40 U.S.C. § 13k (1976)). The Court acknowledged that only the second portion of the statute reached the conduct of the parties before it: “the threat of arrest to which each appellee was subjected was for violating the prohibition against the display of a ‘banner or device.’ Accordingly, our review is limited to the latter portion of the statute.” Id. The Court similarly limited the reach of the court of appeals’ decision: “[ajlthough the Court of Appeals opinion purports to hold § 13k unconstitutional on its face without any indication that the holding is limited to that portion of the statute that deals with the display of a ‘flag, banner, or device,’ the decision *1333must be read as limited to that prohibition.” Id. at 175 n. 5, 103 S.Ct. 1702. Even with respect to the second prohibition, the Court majority, over the dissent of Justice Marshall, limited its holding to the “public sidewalks,” the only area of the Supreme Court grounds involved in the particular controversy. Id. at 175, 103 S.Ct. 1702. See also Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 502-05, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985) (invalidating statute only in part); United States v. Nat’l Treasury Employees Union, 513 U.S. 454, 477-78, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995) (limiting relief to only parties before the Court).
The majority suggests that Grace is no longer good law. Ante at 1319 n. 7. I disagree. The majority relies on so-called unbridled discretion cases as undermining our reading of Grace and as supporting its consideration of the overbreadth challenge. As the Supreme Court’s recent decision in Thomas v. Chicago Park District, 534 U.S. 316, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002), makes clear, however, a challenge to a licensing or permit scheme on the ground that it confers unbridled discretion in an administrator or fails to incorporate required procedural safeguards is a challenge based on the regulated party’s own rights, not the rights of third parties as is the case in an overbreadth challenge. The unbridled discretion cases are fully consistent with Grace.
Nor are the severability cases, Reno v. American Civil Liberties Union, 521 U.S. 844, 883-85, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), and National Treasury Employees Union, 513 U.S. at 479 n. 26, 115 S.Ct. 1003, relevant to the propriety of an overbreadth challenge. These cases simply address the question whether, if a statute is unconstitutional in part as a result of the court’s holding in a particular case, the statute as a whole must be invalidated, or whether it can be saved in other applications not before the court. See also Free Speech Coalition, — U.S. at -, 122 S.Ct. at 1410 (O’Connor, J., concurring in judgment in part and dissenting in part) (three dissenting justices urging that application of Grace should result in only partial invalidation of the statute). There is no need to consider any severability question here since we sustain the statute insofar as it regulates the flying of flags in VA cemeteries.
The majority’s insistence on entertaining the overbreadth challenge is particularly curious since the majority rejects the petitioner’s claims because VA cemeteries are simply different from other factual contexts.
In this case, the only portion of section 1.218(a)(14) reaching Griffin’s conduct is that relating to the flying of flags in VA cemeteries. These plaintiffs lack standing to challenge any other aspect of the regulations. Accordingly, we should confine our review to the flying of flags in VA cemeteries, lest we render what is in effect an advisory opinion. We are simply not authorized to conjecture about the possible constitutionality of the myriad other applications of the regulation.
II
There is yet another reason to avoid petitioner’s invitation to consider other portions of this ordinance: these argument’s were not even raised before the VA. It is well established that the doctrine of exhaustion of administrative remedies applies in the case of constitutional challenges to regulatory action. Syracuse Peace Council v. FCC, 867 F.2d 654, 656-57 (D.C.Cir.1989), cert. denied, 493 U.S. 1019, 110 S.Ct. 717, 107 L.Ed.2d 737 (1990). Here, petitioner’s claim before the VA was simply that the regulation was unconstitutional insofar as it regulated the flying of the Confederate flag at VA ceme*1334teries. In his petition to the VA, petitioner stated:
We further request that you and the Department of Veterans Affairs (“VA”) agree to waive and rescind 38 C.F.R. 1.218(a)(14) and any other VA rules or regulations that might be interpreted to prohibit the above-requested display of the Confederate battle flag at the Cemetery.
(emphasis added).
The VA has thus been given no opportunity to pass on petitioner’s newly-minted constitutional claims concerning the invalidity of the regulation in other contexts. We should not address those claims for the first time on review.