Constitution of the United States/Art. III/Sec. 2/Clause 1 Cases or Controversies

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Constitutional Law Treatise
Table of Contents
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Constitutional Law Outline
Introduction
The Preamble
Article I Legislative Branch
Art. I, Section 1 Legislative Vesting Clause
Art. I, Section 2 House of Representatives
Art. I, Section 3 Senate
Art. I, Section 4 Congress
Art. I, Section 5 Proceedings
Art. I, Section 6 Rights and Disabilities
Art. I, Section 7 Legislation
Art. I, Section 8 Enumerated Powers
Art. I, Section 9 Powers Denied Congress
Art. I, Section 10 Powers Denied States
Article II Executive Branch
Art. II, Section 1 Function and Selection
Art. II, Section 2 Powers
Art. II, Section 3 Duties
Art. II, Section 4 Impeachment
Article III Judicial Branch
Art. III, Section 1 Vesting Clause
Art. III, Section 2 Justiciability
Art. III, Section 3 Treason
Article IV Relationships Between the States
Art. IV, Section 1 Full Faith and Credit Clause
Art. IV, Section 2 Interstate Comity
Art. IV, Section 3 New States and Federal Property
Art. IV, Section 4 Republican Form of Government
Article V Amending the Constitution
Article VI Supreme Law
Article VII Ratification
First Amendment: Fundamental Freedoms
Religion
Establishment Clause
Free Exercise Clause
Free Speech Clause
Freedom of Association
Second Amendment: Right to Bear Arms
Third Amendment: Quartering Soldiers
Fourth Amendment: Searches and Seizures
Fifth Amendment: Rights of Persons
Sixth Amendment: Rights in Criminal Prosecutions
Seventh Amendment: Civil Trial Rights
Eighth Amendment: Cruel and Unusual Punishment
Ninth Amendment: Unenumerated Rights
Tenth Amendment: Rights Reserved to the States and the People
Eleventh Amendment: Suits Against States
Twelfth Amendment: Election of President
Thirteenth Amendment: Abolition of Slavery
Thirteenth Amend., Section 1 Prohibition on Slavery and Involuntary Servitude
Thirteenth Amend., Section 2 Enforcement
Fourteenth Amendment: Equal Protection and Other Rights
Fourteenth Amend., Section 1 Rights
Fourteenth Amend., Section 2 Apportionment of Representation
Fourteenth Amend., Section 3 Disqualification from Holding Office
Fourteenth Amend., Section 4 Public Debt
Fourteenth Amend., Section 5 Enforcement
Fifteenth Amendment: Right of Citizens to Vote
Fifteenth Amend., Section 1 Right to Vote
Fifteenth Amend., Section 2 Enforcement
Sixteenth Amendment: Income Tax
Seventeenth Amendment: Popular Election of Senators
Eighteenth Amendment: Prohibition of Liquor
Eighteenth Amend., Section 1 Prohibition
Eighteenth Amend., Section 2 Enforcement of Prohibition
Eighteenth Amend., Section 3 Ratification Deadline
Nineteenth Amendment: Women's Suffrage
Twentieth Amendment: Presidential Term and Succession
Twentieth Amend., Section 1 Terms
Twentieth Amend., Section 2 Meetings of Congress
Twentieth Amend., Section 3 Succession
Twentieth Amend., Section 4 Congress and Presidential Succession
Twentieth Amend., Section 5 Effective Date
Twentieth Amend., Section 6 Ratification
Twenty-First Amendment: Repeal of Prohibition
Twenty-First Amend., Section 1 Repeal of Eighteenth Amendment
Twenty-First Amend., Section 2 Importation, Transportation, and Sale of Liquor
Twenty-First Amend., Section 3 Ratification Deadline
Twenty-Second Amendment: Presidential Term Limits
Twenty-Second Amend., Section 1 Limit
Twenty-Second Amend., Section 2 Ratification Deadline
Twenty-Third Amendment: District of Columbia Electors
Twenty-Third Amend., Section 1 Electors
Twenty-Third Amend., Section 2 Enforcement
Twenty-Fourth Amendment: Abolition of Poll Tax
Twenty-Fourth Amend., Section 1 Poll Tax
Twenty-Fourth Amend., Section 2 Enforcement
Twenty-Fifth Amendment: Presidential Vacancy
Twenty-Fifth Amend., Section 1 Presidential Vacancy
Twenty-Fifth Amend., Section 2 Vice President Vacancy
Twenty-Fifth Amend., Section 3 Declaration by President
Twenty-Fifth Amend., Section 4 Declaration by Vice President and Others
Twenty-Sixth Amendment: Reduction of Voting Age
Twenty-Sixth Amend., Section 1 Eighteen Years of Age
Twenty-Sixth Amend., Section 2 Enforcement
Twenty-Seventh Amendment: Congressional Compensation

Article III Judicial Branch

Section 2 Justiciability

Clause 1 Cases or Controversies

Clause Text
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State,--between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Overview of Cases or Controversies[edit | edit source]

Article III, Section 2, Clause 1 identifies the circumstances and parties to which the judicial power of the National Government applies.[1] As provided by the Constitution, the judicial power extends to nine classes of cases and controversies which fall into two general groups depending on the "character of the cause" and the "character of the parties."[2] As to the "character of the cause," the judicial power extends to cases arising under the "Constitution, the Laws of the United States and Treaties made under . . . their Authority"; to all cases "affecting Ambassadors, or other public Ministers and Consuls"; and to all cases of "admiralty and maritime Jurisdiction."[3] As to the "character of the parties," the judicial power extends to controversies where the "United States shall be a Party"; and controversies "between two or more States; between a State and Citizens of another State; between Citizens of different States;-between Citizens of the same State claiming Land under Grants of different States, or the Citizens thereof, and foreign States, Citizens or Subjects."[4] In Cohens v. Virginia, Chief Justice John Marshall explained these principles, stating:

In the first, jurisdiction depends on the character of the cause, whoever may be the parties. This class comprehends 'all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.' This cause extends the jurisdiction of the court to all the cases described, without making in its terms any exception whatever, and without any regard to the condition of the party. If there be any exception, it is to be implied, against the express words of the article. In the second class, the jurisdiction depends entirely on the character of the parties. In this are comprehended 'controversies between two or more states, between a state and citizens of another state,' and 'between a state and foreign states, citizens or subjects' if these be the parties, it is entirely unimportant, what may be the subject of controversy. Be it what it may, these parties have a constitutional right to come into the courts of the Union.Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 378 (1821).

The Supreme Court has further noted that judicial power is "the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision."[5] The meaning attached to the terms "cases" and "controversies"[6] determines therefore the extent of the judicial power as well as the capacity of the federal courts to receive jurisdiction. According to Chief Justice Marshall in Osborn v. Bank of the United States, judicial power is capable of acting only when the subject is submitted in a case and a case arises only when a party asserts his rights "in a form prescribed by law."[7]

Justiciable "cases" and "controversies" not only require that disputes be of the types specified in Article III, Section 2, Clause 1, but also that the disputes be, in fact, actual "cases" and "controversies." Consequently, the parties must truly be adverse to each, the dispute must be concrete, not hypothetical, and the dispute must be capable of being resolved through an award of specific relief. In Aetna Life Insurance Company v. Haworth, Chief Justice Charles Evans Hughes explained this aspect of the "cases" and "controversies" requirement stating:

A "controversy" in this sense must be one that is appropriate for judicial determination. A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical character; from one that is academic or moot. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 (1937). Cf. Public Service Comm'n v. Wycoff Co., 344 U.S. 237, 242 (1952).

Chief Justice Earl Warren also advised on the nature of "cases" and "controversies," noting:

Embodied in the words "cases" and "controversies" are two complementary but somewhat different limitations. In part those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the Judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government. Justiciability is the term of art employed to give expression to this dual limitation placed upon federal courts by the case and controversy doctrine.Flast v. Cohen, 392 U.S. 83, 94-95 (1968).

Factors which determine whether a dispute qualifies as a "case" or "controversy" under the Constitution include adversity, the existence of a real interest, and standing. Adversity requires that the parties be truly adverse to each other with real interests in contention.[8] As such, suits that are collusive or feigned by two friendly parties to resolve a question of interest to them are not justiciable.[9] A real interest requires that a real issue be presented, as contrasted with speculative, abstract, hypothetical, or moot issues or cases that are not yet ripe for review.[10] Standing concerns who may bring a suit and requires that the party seeking relief has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpes the presentation of issues upon which the court so largely depends of illumination of difficult constitutional questions."[11] The constitutional requirements for standing under Article III require that the plaintiff has personally (1) suffered some actual or threatened injury; (2) that injury can fairly be traced to the challenged action of the defendant; and (3) that the injury is likely to be redressed by a favorable decision.[12] Persons do not have standing to sue in federal court when they can only claim that they have an interest or have suffered an injury that is shared by all members of the public.[13] These factors are discussed at greater length in other Constitution Annotated essays.

Historical Background on Cases or Controversies Requirement[edit | edit source]

Article III of the Constitution provides that "the judicial Power" of the United States "shall extend to" certain enumerated categories of "Cases" and "Controversies."[14] As later essays in this treatise discuss, the Supreme Court has interpreted this "Case or Controversy" language to impose significant restrictions on the federal courts' power to adjudicate disputes,[15] such as the Article III standing doctrine,[16] which forbids the Federal Judiciary from hearing cases in which the plaintiff lacks a personal stake in the outcome.[17] In light of the importance of those limitations on the federal courts' jurisdiction, this essay surveys available historical evidence illuminating what the Framers might have understood those words to mean.[18] The essay thus discusses pre-Convention English judicial practice before recounting relevant exchanges during the Constitutional Convention and the ratification debates.[19]

Because the Framers drew upon their knowledge of English practice when designing the Constitution, the legal principles prevailing in England at the time of the Founding provide the starting point for understanding the "Case or Controversy" language's historical origins.[20] Some evidence suggests that English courts entertained a fairly broad array of disputes before the Founding, including certain cases intended to vindicate the public interest rather than merely the personal interests of the plaintiff himself. For example, a prominent English treatise from the seventeenth Century discusses a particular form of judicial relief that English courts could award at the behest of a "stranger"--i.e., one who was not a "party" to the action challenged in the case.[21] Similarly, a case from 1741 suggests that some litigants could pursue certain lawsuits in English courts even if they possessed only a "remote" interest in the subject of the litigation.[22] Other evidence, however, suggests that in certain contexts English courts demanded that litigants possess a direct personal stake in the subject matter of the litigation. For instance, in its discussion of a form of judicial relief known as the "writ of prohibition," an English treatise from 1736 states that "no Man is [e]ntitled to a Prohibition unless he is in Danger of being injured by some Suit actually depending."[23] Similarly, in his Commentaries on the Laws of England, Sir William Blackstone wrote that no private person could sue a defendant for a public or common nuisance unless the nuisance caused that private person "some extraordinary damage."[24]

Although the Convention records do not explicitly discuss why the Framers used the terms "Cases" and "Controversies" in Article III,[25] at least three events during the Convention suggest that the Framers did not intend Article III to empower federal judges to adjudicate every type of dispute that came before them. For one, the Framers explicitly rejected proposals to authorize federal judges to review statutes before they became effective. On May 29, 1787, Edmund Randolph proposed that the President, along with "a convenient number of the National Judiciary," would "compose a council of revision with authority to examine every act of the National Legislature before it shall operate."[26] The Framers ultimately voted to reject this proposal (or variations on it) three times during the Convention.[27]

The Framers also took no action[28] on an August 20, 1787 proposal that would have granted "[e]ach branch of the Legislature, as well as the Supreme Executive," the "authority to require the opinions of the supreme Judicial Court upon important questions of law, and upon solemn occasions."[29] As a result of this proposal's failure, the Constitution as ratified contains no provision authorizing the federal courts to issue advisory opinions.[30]

Perhaps the most illuminating exchange between the Framers about the justiciability of disputes occurred on August 27, 1787,[31] when Dr. William Samuel Johnson proposed to extend the judicial power of the United States not just to cases arising under federal statutes, but also to cases arising under the Constitution itself.[32] James Madison expressed concern that this proposal could grant the Judiciary too much power, and insisted that the federal courts' jurisdiction should instead "be limited to cases of a Judiciary Nature" only.[33] Dr. Johnson's proposal nevertheless passed unanimously.[34] The Convention records reflect that the Framers discounted Madison's misgivings about granting the Federal Judiciary power over constitutional cases because the Framers "generally supposed" that the federal courts' jurisdiction would be "constructively limited to cases of a Judiciary nature."[35] This exchange therefore suggests that there are some disputes that arise under federal law, yet are still outside the federal courts' authority to adjudicate because they are not of "a Judiciary Nature."[36] The records of the Convention do not specify, however, what Madison and the other Framers understood "Judiciary Nature" to mean.[37]

Although the ratification debates that followed the Convention cast little light on the meaning of Article III's "Case or Controversy" language, they do at least reveal a consensus that federal judges would operate within a limited sphere.[38] Faced with Anti-Federalist criticisms that the Constitution would empower federal judges to "enlarge the sphere of their power beyond all bounds,"[39] supporters of the Constitution argued in the Federalist Papers that "the judicial authority" would have "precise limits beyond which the federal courts cannot extend their jurisdiction."[40]

Rules of Justiciability[edit | edit source]

Overview of Rules of Justiciability and Cases or Controversies Requirement[edit | edit source]

The judicial power extends to nine classes of cases and controversies, which fall into two general groups. In the words of Chief Justice John Marshall in Cohens v. Virginia:[41] "In the first, jurisdiction depends on the character of the cause, whoever may be the parties. This class comprehends 'all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.' This cause extends the jurisdiction of the court to all the cases described, without making in its terms any exception whatever, and without any regard to the condition of the party. If there be any exception, it is to be implied, against the express words of the article. In the second class, the jurisdiction depends entirely on the character of the parties. In this are comprehended 'controversies between two or more states, between a state and citizens of another state,' and 'between a state and foreign states, citizens or subjects.' If these be the parties, it is entirely unimportant, what may be the subject of controversy. Be it what it may, these parties have a constitutional right to come into the courts of the Union."[42]

Judicial power is "the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision."[43] The meaning attached to the terms "cases" and "controversies"[44] determines therefore the extent of the judicial power as well as the capacity of the federal courts to receive jurisdiction. According to Chief Justice Marshall, judicial power is capable of acting only when the subject is submitted in a case and a case arises only when a party asserts his rights "in a form prescribed by law."[45] "By cases and controversies are intended the claims of litigants brought before the courts for determination by such regular proceedings as are established by law or custom for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs. Whenever the claim of a party under the Constitution, laws, or treaties of the United States takes such a form that the judicial power is capable of acting upon it, then it has become a case. The term implies the existence of present or possible adverse parties whose contentions are submitted to the Court for adjudication."[46]

Chief Justice Charles Evans Hughes once essayed a definition, which, however, presents a substantial problem of labels. "A 'controversy' in this sense must be one that is appropriate for judicial determination. A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical character; from one that is academic or moot. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts."[47] Of the "case" and "controversy" requirement, Chief Justice Earl Warren admitted that "those two words have an iceberg quality, containing beneath their surface simplicity submerged complexities which go to the very heart of our constitutional form of government. Embodied in the words 'cases' and 'controversies' are two complementary but somewhat different limitations. In part those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the Judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government. Justiciability is the term of art employed to give expression to this dual limitation placed upon federal courts by the case and controversy doctrine."[48] Justice Felix Frankfurter perhaps best captured the flavor of the "case" and "controversy" requirement by noting that it takes the "expert feel of lawyers" often to note it.[49]

From these quotations may be isolated several factors which, in one degree or another, go to make up a "case" and "controversy."

Almost inseparable from the requirements of adverse parties and substantial enough interests to confer standing is the requirement that a real issue be presented, as contrasted with speculative, abstract, hypothetical, or moot issues. It has long been the Court's "considered practice not to decide abstract, hypothetical or contingent questions."[50] A party cannot maintain a suit "for a mere declaration in the air."[51] In Texas v. ICC,[52] the State attempted to enjoin the enforcement of the Transportation Act of 1920 on the ground that it invaded the reserved rights of the State. The Court dismissed the complaint as presenting no case or controversy, declaring: "It is only where rights, in themselves appropriate subjects of judicial cognizance, are being, or about to be, affected prejudicially by the application or enforcement of a statute that its validity may be called in question by a suitor and determined by an exertion of the judicial power."[53] And in Ashwander v. TVA,[54] the Court refused to decide any issue save that of the validity of the contracts between the Authority and the Company. "The pronouncements, policies and program of the Tennessee Valley Authority and its directors, their motives and desires, did not give rise to a justiciable controversy save as they had fruition in action of a definite and concrete character constituting an actual or threatened interference with the rights of the person complaining."[55]

Concepts of real interest and abstract questions appeared prominently in United Public Workers v. Mitchell,[56] an omnibus attack on the constitutionality of the Hatch Act prohibitions on political activities by governmental employees. With one exception, none of the plaintiffs had violated the Act, though they stated they desired to engage in forbidden political actions. The Court found no justiciable controversy except in regard to the one, calling for "concrete legal issues, presented in actual cases, not abstractions," and seeing the suit as really an attack on the political expediency of the Act.[57]

Historical Background on Justiciability and Cases or Controversies Requirement[edit | edit source]

The potential for abuse of judicial power was of concern to the Founding Fathers, leading them to establish limits on the circumstances in which the courts could consider cases. When, late in the Convention, a delegate proposed to extend the judicial power beyond the consideration of laws and treaties to include cases arising under the Constitution, James Madison's notes captured these concerns. "Mr. Madison doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising under the Constitution, and whether it ought not to be limited to cases of a Judiciary Nature. The right of expounding the Constitution in cases not of this nature ought not to be given to that Department." Consequently, "[t]he motion of Docr. Johnson was agreed to nem: con: it being generally supposed that the jurisdiction given was constructively limited to cases of a Judiciary nature--."[58]

This passage, and the language of Article III, Section 2, makes clear that the Framers did not intend for federal judges to roam at large in construing the Constitution and laws of the United States, but rather preferred and provided for resolution of disputes arising in a "judicial" manner. This interpretation is reinforced by the refusal of the Convention to assign the judges the extra-judicial functions that some members of the Convention--Madison and James Wilson notably--conceived for them. Thus, for instance, the Convention four times voted down proposals for judges, along with Executive Branch officials, to sit on a council of revision with the power to veto laws passed by Congress.[59] A similar fate befell suggestions that the Chief Justice be a member of a privy council to assist the President[60] and that the President or either House of Congress be able to request advisory opinions of the Supreme Court.[61] The intent of the Framers in rejecting the latter proposal was early effectuated when the Justices declined a request of President Washington to tender him advice respecting legal issues growing out of United States neutrality between England and France in 1793.[62] Moreover, the refusal of the Justices to participate in a congressional plan for awarding veterans' pensions[63] bespoke a similar adherence to the restricted role of courts. These restrictions have been encapsulated in a series of principles or doctrines, the application of which determines whether an issue is met for judicial resolution and whether the parties raising it are entitled to have it judicially resolved. Constitutional restrictions are intertwined with prudential considerations in the expression of these principles and doctrines, and it is seldom easy to separate the two strands.[64]

Advisory Opinions[edit | edit source]

Overview of Advisory Opinions[edit | edit source]

An advisory opinion is a non-binding interpretation of the law by a court,[65] essentially the court providing advice on an abstract or hypothetical legal question. The Supreme Court has defined an "advisory opinion" as an "advance expression[ ] of legal judgment upon issues" that are not before a court in the form of litigation involving concrete claims by adverse litigants.[66] The Court has long held that the language in Article III authorizing federal court jurisdiction over certain "Cases" and "Controversies" prohibits federal courts from issuing advisory opinions.[67] The Court has explained that cases seeking advisory opinions are not justiciable, meaning that the federal courts lack jurisdiction to decide such cases.[68]

The Supreme Court has recognized two primary reasons for the limitation on advisory opinions. First, the Court has explained that the "implicit policies in Article III" and separation of powers principles confine federal courts to assessing the validity of actions by the other branches of government only in the context of a case or controversy.[69] Second, the advisory opinion limitation promotes the prudential consideration that federal courts should decide legal questions in the context of an active, adversarial dispute. The Supreme Court has concluded that courts operate best when confronted with disputes that involve "a clash of adversary argument exploring every aspect of a multifaced situation embracing conflicting and demanding interests."[70]

The ban on advisory opinions has been recognized as being at the "core of Article III," and one commentator has noted that "other justiciability doctrines exist largely to ensure that federal courts will not issue advisory opinions."[71] Despite the importance of the rule against advisory opinions, the Supreme Court has at times lacked precision in explaining when a legal opinion becomes "advisory" in nature.[72] In particular, cases from the 1920s and 1930s grappled with the question of whether the prohibition on advisory opinions also banned federal courts from issuing declaratory judgments--binding decisions that establish the legal rights of the parties without awarding other relief.[73] The following essays provide an overview of the prohibition against advisory opinions,[74] then discuss the relationship between advisory opinions and declaratory judgments.[75]

Advisory Opinion Doctrine[edit | edit source]

At the time of the Founding, both English law[76] and existing state constitutions[77] allowed courts to issue advisory opinions. Nonetheless, the Framers declined to include explicit language in the Constitution that would have imposed an advisory role for the Supreme Court or other federal courts.[78] The final version of Article III states only that the "judicial power shall extend to" certain categories of "Cases" and "Controversies."[79] Although that language does not conclusively resolve the question of whether courts have the power to issue advisory opinions,[80] the Supreme Court resolved the issue early in the nation's history in two key cases.

The Supreme Court first issued a decision related to advisory opinions (albeit without using the term) in 1792, in Hayburn's Case.[81] In that case, the Supreme Court considered a petition for a writ of mandamus to direct a federal circuit court to proceed on a claim seeking a federal pension. The petitioner argued that the courts had failed to give effect to an act of Congress. The Court noted, however, that "the reasons assigned by the judges," including Supreme Court Justices sitting on the circuit courts, "for declining to execute the . . . act of Congress, involve a great constitutional question."[82] Specifically, those judges contended that pension decisions under the Act were not judicial duties that Congress could constitutionally assign to the courts because the Act subjected such decisions to "revision and control" by the legislature and an officer in the Executive department.[83] They determined that such control was "radically inconsistent with the independence of that judicial power which is vested in the courts" by the Constitution.[84] While Hayburn's Case remained pending, Congress enacted legislation providing an alternative means of relief for the pensioners; the Court then dismissed the mandamus petition without deciding the underlying constitutional question.[85] However, the circuit court opinions declining to issue non-final pension decisions have become an accepted part of the Court's justiciability jurisprudence. The Court has since confirmed that it has no jurisdiction where an opinion would be subject to later review and revision, as such a ruling can amount to no more than advice.[86]

The Supreme Court produced the second early precedent against advisory opinions in 1793. In that year, President George Washington, seeking to determine the United States' legal rights and obligations in relation to ongoing conflicts between the European powers of France and Britain, sent a letter through his Secretary of State, Thomas Jefferson, to the Justices of the Supreme Court.[87] The letter asked if the Justices would be willing to render opinions on a number of legal questions of "considerable difficulty" that "do not give a cognizance of them to the tribunals of the country."[88] The Justices declined to provide an answer. Chief Justice John Jay drafted a response to the President explaining that "[t]he lines of separation drawn by the Constitution between the three departments of government . . . and our being judges of a court in the last resort . . . are considerations which afford strong arguments against the propriety of our extrajudicially deciding the questions alluded to."[89] Although the letter was not an official opinion of the Court, the Court has since cited it as a major source of the rule against advisory opinions.[90]

Subsequent precedents and practice have reaffirmed the prohibition on advisory opinions but raised some questions about its scope. In the 1948 case Chicago & Southern Air Lines v. Waterman S. S. Corp., the Court refused a private party's request for review of an order of the Civil Aeronautics Board that was, in effect, merely a recommendation to the President for his final action.[91] The Court explained that a judicial decision on the matter would be "an advisory opinion in its most obnoxious form--advice that the President has not asked, tendered at the demand of a private litigant, on a subject concededly within the President's exclusive, ultimate control."[92] While the Court's refusal to act was based in part on the risk of intruding on the President's authority, the Court also made clear that was not the sole relevant factor, as the Judiciary had "early and wisely determined that it would not give advisory opinions even when asked by the Chief Executive."[93]

The majority opinion in Chicago & Southern Air Lines stated that it has been "the firm and unvarying practice of Constitutional Courts to render no judgments not binding and conclusive on the parties and none that are subject to later review or alteration by administrative action."[94] However, while the Court has declined to issue advisory opinions via formal judicial decisions, Supreme Court Justices have at times offered their thoughts on the law in an informal capacity. For instance, in response to a letter calling for suggestions to improve in the operation of the courts, Supreme Court Justices drafted a letter suggesting that the requirement that Justices ride circuit was unconstitutional, though apparently they never sent it.[95] Justice William Johnson communicated to President James Monroe, apparently with the knowledge and approval of the other Justices, the views of the Justices on the constitutionality of internal improvements legislation.[96] In addition, Chief Justice Charles Evans Hughes sent a letter to Senator Burton K. Wheeler questioning the constitutionality of a proposal from President Franklin Delano Roosevelt's administration to increase the membership of the Supreme Court and have the Court sit in divisions.[97] Other Justices have individually served as advisers and confidants of Presidents to one degree or another.[98]

Some commentators also contend that the precise meaning of the ban on advisory opinions became blurred in the twentieth century, as the Court has used the phrase to refer to a number of different distinct limitations on federal courts.[99] Primarily, the Court has used the term in reference to the Article III justiciability limitations on federal courts' jurisdiction, such as mootness or standing.[100] However, the Court has also linked the ban on advisory opinions to modern prudential doctrines, such as the Supreme Court's practice of not deciding questions in state court cases that have been resolved on a separate and independent state law ground,[101] and the practices of courts to avoid reaching constitutional issues or questions not necessary to the determination of the case.[102] These varying uses of the term "advisory opinion," combined with the fact that the Court has referenced it less frequently than any other justiciability rule,[103] have created confusion among scholars or practitioners about the precise meaning of the prohibition.

Beyond its constitutional role, the Court's rule against advisory opinions has repeatedly been recognized or applied in other, non-constitutional contexts. For instance, as noted, the Court has invoked the ban on advisory opinions to justify its practice of not deciding questions in state court cases that have been decided on a separate and independent state law ground.[104] The Court has also suggested that the advisory opinion ban might be relevant to other legal questions, such as whether the Court should issue purely prospective decisions,[105] whether a federal court should render alternative holdings or issue dicta,[106] and whether individual Justices should "engage[ ] in extrajudicial expression of their legal views."[107] As these references show, although the ban on advisory opinions is only rarely invoked by the Supreme Court, its implications are felt throughout the Court's jurisprudence and throughout the law.[108]

Advisory Opinions and Declaratory Judgments[edit | edit source]

In contrast to a non-binding advisory opinion, a declaratory judgment is a "binding adjudication that establishes the rights and other legal relations of the parties without providing for or ordering enforcement."[109] While the two types of decisions are distinct, they share some similarities--for instance, neither directly yields an enforceable judgment. Thus, some Supreme Court cases from the 1920s and 1930s held that requests for declaratory relief were functionally requests for advisory opinions and thus outside the jurisdiction of the federal courts.[110] By contrast, other roughly contemporaneous decisions suggested that federal courts could issue declaratory judgments.[111]

Congress took up the issue in the Federal Declaratory Judgment Act of 1934.[112] The 1934 Act provided that "[i]n cases of actual controversy" federal courts could "declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed."[113] The Senate report on the Act stated:

The declaratory judgment differs in no essential respect from any other judgment except that it is not followed by a decree for damages, injunction, specific performance, or other immediately coercive decree. It declares conclusively and finally the rights of parties in litigations over a contested issue, a form of relief which often suffices to settle controversies and fully administer justice.S. Rep. No. 1005, 73d Congress, 2d Sess. (1934), 2. See also H. Rep. No. 1264, 73d Congress, 2d Sess. (1934), 2 (stating the intent "to confer upon the courts the power to exercise in some instances preventive relief; a function now performed rather clumsily by our equitable proceedings and inadequately by the law courts").

The Supreme Court unanimously upheld the Act against a constitutional challenge in Aetna Life Ins. Co. v. Haworth.[114] In Aetna Life, the plaintiff, an insurance company, brought suit under the Act seeking a judicial declaration of its obligations to the insured defendant.[115] The Court noted that the 1934 Act, "in its limitation to 'cases of actual controversy,' manifestly has regard to the constitutional provision and is operative only in respect to controversies which are such in the constitutional sense."[116] In concluding that the case before it was not a request for an advisory opinion, the Court described advisory opinions as opinions on a "hypothetical basis," in contrast with "adjudication[s] of present right upon established fact."[117] The Court concluded that justiciable controversies under the Constitution must be concrete, as "distinguished from a difference or dispute of a hypothetical or abstract character," and must be "admitting of specific relief through a decree of conclusive character."[118] In Aetna Life, those requirements were met because the parties' dispute of fact on the insured's disability or lack thereof was "essentially the same whether it [was] presented by the insured or the insurer" and could be cleanly resolved by a court.[119] As the Court explained, "[i]t is the nature of the controversy, not the method of its presentation or the particular party who presents it, that is determinative."[120]

The holding in Aetna Life does not dictate that requests for a declaratory judgment brought under the Declaratory Judgment Act should always be regarded as a "case or controversy." In contrast with Aetna Life, in the 1998 case Calderon v. Ashmus,[121] the Court held there was no case or controversy presented when a California inmate brought a class action lawsuit on behalf of all California death row inmates under the Declaratory Judgment Act. The inmates had sought a declaration that California death row inmates fell under certain provisions of the Antiterrorism and Effective Death Penalty Act of 1996, which would have affected the statute of limitations that applied to the inmates' federal habeas proceedings challenging their convictions or their sentences.[122] In a ruling that relied on the doctrine of standing, the Court cited the lack of an imminent need for the resolution of the issues presented and noted that even a favorable resolution for the plaintiff would only resolve the "single issue" of the statute of limitations, leaving the remainder of the dispute to other lawsuits.[123] In light of those facts, the Court concluded that the question presented was not "concrete enough" to justify Article III jurisdiction.[124]

As a general matter, the Court has insisted that "the requirements for a justiciable case or controversy are no less strict in a declaratory judgment proceeding than in any other type of suit,"[125] but has declined to adopt a bright-line test for when courts may issue declaratory judgments. As one decision explained: "The difference between an abstract question and a "controversy' contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy."[126] Rather, the Court must consider in each case "whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment."[127] Even if a declaratory judgment case presents a potentially justiciable case or controversy, the Court is not required to exercise its jurisdiction.[128]

Parties commonly seek declaratory judgments to settle disputes and identify rights in private areas, including insurance and patents in particular but extending into all areas of civil litigation. By statute, declaratory judgments are not available in tax cases.[129] Moreover, the Court has demonstrated reluctance to issue declaratory judgments resolving important questions of public law, especially regarding the validity of legislation.[130] In such cases, the Court has strictly insisted that the controversy presented meet justiciability requirements such as concreteness and ripeness.[131] Notwithstanding those restrictions, several noteworthy constitutional decisions have been rendered in declaratory judgment actions.[132]

Adversity[edit | edit source]

Overview of Adversity Requirement[edit | edit source]

The requirement that a case involve litigants who are genuinely adverse to each other imposes another limitation on the justiciability of disputes in federal court.[133] The Supreme Court has interpreted Article III of the Constitution to forbid federal courts from issuing binding judgments in cases that do not present "an honest and actual antagonistic assertion of rights by one party against another."[134] According to the Court, this adversity requirement helps ensure that the parties provide the Judiciary the factual information and legal advocacy it needs to resolve issues correctly.[135] Thus, where all the parties in a case seek the same result, there is generally no "Case" or "Controversy" under Article III, and the Court lacks jurisdiction to issue a ruling.[136] To the extent this limitation on federal jurisdiction derives from Article III of the Constitution, the courts may not modify it, and Congress cannot alter it without amending the Constitution.[137]

The adversity requirement is closely related to other constitutional justiciability doctrines, especially Article III standing[138] and the bar against advisory opinions.[139] As explained in greater detail below, however, the adversity requirement has diminished in importance at the same time as the Supreme Court has applied other Article III justiciability doctrines--particularly Article III standing--more stringently over time.[140]

Early Adversity Doctrine[edit | edit source]

The Supreme Court's 1850 opinion in Lord v. Veazie is the seminal Supreme Court case establishing the adversity requirement.[141] The defendant in Lord, John W. Veazie, wanted the legal right to use the Penobscot River in Maine for transportation and navigation.[142] A gentleman named Moor, however, claimed to possess the sole right to navigate the river.[143] Veazie therefore tried to obtain a judicial declaration that he, not Moor, had the right to use the river.[144] Thus, Veazie and his brother-in-law,[145] Nathaniel Lord, entered into a contract warranting that Veazie held "the right to use the waters of the Penobscot River."[146] Lord then sued Veazie and asked the court to decide whether Veazie or Moor held the rights to the river.[147]

The Lord Court determined that the federal courts could not--and should not--adjudicate the case.[148] The Court first explained that federal courts exist to resolve disputes between adverse parties.[149] Manufacturing a lawsuit between non-adverse parties solely to obtain a judicial opinion deciding a legal question, according to the Court, was an abuse of the judicial system.[150] Applying that principle to the facts of Lord, the Court observed that there was no true dispute between Lord and Veazie, as they entered into their contract solely to obtain a judicial determination regarding which person held the rights to use the Penobscot River.[151] The Court further protested that Lord had not named the true adverse party to that controversy--namely, Moor--as a defendant in the case, and had not even informed Moor of the lawsuit.[152] Thus, the case was a collusive suit between two friendly parties that offered Moor no opportunity to defend his interests.[153]

On various occasions during the remainder of the nineteenth century, the Supreme Court invoked the principles it applied in Lord to evaluate whether litigants were sufficiently adverse.[154] It was not until its 1911 opinion in Muskrat v. United States,[155] however, that the Court held that the rule against deciding cases between non-adverse parties had a constitutional dimension.[156] The plaintiffs in Muskrat sought to invalidate certain federal statutes affecting the allotment of Indian lands.[157] Congress passed a law purporting to authorize the plaintiffs--and only those plaintiffs--to challenge those statutes in federal court.[158] The plaintiffs, invoking that law, sued the United States to determine whether the allotment statutes were constitutional.[159] Even though Congress purported to authorize the plaintiffs to file their lawsuit in federal court,[160] the Muskrat Court still concluded that the Judiciary lacked jurisdiction to decide the case.[161] The Court, invoking Article III, stated that the judicial power conferred by the Constitution only authorizes the federal courts to decide "cases" and "controversies"[162] between adverse parties.[163] The Court determined that the plaintiffs in Muskrat were not asking the courts to determine a controversy between adverse litigants as the Constitution contemplated.[164] Although the plaintiffs had named the United States as the defendant in their case, the Court determined that the United States did not have any interest adverse to the plaintiffs.[165] According to the Court, the plaintiffs were not trying to assert property rights against the government or obtain compensation for governmental wrongdoing;[166] instead, the plaintiffs merely sought a judicial declaration that a federal law was invalid.[167] The Supreme Court thus decided that Article III prohibited the federal courts from adjudicating the plaintiffs' constitutional challenge.[168] The Court further determined that the federal law purporting to authorize the plaintiffs to bring their lawsuit in federal court was invalid because it would require the courts to take a nonjudicial action:[169] resolving legal issues without an "actual controvers[y] arising between adverse litigants."[170] The Court therefore ruled that Article III forbade the federal courts from deciding the constitutional issues in Muskrat until they arose in the context of a suit between true adversaries.[171]

The Supreme Court continued to insist on an adversarial controversy between litigants as a prerequisite to federal jurisdiction on various occasions throughout the mid-twentieth century.[172] For instance, in the 1943 case of United States v. Johnson, the Court ruled that the district court should have dismissed a lawsuit as collusive because the plaintiff had "instituted [the proceeding] as a 'friendly suit' at [the] appellee's request" in order to test a statute's validity.[173] The Court ruled in its 1937 opinion in Aetna Life Insurance Co. of Hartford, Connecticut v. Haworth, by contrast, that a particular insurance dispute was justiciable because the insurer and the insured had genuinely adverse interests.[174]

Intra-Branch Litigation and Adversity Doctrine[edit | edit source]

Even though the Court continued to enforce the adversity requirement into the mid-to-late twentieth century,[175] it gradually started to apply the doctrine more flexibly. In the 1949 case of United States v. Interstate Commerce Commission, for example, the Court ruled that despite the adversity doctrine, a governmental entity acting in one capacity may sometimes sue itself or another agency of the same government.[176] In that case, the United States, acting as a shipper performing wharfage services, filed a complaint with a now-defunct[177] federal agency called the Interstate Commerce Commission (ICC) against certain railroads.[178] The ICC ruled for the railroads and against the United States.[179] The United States then filed a federal lawsuit to set the ICC's order aside.[180] To comply with a statute requiring any plaintiff challenging an ICC order to sue the United States, the United States--as the plaintiff challenging the ICC's order--named itself as one of the defendants.[181] Although the Court acknowledged that, under normal circumstances, the adversity requirement bars a litigant from suing itself in federal court,[182] it decided that the adversity doctrine did not render the case nonjusticiable.[183] The real controversy in ICC, the Court explained, was not between the United States and itself, but between the United States and the railroads.[184] Thus, the court reasoned, the case presented a justiciable dispute between adverse parties.[185]

Similarly, in the 1974 case of United States v. Nixon, the Court determined that an intra-branch dispute between two Executive officers was justiciable.[186] In Nixon, a federal district court, at the request of a Special Prosecutor investigating an alleged conspiracy to defraud the United States and obstruct justice, had issued a subpoena duces tecum[187] directing President Richard Nixon to produce certain tape recordings and documents.[188] President Nixon argued that the district court could not issue the subpoena[189] because the dispute was an intra-branch controversy between two Executive officers.[190] The Court rejected President Nixon's argument, reasoning that he and the Special Prosecutor were adverse enough to create a justiciable controversy.[191] Because the Special Prosecutor's interests conflicted with those of President Nixon, and because the dispute over the subpoena arose in a criminal case that fell comfortably within the federal Judiciary's traditional powers, the Court held that Nixon presented an adversarial dispute despite the Executive Branch's presence on both sides of the controversy.[192] As a result of cases like Nixon and ICC, federal courts seldom dismiss intergovernmental disputes on adversity grounds alone[193]--at least when the relevant agencies are acting in different capacities.[194]

Executive Branch Determinations on Statute Constitutionality[edit | edit source]

Further demonstrating the Court's more flexible application of the adversity doctrine in the past few decades are the 1983 case of Immigration and Naturalization Service v. Chadha,[195] the 2013 case of United States v. Windsor,[196] and the 2020 case of Seila Law LLC v. Consumer Financial Protection Bureau.[197] Each of those cases involved constitutional challenges to federal statutes.[198] In each case, the United States agreed with the challenger that the challenged law was unconstitutional, raising questions about whether the parties were genuinely adverse.[199] In all three cases, the Court suggested that certain aspects of the adversity doctrine are not constitutional mandates, but are instead merely prudential constraints that do not categorically deprive the federal courts of jurisdiction.[200] Prudential restrictions on the justiciability of disputes are judicially self-imposed limitations on federal jurisdiction that do not stem from Article III of the Constitution.[201] While constitutional limitations on justiciability often impose insuperable barriers to the jurisdiction of the federal courts that neither Congress, nor the parties, nor the Judiciary itself can abrogate without an amendment to Article III, litigants may overcome prudential barriers to justiciability by showing that it would be prudent for the court to adjudicate the case in question.[202] These cases therefore suggest that federal courts may sometimes adjudicate cases even if the plaintiff and the defendant desire the same ultimate result.[203]

In Chadha, the Court considered a constitutional challenge to a statute purporting to authorize a single house of Congress to pass a resolution overruling Executive Branch decisions not to deport certain otherwise deportable aliens.[204] The appellant (the Immigration and Naturalization Service (INS)) and the appellee (an immigrant named Jagdish Rai Chadha) both agreed that the provision was unconstitutional,[205] which created concerns that the case was not an adversarial controversy.[206] The Supreme Court still concluded, however, that the parties were sufficiently adverse[207] because the INS still intended to deport Chadha if the federal courts ultimately rejected his constitutional challenge.[208] The Chadha Court acknowledged potential concerns about ruling on the provision's constitutionality when neither of the named parties argued that the law was valid.[209] Even so, the Court characterized those misgivings as purely prudential concerns, rather than insuperable constitutional obstacles to resolving the case.[210] The Court ultimately determined that these prudential concerns did not bar the Court from deciding the issue because Congress had intervened in the case to defend the statute's constitutionality, thus supplying the requisite adversity between the litigants.[211]

The Court again suggested that the adversity requirement has a non-constitutional, purely prudential component several decades later in Windsor.[212] Windsor involved a constitutional challenge to a federal statute that defined "marriage" to include "only a legal union between one man and one woman as husband and wife."[213] The statute thus precluded persons in same-sex marriages from claiming federal estate tax exemptions for surviving spouses.[214] The respondent, Edith Schlain Windsor, sued the United States to invalidate the provision and obtain a refund of certain federal taxes she paid when she inherited her same-sex spouse's estate.[215] The United States, however, agreed with Windsor that the provision was unconstitutional.[216] Still, the United States continued to enforce the statute by denying refunds and assessing deficiencies against surviving spouses in same-sex marriages,[217] including Windsor herself.[218]

The Windsor Court determined that the parties were adverse even though the United States and Windsor agreed that the provision was unconstitutional.[219] The Court, citing Chadha, explained that "even where the Government largely agrees with the opposing party on the merits of the controversy, there is sufficient adverseness and an adequate basis for jurisdiction in the fact that the Government intended to enforce the challenged law against that party."[220] Because invalidating the challenged provision would require the United States to pay money it would not otherwise pay, the Court determined that the United States retained a sufficient stake in the lawsuit to render the case justiciable.[221] The Court also suggested, however, that it might have found the case nonjusticiable if the Executive simply paid Windsor the requested refund rather than enforcing the challenged law.[222]

The Windsor Court acknowledged concerns that the parties might not be fully adverse to each other.[223] As in Chadha, however, the Court characterized this risk as a remediable prudential issue, not an incurable jurisdictional defect.[224] Once the Attorney General announced that it would not defend the challenged provision, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives intervened in the case to defend the law's constitutionality.[225] The Court therefore determined that "BLAG's sharp adversarial presentation of the issues satisfie[d] the prudential concerns that otherwise might counsel against hearing an appeal from a decision with which the principal parties agree."[226]

The Supreme Court reaffirmed Windsor's adversity holding in its 2020 decision in Seila Law LLC v. Consumer Financial Protection Bureau.[227] In that case, the Consumer Financial Protection Bureau (CFPB) issued a civil investigative demand to a law firm.[228] The law firm argued that the demand was invalid because the CFPB's structure violated the constitutional separation of powers.[229] Because the federal government, as the respondent in the case, agreed that the CFPB's structure contravened the separation of powers,[230] the Court appointed an amicus curiae to defend the CFPB's constitutionality.[231]

Although the court-appointed amicus urged the Court to consider whether the parties' agreement that the CFPB's structure was unconstitutional rendered the litigants insufficiently adverse to create a justiciable controversy, the Court ultimately ruled that the case was justiciable.[232] Citing Windsor, the Court explained that "a lower court order that presents real-world consequences for the Government and its adversary suffices to support Article III jurisdiction--even if 'the Executive may welcome' an adverse order that 'is accompanied by the constitutional ruling it wants.'"[233] Because the United States had not agreed to withdraw the civil investigative demand against the law firm, a judicial decision upholding or invalidating the CFPB would still have significant consequences for the parties despite their overlapping legal positions.[234] The Court thus determined that it had jurisdiction under Article III to issue such a decision.[235] The Court further ruled that its appointment of an amicus curiae to defend the CFPB's constitutionality adequately addressed any non-constitutional, prudential concerns about the parties' adverseness.[236]

Chadha, Windsor, and Seila Law thus hold that the adversity requirement does not always bar federal courts from deciding cases in which the defendant agrees that the plaintiff is entitled to the relief he seeks. Those cases also suggest, however, that even though a defendant's agreement with the plaintiff's legal arguments will not necessarily vitiate the court's Article III jurisdiction, prudential concerns may counsel against resolving a case in which the parties have taken identical legal positions. As all three cases show, however, those concerns may lose force when a third party, such as a house of Congress or a court-appointed amicus curiae, appears in the litigation to supply the missing adversarial presentation of the pertinent legal issues.

Standing[edit | edit source]

Overview of Standing[edit | edit source]

The concept of "standing" broadly refers to a litigant's right to have a court rule upon the merits of particular claims for which he seeks judicial relief.[237] The Supreme Court has held that, as a threshold procedural matter,[238] a litigant must have standing in order to invoke the jurisdiction of a federal court so that the court may exercise its "remedial powers on his behalf."[239] In general, for a party to establish Article III standing, he must allege (and ultimately prove) that he has a genuine stake in the outcome of the case because he has personally suffered (or will imminently suffer): (1) a concrete and particularized injury; (2) that is traceable to the allegedly unlawful actions of the opposing party; and (3) that is redressable by a favorable judicial decision.[240] These requirements seek to ensure that federal courts do not exceed their Article III power to decide actual "cases" or "controversies." [241]

The Court has held that the burden of establishing standing falls upon each party who seeks a distinct form of judicial relief,[242] including a party initiating a lawsuit,[243] intervening in a lawsuit,[244] or appealing a lower court decision.[245] Each of these parties must make an appropriate showing during each stage of the litigation[246] that the elements of injury, causation, and redressability existed at the outset of the lawsuit, and continue to exist,[247] for each claim[248] and for each form of relief sought.[249] A litigant's failure to establish standing to sue may result in dismissal of his distinct claims for relief without a decision on the merits of those claims.[250]

Since the 1920s, the Supreme Court has offered various justifications for these somewhat amorphous[251] constitutional limitations on the categories of litigants who can maintain a claim for judicial relief in an Article III federal court.[252] Perhaps the most frequently cited rationale derives from the Constitution's separation of powers among the branches of government.[253] Issues of standing often arise when a private plaintiff sues the government, seeking to have it act in accordance with the Constitution or other law.[254] But, as the Court has frequently noted, the Constitution makes the political branches--and not the courts--responsible for "vindicating the public interest."[255] As a result, unelected judges lack the authority to render advisory opinions as to whether Congress or the Executive has followed the law; they may only decide a specific case brought before the court by a party that has suffered a particularized injury as a result of the government's actions.[256] Such deference to the political branches, particularly in cases raising questions about the separation of powers,[257] reflects the Court's understanding of the "limited . . . role of the courts in a democratic society,"[258] as well as its determination that federal courts should hear only those types of cases that the English judicial system would historically have considered suitable for judicial resolution.[259] And separation of powers concerns have also motivated the Court's conclusion that Article III limits Congress's ability to confer standing on plaintiffs to sue the government by enacting statutes containing "citizen-suit" provisions.[260] Such case law has reasoned that permitting plaintiffs who do not have a personal and direct stake in the outcome of a case to sue under one of these provisions would effectively allow the Legislative Branch to intrude upon the Executive Branch's duty to enforce the law.[261]

Although standing doctrine is grounded primarily in constitutional separation of powers concerns, the Supreme Court has also cited other rationales for its existence that may not be constitutional in nature. Requiring the litigant to have a personal stake in the outcome of his lawsuit ensures that a court will decide complex legal and factual issues in the context of a specific factual situation involving adverse parties who can more clearly illuminate for judges the issues in dispute.[262] Even in cases in which adversity between the parties exists, standing doctrine seeks to ensure that federal courts will not exercise the judicial power, which can significantly affect the lives, liberty, and property of others, to resolve generalized grievances brought primarily for the benefit of "concerned bystanders" who seek to vindicate abstract ideological interests (for example, a general interest in the protection of the environment is insufficient to confer standing).[263] More practical reasons for the standing requirements include a need to reserve the limited resources of the federal courts for concrete disputes;[264] the sweeping precedential effects of the Court's holdings on the merits in constitutional litigation, which can be difficult, if not impossible, for Congress to alter without amending the Constitution;[265] and a need for the court to fashion relief no more broadly than the litigant's situation requires.[266]

The Supreme Court has also previously recognized certain prudential limitations on the exercise of federal courts' jurisdiction, which, although lacking constitutional status, may nonetheless result in a court's refusal to hear a case: (1) when the litigant seeks to assert the rights of third parties not before the court; (2) when the litigant seeks redress for a generalized grievance widely shared by a large number of citizens; and (3) when the litigant challenges government action or inaction and its asserted interests do not fall within the zone of interests arguably protected or regulated by the statute or constitutional provision underlying its claims.[267] In recent years, however, the Court has questioned the basis of the doctrine of prudential standing.[268] The Court has suggested that the bar on generalized grievances is a constitutional (and not prudential) requirement.[269] Moreover, the Court likewise has determined that a court applying the "zone of interests" test should examine whether the plaintiff's claim falls within the scope of a statutory provision creating a cause of action.[270] Furthermore, Congress, through express legislation, may abrogate these prudential standing requirements, to the extent that they remain viable and are not mandated by the Constitution.[271]

The following essays trace the development of Article III standing doctrine in Supreme Court jurisprudence from its origins in the 1920s to the development of the modern doctrine and its key elements of injury, causation, and redressability. They then examine select topics that implicate the doctrine, including cases in which a plaintiff seeks to maintain standing to challenge government action or inaction by relying solely upon his status as a taxpayer, as well as the various forms of representational standing that a litigant who has not himself sustained injury may rely upon when asserting the rights of people not before the court. Finally, they conclude with an overview of standing for Members of Congress, congressional control of standing, and what remains of the concept of prudential standing.[272]

Early Standing Doctrine[edit | edit source]

Prior to the 1970s, a litigant had standing only if he could show that his injury stemmed directly from the "violation of a legal right"[273] such as one recognized at common law or in statute.[274] The next section discusses how a significant increase in the power of federal administrative agencies to regulate businesses and individuals contributed to the Supreme Court's decision to discard this "legal injury" test in favor of the more familiar "injury-in-fact" standing requirement in 1970.[275] The Court, however, had already begun to develop some of the other basic principles of modern standing doctrine, such as the requirement that the litigant has suffered a particularized injury, decades earlier.[276]

While the Supreme Court had long recognized that its role under Article III is limited to "decid[ing] the rights of individuals" in particular cases rather than answering abstract questions about the constitutional authority of the political branches,[277] the Court decided two cases in the 1920s that established the foundation for modern standing doctrine. Although the Court's opinions in Fairchild v. Hughes[278] and Frothingham v. Mellon[279] do not employ the term "standing," these decisions embody the fundamental principle underlying the modern concept of standing that a litigant must allege an individualized injury in order to establish a justiciable "case or controversy" under Article III of the Constitution and invoke the jurisdiction of a federal court.

The Supreme Court's first foundational decision concerning Article III standing was the 1922 Fairchild case.[280] In that case, the Court held that the federal courts lacked jurisdiction to rule upon a taxpayer's challenge to the procedures by which the Nineteenth Amendment was ratified.[281] In affirming the lower court's dismissal of the case, the Court held that the plaintiff could not establish standing solely by relying upon his status as a citizen with nothing more than a general interest in ensuring that the federal government followed the law.[282] Although Justice Louis Brandeis's majority opinion alluded to Article III of the Constitution as the basis for the Court's ruling on the issue of standing, the Court did not explain the reasoning behind its holding in detail.[283]

A year later, in Frothingham v. Mellon, the Court elaborated on its rationale for the standing requirement.[284] In Frothingham, the Court considered various constitutional challenges to the Maternity Act, a federal statute that created a grant program to distribute taxpayer funds to states that agreed to cooperate with the federal government to protect the health of mothers and infants.[285] The Court declined to reach the merits of the individual federal taxpayer's constitutional claims, determining that the plaintiff lacked Article III standing.[286] In support of its holding that the plaintiff lacked a sufficient stake in the outcome of the case, the Court noted that the taxpayer's interest in preventing increased tax liability was a "minute and indeterminable" interest widely shared with millions of other U.S. taxpayers, and that a court order enjoining the use of taxpayer funds for the grant program might not actually redress the plaintiff's injury because it might not actually decrease the plaintiff's tax liability.[287] Building on its decision in Fairchild, the Court in Frothingham specifically grounded the standing requirement in the Constitution's structural separation of powers among the branches of government, as well as the Founders' concerns with the proper role of the Judiciary in a democratic society.[288] The Court wrote that deciding the case on the merits would "be not to decide a judicial controversy" but would rather force the Court to "assume a position of authority over the governmental acts of another and co-equal department, an authority which we plainly do not possess."[289] Consequently, the Court declined to hear the case, partly in order to avoid resolving abstract questions of policy best suited for resolution by the political branches.[290]

Although the Court's decisions in Fairchild and Frothingham laid the groundwork for the standing doctrine, the Court's opinions from this early time period failed to clarify whether this limitation on the power of the Federal Judiciary was an unavoidable constitutional barrier to litigation or, rather, a prudential constraint on jurisdiction subject to waiver at a judge's discretion for compelling policy reasons.[291] Such fundamental questions about the standing doctrine would remain unanswered until later in the twentieth century.

Standing Doctrine from 1940s to 1970s[edit | edit source]

The Supreme Court's development of the standing doctrine from the 1940s to 1970s accompanied a significant increase in the power of federal administrative agencies to regulate businesses and individuals.[292] The rise of the administrative state raised the question of who could challenge various agency actions in federal court. During the first several decades of the administrative state, the Court's standing test considered whether a litigant had suffered a violation of an explicit legal right. For example, in the 1939 case Tennessee Electric Power Co. v. Tennessee Valley Authority, the Court determined that a proprietor of a business lacked standing to object to the government helping businesses compete with the proprietor's business.[293] The Court held that the proprietor had failed to identify any explicit legal right that the government had allegedly violated that was "one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which confers a privilege."[294] A year later in FCC v. Sanders Bros. Radio Station, the Court held that an existing radio station had "standing" to appeal the Federal Communication Commission's grant of a license to a rival radio station.[295] The Court determined that the existing station's allegations of economic injury from increased competition qualified as a legal "injury" under the Communications Act of 1934, which authorized appeals of Commission orders by a "person aggrieved" or "whose interests [were] adversely affected" by grant or denial of a license.[296] Thus, it appears that the Court's constrained approach to standing during these early years resulted from its focus on whether the litigant had suffered injury to a specific legal right recognized by a federal statute or other source of law.[297] Prior to the enactment of the Administrative Procedure Act[298] and other federal statutes providing for judicial review of agency actions, litigants did not possess as many legal rights that could serve as a basis for standing.[299]

Although it is difficult to discern significant trends in the Court's standing jurisprudence during this era, the Court generally adopted an even more permissive approach to standing in the 1960s and 1970s to facilitate challenges to actions by federal agencies. The Administrative Procedure Act, enacted in 1945, provided for judicial review of agency actions, for example, under federal consumer and environmental laws.[300] The Court relaxed the legal injury requirement and allowed the private beneficiaries of those public interest protections to challenge federal agency action based on harms that were not specifically recognized by statute or at common law,[301] including noneconomic harms to private individuals' aesthetic or recreational interests.[302] However, as discussed below, this permissiveness declined after the late 1970s, as the Court began to adopt a stricter approach to standing, characterizing it as a core Article III concern.[303]

In the early 1970s, the Supreme Court recognized that a litigant needed standing to maintain a lawsuit but adopted a flexible approach toward the standing inquiry. For example, in Sierra Club v. Morton, an environmental group sought an injunction prohibiting federal officials from approving the construction of a ski resort in the Mineral King Valley adjacent to Sequoia National Park.[304] The Court found that the plaintiffs lacked standing, concluding that their abstract interest in environmental protection was insufficient to confer standing.[305] However, the Court's opinion allowed for the possibility that future litigants who claimed injury to their noneconomic interests (e.g., "recreational" injuries impacting their ability to use a park) might be able to establish standing, even if such injuries were widely shared among the public.[306]

The high-water mark for the Supreme Court's permissive approach to standing came in United States v. Students Challenging Regulatory Agency Procedures (SCRAP).[307] In that case, the Court held that a group of Georgetown law students, together with the Environmental Defense Fund and the Izaak Walton League, had standing to challenge the Interstate Commerce Commission's (ICC's) approval of an increase to nationwide railroad freight rates on the grounds that it would ultimately result in "economic, recreational and aesthetic harm" to the groups' members.[308] The Court permitted the plaintiffs to establish standing at the pleading stage by combining a series of inferences about how they would suffer injury as persons "aggrieved" by the new rates.[309] The Court found it sufficient for standing that the plaintiffs had alleged that higher rail rates would discourage the use of recyclable materials because used materials were often transported by rail to be recycled.[310] As a result, the plaintiffs alleged that the ICC's rate increase would cause companies to extract more raw materials, such as lumber, from parks in the Washington Metropolitan Area, resulting in people dumping more trash in the area's parks.[311] Consequently, the plaintiffs alleged, the new rates would cause environmental damage to parks in the area that they frequented.[312]

The Court found this attenuated causal chain of inferences to be sufficient for standing purposes, determining that the plaintiffs would suffer "specific and perceptible" recreational and aesthetic harms,[313] even if a large number of other people throughout the United States might claim similar harms from the agency's approval of the rate increase.[314] The Court's decision in SCRAP thus exemplifies the Court's broader view at that time of the types of injuries that could support a litigant's standing at the pleading stage in challenges to government action (e.g., noneconomic injuries, such as recreational injuries), as well as the types of inferences that a plaintiff could allege to connect such injuries to the defendant's actions to satisfy the standing requirement.

Although the Supreme Court demonstrated some flexibility in applying rules of standing during the 1970s, the Court did not wholly reject a more stringent standing requirement. For example, two years after its decision in SCRAP, it considered Warth v. Seldin, a case in which residents of Rochester, New York, sued the adjacent town of Penfield and members of its local government boards, claiming that a Penfield town ordinance and its enforcement "excluded persons of low and moderate income from living in the town" in violation of various provisions of the Constitution and federal law.[315] In explaining its decision on the issue of standing, the Court adopted a more stringent definition of "injury in fact" than it had in SCRAP, determining that the plaintiffs failed to show a "distinct and palpable" injury to themselves from the ordinance.[316] The Court further determined that the plaintiffs lacked standing because they had failed to demonstrate a "substantial probability" that their alleged inability to obtain affordable housing resulted from the enforcement of the town's ordinance instead of other factors, such as the independent decisions of real estate developers not to build housing for low-income individuals in the town.[317]

The Supreme Court followed its decision in Warth a year later with Simon v. Eastern Kentucky Welfare Rights Organization, a case that introduced the concept of standing as a core Article III requirement.[318] In Simon, a group of indigent plaintiffs challenged an Internal Revenue Service ruling that allowed nonprofit hospitals to reduce the availability of free services and still retain their charitable organization status. The Court held that the plaintiffs lacked standing to sue because their injury depended on the independent actions of parties not before the Court--i.e., the hospitals.[319] Cases such as Warth and Simon began to rein in the more flexible standing test of the early 1970s[320] but left unresolved some questions about the legal basis for the standing inquiry and how rigidly courts should apply standing requirements. Nonetheless, these cases became the building blocks for later decisions that would usher in an era of stricter standing requirements,[321] ultimately culminating in the Court's watershed decision in Lujan v. Defenders of Wildlife in the early 1990s.[322]

Lujan v. Defenders of Wildlife Test[edit | edit source]

Overview of Lujan Test[edit | edit source]

Although the Supreme Court had broadly outlined the basic elements of modern standing doctrine during the 1970s, the Court did not clearly articulate the now-classic three-part test that federal courts must apply when inquiring into a litigant's Article III standing until its 1992 decision in Lujan v. Defenders of Wildlife.[323] In that case, which involved an environmental group's challenge under a citizen-suit provision to the Department of Interior's decision not to apply the consultation rules of the Endangered Species Act to federal agency actions outside of the United States and high seas, Justice Antonin Scalia synthesized several of the Court's standing cases from 1970s and 1980s to produce a three-part test.[324] Writing for the Court, he stated that a litigant seeking to invoke the jurisdiction of a federal court must demonstrate that:

This section explores the modern doctrine of Article III standing by examining cases in which the Supreme Court has interpreted and applied the three elements of the Lujan test in specific factual situations. Notably, although each standing element imposes an independent requirement on litigants, the three basic elements are interrelated.[325]

The first prong of the Lujan test requires a litigant to allege (and ultimately prove) that he has suffered an injury-in-fact. According to the Supreme Court, this key requirement has three components, obligating the litigant to demonstrate that he has suffered an injury that is (1) "concrete," (2) "particularized," and (3) "actual or imminent."[326] The meaning of each of these three components is best illustrated by a discussion of specific factual situations in which the Court has interpreted and applied it. The Lujan test also requires that a plaintiff be able to show causation and redressability.

Concrete Injury[edit | edit source]

First, to have an injury-in-fact, a litigant must establish that he has suffered or is imminently threatened with a "concrete" injury--that is, an injury that is "real" and not "abstract."[327] Although the Supreme Court has not clearly articulated what makes a particular harm sufficiently concrete for standing purposes, it has provided some broad guidance. Over the years, the Court has decided several cases that explain the general types of injuries that qualify as concrete.[328] Many of these cases required the Justices to determine whether an intangible injury sufficed for standing. The Court has identified several arguably noneconomic harms to be concrete injuries, including aesthetic injuries (e.g., harm to a plaintiff's ability to observe an animal species);[329] recreational injuries (e.g., injury to a plaintiff's enjoyment of natural resources such as a park);[330] certain procedural injuries (e.g., injury to a litigant's right to have an agency prepare an environmental impact statement for a federal agency action that affects his or her interests);[331] injuries to constitutional rights;[332] dilution of the effectiveness of a citizen's vote in a federal election;[333] and stigmatic injuries from racial discrimination.[334] By contrast, the Court has held that concrete injuries would not include, for example, psychological harm from observing the federal government's use of taxpayer money to provide financial assistance to a religious institution[335] or harms to the plaintiff's general interest in advancing abstract interests (e.g., an interest in having low-income people access health services).[336] Notably, the fact that an injury is "particularized"--or, in other words, that it affects the plaintiff individually[337]--does not necessarily make that injury a concrete harm.

On June 23, 2023, the Supreme Court issued a decision in United States v. Texas[338] a case involving a legal challenge to the Department of Homeland Security (DHS)'s 2021 Guidelines for the Enforcement of Civil Immigration Law. The DHS Guidelines prioritized "the arrest and removal from the United States" of certain categories of noncitizens, including dangerous criminals and suspected terrorists.[339] The States of Texas and Louisiana contended that the DHS Guidelines violated federal immigration statutes that require the arrest and detention of noncitizens who have committed specified crimes or are subject to final orders of removal.[340] However, the Court held that the states lacked Article III standing to challenge the Guidelines because they had failed to show that they had suffered a judicially cognizable injury resulting from the Executive Branch's alleged failure to enforce federal immigration law.[341] Although the states had incurred additional costs as a result of the DHS Guidelines, they failed to identify any "precedent, history, or tradition" of federal courts hearing lawsuits challenging the Executive Branch's decision not to arrest or prosecute particular categories of third parties.[342] Moreover, the states' asserted injury was not redressable because the Federal Judiciary could not order the Executive Branch to enforce immigration laws against particular violators.[343]

Congress, by statute, can influence a court's standing analysis, but Congress cannot itself create standing in the absence of the constitutional prerequisites. When determining whether the defendant's alleged violation of a right created by Congress is sufficient by itself to constitute a concrete harm to a litigant for standing purposes, the Court has stated that federal courts should examine whether the injury is similar to a harm that "has traditionally been regarded as providing a basis for a lawsuit in English or American courts."[344] But in doing so, courts must also give at least some weight to Congress's judgments about which intangible harms amount to concrete Article III injuries.[345] Thus, although Congress may, through enactment of legislation, elevate certain harms to the status of concrete injuries for standing purposes,[346] Congress cannot create standing for litigants who do not face at least a material risk of injury from a defendant's violation of the litigant's statutory rights.[347]

Particularized Injury[edit | edit source]

In addition to showing that he suffers a material risk of harm from an actual, concrete injury, the litigant must demonstrate that the injury is "particularized"--or, in other words, that it affects him in a "personal and individual way."[348] The "particularized injury" requirement has long served as a component of the Supreme Court's standing analysis,[349] barring plaintiffs from seeking judicial redress for generalized grievances undifferentiated from those that a large number of people could claim.[350] Nonetheless, the Court has generally been careful to distinguish "generalized grievances" that fail the particularity requirement from widespread injuries, such as mass torts, that are suffered by a large number of people but qualify as particularized because each person has sustained an individualized harm that is distinct from that suffered by the others.[351] In this vein, the Court has held that a litigant's failure to obtain information that federal law requires to be disclosed can constitute a sufficiently particularized injury of a procedural statutory right for Article III standing purposes, even if many individuals may suffer such an injury.[352]

However, even if a citizen has suffered a "particularized" injury of a statutory right, he must still demonstrate that such an injury is "concrete." The Supreme Court distinguished between the concepts of "concrete" and "particularized" injury in its 2016 decision in Spokeo, Inc. v. Robins.[353] In Spokeo, the plaintiff, Thomas Robins, sued Spokeo, Inc., a company that operated a "people search engine," for alleged violations of the Fair Credit Reporting Act of 1970 (FCRA).[354] The FCRA is a consumer protection statute that was enacted to ensure fairness, accuracy, and privacy in consumer credit reporting by imposing a number of requirements on consumer reporting agencies.[355] The plaintiff sought to pursue a class action lawsuit alleging that Spokeo had willfully reported incorrect information about him and other class members in search results on its website.[356]

The court of appeals had held that Spokeo had inflicted a concrete (albeit, intangible) Article III injury on Robins because they violated his statutory rights, causing him individualized injury and entitling him to statutory damages.[357] The Supreme Court reversed, holding that Spokeo's alleged procedural violations of the FCRA, even if they affected the plaintiff individually and were therefore "particularized," might not amount to "concrete" injuries, because "not all inaccuracies cause harm or present any material risk of harm."[358] Therefore, the Court remanded the case to the Ninth Circuit to decide whether such a risk could result from the defendant's purported procedural violations of the FCRA.[359] The Court's decision in Spokeo indicates that a defendant's actions, even if contrary to a procedural duty established by a federal statute providing a damages remedy and sufficient for a "particularized" injury, might not amount to a concrete injury sufficient for Article III standing if such injuries do not actually present a material risk of harm to the litigant.[360] Federal courts will judge whether the defendant's alleged violation of a right created by Congress is sufficient by itself to constitute a concrete harm to a litigant for standing purposes by considering whether the injury is similar to a harm that "has traditionally been regarded as providing a basis for a lawsuit in English or American courts."[361] But in doing so, courts must give at least some weight to Congress's judgments about which intangible harms amount to concrete Article III injuries.[362]

In addition, the extent to which widespread environmental harms may constitute particularized injuries is an emerging issue in the Court's standing jurisprudence.[363] In a 2007 case in which the State of Massachusetts alleged particularized injury from climate change, the Court determined that the widely shared risks posed by rising sea levels constituted an individualized injury to the State in its capacity as owner of coastal property.[364] However, in that case, the Court did not address whether allegations of widespread harm from climate change would constitute particularized injury in a case brought by an individual plaintiff rather than a state.

Actual or Imminent Injury[edit | edit source]

To satisfy the demands of Article III, a litigant must have suffered an "actual or imminent" injury or, in other words, have "sustained or [be] immediately in danger of sustaining some direct injury as the result of the challenged . . . conduct."[365] To satisfy this test, a litigant's injury must either have already occurred, be presently occurring, or will imminently occur (i.e., be "certainly impending").[366] The "actual or imminent" injury prong of the Lujan test is related to the "redressability" prong. If the alleged injury is an imminent (i.e., future) harm, the litigant may demonstrate redressability only if the plaintiff has requested equitable relief (i.e., injunctive or declaratory relief).[367] On the other hand, if the injury occurred wholly in the past, the litigant may demonstrate redressability if it seeks monetary damages.[368]

The requirement that a litigant establish an "actual" (i.e., past or present) injury is largely synonymous with the requirement for a concrete and particularized injury.[369] For example, in Lewis v. Casey, the Court defined an "actual injury" to an inmate's constitutional right of access to the courts and counsel as requiring an inmate to "demonstrate that the alleged shortcomings in [a prison's] library or legal assistance program hindered his efforts to pursue a legal claim."[370] This evidentiary burden simply required a showing that the inmate had suffered an injury in the past that went beyond harm to "an abstract, freestanding right to a law library or legal assistance" and involved more than an allegation that a "prison's law library or legal assistance program [was] subpar in some theoretical sense."[371] The Court cited as an example of actual injury in this context that an inmate's legal complaint "was dismissed for failure to satisfy some technical requirement which, because of deficiencies in the prison's legal assistance facilities, he could not have known."[372]

The major questions that have arisen concerning the "actual or imminent" prong of the standing inquiry largely involve cases in which a litigant alleges future (i.e., "imminent") injury and seeks injunctive relief to prevent it.[373] The Supreme Court has decided several cases addressing when a litigant's alleged future injures are sufficiently imminent to confer standing to seek a court order aimed at redressing them.

For example, the Court has indicated that it may be difficult for a litigant to establish an "actual or imminent" injury when he seeks injunctive relief against government officials for allegedly illegal and unconstitutional systemic practices in their administration or enforcement of the law.[374] In O'Shea v. Littleton,[375] several residents of Cairo, Illinois, sued state and local officials for allegedly administering the criminal justice system in a discriminatory and unconstitutional manner through a pattern of illegal bondsetting, sentencing, and jury-fee practices.[376] The Court determined that the plaintiffs lacked standing to seek an injunction against these practices because they did not allege they had actually suffered (or would immediately suffer) injuries from the conduct of these officials.[377] Although some of the plaintiffs were defendants in past criminal cases, at the time that they brought their lawsuit, none of the plaintiffs were serving sentences, on trial, or awaiting trial, and they did not allege an intent to engage in illegal conduct in the future.[378] The plaintiffs thus failed to demonstrate more than mere speculation that they would be subject to the challenged law enforcement practices and suffer injuries as a result of being arrested, charged with crimes under laws they did not challenge as unconstitutional, and subject to proceedings before the criminal justice system.[379]

A decade later, the Court held that past illegal conduct by the government does not imply that the government will again violate the law in the future. For purposes of standing, this holding means that a litigant cannot use that past conduct to demonstrate imminent harm when seeking a declaration from the court that the agency's past action was illegal (i.e., a declaratory judgment) or an order preventing the agency from engaging in illegal conduct in the future (i.e., an injunction). In Los Angeles v. Lyons, the plaintiff sought damages for having allegedly suffered a chokehold at the hands of the city police department but also asked for injunctive relief prohibiting the city from using chokeholds in the future.[380] However, the Court found the plaintiff's allegations of future injury to be too speculative to support standing for the requested prospective injunctive relief because, although the plaintiff had been choked once, he could not realistically allege that there was a threat that he would again be arrested and illegally choked by the police as a result of the city's policy.[381]

In a 2013 case implicating national security issues, the Court addressed how likely the threat of future harm to the plaintiff must be in order for that harm to qualify as an imminent injury. In Clapper v. Amnesty International USA, attorneys, human rights, labor, legal, and media organizations brought constitutional challenges alleging prospective injury from surreptitious federal government surveillance practices conducted by the Executive Branch pursuant to Section 702 of the Foreign Intelligence Surveillance Act of 1978 (FISA).[382] The plaintiffs alleged that these practices presented an "objectively reasonable likelihood" that the government would intercept their communications with individuals outside of the United States.[383] Although they could not definitively show that they or their clients or sources would be subject to these practices, the plaintiffs alleged threatened injury to their ability to "locate witnesses, cultivate sources, obtain information, and communicate confidential information to their clients."[384] Moreover, the plaintiffs alleged that they had sustained actual, present injury because the risk of surveillance was "so substantial that they ha[d] been forced to take costly and burdensome measures to protect the confidentiality of their international communications."[385]

The Court, in a 5-4 ruling written by Justice Samuel Alito, found that the plaintiffs lacked standing because they could not show that the FISA provision threatened them with "certainly impending" harm[386] or, at the very least, a substantial risk of harm from the government surveillance program.[387] Moreover, the plaintiffs could not, in the Court's view, "manufacture standing" by alleging present injury from the costs that they had incurred in order to avoid the hypothetical harm of government surveillance (e.g., travel expenses to conduct in-person conversations abroad).[388] It is important to note that Clapper arose in the sensitive areas of national security and foreign affairs, areas where the Court has "often found a lack of standing in cases" because of concerns about the Judiciary interfering with the political branches' activities.[389]

The following year, in a case not arising in the national security context, the Supreme Court appeared to adopt a broader view of the concept of "imminent harm." In Susan B. Anthony List v. Driehaus, the Court addressed imminent harm in the context of a state government's threatened enforcement of an allegedly unconstitutional law against an individual.[390] The Court held that a potentially targeted person may mount a constitutional challenge to the law when enforcement is "sufficiently imminent." As a result, the plaintiff does not have to be arrested or prosecuted before challenging the law.[391] Instead, in order to have standing, the plaintiff must demonstrate "an intention to engage in a course of conduct arguably affected with a constitutional interest" that is "arguably proscribed by the statute challenged," as well as a credible threat of enforcement of the law against him or her.[392] Accordingly, the Court's decision in Susan B. Anthony List suggests that there are still circumstances in which a substantial risk of harm to a litigant (rather than "certainly impending" harm) will suffice for standing purposes.[393]

The Supreme Court also found imminent harm in a 2008 lawsuit in which a candidate for Congress, who declared that he would "self-finance" his campaign, challenged provisions of federal election law that would have allowed his opponent to receive campaign contributions on more favorable terms.[394] The Court determined that the self-financing candidate faced the threat of immediate injury.[395] Although the opponent had not yet qualified for the campaign contribution benefit, the plaintiff had challenged the law after declaring his candidacy, as well as indicating his intent to spend enough of his personal funds during the campaign to trigger the benefit for his opponent.[396] With the election in the near future, and finding no indication that the plaintiff's opponent would relinquish the opportunity to receive expanded contributions, the Court determined that injury to the plaintiff was imminent and that the plaintiff had standing to sue.[397]

Causation[edit | edit source]

The second prong of the Lujan test for Article III standing requires the litigant to demonstrate that the injury-in-fact that he or she has suffered is "fairly traceable" to the challenged actions of the defendant.[398] Under Supreme Court jurisprudence, this requirement may not be met when the litigant's injury results at least in part from the actions of a third party not before the court or, more broadly, when "the line of causation between the illegal conduct and injury [is] too attenuated."[399]

For example, in Simon v. Eastern Kentucky Welfare Rights Org., the Supreme Court found that the plaintiffs lacked standing because they failed to show that the defendants' actions had caused them harm, rather than the actions of absent third parties.[400] In that case, a group of indigent plaintiffs challenged an Internal Revenue Service (IRS) ruling that allowed nonprofit hospitals to reduce the availability of free services and still retain their charitable organization status.[401] The plaintiffs alleged that the Revenue Ruling made such hospitals less likely to grant free services to indigents.[402] However, the Court held that the plaintiffs lacked standing to sue because their injury was the result of independent action of parties not before the Court--i.e., the hospitals.[403] In other words, the hospitals' denial of services to the indigents, even if likely to injure them, was not fairly traceable to the federal government's issuance of the Revenue Ruling.[404] Instead, the Court determined that it was too speculative to conclude that the denial of service was caused by the Revenue Ruling or that the plaintiffs would receive free hospital services if the IRS revoked its rule, as hospitals could establish their own policies with respect to providing services to indigents without regard to the tax implications.[405] Thus, the plaintiffs lacked standing because they alleged future injuries that depended at least in part on the actions of third parties not before the court, and they could not show more than mere speculation that those third parties would establish policies that would injure them.[406]

A further example of how the interplay between the decisions of absent third parties and the litigant's injury has affected the causation prong of the standing analysis is Allen v. Wright.[407] In that case, parents of African-American children who attended public schools alleged that the IRS had caused them injury by allowing racially discriminatory private schools to qualify for federal tax exemptions, preventing the desegregation of their children's schools.[408] The Court found these allegations did not establish sufficient causation for standing purposes.[409] Relying on its earlier decision in Simon, the Court determined that it was not clear that racial segregation in the public schools was linked to the IRS policies because private school officials might not change racially discriminatory school policies in response to a withdrawal of tax benefits, and, even if they did, parents of children attending private schools might not transfer their children to public school as a result of such changes.[410] Thus, the plaintiffs' allegations that the IRS policy had caused them injury rested on speculation about the actions of multiple third parties, and such speculation was insufficient to establish a causal connection between the defendant's actions and the plaintiffs' alleged injuries for standing purposes.[411]

As in the case of standing for procedural injuries, discussed above, certain kinds of equal protection injuries may be accepted as sufficient for standing even if the possibility of ultimate relief from that injury remains somewhat speculative. When a litigant challenges a governmental entity's alleged discriminatory practices on equal protection grounds, arguing that those practices have deprived it of a benefit granted to another favored class of individuals, the litigant may have standing even if it cannot demonstrate that it would have received the benefit in the absence of the government's conduct--or that a judicial order would result in its receipt of the benefit if it prevailed. Rather, the litigant must simply show that it would secure equal treatment under the law if it obtained judicial relief. Thus, for example, in Adarand Constructors v. Pena, the Court allowed a company's challenge to subcontractor compensation clauses in federal procurement contracts that allegedly favored small businesses controlled by racial minorities.[412] The Court held that, even if the company could not demonstrate that it would be the low bidder on any particular subcontract, it had alleged a sufficient injury from its inability to compete on an equal footing with other companies.[413] Similarly, the Court determined that a male plaintiff had standing to challenge Alabama laws that authorized courts to impose alimony obligations on husbands but not wives.[414] The Court permitted the challenge even though it was possible that prevailing in the suit would "not ultimately bring [the plaintiff] relief from the judgment [for alimony] outstanding against him, as the State could respond to a reversal by neutrally extending alimony rights to needy husbands as well as wives."[415]

Redressability[edit | edit source]

The third and final prong of Lujan's test for Article III standing, which is closely related to the "causation" test,[416] requires the litigant to demonstrate that the injury he has purportedly suffered would likely be redressed if the court granted the relief that he has requested.[417] When analyzing the redressability element of standing, the Supreme Court has focused on the specific relief requested by the plaintiff in its complaint and considered whether granting that relief would redress the injury alleged. For example, in Duke Power Co. v. Carolina Environmental Study Group, the Court found a "substantial likelihood" that a proposed nuclear power plant would not be constructed in the absence of a limitation of liability provided under the Price-Anderson Act. As a result, the neighbors of the proposed nuclear plant had standing to challenge the constitutionality of the Price-Anderson Act because the environmental and health injuries they would allegedly suffer from the operation of the plant would be redressed if the Court struck down the contested provisions of the Act.[418]

In contrast, in Steel Co. v. Citizens for a Better Environment, an environmental group sued a manufacturer for its past violations of the Emergency Planning and Community Right-to-Know Act (EPCRA).[419] A citizen-suit provision of EPCRA authorizes suits against a company for its failure to submit information timely about the storage of hazardous chemicals, as well as toxic releases, at the company's facilities.[420] Although the company-defendant had later filed the overdue forms to address its violations of EPCRA,[421] the plaintiffs asked the court to declare that the company had violated EPCRA and order various forms of injunctive and compensatory relief.[422] The Court, noting that none of the requested forms of relief would reimburse the plaintiffs for losses caused by the company's late reporting of its chemical information, found that it lacked jurisdiction to adjudicate the merits of the plaintiff's claims.[423] In other words, because the plaintiff's requested relief, even if granted, could not remedy the plaintiffs' alleged past injuries, the plaintiff's injuries were not redressable, and they therefore lacked standing to sue. Furthermore, to the extent that the plaintiffs requested prospective relief in the form of an injunction preventing future harm, they lacked standing because they failed to allege continuing or threatened injury from an ongoing violation of EPCRA by the defendant that could be redressed by a court order granting such relief.[424]

Nonetheless, when a litigant faces the threat of future injury as a result of ongoing violations of federal law, its injuries may be redressable by injunctive relief or a civil penalty payable to the U.S. Treasury. In Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., the Court considered whether a plaintiff who brought a citizen suit (i.e., a private action to enforce the law) under the Clean Water Act[425] could demonstrate standing to sue a company in order to compel its compliance with the terms of a permit to reduce water pollution. The plaintiff argued that its injuries would be redressed by a civil penalty payable to the U.S. Treasury because those penalties, like injunctions, deter future violations.[426] The Court agreed, holding that civil penalties, even if payable to the U.S. Treasury rather than the plaintiff, could prevent the threat of future injury rather than solely to serve as compensation for past injuries.[427]

A litigant may have more difficulty establishing redressability when it alleges an indirect injury from government action or inaction, and when redress would require actions by an independent third party not before the court. For instance, in Linda R.S. v. Richard D., the Supreme Court considered a Texas law imposing criminal sanctions on parents who failed to meet their child support obligations.[428] Texas state courts had construed the law as imposing no duty of support on the parents of children born to unmarried parents, and the mother of an out-of-wedlock child challenged Texas's refusal to enforce the law against her child's absentee father.[429] The Court held that the plaintiff had failed to allege facts sufficient to support judicial intervention because she did not show that her failure to obtain child support resulted from Texas's decision.[430] The Court noted that even in the unlikely event that the Court ordered the district attorney to enforce the law against the child's father, the father would simply go to jail without being compelled to pay child support in order to get out of jail.[431] Therefore, the plaintiff-mother's injury was not redressable, as her requested injunctive relief against state officials could not compel the father (a third party) to redress her monetary injury through payment of child support.[432]

The Supreme Court has also held, however, that redressability may exist even when the litigant's requested judicial relief would not completely redress its injury.[433] In the 2007 case Massachusetts v. EPA, the Court held that the State of Massachusetts had standing to challenge the Environmental Protection Agency (EPA)'s refusal to regulate greenhouse gas emissions from new motor vehicles under the Clean Air Act (CAA).[434] The Court determined that directing EPA to reexamine its refusal to regulate such emissions would redress the alleged risk of injury to plaintiffs' interests from rising sea levels, even if judicial relief resulted in only incremental steps to slow or reduce global warming.[435] In so holding, the Court rejected the argument that an EPA rule would fail to redress the state's injury because (1) it would not affect emissions by the existing automobile fleet, and (2) other countries would continue to increase greenhouse gas emissions.[436] Thus, the Court suggested that a litigant may establish that its injury is redressable even if it cannot show that a favorable judicial decision will completely redress the harm.[437]

Taxpayer Standing[edit | edit source]

In general, a litigant may not rely solely upon his status as a federal taxpayer to maintain Article III standing to challenge government policy or spending decisions.[438] Such taxpayer lawsuits, which are distinguishable from cases in which a litigant challenges the assessment of a tax as unconstitutional,[439] often ask a court to decide abstract legal questions regarding the authority of the political branches of government--a task that potentially raises concerns regarding the proper role of the Judiciary.[440] And as a practical matter, litigants arguing that their taxes have been spent unlawfully may simply fail to satisfy the elements of Article III standing, as their complaints may amount to generalized grievances about government spending or policy decisions shared with millions of other taxpayers.[441] Moreover, it may be difficult for a taxpayer-litigant to demonstrate that his or her increased tax liability is traceable to the government spending or policy decision challenged and that judicial relief would effectively reduce the litigant's tax liability.[442] These concerns have led the Supreme Court to permit taxpayer lawsuits only in narrow circumstances.

One of the Supreme Court's earliest decisions on Article III standing involved a taxpayer lawsuit. In the 1923 case Frothingham v. Mellon, the Court declined to reach the merits of an individual federal taxpayer's Tenth Amendment and Due Process challenges to the disbursement of federal funds to states under a federal appropriations law, determining that the plaintiff lacked Article III standing.[443] The Court wrote that deciding the case on the merits would not decide a judicial controversy but would rather "assume a position of authority over the governmental acts of another and co-equal department, an authority which we plainly do not possess."[444]

The Supreme Court further explained its justification for rejecting taxpayer lawsuits in the 1970s. In a case in which a federal taxpayer-plaintiff challenged a federal law allowing the Central Intelligence Agency (CIA) to withhold from the public detailed information about the Agency's expenditures, alleging that it violated the Statement and Account Clause of the Constitution,[445] the Supreme Court refused to reach the merits of the case.[446] It determined that the plaintiff's claims raised a generalized grievance, not about Congress's exercise of its taxing and spending power, but rather Congress's exercise of power to regulate the CIA through a statute governing disclosure of information.[447] In another case, an association of officers and enlisted members of the military reserves, as well as individual members, argued that the Incompatibility Clause of Article I[448] forbid certain Members of Congress from holding commissions in the Armed Forces Reserve. The Court held that they lacked standing to sue as taxpayers because they had brought generalized grievances against Executive Branch actions permitting Members of Congress to retain their status as members of the Reserves, and thus lacked the individualized injuries that might provide standing to challenge Congress's exercise of its power under the Taxing and Spending Clause.[449]

For nearly a century since Frothingham, the Supreme Court has generally barred federal courts from entertaining cases in which a plaintiff relies solely upon his status as a taxpayer to establish standing.[450] The principal exception to this rule, albeit a narrow exception,[451] arises in the context of the First Amendment. The Court carved out a narrow exception to its general rule in the 1968 case Flast v. Cohen.[452] In Flast, the taxpayer-plaintiff challenged federal spending under a federal statute, the Elementary and Secondary Education Act of 1965, on the grounds that it violated specific guarantees in the First Amendment's Establishment Clause[453] by subsidizing teaching at religious schools.[454] In a departure from its earlier standing cases, the Court held that the plaintiffs possessed a genuine stake in the outcome of the case sufficient for standing.[455] The Court applied a two-factor test that considered whether there was (1) a "logical link" between the plaintiff's taxpayer status and "the type of legislative enactment attacked"; and (2) "a nexus" between the status of the taxpayer-plaintiff and "the precise nature of the constitutional infringement alleged."[456] The Court determined that, in contrast to the plaintiffs in Frothingham, the Flast plaintiffs had not alleged that Congress had exceeded its powers under the Taxing and Spending Clause in Article I, Section 8 of the Constitution, but rather that Congress, by exercising its taxing and spending powers under that Clause in authorizing the challenged federal expenditures, had exceeded a specific constitutional limitation on its taxing and spending power (i.e., the First Amendment's Establishment Clause).[457] The Court noted Establishment Clause drafter James Madison's specific interest in preventing the federal government from collecting taxpayer money and spending it in favor of religion.[458] Consequently, the Court found that the plaintiffs had standing to sue by distinguishing Flast from Frothingham on the grounds that the Flast plaintiffs sought to uphold a specific limit set forth in the Establishment Clause on how federal taxpayer money is used.[459]

Since Flast, the issue of taxpayer standing has periodically arisen in the context of Establishment Clause challenges to federal financial assistance for religious organizations.[460] In subsequent cases, the Court has construed Flast's exception to the general rule barring taxpayer standing quite narrowly.[461] Thus, when a federal agency disposed of surplus federal real property by conveying it to a private religious college without requiring the school to pay for it, the Court found that plaintiffs seeking to bring an Establishment Clause challenge to the transfer lacked standing to sue as taxpayers.[462] The Court distinguished the case from Flast for two major reasons. First, unlike in Flast, the plaintiffs had challenged a federal agency's decision to transfer property rather than Congress's enactment of the law authorizing the transfer.[463] Second, the property transfer implicated Congress's power under the Property Clause[464] rather than the Taxing and Spending Clause.[465] By drawing these distinctions, the Court construed its precedent in Flast narrowly, determining that Flast's exception to the general bar on taxpayer standing was limited to congressional acts that relied upon the Taxing and Spending Clause.

The Court again refused to recognize taxpayer standing in a 2007 Establishment Clause challenge. In Hein v. Freedom From Religion Foundation, taxpayer plaintiffs challenged the Executive Branch's funding of its officials' religiously themed speeches promoting federal assistance to religious organizations and community groups.[466] A three-Justice plurality suggested that taxpayer-plaintiffs lack standing to challenge Executive Branch funding of religious activities out of general Executive Branch appropriations because such cases do not involve Congress specifically authorizing, appropriating, or mandating the use of federal funds for religious purposes.[467] Continuing to adhere to its narrow interpretation of the Flast exception, the Court held four years later that taxpayers lacked standing to challenge Arizona's provision of tax credits to individuals who contributed to scholarship organizations that funded students' attendance at private religious schools.[468] Because the tax credits did not compel individual taxpayers to support sectarian activities in the way that government spending could, the Court held that no aid flowed directly from the government to religious organizations, and therefore the plaintiffs could not surmount the general bar on taxpayer standing.[469]

Representational Standing[edit | edit source]

Overview of Representational Standing[edit | edit source]

Federal courts must sometimes decide whether a litigant who has not suffered an injury-in-fact may request judicial relief on behalf of an injured third party who has not appeared before the court. The presumption is that an uninjured litigant lacks standing to sue and cannot raise claims on behalf of a third party.[470] The Supreme Court, however, has at times permitted this form of "representational standing," allowing certain relationships between an uninjured litigant and an injured third party to overcome that presumption.[471] Thus, for example, courts may permit representational standing when a formal association seeks to bring suit on behalf of its members;[472] a state sues on behalf of its citizens;[473] a plaintiff asserts a claim assigned to it by another party (e.g., a claim assigned to it by the government under a qui tam[474] provision);[475] or an agent brings suit on behalf of its principal.[476] Such issues may also arise when a party brings a facial challenge to a law on First Amendment grounds, arguing that although the party itself is not subject to the law, it would be unconstitutional for the government to apply it to third parties with which the litigant has some form of close relationship (e.g., a business relationship).[477]

Associational Standing[edit | edit source]

Perhaps the most obvious context in which the Supreme Court confronts issues of representational standing is when a formal association sues to redress injury to its members. In the past, associations seeking relief in federal court have included environmental groups,[478] unions (i.e., associations of workers),[479] and trade associations (i.e., associations of businesses).[480] While an organization may have standing to sue on its own behalf when it sustains an injury as an organization (e.g., a loss of membership),[481] the Supreme Court held in Hunt v. Washington State Apple Advertising Commission, that an association has standing to sue to redress its members' injuries, even when the association has not itself suffered injury, when: "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit."[482]

In subsequent decisions, the Supreme Court has elaborated on the three prongs of the Hunt test. The first two prongs of this three-part test reflect Lujan's constitutional minimum requirements, assuring that the association possesses a genuine stake in the controversy and that the lawsuit involves a contest between adversarial parties.[483] Therefore, Congress may not waive these requirements through the enactment of legislation. However, the third requirement for associational standing is a prudential limitation, focusing on "administrative convenience and efficiency," that Congress may modify or eliminate in certain contexts.[484] Applying the third prong, the Court has found that associations lack standing when, for example, it would be too difficult to establish individualized proof of injury for each member of an association that seeks monetary damages on behalf of its members[485] or when resolving an association's claims would require the Court to ascertain each member's individual views on a particular matter.[486] Nonetheless, Congress may override judicial concerns about the difficulty in establishing individualized proof for each member of an association if the association satisfies the first two elements of the Hunt test.[487]

States and Parens Patriae[edit | edit source]

A state has standing to sue in its sovereign capacity for injuries to its own interests.[488] For example, the Supreme Court upheld standing for: (1) Wyoming to sue Oklahoma for an injury to its ability to collect a specific tax that allegedly resulted from Oklahoma requiring its coal-fired electric utilities to burn at least 10% Oklahoma-mined coal;[489] (2) California to sue the Secretary of the Interior for injury to its financial interests from the Secretary of Interior choosing one form of bidding system over another in awarding leases for oil and gas exploration development of Outer Continental Shelf lands;[490] and (3) several states from increased natural gas costs resulting from a Louisiana tax on natural gas imported into the state.[491]

On June 30, 2023, the Supreme Court issued a decision on Article III standing in Biden v. Nebraska, a case in which six state attorneys general challenged a Department of Education student debt-relief program allegedly authorized under the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act).[492] The challenged student debt-relief program would have canceled between $10,000 and $20,000 per eligible student borrower, amounting to a total of about $430 billion in forgiven debt principal.[493]

The Court ruled that, of the six states that had challenged the program, at least Missouri had Article III standing to sue because the debt-relief plan would cost "MOHELA, a nonprofit government corporation created by Missouri to participate in the student loan market, an estimated $44 million a year in fees."[494] Because MOHELA was an instrumentality of the State of Missouri "by law and function," an injury to MOHELA in the performance of its public function was "necessarily a direct injury to Missouri itself."[495] Although MOHELA was not a party to the lawsuit, the Court held that "[w]here a State has been harmed in carrying out its responsibilities, the fact that it chose to exercise its authority through a public corporation it created and controls does not bar the State from suing to remedy that harm itself."[496] On the merits, the Court held that the Department lacked the statutory authority to establish the program, determining that it could not rely on generally worded provisions of the HEROES Act to authorize a program of major "economic and political significance."[497]

However, a distinct issue of representational standing arises when a state seeks to sue on behalf of its citizens in federal court. The Supreme Court has long recognized that a state may sue as parens patriae--literally, "parent of his or her country"[498]--but only when it has a separate "sovereign interest" at stake in the outcome of the controversy.[499] And while a state may sue to assert its rights under federal law, it may not sue to protect its citizens from federal law on the grounds that Congress has intruded upon an area of traditional state authority.[500]

For instance, in Massachusetts v. Mellon the State of Massachusetts sought to maintain a lawsuit against the federal government challenging the Maternity Act, a federal statute that created a grant program to distribute taxpayer funds to states that agreed to cooperate with the federal government to protect the health of mothers and infants.[501] Massachusetts argued that Congress had usurped state powers over traditionally local matters in violation of the Tenth Amendment.[502] The Supreme Court first found that the state lacked standing to sue on its own behalf because it had no separate sovereign interest that would be affected by the statute (e.g., a property interest).[503] The Court then determined that Massachusetts lacked standing to sue as a representative of its citizens because it was the role of the federal government to act as representative, or parens patriae, of Massachusetts citizens with respect to federal laws.[504] As a result, the Court reasoned that Massachusetts lacked standing to pursue its Tenth Amendment claim, which sought to protect its citizens from a federal statute.[505]

Several decades later, the Supreme Court discussed a state's standing to sue protect its sovereign interests in a major environmental case. In the 2007 case Massachusetts v. EPA, the Court held that the State of Massachusetts had standing to challenge the Environmental Protection Agency (EPA)'s denial of a petition asking the agency to regulate greenhouse gas emissions from new motor vehicles under the Clean Air Act (CAA).[506] The Court determined that Massachusetts had standing for two major reasons. First, the Court held that the because the dispute involved the proper construction of the CAA, and because Congress had granted a specific procedural right in the Act to protect the state's concrete interests in EPA's regulatory actions, the state had a personal stake in the outcome and could assert that procedural right without meeting the normal standards for immediacy and redressability.[507] Second, the Court deemed Massachusetts' alleged injury--its loss of shore land from global-warming induced sea level rise--an independent quasi-sovereign interest in preserving its territory separate from its citizens' interests and thus sufficient for standing.[508]

The Supreme Court's reasoning in Massachusetts v. EPA did not endorse the concept of parens patriae standing generally, but it did recognize that the states "are not normal litigants for the purposes of invoking federal jurisdiction."[509] The court thus allowed Massachusetts's suit as one that involved its rights under federal law (i.e., the CAA's citizen-suit provision), and not solely an action (as in Mellon) involving a state seeking to protect its citizens from the operation of a federal statute.[510] Although the Court also determined that Massachusetts had standing to sue for injury to its "quasi-sovereign" interest in protecting its territory, it is unclear whether the Court established a new precedent on a state's standing to sue as parens patriae. The Court's decision in Massachusetts v. EPA could be characterized as resting on principles of federalism and a state's sovereign prerogative to regulate in-state motor vehicle emissions.

Assignees of a Claim[edit | edit source]

An assignment of a legal claim occurs when one party (the "assignor") transfers its rights in a cause of action to another party (the "assignee").[511] The Supreme Court has held that a private litigant may have standing to sue to redress an injury to another party when the injured party has assigned at least a portion of its claim for damages from that injury to the litigant. The Supreme Court in the 2000 case Vermont Agency of Natural Resources v. United States ex rel. Stevens held that private individuals may have Article III standing to bring a qui tam civil action in federal court under the federal False Claims Act (FCA) on behalf of the federal government if authorized to do so.[512] The FCA imposes civil liability upon "any person" who, among other things, knowingly presents to the federal government a false or fraudulent claim for payment.[513] To encourage citizens to enforce the Act, in certain circumstances, a private individual, known as a "relator," may bring a civil action for violations of the Act. Such plaintiffs sue under the name of the United States and may receive a share of any recovered proceeds from the action.[514] Under the FCA, the relator is not merely the agent of the United States but an individual with an interest in the lawsuit itself.[515]

Ordinarily, if the relator's financial interest in the outcome of the case were merely a byproduct of the suit itself, there would be no injury sufficient for standing.[516] In Stevens, however, the Supreme Court recognized a distinction that confers standing upon qui tam plaintiffs in FCA cases. Justice Antonin Scalia, writing for the Court, determined that assignments of claims are distinguishable from cases in which a litigant has a mere financial interest in the outcome of the suit because the assignee-plaintiff actually owns a stake in the dispute as a legal matter.[517] Justice Scalia drew support for this distinction from the long-standing historical practice of the government assigning a portion of its damages claim to a private party and allowing that party to assert the injury suffered by the federal government as a representative of the United States.[518] The Court noted the "long tradition of qui tam actions in England and the American colonies,"[519] concluding that "Article III's restriction of the judicial power to 'Cases' and 'Controversies' is properly understood to mean 'cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process.'"[520]

Eight years after deciding Stevens, the Supreme Court again found that an assignee of a claim had standing, even when the assignee had promised to remit all of the money it recovered in the proceedings to the assignor.[521] In Sprint Communications Co. v. APCC Services, Inc., payphone operators had assigned their legal claims for money owed to them by long-distance communications carriers to third-party collection agencies.[522] The agencies were authorized to bring suit on behalf of the payphone operators and promised to pay all of the proceeds of the litigation to the payphone operators for a fee.[523] The Court held that these collection agencies had standing to pursue the operators' claims because of the long history of courts' acceptance of such claims.[524] Assignment was sufficient to transfer the injury to the collections agencies, and the injury to the operators that had been transferred to the collection agencies would be redressed by a favorable judicial decision, even if the agencies would subsequently pay all of the proceeds to the operators.[525]

The Stevens and Sprint cases could have broader implications for Article III standing doctrine, as they suggest a way in which the constitutional limitations on standing may be bypassed through the assignment of rights to a third party.[526] For instance, if Congress enacts a federal statute recognizing an injury to the federal government that otherwise satisfies Article III's requirements, it may assign a portion of its claim to a private party, thereby potentially giving that plaintiff standing to sue as a representative of the United States.[527] This is essentially the operation of the False Claims Act.[528] However, it is unclear whether every such statute would necessarily resolve all Article III standing concerns. In Stevens and Sprint, the Court gave significant weight to the lengthy history of courts recognizing the types of assignments at issue when determining that the litigants in those cases had standing to sue.[529] Moreover, there may be a number of concerns about the constitutionality and practicality of using assignments to delegate core government functions (e.g., criminal prosecutions) to private parties when courts have not historically recognized claims based on such assignments, including concerns about interference with the Executive Branch's Article II powers and prosecutorial discretion.[530]

Agency and Standing[edit | edit source]

Broadly speaking, an agency relationship may arise when one person (a "principal") and another person (an "agent") agree that the agent will perform certain actions on behalf of the principal, subject to the principal's control.[531] Such a relationship may also arise when the law authorizes one person to represent another person's interests.[532] Agency relationships may raise questions of representational standing when an uninjured litigant acts as the authorized agent for another individual who has suffered an injury-in-fact by seeking relief in federal court on behalf of that individual. For example, if authorized by law, a parent might sue on behalf of an injured minor child. In order for such a litigant to seek relief for another party he must be officially authorized to do so (either by consent or as a matter of law), and the advocate's relationship with the third party must exhibit some of the "most basic features of an agency relationship," such as the right to control the agent's actions.[533]

One form of "agency standing" is the common-law concept of "next friend standing," which involves an uninjured third party pursuing legal claims for the benefit of an injured party who cannot appear in court on his own behalf.[534] This form of representational standing is often implicated in the context of habeas corpus proceedings, in which a litigant seeks a judicial determination that a prisoner should receive a new trial, new sentence, or be released.[535] For instance, in Whitmore v. Arkansas, a death row inmate challenged the constitutional validity of a death sentence imposed on a fellow capital defendant as a "next friend" of the defendant when the defendant decided not to appeal his sentence to the Arkansas Supreme Court.[536] The U.S. Supreme Court determined that the third-party inmate lacked standing to bring an Eighth Amendment objection as the "next friend" of the capital defendant.[537] The Court stated that the two-part test for "next friend" standing that the proposed next friend must meet in order to invoke federal court jurisdiction requires: (1) the real party in interest to be unable to "appear on his own behalf to prosecute the action" because of inaccessibility, mental incompetence, or other disability; and (2) the "next friend" to "be truly dedicated to the best interests of the person on whose behalf he seeks to litigate" and to have a significant relationship with the real party in interest so that the next friend's claims are not generalized grievances.[538] In Whitmore, the proposed "next friend" failed to satisfy the first prong--and therefore lacked standing to sue--because he had not demonstrated that the real party in interest (i.e., the capital defendant) was unable to litigate the case due to disability after the defendant had voluntarily waived his right to appeal his sentence.[539]

The Supreme Court more recently discussed the limits of standing based on an agency theory in a case in which private parties sought to act as agents of the California government in a federal lawsuit. In Hollingsworth v. Perry, the Court considered a Fourteenth Amendment Equal Protection and Due Process Clause challenge to Proposition 8, a law that amended the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California.[540] A federal district court had invalidated Proposition 8, but state and local officials declined to defend that ruling on appeal, so the official "proponents" of the proposition, who were private parties, sought to defend the law. The Court held that it lacked the authority to address the validity of Proposition 8 on the merits because the proponents did not have standing to invoke the jurisdiction of the federal courts to defend the proposition.[541] The Court first held that the proponents lacked a "direct stake" in the outcome of their appeal and "their only interest in having the District Court order reversed was to vindicate the constitutional validity of a generally applicable California law."[542] The Court then rejected the argument that the referendum proponents had standing because they were formally authorized to litigate on behalf of the State of California, as the litigants were private individuals rather than state officials or authorized agents of the state.[543] In rejecting what the Court viewed as a "generalized grievance," the Court emphasized that the proponents had no official role in enforcing California law distinguishable from the general interest of every citizen of California.[544]

Similarly, in Virginia House of Delegates v. Bethune-Hill, discussed below,[545] the Supreme Court concluded that one chamber of the Virginia legislature lacked standing to represent the Commonwealth's interests in appeal of a federal district court order requiring the redrawing of a 2011 legislative redistricting map for two reasons: (1) Virginia law designated the Virginia Attorney General as the commonwealth's exclusive representative in litigation; and (2) the chamber claimed earlier in the litigation that it was vindicating its own interests, as opposed to those of Virginia.[546]

Overbreadth Doctrine[edit | edit source]

Generally, a litigant challenging a law as unconstitutional may not assert the rights of a third party, and thus he must show that the law is either unconstitutional as applied to him (i.e., an "applied challenge")[547] or that there are no circumstances in which the law would be constitutional (i.e., a "facial challenge").[548] However, there is an exception to this general rule known as the doctrine of overbreadth, which generally arises in the context of First Amendment challenges.[549] The Supreme Court has held that prudential and constitutional limitations on third-party standing might not apply in cases in which the litigant brings a facial First Amendment challenge to a law as being substantially too broad and therefore chilling third parties' rights protected by the First Amendment.[550] The Court has permitted standing for such litigants when the law interferes with a potential or currently existing relationship (e.g., a business relationship) with a third party whose First Amendment rights could be hindered by the law.[551]

Federal and State Legislators and Standing[edit | edit source]

The Supreme Court has also created specific standing rules for federal courts to apply when members of a legislative body seek to uphold the effectiveness of their votes or vindicate their institution's powers and prerogatives by suing (or defending) another unit of the same government in federal court.[552] The Court has held that legislators may have standing to sue in order to maintain the effectiveness of votes that they have cast in their capacity as legislators if their votes ultimately did not prevail. In Coleman v. Miller, twenty-four members of the Kansas state legislature sought a writ of mandamus compelling state officials to recognize that Kansas had not ratified an amendment to the Federal Constitution, the Child Labor Amendment,[553] challenging the way that the vote had been taken.[554] Twenty of the members, who were senators, had voted to reject the amendment, but the measure ratifying the amendment nevertheless passed the state senate.[555] The plaintiffs alleged that an illegal tie-breaking vote for ratification by the Lieutenant Governor had deprived their votes of effectiveness.[556] Relying on several precedents, the Court held that the petitioners had "claimed a right and privilege under the Constitution . . . to have their votes given effect and the state court has denied that right and privilege."[557] Because the state legislators alleged that their votes had been voided by the improper procedure that led to the approval of the amendment, and those votes would have been sufficient to defeat the proposal, the legislators had a sufficient stake in the outcome that supported their standing to sue.[558]

Decades later, the Supreme Court took a more narrow view of individual legislator standing in Raines v. Byrd.[559] In that 1997 case, six Members of Congress challenged the Line Item Veto Act of 1996 (LIVA), a statute that authorized the President to cancel certain spending and tax benefit measures after signing them into law, as contrary to the bicameralism and presentment requirements of the Constitution.[560] The Members argued that they had suffered injury because LIVA altered the effect of the votes they would cast in the future and divested them of their constitutional role in the repeal of legislation.[561]

The Supreme Court, in an opinion written by Chief Justice William Rehnquist, found that the Members lacked standing to challenge LIVA because they had not suffered an injury different from that suffered by Congress as a whole.[562] Citing separation of powers concerns about resolving a dispute implicating the constitutional authority of Congress and the Executive in a lawsuit brought by legislators, the Court, in refusing to proceed to the merits, noted that the Member-plaintiffs had not suffered the concrete deprivation of a private right, like the loss of their seats in Congress, but instead alleged a general diminution of their political power.[563] The Court thus distinguished Raines from its earlier decision in Coleman on the grounds that the latter case had involved legislators who alleged that their votes had been nullified, whereas the LIVA challenged in Raines did not significantly impact the power of the Members' votes because they could vote to exempt future appropriations bills from LIVA or repeal LIVA if necessary.[564] Although the Court determined that it lacked jurisdiction over the Members' claims, it left open the possibility that one or both houses of Congress--or perhaps a committee--would have standing to sue for redress of alleged institutional injuries to Congress if authorized by at least one of the Houses, provided that another legislative remedy was not available to them.[565]

In two state legislator standing cases that did not raise similar separation of powers concerns, the Supreme Court rested its standing analysis on the specific features of the state governments at issue. In the first case, Arizona State Legislature v. Arizona Independent Redistricting Comm'n, the Court considered a state ballot initiative that would vest the authority to draw legislative districts in an independent commission. The Arizona State Legislature, acting pursuant to an authorizing resolution, challenged that ballot initiative, claiming that it had suffered injured by a diminution in its legislative authority.[566] Noting that the case did not raise separation of powers concerns that might arise if Congress sued the President, the Court held that the Arizona legislature was a proper party to sue because, like the plaintiffs in Coleman, it had lost the opportunity to adopt a redistricting plan (i.e., its members' votes were nullified).[567] Moreover, such an institutional injury to the legislature could serve as the basis for a lawsuit, at least when the legislature authorized suit by enacting a resolution in each chamber.[568]

By contrast, in Virginia House of Delegates v. Bethune-Hill, the Supreme Court held that a single house of the bicameral Virginia state legislature lacked standing to appeal a federal district court order requiring the redrawing of a 2011 legislative redistricting map.[569] The Virginia House of Delegates (House) had previously intervened to defend the constitutionality of the legislative redistricting plan against a voter-led Fourteenth Amendment Equal Protection Clause challenge, but the Virginia Attorney General, who was the primary defending party, had decided not to appeal an unfavorable ruling.[570] As discussed, in determining that the House lacked standing to appeal on behalf of the state, the Court noted that Virginia law assigned the Virginia Attorney General the task of representing the state in appeals like the one before the Court.[571] Moreover, the Attorney General had not delegated such litigation authority to the House of Delegates.[572] Unlike in Arizona State Legislature, the House lacked standing to appeal in its own right because it was a single component of the bicameral state legislature responsible for redistricting and could thus not assert the interests of the legislature as a whole.[573] Moreover, the House's alleged injury (i.e., invalidation of a state redistricting law) was not cognizable for standing purposes as it did not permanently deprive the House of its role in redistricting and the House did not suffer a cognizable injury merely because its composition (and, therefore, the content of legislation) could be altered by the electorate as a result of a redrawn redistricting map.[574] In this regard, the Court noted that the invalidation of the redistricting law did not infringe upon the unique legislative powers of the Virginia House by altering the manner in which it conducted its day-to-day-operation (e.g., by altering its committee structure).[575]

Congressional Control of Standing[edit | edit source]

In addition to interpreting Article III as a limit on the categories of litigants who may maintain a lawsuit in federal court, the Supreme Court has also held that the Constitution constrains Congress's ability to confer standing on private individuals through the enactment of "citizen-suit" provisions that authorize private individuals to enforce federal laws against the government or private parties.[576] Congress may elevate certain categories of harm to the status of cognizable Article III injuries, such as economic injury that results from lawful competition[577] or social and professional injury resulting from living in a racially segregated community.[578] It may not, however, abrogate Article III constraints on federal court jurisdiction by conferring standing on private parties in the absence of a material risk of particularized injury to them from the defendant's violations of their statutory rights.[579]

A major case addressing the constitutional limits on the scope of Congress's authority to create statutory rights for private citizens (or a class of citizens) to sue is Lujan v. Defenders of Wildlife.[580] In Lujan, Justice Antonin Scalia, writing for the majority, stated that Article III generally limits Congress's ability to create standing by allowing a plaintiff to sue for procedural injuries even where the defendant's violation of the plaintiff's statutory rights would not cause the plaintiff any other concrete injury.[581] Although Congress may relax the Article III standards for immediacy and redressability of the injury in such provisions,[582] Congress cannot create standing for redress of generalized grievances about government by providing litigants with an "abstract, self-contained, noninstrumental 'right' to have the Executive observe the procedures required by law."[583] To allow Congress to do so through enactment of provisions providing private rights of action would "transfer from the President to the courts the Chief Executive's most important constitutional duty, to 'take Care that the Laws be faithfully executed'" and make the courts the continuing monitors of Executive action.[584]

Justice Anthony Kennedy wrote a separate concurrence in Lujan in which he suggested that Congress has broad authority to confer standing on private parties in citizen-suit provisions, so long as it explicitly creates procedural rights and concrete interests for citizens to sue upon.[585] Noting that government policies had become more "far-reaching" and that "we must be sensitive to the articulation of new rights of action that do not have clear analogs in our common-law tradition,"[586] Justice Kennedy wrote that "Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before . . . . In exercising this power, however, Congress must at the very least identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit."[587] Determining that the citizen-suit provision at issue in Lujan did not specifically provide that "any person" would suffer a cognizable injury as a result of any statutory violation, Justice Kennedy agreed that the plaintiff environmental group lacked standing to sue.[588]

The Court decided FEC v. Akins, a 1998 case, consistently with Justice Kennedy's views, holding that Congress may confer standing by providing a general procedural right of access to information to "any party," and that deprivation of this right is a sufficiently concrete injury for standing purposes and not a generalized grievance.[589] More than a decade later, in Massachusetts v. EPA, a majority of the Court formally adopted Justice Kennedy's view that Congress may create standing to sue by identifying cognizable injuries and creating procedural rights for citizens to sue upon to redress those injuries.[590] In Summers v. Earth Island Institute, the Supreme Court reaffirmed that the deprivation of a litigant's procedural right--the right to use a federal administrative appeals process to challenge certain actions of the U.S. Forest Service--without injury to any separate concrete interest cannot support Article III standing to sue.[591] But, in a concurrence, Justice Kennedy again suggested that the result would have been different--and Massachusetts v. EPA would have applied--if Congress had specifically identified a separate concrete interest that would have been affected by the deprivation of the procedural right.[592]

As the Court held more recently in Spokeo v. Robins, federal courts will judge whether the defendant's alleged violation of a right created by Congress is sufficient by itself to constitute a concrete harm to a litigant for standing purposes by considering whether it is similar to a harm that "has traditionally been regarded as providing a basis for a lawsuit in English or American courts."[593] But in doing so, courts must give at least some weight to Congress's judgments about which intangible harms amount to concrete Article III injuries.[594]

The principle emerging from these cases is that Congress has some ability to expand standing beyond the Court's traditional conception by granting a litigant a separate concrete interest, apart from a bare procedural right, that could serve as the basis for an injury-in-fact if violated.[595] At the same time, Congress must respect the limits that Article III establishes, and it cannot elevate certain categories of harm to the status of concrete injuries. For example, Congress likely cannot elevate a trivial injury, such as a company reporting an incorrect zip code for an individual, to the status of an Article III injury.[596] The Court has not articulated a clear rule for distinguishing between the types of intangible harms Congress may elevate to injuries-in-fact for standing purposes and those harms that are simply too trivial to serve as Article III injuries.[597] However, the Court has confirmed that it will independently review whether such harms are in fact "concrete injuries" sufficient for standing purposes.[598]

Prudential Standing[edit | edit source]

Overview of Prudential Standing[edit | edit source]

Even when a litigant satisfies Article III's constitutional standing requirements, a federal court may refuse to adjudicate its claims for relief "under the prudential principles by which the Judiciary seeks to avoid deciding questions of broad social import where no individual rights would be vindicated and to limit access to the federal courts to those litigants best suited to assert a particular claim."[599] The Supreme Court has applied these prudential principles to standing doctrine[600] in several circumstances. A court may refuse to hear a case as a matter of self-restraint in at least three situations: (1) when the litigant seeks to assert the rights of third parties not before the court; (2) when the litigant seeks redress for a generalized grievance widely shared by a large number of citizens that is better addressed legislatively; and (3) when the litigant's asserted interests do not fall within the zone of interests arguably protected or regulated by the statute or constitutional provision underlying its claims.[601]

At least the first two of these situations also implicate the concerns of constitutional standing in some cases, while the third appears to be purely prudential. Thus, more recently, the Court has questioned whether the doctrine of prudential standing should even exist, indicating that the bar on generalized grievances is a constitutional (and not prudential) requirement and rejecting a prudential application of the "zone of interests" test in favor of one aimed at determining whether the plaintiff's claim falls within the scope of a statutory provision conferring a right of action.[602] Regardless of the uncertain state of the law in this area, Congress may abrogate prudential standing requirements through the enactment of legislation containing express language to that effect.[603] As discussed, while Congress may eliminate or modify prudential standing limits, it cannot supersede the Article III minimum requirements of injury, causation, and redressability.[604]

Zone of Interests Test[edit | edit source]

One type of prudential standing limitation that may counsel against the exercise of jurisdiction over a dispute involves the application of the "zone of interests" test, which asks whether the litigant's grievance arguably[605] falls within the scope of the statute or constitutional provision in question.[606] This test is "not meant to be especially demanding,"[607] and the Supreme Court has sometimes applied it liberally, finding it to be satisfied even when Congress has not specifically intended to protect a particular litigant's interests.[608] For example, the Court determined that irrigation districts and operators of ranches had prudential standing to sue under a citizen-suit provision of the Endangered Species Act--a statute directed primarily at furthering environmental protection--to challenge the Fish and Wildlife Service (FWS)'s enforcement of the Act.[609] The Court found that the litigants had standing even though they alleged that the FWS's actions would cause them economic (and not environmental) harm by reducing the amount of water they would receive from a federal water-management project for their activities.[610] And the Court also concluded that tenants of an apartment complex had prudential standing to sue their landlord under the Fair Housing Act for allegedly discriminatory rental practices.[611] The Court reached this result even though the tenants themselves were not directly subject to such practices because Congress intended to confer standing on "all in the same housing unit who are injured by racial discrimination," such that depriving the residents of the benefits of interracial association qualified as a cognizable injury under the Act.[612]

Although the Supreme Court has often categorized the "zone of interests" test as a prudential limitation on the Court's exercise of its jurisdiction, in the recently decided case Lexmark, International, Inc. v. Static Control Components, Inc., Justice Antonin Scalia, writing for the Court, stated that "it does not belong there" and that a court applying the test should use traditional tools of statutory interpretation to ascertain whether a plaintiff has a right to sue under a particular provision creating a substantive cause of action.[613] Thus, the Court may have ceased to regard the zone-of-interests test as an aspect of prudential standing, although it is unclear how this change to the doctrine will practically affect the Court's application of the "zone of interests" test in future cases.

Third Party Standing[edit | edit source]

Second, as discussed above, the Supreme Court has stated that courts may refuse to allow litigants who have suffered an injury-in-fact to rest their claims for relief on third parties' rights.[614] The Court has characterized such prudential restraints as "not constitutionally mandated" and "designed to minimize unwarranted intervention into controversies where the applicable constitutional questions are ill-defined and speculative."[615] Although the Court has found prudential standing to be present in several cases,[616] it has shown a reluctance to allow litigants to assert the rights of third parties because those parties may not need or wish to assert those rights, and courts prefer to avoid unnecessary decisions on constitutional issues.[617] Furthermore, a litigant may be a less effective advocate for the third parties' rights than the third parties themselves.[618]

Barrows v. Jackson illustrates the prudential application of "third-party standing."[619] In that case, homeowners sued a neighbor for the alleged breach of a private covenant forbidding the use and occupancy of homes in the neighborhood by "non-Caucasians."[620] The Court had previously held that the Fourteenth Amendment forbade a state court from enforcing such racially restrictive covenants against African-American purchasers of real estate through the award of damages.[621] However, in Barrows, no African-Americans had appeared before the court to assert their constitutional rights, and, indeed, the Court found that it would have been difficult for them to do so because they were not property owners subject to the covenant.[622] But the Court waived the normal prudential standing rule against third-party standing and determined that the defendant property owner could rely upon the state court's interference with third-party rights in her defense because: (1) she would suffer injury if she lost by having to pay damages for breach of the covenant; and (2) the African-Americans (i.e., the third parties) who would be injured by the enforcement of the covenant were unlikely to be able to assert their constitutional rights themselves.[623]

Thus, although a litigant may not generally challenge government action on the grounds that it infringes another's rights,[624] it may do so in certain narrowly defined contexts. As this section has discussed, standing may be found when a litigant challenges a statute as unconstitutionally overbroad on its face in violation of the First Amendment[625] or when the litigant suffers some injury and third parties whose rights the litigant relies upon face an obstacle to protecting their own interests.[626] The Supreme Court has also permitted criminal defendants to challenge their convictions by asserting the rights of persons not before the Court whose rights would be negatively affected by enforcement of the law in question.[627] These circumstances are relevant to a prudential standing inquiry as well as to constitutional standing.

Generalized Grievances[edit | edit source]

Finally, federal courts may refuse on prudential grounds to entertain "generalized grievances," which are "abstract questions of wide public significance . . . pervasively shared and most appropriately addressed in the representative branches."[628] Although the Court has at times characterized the bar on generalized grievances as prudential,[629] in dicta in the 2014 case Lexmark International, Inc. v. Static Control Components, Inc. the Court stated that cases raising generalized grievances "are barred for constitutional reasons, not 'prudential' ones."[630] The Court's opinion in Lexmark thus casts doubt on the continued viability of the prudential standing doctrine--both because of the Court's determination that the bar on generalized grievances is a constitutional (and not prudential) requirement and its rejection of the "zone of interests" test in favor of one aimed at determining whether the plaintiff's claim falls within the scope of a statutory provision conferring a right of action.[631]

Despite uncertainty regarding the continuing viability of the prudential standing doctrine, the constitutional minimum requirements of standing remain one of the most important justiciability doctrines. The courts have consistently applied that doctrine to implement Article III's limits on federal judicial power. Those limits require courts to decide actual "cases" or "controversies" rather than to render opinions on abstract questions better suited for resolution by the political branches of government.[632]

Ripeness[edit | edit source]

Overview of Ripeness Doctrine[edit | edit source]

Like the other justiciability doctrines, the ripeness doctrine defines the limits of a federal court's jurisdiction to adjudicate certain disputes.[633] Ripeness concerns "the timing of judicial intervention," and prevents federal courts "from entangling themselves in abstract disagreements" by adjudicating disputes too early.[634] Any party to the litigation--as well as the judge--may challenge a case as unripe at any stage in the litigation, including for the first time on appeal.[635] To determine whether a particular dispute is ripe for judicial resolution, courts employ the Abbott Laboratories test, named after the Supreme Court's decision in Abbott Laboratories v. Gardner.[636] The Abbott Laboratories standard requires courts to evaluate two factors to determine whether a dispute is ripe: "(1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration" until a later time.[637] A claim may be unripe if it is based upon future events that may not occur as predicted or at all.[638] If waiting to decide a case would put the court in a better position to resolve the dispute, such as when further factual development would help the court adjudicate the case, the case may be unripe and therefore nonjusticiable.[639] As discussed below, ripeness issues arise in a wide variety of contexts, including challenges to administrative agencies' actions or policies and pre-enforcement challenges to criminal statutes.[640]

The ripeness doctrine stems partly from Article III's constitutional command that the federal courts only hear "Cases" and "Controversies."[641] To the extent that ripeness derives from Article III of the Constitution, it overlaps with other justiciability doctrines that are also derived from the "Case" or "Controversy" requirement, especially the standing doctrine.[642] Thus, in recent years, the Supreme Court has increasingly recognized that because standing and ripeness are based on the same constitutional limitations on the federal courts' jurisdiction, they frequently "boil down to the same question."[643] In particular, the Supreme Court has observed that the standing doctrine's temporal inquiry into whether the plaintiff has suffered an imminent injury overlaps substantially with the ripeness doctrine's inquiry into whether withholding judicial consideration of a dispute would cause "the parties a sufficient 'hardship.'"[644]

In addition to its constitutional dimension, the ripeness doctrine is also partly based on prudential considerations that do not directly derive from the Constitution.[645] The Supreme Court has recognized that, even when Article III of the U.S. Constitution does not forbid a court from deciding an issue, it may nonetheless be appropriate for courts to postpone adjudicating that issue because subsequent events may make it easier or unnecessary to resolve that dispute.[646] Thus, to determine whether a case is ripe for adjudication, the court must assess not only whether the case is presently justiciable within the meaning of Article III's case or controversy requirement, but also whether it would be prudent to decide the case at the present time.[647] The Supreme Court, however, has not squarely articulated which aspects of the ripeness doctrine are mandated by the Constitution and which are instead based solely on prudential concerns.[648] Moreover, as explained in greater detail below, the Supreme Court has recently questioned the continuing vitality of the ripeness doctrine's prudential dimension.[649] As a result, presently it is unclear whether--and, if so, when--federal courts should dismiss a case as prudentially unripe.

United Public Workers and Ripeness[edit | edit source]

The Supreme Court's decision in United Public Workers of America (C.I.O.) v. Mitchell, is the starting point for discussing the ripeness doctrine.[650] The plaintiffs in United Public Workers attempted to challenge the constitutionality of a statute that prohibited certain Executive Branch employees from engaging in specified political activities.[651] The Court declined to resolve the claims of several challengers who had not yet taken part in such political acts, and who merely sought a judicial declaration that the statute was unconstitutional.[652] Because the Court could "only speculate" about the political activities those challengers wanted to conduct, the Court ruled that they failed to present a justiciable case or controversy under Article III.[653] The Court reasoned that the Judiciary may only review a statute's constitutionality when litigants face actual--rather than legal--violations of their constitutional rights.[654]

Abbott Laboratories Trilogy and Ripeness[edit | edit source]

The Supreme Court refined the ripeness doctrine in three opinions known as the "Abbott Laboratories trilogy."[655] Each of these three cases involved pre-enforcement challenges to regulations promulgated by the Commissioner of Food and Drugs.[656] The Supreme Court concluded that some of those pre-enforcement challenges were ripe for adjudication, but others were not.[657]

The Court first explained that the ripeness doctrine serves two purposes.[658] First, the doctrine mitigates the risk that courts will "entangl[e] themselves in abstract disagreements over administrative policies" by adjudicating claims prematurely.[659] Second, the doctrine shields administrative agencies from judicial interference until they finalize their decision.[660]

The Court then articulated a two-factor test for determining whether a particular controversy is ripe: the court must evaluate both (1) "the fitness of the issues for judicial decision" and (2) "the hardship to the parties of withholding court consideration."[661] Under the first factor, cases that present purely legal issues are particularly likely to be fit for judicial resolution.[662] By contrast, where it would be easier to resolve a challenge to an administrative action in the context of a specific attempt to enforce the agency's regulations than in the context of a pre-enforcement challenge, the challenge is less likely to be ripe.[663] As to the "hardship" factor, the Court explained that, where an administrative regulation threatens noncompliant parties with "an immediate and substantial impact"[664]--such as the "seizure of goods, heavy fines, adverse publicity, [or] possible criminal liability"[665]--a pre-enforcement challenge to that regulation is especially likely to be ripe. The Court, opined that courts ordinarily must entertain challenges to regulations that threaten regulated entities with serious penalties if they fail to modify their behavior.[666]

Modern Ripeness Doctrine Generally[edit | edit source]

The Supreme Court has invoked Abbott Laboratories' two-part "fitness" and "hardship" test on numerous occasions since 1967,[667] deeming a variety of controversies unripe under that standard.[668] A discussion of post-1967 Supreme Court cases that have refined and developed the Abbott Laboratories standard follows.

Fitness and Ripeness[edit | edit source]

The Supreme Court has considered several factors when determining whether an issue is "fit" for judicial review under Abbott Laboratories v. Gardner. First, the Court has inquired whether further factual development would make it easier to resolve the parties' dispute.[669] For instance, in National Park Hospitality Ass'n v. Department of Interior, a nonprofit trade association challenged a National Park Service regulation that purported to render the Contract Disputes Act of 1978 (CDA) inapplicable to certain government contracts.[670] Noting that the CDA's applicability could vary from contract to contract, the Court determined that awaiting further factual development in the form of a dispute over a particular contract would facilitate the Court's review of the regulation.[671] The Court therefore deemed the challenge unripe.[672]

By contrast, cases presenting purely legal rather than factual questions are more likely to be fit for immediate adjudication.[673] For example, in Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, the Supreme Court held that whether federal law preempted a state statute was primarily a legal question and therefore ripe for judicial review.[674]

A claim may not be fit for adjudication if it is based on "contingent future events that may not occur as anticipated, or indeed may not occur at all."[675] For instance, in Texas v. United States, the State of Texas asked a federal district court to determine the validity of certain provisions of the Texas Education Code that permitted the state to sanction local school districts if they failed to meet state-mandated educational achievement levels.[676] Because the Supreme Court did not know whether or when the State would ever issue such a sanction, the Court unanimously concluded that the validity of the Texas statute was not yet ripe for adjudication.[677]

Similarly, when a party challenges the constitutionality of a state law, but that state's courts have not yet had an opportunity to delimit the scope and applicability of that law, the claim may be unfit for adjudication.[678] As the Supreme Court has noted, waiting until state courts have had a chance to interpret a challenged law may sharpen the issues for judicial review.[679]

Hardship and Ripeness[edit | edit source]

When considering Abbott Laboratories v. Gardner's "hardship" prong, the Supreme Court has often considered whether one or more of the parties face adverse legal consequences as a result of the challenged action.[680] For instance, in Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., the Ohio Civil Rights Commission initiated administrative proceedings against a nonprofit religious education provider, alleging that the nonprofit had discriminated against one of its teachers on the basis of sex.[681] The nonprofit asserted that it terminated the teacher based on its religious views that mothers should stay home with school-aged children and that the Commission's actions consequently violated the First Amendment's Religion Clauses.[682] The nonprofit thus filed a federal lawsuit to enjoin the administrative proceedings. The Supreme Court ruled that the Commission's administrative action threatened the nonprofit with sanctions for allegedly constitutionally protected conduct and thus that the nonprofit's challenge to those proceedings was ripe.[683]

Administrative Law and Ripeness[edit | edit source]

Challenges to federal administrative agencies' actions, decisions, and policies often implicate the ripeness doctrine.[684] In such cases, courts consider "whether judicial intervention would inappropriately interfere with further administrative action."[685] The ripeness doctrine thereby not only "protect[s] the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties," but also "prevent[s] the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies."[686] For example, in Ohio Forestry Association, Inc. v. Sierra Club, an environmental organization challenged the United States Forest Service's interim federal land and resource management plan on the ground that it permitted too much logging and clearcutting of trees.[687] The Supreme Court concluded that the organization's challenge was unripe,[688] in part because reviewing the plan immediately could obstruct the Forest Service from refining its policies by either revising the plan or applying it to specific sites.[689]

Criminal Statutes and Ripeness[edit | edit source]

The Supreme Court has frequently scrutinized the ripeness of pre-enforcement challenges to criminal statutes.[690] The Court has explained that, when challenging a criminal statute, the plaintiff need not "first expose himself to actual arrest or prosecution."[691] Rather, it is sufficient for the plaintiff to allege that he (1) intends to engage in constitutionally protected activity prohibited by the statute and (2) faces a "credible threat of prosecution."[692] For example, an abortion provider who faces "a sufficiently direct threat" that a state will prosecute him for violating a statute that criminalizes abortion need not necessarily await prosecution before challenging that statute's constitutionality.[693]

Conversely, a challenger who cannot claim that he has "ever been threatened with prosecution, that a prosecution is likely, or even that a prosecution is remotely possible" cannot "allege a dispute susceptible to resolution by a federal court."[694] For example, in Poe v. Ullman, the plaintiffs challenged the constitutionality of a state statute that criminalized the use of contraceptive devices.[695] Even though the statute had been on the books for more than eight decades, the state had only attempted to enforce it on a single occasion, and drugstores in the state commonly and openly sold such devices without any apparent fear of prosecution.[696] Thus, the plaintiffs faced no reasonable fear of prosecution, and the Court accordingly held that the constitutionality of the statute was not ripe for decision.[697]

One might argue, however, that the Court has not always applied these principles consistently. In Epperson v. Arkansas, for example, the plaintiff challenged the constitutionality of an Arkansas statute that made it a misdemeanor to teach the theory of evolution in public schools and universities.[698] No teacher had ever been prosecuted under the challenged statute.[699] Even though the plaintiff did not appear to face a reasonable threat of prosecution, the Court concluded--with minimal discussion--that the plaintiff had nonetheless presented a justiciable controversy.[700] Epperson is therefore arguably inconsistent with the Court's other ripeness cases. The Court has attempted to reconcile Epperson by focusing on the age of the statute being challenged; a challenge to a criminal statute that has been on the books for decades yet has almost never been enforced will likely not be ripe for immediate review, whereas a pre-enforcement challenge to a statute that is "recent and not moribund" may be justiciable.[701] That distinction, however, may not be altogether satisfying; the anti-evolution statute in Epperson had been on the books for four decades, yet the Supreme Court nonetheless deemed the plaintiff's challenge ripe for immediate adjudication.[702] Thus, as the Court itself has intimated, it is not always easy to predict whether any given pre-enforcement challenge to a criminal statute will be justiciable.[703]

Takings and Ripeness[edit | edit source]

Until very recently, the Supreme Court applied special ripeness rules in regulatory takings cases in which a litigant alleges that a governmental entity has "taken" his property without paying "just compensation" as the Fifth Amendment requires.[704] Under the doctrine established in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City,[705] a plaintiff could not pursue a takings claim against a state entity in federal court until the plaintiff had (1) received a final decision from the state government regarding the challenged regulation's application to his property; and (2) sought compensation through state-provided procedures.[706] Williamson County's context-specific ripeness rule created potentially significant obstacles for takings plaintiffs. As the Court later held in San Remo Hotel, L.P. v. City & County of San Francisco, when a plaintiff first litigates a takings claim in state court as mandated by Williamson County, the federal full faith and credit statute bars the plaintiff from relitigating the Takings Clause issues in a subsequent federal lawsuit.[707] Thus, under Williamson County and San Remo, a plaintiff could not file a takings lawsuit in federal court before pursuing his claim in state court, yet if he lost in state court, his subsequent federal lawsuit would fail as well.[708] The Court ultimately concluded that this special ripeness rule imposed "an unjustifiable burden on takings plaintiffs" and conflicted with the Court's Takings Clause jurisprudence.[709] The Court therefore overruled Williamson County in Knick v. Township of Scott.[710] After Knick, a property owner may bring a takings claim in a federal court without first seeking compensation in state court.[711]

Continuing Vitality of Ripeness Doctrine[edit | edit source]

Even though the Supreme Court has applied the Abbott Laboratories standard on numerous occasions since 1967,[712] the Court has signaled that it may be willing to modify the standard, or perhaps even abrogate the ripeness doctrine entirely.

For example, recent Supreme Court decisions have questioned the ripeness doctrine's prudential underpinnings. Before 2014, the Court had held repeatedly that the ripeness doctrine had both constitutional and prudential dimensions.[713] However, in Susan B. Anthony List v. Driehaus, the Court, quoting its earlier holding that "'a federal court's obligation to hear and decide' cases within its jurisdiction 'is virtually unflagging,'" questioned whether it is proper to deem a claim "nonjusticiable on grounds that are prudential, rather than constitutional."[714] And in its 2020 ripeness opinion, the Court deemed a case unripe without mentioning the doctrine's prudential component or discussing Abbott Laboratories' fitness and hardship factors.[715] It is therefore possible that the Supreme Court may someday unmoor the ripeness doctrine from its prudential foundations and replace the two-pronged Abbott Laboratories test with a new legal standard predicated solely on Article III's Case or Controversy requirement.

The ripeness doctrine has also arguably diminished in importance as the Supreme Court has developed and refined other justiciability doctrines, especially the doctrine of Article III standing. In MedImmune, Inc. v. Genentech, Inc. and Susan B. Anthony List, the Court observed that because standing and ripeness both derive from the provisions of Article III limiting the federal courts' jurisdiction to "Cases" and "Controversies," the two doctrines often " boil down to the same question."[716] Thus, the Court ruled in Trump v. New York that a challenge to an Executive Branch policy was premature under the standing and ripeness doctrines alike.[717] Consequently, under MedImmune, Susan B. Anthony List, and Trump, the degree to which the ripeness doctrine imposes any limitation on the justiciability of disputes that the Article III standing doctrine does not already impose is uncertain. Future Supreme Court decisions may clarify the extent to which the ripeness doctrine continues to play a role in the application of Article III's case or controversy requirement.

Mootness[edit | edit source]

Overview of Mootness Doctrine[edit | edit source]

In addition to the other justiciability doctrines discussed above, the Supreme Court's doctrine on mootness imposes another limitation on justiciability derived from Article III's case-or-controversy requirement[718] on the federal courts' jurisdiction to resolve disputes.[719] "It has long been settled that a federal court has no authority 'to give opinions upon moot questions;'"[720] that is, "when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome."[721] "[A]n actual controversy must exist not only at the time the complaint is filed, but through all stages of the litigation."[722] Thus, "if an intervening circumstance deprives the plaintiff of a 'personal stake in the outcome of the lawsuit[ ]' at any point during litigation, the action can no longer proceed and must be dismissed as moot."[723] The Supreme Court has justified the mootness doctrine on the ground that it "ensures that the Federal Judiciary confines itself to its constitutionally limited role of adjudicating actual and concrete disputes, the resolutions of which have direct consequences on the parties involved."[724]

According to the Supreme Court, "[a] case that becomes moot at any point during the proceedings is "no longer a "Case" or "Controversy" for purposes of Article III," and is outside the jurisdiction of the federal courts."[725] Because mootness is a jurisdictional limitation, a federal court can--and indeed must--dismiss a moot case even if none of the parties ask the court to do so.[726] A question about mootness may, in other words, arise at any time during the lifespan of a case, even on appeal.[727] In this respect, mootness "bears close affinity to" the other justiciability doctrines derived from Article III of the Constitution,[728] including standing[729] and the prohibition against advisory opinions.[730] To the extent that the mootness doctrine regulates "the appropriate timing of judicial intervention,"[731] mootness serves as the converse of the ripeness doctrine,[732] which restrains the Judiciary from adjudicating a case before it develops into a live dispute.

The Supreme Court has steadily developed the substantive and procedural aspects of the mootness doctrine over the course of nearly a century and a half. The Court has ultimately settled on the following formulation of the doctrine: "If an intervening circumstance deprives the plaintiff of a 'personal stake in the outcome of the lawsuit[ ]' at any point during litigation," then--subject to certain exceptions analyzed below--"the action can no longer proceed and must be dismissed as moot."[733]

Early Mootness Doctrine[edit | edit source]

The Supreme Court's 1895 decision in Mills v. Green[734] was the first Supreme Court opinion that directly addressed the mootness doctrine.[735] Mills involved the election of delegates to a convention to revise South Carolina's constitution.[736] A South Carolina citizen filed suit, claiming that the state's voter registration statutes unconstitutionally "abridg[ed], imped[ed], and destroy[ed] the suffrage of citizens of the state and of the United States."[737] While the case was pending on appeal, the date of the delegate election for the convention passed, the delegates were selected, and the constitutional convention had assembled.[738] The Supreme Court therefore concluded that there was no longer any "actual controversy involving real and substantial rights between the parties" and dismissed the appeal accordingly.[739] The Court explained that the Federal Judiciary's "duty" under the Constitution was only "to decide actual controversies," not "to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it."[740] Applying that principle to the facts of the case before it, the Court emphasized that "the whole object of the [plaintiff's lawsuit] was to secure a right to vote at the election."[741] Because the Court could not retroactively make the plaintiff eligible to vote in an election that had already occurred, the Court concluded it was unable to grant the plaintiff the relief that he sought.[742] Mills therefore firmly established the legal principle that otherwise justiciable cases may become nonjusticiable with the passage of time.[743]

Notably, the Mills Court did not expressly base its holding on Article III's "case or controversy" requirement; nothing in Mills squarely suggested that the mootness doctrine was a constitutionally mandated limitation on the federal courts' jurisdiction, as opposed to a self-imposed prudential restriction on the justiciability of disputes.[744] Thus, the Court applied the mootness doctrine articulated in Mills on various occasions throughout the early- to mid-twentieth century without explicitly suggesting that federal courts lacked the constitutional authority to adjudicate moot cases.[745] It was not until the Court's 1964 decision in Liner v. Jafco, Inc.[746] that the Court first explicitly acknowledged mootness's constitutional dimension.[747] The respondents in Liner had successfully convinced a state court to enter an injunction[748] to prohibit picketing at a construction site.[749] The petitioners thereafter appealed to the U.S. Supreme Court, contending that the state court lacked the authority to issue the injunction.[750] While the case was pending, however, "construction at the site had been completed."[751] The Court therefore had to determine whether the completion of the construction project rendered the case moot.[752]

The Court answered that question in the negative.[753] The Court observed that the respondents had "filed a bond providing that, if the injunction action failed," the respondents would have to pay the petitioners "all such costs, damages, interest, and other sums as may be awarded and recovered against the [respondents] in any suit or suits which may be hereafter bro[u]ght for wrongfully suing out said Injunction."[754] Because the petitioners could therefore potentially recover damages if "the injunction was wrongfully sued out,"[755] the Court determined that Liner was "not a case where th[e] Court's decision on the merits" would not "affect the rights of the litigants."[756] The Court accordingly concluded that the case was not moot because the petitioners retained "a substantial stake in the judgment" that existed "apart from and [wa]s unaffected by the completion of construction."[757]

In reaching this holding, the Liner Court expressly stated that the mootness doctrine "derives from the requirement of Article III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy."[758] The Court's decision to characterize mootness as a constitutional doctrine had significant practical and doctrinal implications. As the Court would explain in other opinions following Liner, a federal court lacks jurisdiction to adjudicate a moot case even if all parties consent because moot cases do not constitute justiciable "cases or controversies" within the meaning of Article III.[759] Thus, the Constitution requires the federal courts to raise and decide issues of mootness even if the parties have not raised the issue themselves.[760] Likewise, because mootness is a constitutional limitation on the federal courts' jurisdiction, a court must also "address the question of mootness before reaching the merits" of the parties' claims.[761] Moreover, the constitutional status of the mootness doctrine entails that Congress may not statutorily authorize federal courts to adjudicate moot cases.[762]

Modern Mootness Doctrine[edit | edit source]

The Supreme Court has decided mootness issues in a wide array of contexts since the Supreme Court decided Liner in 1964.[763] As a result, the Court has developed a robust body of precedent governing when a case should (or should not) be dismissed as moot, as well as what procedures a federal court should follow after a case becomes moot.

General Criteria of Mootness[edit | edit source]

Under current law, "a case is moot when the issues presented are no longer 'live' or the parties lack a cognizable interest in the outcome."[764] "[A]n actual controversy must exist not only at the time the complaint is filed, but through all stages of the litigation."[765] Thus, "[i]f an intervening circumstance deprives the plaintiff of a 'personal stake in the outcome of the lawsuit[ ]' at any point during litigation, the action can no longer proceed and must be dismissed as moot."[766] "A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party."[767] When (1) "it can be said with assurance that there is no reasonable expectation that the alleged violation will recur;" and (2) "interim relief or events have completely and irrevocably eradicated the effects of the alleged violation," then "the case is moot because neither party has a legally cognizable interest in the final determination of the underlying questions of fact and law."[768]

Significantly, however, a case does not necessarily become moot simply because intervening events make it impossible for a federal court to issue the exact form of relief that the plaintiff requests.[769] As long as the court retains the ability to "fashion some form of meaningful relief, "then that" is sufficient to prevent th[e] case from being moot."[770] To illustrate, "[i]f there is any chance of money changing hands" as a result of the lawsuit, then the "suit remains live."[771] Similarly, even if it is uncertain that the relief granted by the court will ultimately have any meaningful practical impact on the plaintiff, that does not itself render the case moot.[772]

Intervening circumstances that may render a case moot can result either from actions attributable to the litigants or from outside forces. For example, in the City News & Novelty, Inc. v. City of Waukesha case discussed in greater detail below, the Court ruled that an adult business's challenge to a municipality's decision to deny the business's license became moot after the business chose to cease operations while the case was pending on appeal.[773] A lawsuit predicated upon a federal statute may also become moot if Congress amends the statute while the suit remains pending.[774] A case may also become moot merely through the passage of time; for instance, the Court ruled in Camreta v. Greene that a child's constitutional challenge to an elementary school's methods of interviewing its students became moot after "the child [grew] up and moved across the country" and thus would "never again be subject to the . . . in-school interviewing practices whose constitutionality [wa]s at issue."[775]

The Court's 1974 opinion in DeFunis v. Odegaard illustrates how the aforementioned legal principles apply in practice.[776] The petitioner in DeFunis applied for admission at a public law school.[777] After the school rejected his application, the petitioner filed suit, "contending that the procedures and criteria employed by the Law School Admissions Committee invidiously discriminated against him on account of his race."[778] The trial court agreed and ordered the law school to admit the petitioner.[779] The petitioner accordingly started taking classes at the law school while the case was on appeal.[780] By the time the case reached the Supreme Court, the petitioner had almost completed his law degree,[781] such that the petitioner stood to "receive his diploma regardless of any decision th[e] Court might reach on the merits of [h]is case."[782] Because the petitioner would "complete his law school studies at the end of the term . . . regardless of any decision th[e] Court might reach on the merits," the Court concluded that the case was moot.[783]

Because federal courts lack jurisdiction to adjudicate moot cases, a federal court can--and indeed must--dismiss a moot case even if none of the parties ask the court to do so.[784] Moreover, because mootness deprives the courts of jurisdiction to hear a case, the Supreme Court has stated that litigants have "a 'continuing duty to inform the Court'" of intervening events that could potentially render a case moot.[785] "The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated."[786] As a result, a party may raise a mootness challenge at any time during the litigation, including for the first time on appeal.[787] "[A]n appeal should therefore be dismissed as moot when, by virtue of an intervening event, a court of appeals cannot grant 'any effectual relief whatever' in favor of the appellant."[788] "If a party to an appeal suggests that the controversy has, since the rendering of judgment below, become moot, that party bears the burden of coming forward with subsequent events that have produced that alleged result."[789]

The Supreme Court has developed several doctrines that govern how courts should dispose of cases that become moot during the pendency of an appeal.[790] When reviewing a lower court's judgment, an appellate court has several potential options for resolving the case: it may affirm--that is, approve--the judgment;[791] it may reverse--that is, overturn--the judgment;[792] it may vacate the judgment--that is, nullify the judgment[793] and thereby "strip[ ] the decision below of its binding effect;"[794] or it may remand the case to the lower court for further proceedings.[795] As the Court explained in its 1950 opinion in United States v. Munsingwear, Inc., "[t]he established practice of the Court in dealing with a civil case from a court in the federal system which has become moot" on appeal or before the Court has issued its "decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss."[796] Disposing of a moot case in this manner thereby "clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance."[797] Put another way, the Munsingwear procedure for disposing of cases that become moot on appeal "prevent[s] a judgment, unreviewable because of mootness, from spawning any legal consequences," and thereby ensures that the federal appellate courts, rather than individual litigants, have the last word on the answers to legal questions.[798]

The Supreme Court has noted, however, "the decision whether to vacate" a moot case pursuant to Munsingwear "turns on 'the conditions and circumstances of the particular case.'"[799] To that end, the Supreme Court has crafted several exceptions to the Munsingwear rule.[800] For one, the Supreme Court has specified that "vacatur is in order" under Munsingwear only when mootness occurs through "happenstance"--that is, "circumstances not attributable to the parties"--or "the 'unilateral action of the party who prevailed in the lower court.'"[801] Thus, if a case becomes moot as a result of the parties' mutual agreement to settle the case, the Court has held that federal courts should generally not vacate the judgment.[802] The Court has justified this exception by explaining that "where mootness results from settlement . . . the losing party has voluntarily forfeited his legal remedy by the ordinary processes of appeal or certiorari, thereby surrendering his claim to the . . . remedy of vacatur."[803] Such cases are therefore "not unreviewable, but simply unreviewed" as a result of the losing party's "own choice."[804] Likewise, the Court has ruled that it is inappropriate to "clear[ ] the path for future relitigation of the issues between the parties"[805] when the plaintiff renders the case moot by voluntarily agreeing to permanently withdraw its claims against the defendant.[806] In such instances, rather than wiping the slate clean in the manner contemplated by Munsingwear, the Court has ordered that the case be dismissed with prejudice to refiling so that "it cannot be resumed in this or any subsequent action."[807] Dismissing the case with prejudice thereby "prevent[s] the regeneration of the controversy" if the plaintiff later changes its mind and attempts to relitigate the dismissed claims in federal court.[808]

Nor does the Court follow its usual practice of vacating the judgment with directions to dismiss when a case has become moot due to an intervening change in the governing law.[809] Instead, the Court ordinarily "remand[s] for further proceedings in which the parties may, if necessary, amend their pleadings or develop the record more fully" to respond to the intervening change in law.[810] For instance, in Diffenderfer v. Central Baptist Church of Miami, Florida, Inc., the plaintiff challenged a Florida statute as unconstitutional.[811] While the litigation was pending, however, the Florida legislature repealed the challenged statute and enacted a new statute in its place.[812] "[R]ather than remanding the case to the District Court for dismissal" in the manner contemplated by Munsingwear, the Supreme Court "remand[ed] the case to the District Court with leave to the appellants to amend their pleadings."[813] Resolving the case in this way thereby afforded the appellants an opportunity "to demonstrate that the repealed statute retain[ed] some continuing force or to attack the newly enacted legislation."[814]

Finally, "[t]he Court's treatment of cases that become moot on review from the lower federal courts" differs from its treatment of moot cases arising from state courts.[815] The Court's "regular practice in the latter situation has been to dismiss the case and leave the judgment of the state court undisturbed," rather than to vacate the judgment in the manner contemplated by Munsingwear.[816] According to the Court, allowing state court judgments in moot cases to stand "evinces a proper recognition that in the absence of any live case or controversy, [the Court] lack[s] jurisdiction and thus also the power to disturb the state court's judgment."[817]

Exceptions to Mootness Generally[edit | edit source]

Significantly, the Court has recognized several exceptions to the general mootness principles discussed above. These exceptions are known as the "voluntary cessation" doctrine[818] and the "capable of repetition, yet evading review" exception.[819] The Court has also developed special mootness principles that govern criminal cases[820] and class action cases.[821]

Voluntary Cessation Doctrine[edit | edit source]

First, the Supreme Court has held that a party's voluntary cessation of an unlawful practice will usually not moot its opponent's challenge to that practice.[822] Thus, "a defendant cannot automatically moot a case by simply ending its unlawful conduct once sued."[823] This exception to the mootness doctrine exists because if a litigant could defeat a lawsuit simply by temporarily ceasing its unlawful activities, there would be nothing to stop that litigant from engaging in that unlawful behavior again after the court dismissed the case[824]; the litigant would effectively "be free to return to [its] old ways."[825]

The 1982 case of City of Mesquite v. Aladdin's Castle, Inc. illustrates how this "voluntary cessation" doctrine applies in practice.[826] The plaintiff in City of Mesquite challenged the constitutionality of a municipal ordinance.[827] While the case was pending, however, the city repealed the offending provisions of the ordinance.[828] The Court, explaining that "a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice," concluded that the city's revision of the ordinance did not render the plaintiff's challenge moot.[829] Because "the city's repeal of the objectionable language" in the ordinance "would not preclude it from reenacting precisely the same provision" if the case were dismissed on mootness grounds, the Court concluded that it needed to "confront the merits of the" plaintiff's constitutional challenge.[830]

The DeFunis v. Odegaard case discussed above, by contrast, exemplifies when the voluntary cessation doctrine will not save a case from dismissal.[831] To reiterate, the petitioner in DeFunis claimed that certain law school admissions practices and criteria discriminated against him on the basis of race.[832] While the case was pending, however, the petitioner began taking classes at the law school, and had almost completed his law degree by the time the case reached the Supreme Court.[833] The Court rejected the petitioner's argument that the voluntary cessation doctrine rendered the case justiciable because the case's mootness had "partially stem[med] from a policy decision on the part of the respondent Law School authorities" to allow the petitioner to complete his law school studies and receive his diploma.[834] The Court emphasized that the respondents had not voluntarily ceased the allegedly discriminatory admissions practices that the petitioner challenged as unconstitutional; instead, the case became moot because the petitioner was just a few credits shy of completing his degree.[835] In other words, the case was moot not because the school stopped engaging in allegedly unlawful activity, but rather because the petitioner would "receive his diploma regardless of any decision th[e] Court might reach on the merits of th[e] case."[836]

The Court has clarified several other aspects of the voluntary cessation doctrine. For one, if it is "absolutely clear" that the allegedly wrongful behavior will not recur after the court dismisses the case, then a case can become moot notwithstanding a party's voluntary cessation of that unlawful behavior.[837] "The 'heavy burden of persua[ding]' the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness."[838] To illustrate, in Preiser v. Newkirk, a prisoner claimed that prison officials had unlawfully transferred him from a medium security institution to a more restrictive maximum security institution, and asked the court to order his return to the medium security prison.[839] While the case was pending, however, officials transferred the prisoner back to the medium security institution, and then subsequently transferred him to an even less restrictive minimum security institution.[840] According to the Court, these subsequent developments made it "clear that correction authorities harbor[ed] no animosity toward" the plaintiff, such that there was "no reasonable expectation that the wrong" challenged by the prisoner would "be repeated.'"[841] The Court therefore deemed the case nonjusticiable even though the prison officials themselves had rendered the case moot by transferring the prisoner to a less restrictive institution.[842]

Additionally, the voluntary cessation doctrine typically applies only when a party to the case voluntarily discontinues an allegedly unlawful action. If, instead, a case becomes moot because "of the voluntary acts of a third party non-defendant," the voluntary cessation doctrine will usually not save that case from dismissal.[843] For instance, in Iron Arrow Honor Society v. Heckler, the Secretary of the Department of Health, Education, and Welfare (Secretary) promulgated a regulation barring recipients of federal funding from "providing significant assistance to any . . . organization . . . which discriminates on the basis of sex."[844] The petitioner, an all-male honorary organization at a public university, commenced a lawsuit seeking to prevent the Secretary from interpreting that regulation in a manner that would require the university to ban the organization from conducting activities on campus so long as it continued to exclude women.[845] While the lawsuit was pending, however, the university determined that no matter whether the Secretary's regulation required the university to ban the organization, the university's own non-discrimination code independently barred the organization from operating on campus until it discontinued its male-only membership policy.[846] Because no judicial ruling with respect to the Secretary's interpretation of the regulation would have any effect on the university's independent decision to ban the organization pursuant to its own non-discrimination policy, the Court concluded that "the dispute as to how the [r]egulation should be interpreted" was "classically 'moot.'"[847] The Court concluded that the voluntary cessation doctrine did not save the case from dismissal, as it was "the voluntary acts of a third party non-defendant"--namely, the university--that rendered the case moot, rather than the voluntary acts of the Secretary herself.[848]

Similarly, the voluntary cessation doctrine will not save a case from dismissal when it is the losing party, rather than the prevailing party, whose voluntary actions render the case moot during the pendency of an appeal.[849] Thus, in City News & Novelty, Inc. v. City of Waukesha, a retailer of sexually explicit materials challenged a municipality's decision to deny its adult business license.[850] After the lower courts ruled against the retailer, the retailer asked the Supreme Court to review the judgment in the municipality's favor.[851] While the appeal was pending, however, the retailer opted to close its business.[852] The Court determined that the retailer's decision to cease operations had rendered the case moot because the retailer no longer had any cognizable interest in the outcome of the case.[853] Even though the circumstance rendering the case moot was the retailer's voluntary decision to close its business, the Court nonetheless concluded that the voluntary cessation doctrine did not render the case justiciable.[854] The Court emphasized that because the lower courts had ruled against the retailer, the retailer "left the fray as a loser, not a winner."[855] The Court reasoned that the retailer's voluntary cessation of its business therefore did "not keep [its opponent] under the weight of an adverse judgment" or "reward an arguable manipulation of [the Court's] jurisdiction."[856]

Capable of Repetition, Yet Evading Review[edit | edit source]

The Supreme Court has generally declined to deem cases moot that present issues or disputes that are "capable of repetition, yet evading review."[857] This exception to the mootness doctrine applies "only in exceptional situations"[858] in which (1) "the challenged action is in its duration too short to be fully litigated prior to cessation or expiration;" and (2) "there is a reasonable expectation that the same complaining party will be subject to the same action again."[859] According to the Court, if this exception to mootness did not exist, then certain types of time-sensitive controversies would become effectively unreviewable by the courts.[860]

The classic example of a dispute that is "capable of repetition, yet evading review" is a pregnant woman's constitutional challenge to an abortion regulation.[861] Once a woman gives birth, abortion is no longer an option for terminating that particular pregnancy. However, litigation of national political significance can rarely be fully resolved in a mere nine months; "the normal 266-day human gestation period is so short that [a] pregnancy will come to term before" the parties and the court could realistically litigate a constitutional challenge to an abortion statute to its conclusion.[862] Thus, if a challenge to an abortion regulation became moot as soon as the challenger gave birth, "pregnancy litigation seldom w[ould] survive much beyond the trial stage, and appellate review w[ould] be effectively denied."[863] Because the Supreme Court has decided that "[o]ur law should not be that rigid," the Court ruled in its 1973 opinion in Roe v. Wade that "[p]regnancy provides a classic justification for a conclusion of nonmootness."[864] The Roe Court reasoned that, because "[p]regnancy often comes more than once to the same woman, and . . . if man is to survive, it will always be with us," challenges to the constitutionality of abortion statutes usually will not become moot at the conclusion of an individual challenger's pregnancy.[865]

The Court has deemed certain controversies "capable of repetition, yet evading review" outside the abortion context as well.[866] For example, in Federal Election Commission v. Wisconsin Right to Life, Inc., an advocacy organization claimed that restrictions on "electioneering communications" established by the Bipartisan Campaign Reform Act of 2002 unconstitutionally prohibited the organization from broadcasting certain political advertisements shortly before the 2004 election.[867] Even though the case did not reach the Supreme Court until long after the 2004 election had passed, the Court nonetheless concluded that the case was not moot.[868] The Court reasoned that the organization "credibly claimed that it planned on running 'materially similar' future targeted broadcast ads" in advance of future elections,[869] and the period between elections was too short to allow the organization sufficient time to fully litigate its constitutional challenges sufficiently in advance of the election date.[870]

By contrast, the Court determined that the constitutional challenge in the DeFunis case mentioned above was not "capable of repetition, yet evading review."[871] To reiterate, the petitioner in DeFunis claimed that certain law school admissions practices and criteria unconstitutionally discriminated against him on the basis of race.[872] While the case was pending, however, the petitioner began taking classes at the law school, and was just about to receive his diploma.[873] Unlike the challenger to the abortion statute in Roe, who could very well have become pregnant again in the future,[874] the petitioner in DeFunis would "never again be required to run the gantlet of the Law School's admissions process" once he received his juris doctorate.[875] The DeFunis Court therefore concluded that the petitioner's constitutional challenges were "not 'capable of repetition' so far as [the petitioner was] concerned."[876] The Court further opined that challenges raised by other disappointed applicants would not evade future review either, as the Court had "no reason to suppose that a subsequent case attacking [the law school's admission] procedures w[ould] not come with relative speed to th[e] Court."[877]

Criminal Cases and Mootness[edit | edit source]

The Supreme Court has also articulated special mootness principles that apply in criminal cases.[878] Because criminal sentences are generally limited in duration, courts will sometimes be unable to rule on the merits of a criminal defendant's appeal before that defendant's sentence expires.[879] Thus, the Court has ruled that a criminal defendant who "wish[es] to continue his appeals after the expiration of his sentence must suffer some 'continuing injury' or 'collateral consequence' sufficient to satisfy Article III."[880] Put another way, if the defendant can point to some "disabilities or burdens (which) . . . flow from" his conviction even after his release from prison, then he retains "a substantial stake in the judgment of conviction which survives the satisfaction of the sentence imposed on him" and therefore presents a justiciable controversy.[881] If, by contrast, the defendant cannot make such a showing, then the expiration of the defendant's criminal sentence will render the defendant's appeal moot.[882] Thus, in Carafas v. LaVallee, the petitioner faced lingering legal "disabilities or burdens" as a result of his conviction even though he had already "been unconditionally released from custody."[883] Specifically, the laws of the state in which the petitioner resided prohibited convicted felons from "engag[ing] in certain businesses," "serv[ing] as an official of a labor union," "vot[ing] in any election held in" his state of residence, and "serv[ing] as a juror."[884] The petitioner therefore retained "a substantial stake" in challenging the validity of his conviction so that he could engage in activities that his criminal record would otherwise prohibit.[885] The Supreme Court thus determined that, "[o]n account of these 'collateral consequences'" of his conviction, the petitioner's case was "not moot."[886] "When the defendant challenges his underlying conviction," the Supreme Court generally "presume[s] the existence of collateral consequences" sufficient to save the defendant's appeal from dismissal on mootness grounds.[887] The Court has justified this presumption on the ground that "most criminal convictions do in fact entail adverse collateral legal consequences."[888] The Court has generally declined to presume, however, that collateral consequences will result from other types of criminal sanctions, such as a revocation of parole.[889]

Class Action Litigation and Mootness[edit | edit source]

The Supreme Court has also developed special mootness rules that apply in class action cases.[890] In a class action, the plaintiff[891] (known as the "class representative" or the "named plaintiff") represents not only his own interests, but also the interests of other injured persons (the "class members") who are similarly situated to the class representative but are not named as formal parties to the suit.[892] Intervening events may sometimes render the controversy moot as to the named plaintiff but not as to the class members.[893] For example, in the 1979 case of Bell v. Wolfish, several pretrial detainees initiated a class action lawsuit challenging the conditions of confinement at a custodial facility not only on their own behalf, but also on behalf of other detainees as well.[894] However, the named plaintiffs were transferred or released from the facility while the case was pending, and therefore were no longer being subjected to the allegedly unlawful conditions of confinement by the time the Supreme Court took up the case.[895] Although the named plaintiffs no longer had any personal stake in the outcome of the litigation, the class members who remain confined in that facility still potentially had live claims against the defendant.[896] To address cases of this sort, the Court has ruled that a justiciable controversy may potentially exist "between a named defendant and a member of the class represented by the named plaintiff, even though the claim of the named plaintiff has become moot."[897] Put another way, "the termination of a class representative's claim does not" necessarily "moot the claims of the unnamed members of the class."[898] The Court, applying that principle, has occasionally resisted efforts by defendants to moot a class action case by offering to pay the class representative's entire individual claim over the class representative's objection.[899] According to the Court, allowing a class action case to become moot "simply because the defendant has sought to 'buy off' the individual private claims of the named plaintiffs" would "frustrate the objectives of class actions" because it would "requir[e] multiple plaintiffs to bring separate actions, which effectively could be 'picked off' by a defendant's tender of judgment."[900] The Court has explicitly declined to decide, however, whether other methods of mooting a class action could be permissible, such as by "deposit[ing] the full amount of the plaintiff's individual claim in an account payable to the plaintiff" and then successfully convincing the court to "enter[ ] judgment for the plaintiff in that amount."[901] The lower courts have therefore "split on whether actual payment of full relief moots an individual's claim."[902] "The Supreme Court has not yet resolved the split, and commentators disagree on how the Court will ultimately decide the unresolved . . . question."[903]

Political Questions[edit | edit source]

Overview of Political Question Doctrine[edit | edit source]

The political question doctrine limits the ability of the federal courts to hear constitutional questions even where other justiciability requirements, such as standing, ripeness, and mootness, would otherwise be met.[904] The Supreme Court has stated that, for purposes of Article III of the Constitution,[905] "no justiciable 'controversy' exists when parties seek adjudication of a political question."[906] But the term "political question" is a legal term of art that on its face gives little indication of what sorts of cases the doctrine bars federal courts from deciding. The phrase, which has its origins in Chief Justice John Marshall's landmark opinion in Marbury v. Madison,[907] is potentially misleading, as federal courts deal with political issues, in the sense of controversial and government-related issues, all the time.[908] Rather than referring generally to any such political issue, the term "political question" expresses the principle that some issues are either entrusted solely to another branch of government or are beyond the competence of the Judiciary to review. Finding that a matter qualifies as a political question divests federal courts of jurisdiction, meaning they lack the power to rule on the matter.[909]

The Supreme Court identified six factors relevant to the political question doctrine in the 1962 case Baker v. Carr:

Prominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.Baker, 369 U.S. at 217.

The variation among the criteria emphasizes the diverse purposes that the doctrine is said to serve, embodying both separation of powers principles[910] and prudential concerns such as the competency of courts.[911] These six criteria appear in recent Supreme Court opinions applying the political question doctrine.[912] However, Justices of the Supreme Court have recognized confusion around the political question doctrine, both when Baker was decided and subsequently.[913] Among other things, judges have disagreed on how to identify a political question, as well as on fundamental matters such as whether the political question doctrine originates in constitutional or prudential principles or what purpose the doctrine allegedly serves.[914]

So far, the Supreme Court has elected not to resolve these disputes in a comprehensive fashion. Despite these uncertainties, the doctrine remains alive and well today,[915] even if, as one treatise has stated, "the category of political questions 'is more amenable to description by infinite itemization than by generalization.'"[916] Following that pattern of itemization, the Court has applied the political question doctrine in some areas of foreign policy, Congress's internal governance, impeachment, and in cases involving partisan gerrymandering.[917] This essay explores all of these issues, tracing the development of the political question doctrine from its foundations in Marbury to its refinement in Baker to its modern applications.

Marbury v. Madison and Political Question Doctrine[edit | edit source]

The political question doctrine has its origins in the foundational case for judicial review, Marbury v. Madison.[918] Marbury involved a suit to force Secretary of State James Madison to deliver a signed commission to a newly appointed official, William Marbury.[919] The commission had been signed by the previous administration but not delivered; following the change in presidential administrations, Madison refused to deliver it.[920] Among the issues presented in that case, the Court examined whether it even had the authority to adjudicate the legality of Madison's refusal to deliver the commission.[921] That question, according to Chief Justice John Marshall's opinion for the Court, turned on "the nature" of the government action in question. As the Court explained, "Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court."[922] Thus, if the act of an official is one in which the "executive possesses a constitutional or legal discretion, nothing can be more perfectly clear that their acts are only politically examinable."[923] However, if a "specific duty is assigned by law, and individual rights depend on the performance of that duty," then injured individuals have a right to resort to the courts.[924] According to the Chief Justice, "[t]he power of nominating to the senate, and the power of appointing the person nominated" were political questions, and fundamentally unreviewable.[925] By contrast, "if, for example, Mr. Marbury had taken the oaths of a magistrate, and proceeded to act as one; in consequence of which a suit had been instituted against him, in which his defense had depended on his being a magistrate, the validity of his appointment must have been determined by judicial authority."[926] Ultimately, the Court concluded that the question of whether to deliver Marbury's commission was not a political one, as Marbury had a legal right in the appointment.[927]

Although the Court in Marbury opined that it could not decide "[q]uestions[ ] in their nature political," that case did not articulate the political question doctrine as the concept is understood today--a rule that deprives the federal courts of jurisdiction to hear certain cases, including cases involving claims of constitutional rights.[928] Rather, Marbury indicated only that some decisions are inherently discretionary and are therefore immune from judicial scrutiny because there is no enforceable legal right at stake.

In the years following Marbury, the Court invoked the political question doctrine when deferring to the factual or policy determinations of the other branches in certain categories of cases.[929] For example, the Court held in the 1827 case Martin v. Mott,[930] that the legality of the President's decision to call out the militia in response to a supposed national emergency was beyond judicial scrutiny.[931] Similarly, in Williams v. Suffolk Insurance Co.,[932] an 1839 case raising the question of who ruled the Falkland Islands, the Court concluded that the Executive had the final word on questions of foreign sovereignty.[933] The Court also concluded that this deference in the realm of foreign affairs applied to the President's authority to enter into treaties.[934] In several cases from the nineteenth and early twentieth centuries, the Court also expressed a willingness to defer to Congress with respect to certain legal questions. For example, the Court concluded that the Judiciary was required to defer absolutely to congressional recognition of Indian tribes,[935] as well as congressional determinations of when wars begin and when they conclude.[936]

Luther v. Borden and Guarantee Clause[edit | edit source]

In 1849, in the case Luther v. Borden,[937] the Court expanded the political question doctrine and took another step toward the modern judicial approach to political questions. Luther arose out of a rebellion against the government of Rhode Island due to the state constitution, which significantly limited the right to vote.[938] Rhode Island citizens who had become dissatisfied with the existing regime held a constitutional convention, called elections, and declared the winners the valid government of Rhode Island.[939] When the existing "charter government" opposed these efforts and declared the conduct illegal, the newly elected governor of the rebel government, Thomas Dorr, gathered an armed force to assert the legitimacy of his government and its constitution.[940] In response, the charter government called the militia and declared martial law.[941] In the course of events, charter government agents broke into plaintiff Luther's house in order to arrest him for his support of Dorr.[942] Luther then sued for trespass.[943] The question of the legitimacy of the home break-in necessarily gave rise to the question of which government--the charter government or the rebel government--was the legitimate government of the state at the time of the break-in.

Luther alleged that the charter government that authorized the break-in was unconstitutional, in part because the voting restrictions in the Rhode Island constitution violated the U.S. Constitution's Guarantee Clause,[944] which states that "[t]he United States shall guarantee to every State in this Union a Republican Form of Government."[945] The Supreme Court refused to reach the question, instead concluding that the question of which government was lawful, and whether a government was a "republican" one, was a political question for Congress to decide and entirely outside the purview of the Judiciary.[946] In an opinion by Chief Justice Roger Taney, the Court held that courts were not institutionally competent to judge republicanism or governmental legitimacy because judicial standards were lacking.[947] Further, an attempt to judge whether a government was legitimate could undermine other branches and ultimately cast all the acts of the questioned government into doubt: as the Court explained, "[i]f the judicial power extends so far, the guarantee contained in the Constitution of the United States is a guarantee of anarchy, not of order."[948] The Court concluded that while a court should "always be ready to meet any question confided to it by the Constitution, it is equally its duty not to pass beyond its appropriate sphere of action."[949] In the years following Luther to the present, the Court has routinely held that cases involving the Guarantee Clause present nonjusticiable political questions.[950]

From Coleman v. Miller to Baker v. Carr[edit | edit source]

The Supreme Court also applied the political question doctrine in the 1939 case Coleman v. Miller.[951] In Coleman, the Court addressed the Kansas legislature's recent approval of the proposed Child Labor Amendment to the Constitution, which had been submitted to the states for ratification thirteen years prior.[952] Members of the Kansas legislature who had voted against the amendment petitioned for a writ of mandamus, seeking to revoke the approval.[953] They raised certain procedural challenges to the ratification and argued that the passage of time had rendered Kansas's approval of the amendment invalid.[954] The opinion of the Court, authored by Chief Justice Charles Evans Hughes, affirmed an opinion from the Supreme Court of Kansas denying the plaintiffs' petition.[955] Chief Justice Hughes's opinion explained that the "efficacy of ratifications by state legislature . . . should be regarded as a political question pertaining to the political departments."[956] The Court further clarified, citing to Luther, that it was a question solely for Congress, and not for the courts, whether an amendment had been adopted within a "reasonable time."[957]

It was against this background that the Court decided Colegrove v. Green,[958] in 1946. By that time, movement of populations from rural to urban areas had led to severe "malapportionment" in state legislatures.[959] Throughout the country, state legislative districts were drawn such that voters in rural areas had disproportionate power compared to their urban counterparts. State governments, made up of the representatives of those rural voters, were unwilling to fix this problem.[960] As a result, voters in underrepresented districts turned to the courts and the Constitution for a remedy. In Colegrove, a seven-member Court was presented with a constitutional challenge to an Illinois districting arrangement where plaintiffs were members of districts with much larger populations than other districts.[961] The challenge was based, in part, on the Guarantee Clause, as well as on the Fourteenth Amendment. A plurality[962] of three Justices joined an opinion by Justice Felix Frankfurter, concluding that the Court lacked jurisdiction in light of the "peculiarly political nature" of the case.[963] The plurality noted that under Article I, Section 4 of the Constitution, "The Times, Places and Manner of holding Elections for . . . Representative, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations."[964] Citing that provision, the plurality concluded that the authority to regulate state districting rested "exclusively" with Congress, and courts had no authority to "enter this political thicket."[965] The Colegrove plurality's view of the political question doctrine, as the Supreme Court later recognized, "left pervasive malapportionment unchecked."[966]

Sixteen years later, the Court confronted malapportionment again in Baker v. Carr.[967] Rejecting Colegrove, the Baker Court set forth the modern rule on political questions and justiciability.[968] In Baker, the Court addressed an equal protection challenge to malapportioned districts in the State of Tennessee[969] and concluded that, notwithstanding the political question doctrine, the plaintiffs' challenge to the state legislative map could proceed.[970] The Court in Baker identified the six criteria for "political question" cases listed above, reviewed areas where the Court had previously applied the political question doctrine, and concluded that past challenges brought under the Guarantee Clause had failed largely due to a lack of "judicially manageable standards."[971] By contrast, the Court reasoned, "[j]udicial standards under the Equal Protection Clause are well developed and familiar."[972] Shortly after Baker, the Supreme Court found the "judicially manageable standard" it was looking for, and articulated the so-called "one-person-one-vote" rule to overturn malapportioned districts.[973] Since Baker, courts have consistently determined that challenges to state legislative apportionment are justiciable.[974]

Modern Political Question Doctrine[edit | edit source]

The Baker criteria are quoted in virtually every case involving the political question doctrine. However, since Baker, the Court has applied the doctrine on relatively few occasions and has taken a fairly narrow view of its reach. As a result, it remains the case that the "political question doctrine can only be understood by examining the specific areas where the Supreme Court has invoked it."[975] Since Baker, those areas include cases involving some aspects of foreign policy, congressional internal regulation, impeachment, and partisan gerrymandering.[976]

Foreign Affairs as a Political Question[edit | edit source]

One area where the political question doctrine has significant importance is in foreign affairs. In 1918, the Court wrote that "[t]he conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative'--the political'--departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision."[977] However, despite that sweeping statement, as the Court recognized in Baker, not "every case or controversy which touches foreign relations lies beyond judicial cognizance;" rather, the Court analyzes each question on a case-by-case basis.[978] For example, many pre-Baker cases concluded that the Judiciary was bound to defer to the political department on certain questions involving the validity of treaties[979] or the recognition of foreign governments.[980] The Baker Court characterized those cases as ones in which "resolution of such issues frequently turn on standards that defy judicial application, . . . involve the exercise of a discretion demonstrably committed to the executive or legislature . . . [or] uniquely demand single-voiced statement of the Government's views."[981]

The first major post-Baker case to consider these principles was the 1973 case Gilligan v. Morgan.[982] In Gilligan, the Supreme Court determined that the political question doctrine was one reason to bar a suit for broad equitable relief against the Governor of Ohio that alleged that the training of the Ohio National Guard was defective, leading to the violence that occurred at Kent State University three years earlier.[983] The plaintiffs sought a "judicial evaluation of the appropriateness of the 'training, weaponry and orders' of the Ohio National Guard" and "continuing judicial surveillance" over the Guard to ensure compliance with any court-approved requirements.[984] Although the case did not involve foreign policy, it raised related considerations. Recognizing that the case involved "[t]he complex, subtle, and professional decisions as to the composition, training, equipping and control of a military force,"[985] the Court gave two reasons why the political question doctrine applied. First, Article I, Section 8 of the Constitution gives the authority for "organizing, arming, and disciplining the Militia" to Congress.[986] Second, in concert with the explicit textual commitment of military supervision to a branch outside the Judiciary, the Court recognized that the Judicial Branch was uniquely poorly suited to supervise this activity: "[I]t is difficult to conceive of an area of governmental activity in which the courts have less competence."[987] Following what Baker called the "impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion,"[988] the Court concluded that the case involved a political question.

The Court next considered whether it could hear a case involving a foreign policy question in 1979, in Goldwater v. Carter.[989] Goldwater involved the question of whether courts could entertain a lawsuit by Members of Congress over the President's unilateral termination of a joint defense treaty with Taiwan. The plaintiff Members argued that this unilateral action deprived them of their constitutional role with respect to a change in the supreme law of the land.[990] The Court voted to dismiss the case without hearing oral argument. Although six Justices voted to dismiss for want of jurisdiction, no opinion received five votes. Justice William Rehnquist, writing for a plurality of four Justices, argued that the question presented was nonjusticiable "because it involve[d] the authority of the President in the conduct of our country's foreign relations and the extent to which the Senate or the Congress is authorized to negate the action of the President."[991] The plurality made three main points in support of the lack of justiciability. First, the question involved separation of powers between two branches, each with resources "available to protect and assert its interests."[992] Second, the question involved foreign affairs. Finally, the Constitution was silent on the question presented, providing no standards to evaluate the question of the role of Congress in the termination of treaties.[993] The fifth vote was provided by Justice Lewis Powell, who agreed that the complaint should be dismissed, but for the lack of a ripe dispute, rather than on political question grounds.[994] Justice Thurgood Marshall also concurred in the dismissal, but provided no reasoning to support his decision.[995]

In other cases, however, the Supreme Court has explicitly rejected the application of the political question doctrine, notwithstanding a foreign affairs or foreign treaty dimension to the case. For example, in Japan Whaling Ass'n v. American Cetacean Society,[996] the Court found that the political question doctrine did not prevent federal courts from adjudicating a question involving the interpretation of the International Convention for the Regulation of Whaling.[997] Citing Baker, the Court noted that not every matter that touches foreign relations or foreign treaties was nonjusticiable; rather, the question was whether the case "revolve[d] around policy choices and value determinations constitutionally committed for resolution" to the other branches.[998] In Japan Whaling, the question presented was whether the Secretary of Commerce should have certified Japan as "diminishing the effectiveness" of the International Whaling Commission's quotas under statutes that purportedly required the Secretary to do so.[999] According to the Court, this question involved "applying no more than the traditional rules of statutory construction" in interpreting the Convention and the statutes at issue, and as such, did not present a political question.[1000]

The Court again found it had authority to make limited constitutional determinations in the foreign policy context in Boumediene v. Bush.[1001] There, the Court considered whether it could entertain habeas petitions from prisoners designated as enemy combatants and detained at the United States Naval Station at Guantanamo Bay, Cuba.[1002] The United States argued that, because Guantanamo Bay was not a part of the United States, the United States had no sovereignty over it, and as such, the writ of habeas could not extend to prisoners held there.[1003] The Court agreed that, because the question of who held sovereignty over the location was a political question, it would "not question the Government's position that Cuba, not the United States, maintains sovereignty, in the legal and technical sense of the term, over Guantanamo Bay."[1004] However, the Court went on to hold that nothing barred it from considering the "practical sovereignty" or "objective degree of control" the United States had over Guantanamo Bay.[1005] Previous cases designating sovereignty as a political question, the Court asserted, had referred to sovereignty in the "narrow, legal sense of the term," rather than the "colloquial sense."[1006] Further, as it was this colloquial sense that was relevant to the habeas writ, the Court reasoned that it had jurisdiction to evaluate the prisoners' claims.[1007]

The Court's embrace of a narrow conception of the political question doctrine continued in the most recent case to consider the political question limits to federal court jurisdiction in foreign affairs, Zivotofsky v. Clinton.[1008] In Zivotofsky, the Court concluded that the political question doctrine could not justify refusing to hear cases involving the constitutionality of a federal statute. There, the Court addressed a statute that provided that Americans born in Jerusalem may elect to have "Israel" listed as the place of birth on their passports.[1009] When the State Department refused to follow that law under a long-standing policy of not taking a position on the political status of Jerusalem, plaintiff Zivotofsky sued to enforce the statute.[1010] The Supreme Court concluded that the political question doctrine did not bar it from hearing the case; as the Court noted, the courts were "not being asked to supplant a foreign policy decision of the political branches with the courts' own unmoored determination of what United States policy toward Jerusalem should be."[1011] Instead, the court was being asked to engage in the "familiar" exercise of determining what the statute meant, and whether it was constitutional.[1012] The Court concluded that this exercise would require careful examination of the "textual, structural, and historical evidence" but that this was "what courts do," and the difficulty of the problem was no justification for avoiding it.[1013]

Congressional Governance as a Political Question[edit | edit source]

The Supreme Court has also applied the political question doctrine to cases involving the internal governance of the Congress, though recent decisions have construed the doctrine narrowly in this context. In the pre-Baker case Marshall Field & Co. v. Clark,[1014] plaintiffs challenging a tariff law contended that the law was invalid because a section of the bill passed by Congress was omitted from the final version of the law signed by the President.[1015] The Court concluded that it could not adjudicate this issue; because of the "respect due to a co-ordinate branch of the government," the Court had to take as "conclusive" the fact that the act was attested by the signatures of the presiding officers of the houses of Congress and approved by the President.[1016] Baker explained that Clark signified the need for "respect" to coequal branches and for "finality and certainty" about statutes.[1017] A few cases since Baker have added color to the concept of "respect" in this context.

For example, in Powell v. McCormack,[1018] an individual elected to the House of Representatives challenged a House resolution excluding him from his seat in Congress. Although the Member-elect met the age and citizenship requirements in Article I, Section 2, the House found that he had misrepresented travel expenses and made illegal salary payments to his wife.[1019] The defendants--Members and officers of the House--argued that the text of the Constitution, specifically Article I, Section 5, gave Congress exclusive authority to judge the qualifications of its own Members, so Congress could determine that the Member was unqualified.[1020] The Supreme Court held that the case could go forward and that the Member-elect was entitled to relief.[1021] On the question of justiciability, the Court explained that, despite the text the defendants cited from Article I, Section 5, there was no "textually demonstrable commitment" of this constitutional question to another branch.[1022] At most, the Constitution gave Congress the power to judge the "qualifications expressly set forth in the Constitution," not the power to set new qualifications.[1023] Nor did the Court conclude that "lack of the respect due co-ordinate branches" barred hearing the case, notwithstanding that it was interpreting the Constitution "in a manner at variance with the construction given the document by another branch." [1024] In the view of the Powell Court, constitutional conflicts with other branches were inevitable under the constitutional system and were no excuse for avoiding a case where there existed "judicially manageable standards" sufficient to judge the question.[1025]

Similar principles animated the Court's decision in INS v. Chadha.[1026] There, the Court considered the constitutionality of a provision of the Immigration and Nationality Act authorizing one House of Congress, by resolution, to invalidate a decision of the Executive Branch to suspend the deportation of an alien.[1027] The United States argued that Chadha presented a nonjusticiable political question, because Article I granted Congress the power to "establish a uniform Rule of Naturalization," providing it with unreviewable authority over the regulation of aliens.[1028] As in Powell, the Court rejected the application of the political question doctrine.[1029] The Court, in an opinion by Chief Justice Warren Burger, observed that what was at issue was not Congress's plenary authority over aliens, but rather whether it had chosen "a constitutionally permissible means of implementing that power."[1030] Because that latter question was squarely within the Judiciary's purview, the political question doctrine did not bar consideration of the case, regardless of the fact that judicial review limited Congress's authority as a practical matter.[1031]

Respect for the coordinate branches also did not prevent the Court from reaching the merits of the dispute in United States v. Munoz-Flores,[1032] which concerned whether a federal statute violated the Origination Clause of the Constitution, a provision that requires revenue-raising legislation to originate in the House of Representatives.[1033] In that case, Munoz-Flores was ordered to pay a special assessment under the Victims of Crime Act of 1984 and challenged the statute as unconstitutional because the bill was "for raising revenue" and did not originate in the House of Representatives.[1034] The Government objected that hearing the case expressed a "lack of respect" for the House: in the Government's view, the House made an unreviewable determination that the Act was not for the purpose of raising revenue when it passed the legislation.[1035] The Court rejected that argument, holding that Munoz-Flores's challenge was no different than any other constitutional challenge to a law involving separation of powers, and judicial review did not evidence a "lack of respect."[1036]

Impeachment and Political Question Doctrine[edit | edit source]

In 1993, the Court applied the political question doctrine to a judicial challenge to impeachment proceedings. In Nixon v. United States, a former federal judge challenged his removal by the Senate.[1037] He argued that the Senate proceedings used to convict him, which allowed a committee of Senators, rather than the whole Senate, to hear evidence against him after he was impeached by the House, violated the constitutional requirement that the Senate "try all Impeachments."[1038] In an opinion by Chief Justice William Rehnquist, the Court held that Nixon presented a nonjusticiable political question.[1039] A few primary considerations motivated the Court's conclusion. First, the Court noted that the text of the Constitution gives the Senate "sole" authority to try impeachments, which, according to the Court, amounted to a sufficient "textual commitment" of the question as to what "try" meant to a coordinate department.[1040] Second, the Court noted that the existence of a firm textual commitment was strengthened by a lack of "judicially manageable standards" in the vagueness of the word "try"; the Court contrasted that vague term with the concrete requirement that convictions require a two-thirds vote, concluding that the Senate was intended to have discretion over the precise procedures for impeachments.[1041] The Court distinguished the alleged "textual commitment" that was insufficient in Powell v. McCormack, maintaining that the textual commitment to the Senate of defining "try" did not undermine any other provision to the Constitution, such as the enumerated qualifications set forth in Article I, Section 5 that were at stake in Powell.[1042] Altogether, the Court concluded that without a judicially manageable standard to limit the Senate's authority, such as the specific textual rules on qualifications that were present in Powell, it could not overturn the Senate's judgment.[1043]

Political Process, Elections, and Gerrymandering[edit | edit source]

Finally, the Court in the modern era has applied the political question doctrine to some aspects of legislative regulation of elections,[1044] particularly in the area of partisan gerrymandering. Partisan gerrymandering is "the practice of dividing a geographic area into electoral districts, often of highly irregular shape, to give one political party an unfair advantage by diluting the opposition's voting strength."[1045] Government officials seeking to draw legislative districts to affect election results may adopt several different tactics. For instance, they may create districts containing different numbers of voters, effectively diluting the votes of individuals in more populous districts.[1046] In the alternative, legislators may create districts that contain equal numbers of voters, but where boundaries are drawn to manipulate the concentration of voters in each district based on characteristics such as voters' race or their political affiliation. The Supreme Court has held that Equal Protection challenges to race-based gerrymandering and one-person-one-vote claims based on unequal districts are justiciable.[1047] However, for decades the Court was unable to agree on an approach to challenges to partisan gerrymandering.

Unlike one-person-one-vote cases, a partisan gerrymandering case typically involves a voter in a district that is not malapportioned based on population, but rather has been drawn to disadvantage one political party. In the words of the Supreme Court, in a political gerrymander, voters affiliated with a disfavored party are either (1) "packed" into a few districts--in effect conceding those districts by large margins and "wasting" votes that could help the disfavored party compete in other areas--or (2) "cracked" into small groups and spread across multiple districts so that they cannot achieve a majority in any one district.[1048] In these circumstances, plaintiffs cannot argue that their votes are inherently worth less than that of any other voter; rather, they must argue that the creation of a district that disfavors a particular political party violates the Constitution for other reasons.[1049]

Evolving Doctrine on Partisan Gerrymandering[edit | edit source]

Supreme Court jurisprudence related to partisan gerrymandering has evolved over time. In fractured opinions in the 1986 case Davis v. Bandemer, six Justices of the Court concluded that political gerrymandering claims were justiciable.[1050] However, subsequent Supreme Court decisions cast doubt on Bandemer's holding. Justice Sandra Day O'Connor concurred in the judgment in Bandemer, but disputed that the issue presented was justiciable. She argued that "[t]he Equal Protection Clause does not supply judicially manageable standards for resolving purely political gerrymandering claims,"[1051] and that the case before the Court required "precisely the sort of 'initial policy determination of a kind clearly for nonjudicial discretion' that Baker v. Carr recognized as characteristic of political questions."[1052] Justice O'Connor concluded that "the legislative business of apportionment is fundamentally a political affair, and challenges to the manner in which an apportionment has been carried out . . . present a political question in the truest sense of the term."[1053]

In the years following Bandemer, multiple Justices of the Supreme Court concluded in non-binding opinions that challenges to partisan gerrymandering are nonjusticiable.[1054] Like Justice O'Connor in Bandemer, those Justices focused primarily on the second and third Baker factors: the "lack of judicially discoverable and manageable standards for resolving" these cases and "the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion."[1055] For instance, in 2004, in Vieth v. Jubelirer,[1056] a plurality of four Justices voted to overturn Bandemer and concluded that political gerrymandering claims were not justiciable due to the lack of such standards.[1057] Justice Anthony Kennedy, concurring in the judgment, wrote separately to express his view that, while no standards existed at the time, they might "emerge in the future."[1058] Thus, five Justices concluded that the specific political gerrymandering claims at issue in Vieth were nonjusticiable, but a majority of the Court left open the possibility of exercising jurisdiction over some future partisan gerrymandering claims. In other cases, the Court divided on or otherwise declined to reach the merits of cases involving partisan gerrymandering.[1059]

Nonjusticiability of Partisan Gerrymandering Claims[edit | edit source]

A majority of the Court addressed the justiciability of partisan gerrymandering claims in the 2019 case Rucho v. Common Cause. In that case, voters in North Carolina and Maryland challenged the partisan gerrymandering of their districts under the First Amendment, the Equal Protection Clause, the Elections Clause, and Article I, Section 2 of the Constitution.[1060] The Supreme Court, in a 5-4 decision, held that partisan gerrymandering claims are not justiciable. Chief Justice John Roberts's majority opinion described districting as an inherently political process, which the Constitution entrusts to state legislatures and Congress.[1061] The Court further explained that the Constitution imposes no absolute right to proportionate political representation.[1062] Absent a right to strict proportional representation, the Court opined, courts deciding partisan gerrymandering cases would inevitably need to "make their own political judgment about how much representation particular political parties deserve--based on the votes of their supporters--and to rearrange the challenged districts to achieve that end."[1063] Thus, unlike claims alleging racial gerrymandering (which is always unconstitutional) or malapportionment (which is "relatively easy to administer as a matter of math"), the Rucho Court recognized that the inherently political nature of redistricting would require courts adjudicating partisan gerrymandering claims to adjudicate when partisanship has gone "too far" in influencing the redistricting process.[1064]

Quoting Justice Anthony Kennedy's concurrence in Vieth, the Court stated that any appropriate standard for resolving partisan gerrymandering claims "must be grounded in a 'limited and precise rationale' and be 'clear, manageable, and politically neutral.'"[1065] However, after looking to the text of the Constitution and to various tests proposed by the parties, the Rucho Court concluded that it could identify no "limited and precise standard that is judicially discernable and manageable" for evaluating when partisan activity goes too far.[1066] Explaining that "federal courts are not equipped to apportion political power as a matter of fairness,"[1067] the Court emphasized that, by intervening in disputes over partisan redistricting, federal courts would "inject [themselves] into the most heated partisan issues,"[1068] and "would risk assuming political, not legal, responsibility for a process that often produces ill will and distrust."[1069] The Court thus concluded that "partisan gerrymandering claims present political questions beyond the reach of the federal courts" because "[f]ederal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions."[1070] While acknowledging that "[e]xcessive partisanship in districting leads to results that reasonably seem unjust," the Rucho majority rejected the notion that "this Court can address the problem of partisan gerrymandering because it must."[1071] Rather, the Court asserted, state courts, state legislatures, and Congress all have authority to address partisan gerrymandering.[1072]

Constitutional Avoidance Doctrine[edit | edit source]

Overview of Constitutional Avoidance Doctrine[edit | edit source]

The Constitutional Avoidance Doctrine is a set of rules the Supreme Court has developed over time that guide a federal court's disposition of cases that raise constitutional questions. Summarized by Justice Louis Brandeis in his concurring opinion in Ashwander v. Tennessee Valley Authority, the Constitutional Avoidance Doctrine consists of seven rules generally known as: (1) the Rule Against Feigned or Collusive Lawsuits; (2) Ripeness; (3) Judicial Minimalism; (4) the Last Resort Rule; (5) Standing and Mootness; (6) Constitutional Estoppel; and (7) the Constitutional-Doubt Canon.[1073] Rules 1, 2, 5, and 6--the Rule Against Feigned or Collusive Lawsuits, Ripeness, Standing and Mootness, and Constitutional Estoppel--inform whether a federal court should hear a case that has met the minimum Article III case-or-controversy requirements for a federal court to have jurisdiction.[1074] As such, these four rules provide a further threshold that a case must clear for a federal court to hear it. By comparison, Rules 3, 4, and 7--Judicial Minimalism, the Last Resort Rule, and the Constitutional-Doubt Canon--address how a federal court should approach a constitutional question in a case before it.

The fundamental principle of the Constitutional Avoidance Doctrine is a federal court should interpret the Constitution only when it is a "strict necessity."[1075] The reason for this is threefold: first, because the Constitution is the supreme law of the land, its interpretation has broad implications; second, an unelected Supreme Court exercising judicial review to countermand actions by an elected Congress or Executive or state governments is in tension with principles of democracy; and third, because the Supreme Court's authority depends, as a practical matter, on the Executive enforcing and the people accepting its rulings the Court must be careful not to squander public goodwill by issuing ill-considered opinions.

The Constitutional Avoidance Doctrine provides federal courts procedural and substantive guidance on how to address cases involving constitutional questions. Rules 1, 2, and 5--the Rule Against Feigned or Collusive Lawsuits,[1076] Ripeness,[1077] and Standing[1078] and Mootness[1079]--are procedural in nature and ensure that the Court only hears cases that are concrete, rather than speculative, and argued by parties genuinely and personally vested in the outcome such that they are the best advocates for their respective positions. Constitutional Estoppel bars a party from challenging a law's constitutionality when he or she is enjoying the benefits of such law.[1080]

Rules 3, 4, and 7--Judicial Minimalism, the Last Resort Rule, and the Constitutional-Doubt Canon--inform how federal courts should resolve constitutional questions in cases before them. Rule 3, Judicial Minimalism, instructs federal courts to answer constitutional questions narrowly and with reference to the specific circumstances at hand. Rule 4, the Last Resort Rule, advises that Justices should resolve cases on non-constitutional grounds, if possible, before resolving them on constitutional grounds. And Rule 7, the Constitutional-Doubt Canon, provides that courts should construe a statute to be constitutional if such a construction is plausible.

Judiciary in the Constitutional Framework[edit | edit source]

The Supreme Court developed the Constitutional Avoidance Doctrine to minimize concerns about unelected federal judges setting aside Congress's laws on constitutional grounds. Underlying the Constitution is the principle that government legitimacy depends on the consent of the people. Noting that "Governments are instituted among Men, deriving their just powers from the consent of the governed," the Declaration of Independence justified the colonies' separation from the British Crown, because it had, through "repeated injuries and usurpations," deprived the colonists of government that represented and protected their interests.[1081]

Contemplating that popular sovereignty would guard against tyranny, the Framers provided for the people to elect the House of Representatives directly and the Senate and the Executive indirectly. Popular sovereignty, which the Framers viewed as necessary for a free and republican government, meant government by the majority.[1082] The Framers, however, feared that conflicting opinions and rivalries among factions of citizens might cause political instability or, if a faction gained a political majority, harm "the public good and the rights of other citizens."[1083] To avoid this, the Framers crafted a Constitution that disbursed the limited powers of the new American government across three departments: the Legislative, the Executive, and the Judiciary, each with a unique role in securing for the Republic "a steady, upright, and impartial administration of laws."[1084]

The Framers were also concerned that different branches might attempt to expand their powers beyond those granted by the Constitution and upset the balance the Framers designed to "secure the blessings of liberty."[1085] Consequently, the Framers provided each branch some ability to offset the power of the other two.[1086] Describing the division of federal power among the three branches in the Federalist No. 78, Alexander Hamilton identified the Judicial Branch as posing the least danger to the constitutional framework. He stated:

Whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the Judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The executive not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The Judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.Id.

Although Hamilton viewed the Judicial Branch as the weakest of the branches, the Framers saw it as critical to preserving the rights of individuals and ensuring that the Legislative and Executive Branches did not exceed their constitutionally-granted powers.[1087] Hamilton recognized the Constitution as superior to acts passed by Congress because the Constitution, by virtue of its ratification process,[1088] manifests the intentions of the people, whereas acts of Congress merely manifest the intention of the people's agents.[1089] He wrote: "[W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former."[1090]

Hamilton further described the Judiciary as the "bulwarks of a limited Constitution against legislative encroachments," stating: "[E]very act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void."[1091] Hamilton also viewed the Judiciary as protecting minority interests from potential oppression by the majority, stating:

This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.Id.

Whether the Framers intended to authorize the Judiciary to set aside laws passed by the elected legislature, as Hamilton envisioned, has been the subject of debate from the Nation's earliest days. The Constitution does not expressly provide for judicial review. And while it is clear from the Federalist Papers that many Framers contemplated judicial review as including the power to invalidate acts that violated the Constitution, it is less clear whether delegates to the state ratification conventions agreed as to what judicial review might entail.[1092]

Chief Justice John Marshall's opinion in his seminal 1803 decision, Marbury v. Madison firmly entrenched judicial review as a tenet of the new Republic.[1093] Chief Justice Marshall saw judicial review as implicit in the Constitution because, among other reasons, written constitutions are the paramount law; legislative acts contrary to the Constitution are thereby void; and the Constitution provides for the judicial department to interpret the law. In Marbury, Chief Justice Marshall wrote:

That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis, on which the whole American fabric has been erected. . . . This original and supreme will organizes the government, and assigns, to different departments, their respective powers. . . . Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution is void. . . . It is emphatically the province and duty of the judicial department to say what the law is. . . . [I]n declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle . . . that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.Marbury, 5 U.S. 137 at 176-80 (emphasis retained). See also Trop v. Dulles, 356 U.S. 86, 103 (1958) ("The Judiciary has the duty of implementing the constitutional safeguards that protect individual rights.").

Lending support to the notion that the Constitution contemplates judicial review, the Framers distinguished the Judicial Branch from the Legislative and Executive Branches by freeing it from most forms of political accountability.[1094] Unlike the Legislative and Executive Branches, the Federal Judiciary is not subject to elections or term limits. Instead, the President nominates and the Senate approves Justices to the Supreme Court.[1095] The Constitution further secures the Judiciary's independence from public pressure and Legislative and Executive Branch influence by providing Justices life tenure during Good Behavior[1096] and preventing Congress from reducing the Justices' compensation.[1097]

Congress, however, has some checks on the Judiciary. Justices can be impeached,[1098] and the Exceptions Clause in Article III grants Congress the power to make "exceptions" and "regulations" to the Supreme Court's appellate jurisdiction.[1099] In addition, Congress can dilute the influence of individual Justices by increasing the number of Justices on the Court.[1100] Finally, the Judiciary's reliance on the other branches to give effect to its rulings provides a further check: If the Judicial Branch's rulings are not enforced, the Judiciary becomes, in practical effect, a nullity, incapable of meaningfully performing its duty of preserving the Constitution.[1101] Consequently, while the Judicial Branch is largely insulated from political pressure, it is not completely insulated.

Counter-Majoritarian Difficulty[edit | edit source]

The Constitutional Avoidance Doctrine posits that unelected jurists should exercise caution in striking down laws on constitutional grounds. While Congress can amend statutes when it disagrees with the Supreme Court's statutory interpretations, Congress has no recourse when it disagrees with the Court's constitutional interpretations other than to amend the Constitution.[1102] Consequently, judicial review may frustrate the public "by foreclosing all democratic outlet for the deep passions [an] issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, [and] by continuing the imposition of a rigid national rule instead of allowing for regional differences."[1103] The problem posed by an unelected Supreme Court holding Congress's laws to be unconstitutional and void has been described as the "counter-majoritarian difficulty."[1104]

Because the Court relies on public goodwill to ensure its rulings have practical effect, the Court's opinions must be principled so that the public respects the Court's judgments, even when it disagrees with its conclusions. In short, the Supreme Court's authority depends on political majorities being willing to abide by rulings counter to their interests. As the Court observed in Planned Parenthood v. Casey: "the Court's power lies . . . in its legitimacy, a product of substance and perception that shows itself in the people's acceptance of the Judiciary as fit to determine what the Nation's law means and to declare what it demands."[1105] Consequently, the Supreme Court must ensure the "peaceful coexistence of the counter-majoritarian implications of judicial review and the democratic principles upon which our Federal Government in the final analysis rests."[1106] In part to minimize this perceived counter-majoritarian difficulty, the Court developed the Constitutional Avoidance Doctrine to instruct federal courts on how to approach constitutional questions.

Ashwander and Rules of Constitutional Avoidance[edit | edit source]

From early on, the Supreme Court viewed setting aside Congress's laws on constitutional grounds as problematic and has avoided doing so "unless such adjudication is unavoidable."[1107] For example, in the 1798 Calder v. Bull decision, Justice James Iredell stated: "If any act of Congress, or of the Legislature of a state, violates those constitutional provisions, it is unquestionably void; though, I admit, that as the authority to declare it void is of a delicate and awful nature, the court will never resort to that authority, but in a clear and urgent case."[1108] Similarly, in the 1819 Trustees of Dartmouth College v. Woodward decision, Chief Justice John Marshall wrote: "On more than one occasion, this court has expressed the cautious circumspection with which it approaches the consideration of [whether a law is constitutional]; and has declared, that in no doubtful case, would it pronounce a legislative act to be contrary to the constitution."[1109] And, in the 1827 Ogden v. Saunders decision, Justice Bushrod Washington noted that judicial deference to the Legislative Branch means that laws should be presumed constitutional unless "proved beyond all reasonable doubt."[1110] Later in the nineteenth century, Chief Justice Morrison Waite stated in the Union Pacific Railroad v. United States (The Sinking Fund Cases): "Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt. One branch of the government cannot encroach on the domain of another without danger."[1111]

Over five decades later, Justice Louis Brandeis, in his influential concurrence in Ashwander v. Tennessee Valley Authority, described the Constitutional Avoidance Doctrine as "a series of rules under which [the Court] has avoided passing upon a large part of all the constitutional questions pressed upon it for decision."[1112] The Ashwander Rules[1113] include:

Judicial Minimalism[edit | edit source]

Providing substantive guidance on how courts should address constitutional questions, judicial minimalism instructs that courts should not issue rulings "[in] broader [terms] than [are] required by the precise facts to which [the ruling] is to be applied"[1114] or "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied."[1115] Instead, courts should limit their rulings to the facts of the instant case and avoid establishing broad precedents. Courts can use judicial minimalism to forestall ruling on politically sensitive issues, thereby allowing the elected legislature to craft a political resolution of the question.[1116] In addition, by drafting opinions narrowly, Justices may find it easier to build consensus in the Court by reducing the scope of issues to which they must agree.

When employing judicial minimalism, courts frequently pass over questions of constitutional import to focus more narrowly on issues specific to the case. For instance, in Liverpool, N.Y. & Philadelphia Steamship Co. v. Commissioners on Emigration,[1117] the Court was asked whether Congress could (1) ratify state laws that were previously struck down as unconstitutional state regulation of foreign commerce, or (2) bar claims for damages that the unconstitutional state laws caused.[1118] Noting that the case presented questions as to "the constitutionality of the act of congress" that were "of very grave importance,"[1119] the Court held it was "constrained to reverse the judgment, without deciding any of them."[1120] In making this decision, the Court observed it was bound by two rules: "one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other, never to formulate a rule of constitutional law broader than is required by the precise facts to which it is applied."[1121] Focusing on the case's record, the Court found it incomplete and remanded the case for a new trial to determine the missing facts.[1122]

Later, in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the Court passed over complex constitutional issues to resolve the case on grounds specific to its facts. In Masterpiece Cakeshop, the question before the Supreme Court was whether a Colorado civil rights statute, which protected gay persons from being discriminated against when they were trying to procure goods and services, violated the First Amendment by requiring a baker to create a wedding cake for a same-sex couple. The baker viewed creating the cake to be an expressive artistic statement, and the civil rights statute as compelling him to use his artistry to express a message endorsing same-sex marriage despite his "sincere religious beliefs and convictions" to the contrary.[1123] Recognizing the conundrum presented by the case, the Court commented that while "religious and philosophical objections [to same-sex marriage] are protected, it is a general rule that such objections do not allow business owners . . . to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law."[1124] The Court, however, also took note of the baker's view that requiring him to create the cake amounted to forcing him to make an artistic expressive statement contrary to his religious beliefs.

In a decision written by Justice Anthony Kennedy, the Court adopted a judicial minimalist approach. Instead of addressing the constitutional questions raised by the interplay of the Colorado civil rights statute and the baker's First Amendment free exercise and free speech rights, the Court found that, during hearings before the Colorado Civil Rights Commission, several commissioners denigrated the baker's religious beliefs, thereby violating his free exercise rights. Finding that "the Commission's hostility was inconsistent with the First Amendment's guarantee that our laws be applied in a manner that is neutral toward religion," the Court ruled in favor of the baker.[1125] The Court emphasized, however, the limited application of Masterpiece Cakeshop to other cases, stating:

The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.Id. The Court further emphasized the ruling's narrowness, stating: "Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the Commissioners' actions here violated the Free Exercise Clause; and its order must be set aside." Id. at 3. See also Scheutte v. Coal. to Defend Affirmative Action, 572 U.S 291, 314 (2014) (ruling on Michigan referendum, rather than broader racial issues); Harris v. Quinn, 573 U.S. 616, 656 (2014) (refusing to extend Abood v. Detroit Board of Education, 431 U.S. 209 (1977)).

A variation on the judicial minimalist approach is the practice of "assuming but not deciding" a constitutional issue. In these decisions, the Court foregoes resolving an underlying constitutional question, in favor of treating the constitutional question as resolved for the limited purpose of deciding the instant case. Such an approach enables the Court to resolve the dispute at issue without determining the underlying constitutional question. For instance, in National Aeronautics & Space Administration (NASA) v. Nelson, the Court chose to "assume, without deciding," that the Constitution protects informational privacy.[1126] Based on this assumption, the Court found that NASA's background checks did not violate the "assumed" constitutionally protected right to informational privacy. While "assuming but not deciding" allows the Court to resolve time-sensitive disputes while deferring resolution of thorny or politically sensitive constitutional questions, some have characterized the approach as disingenuous. Arguing that the NASA decision "makes no sense," Justice Antonin Scalia, while concurring in the judgment, wrote: "The Court decides that the Government did not violate the right to informational privacy without deciding whether there is a right to informational privacy . . . ."[1127]

In summary, judicial minimalism enables the Court to develop binding precedent on a legal issue slowly, thereby providing opportunity for the government's Legislative and Executive Branches to resolve contested constitutional issues through the political process. Judicial minimalism further alleviates the counter-majoritarian difficulty because the resulting decisions are unlikely to have far-reaching precedential impacts, while still resolving the case before the court. Judicial minimalism, however, may lead to decisions that provide limited guidance to future courts, to the Legislative and Executive Branches, and to the public as to what the Constitution permits.

Last Resort Rule[edit | edit source]

Under the Last Resort Rule, a court should "not pass upon a constitutional question . . . if there is also present some other ground upon which the case may be disposed."[1128] Accordingly, if a court can resolve a case on both constitutional and non-constitutional grounds, the court should do so on non-constitutional grounds.[1129] By doing so, the court avoids creating constitutional precedent unnecessarily, while giving the political process time to resolve contentious constitutional issues. Because the Last Resort Rule informs the order in which the Court should address constitutional and non-constitutional questions in a case, it is sometimes described as a "rule of judicial procedure."[1130]

An example of the Court's use of the Last Resort Rule is its decision in Bond v. United States.[1131] In Bond, federal prosecutors charged Carol Bond with violating Section 229 of the Chemical Weapons Convention Implementation Act (CWCIA) when she caused "a minor thumb burn readily treated by rinsing with water" to her husband's lover by applying toxic chemicals to the paramour's car, mailbox, and door knob.[1132] Bond argued that Section 229 (1) "exceeded Congress's enumerated powers and invaded powers reserved to the States by the Tenth Amendment"[1133] and (2) did not apply to her because "her conduct, though reprehensible, was not at all 'warlike.'"[1134] Faced with resolving Bond on either statutory or constitutional grounds, the Court, relying on the Last Resort Rule, considered first whether it could resolve the case based on Bond's argument that Section 229 did not apply to her actions.[1135] After analyzing the CWCIA, the Court concluded that Congress did not intend for Section 229 to apply to Bond's circumstance.[1136]

Based on the Last Resort Rule, the Supreme Court has remanded cases involving constitutional questions to lower courts to see if the case can be resolved on statutory grounds. For example, in Escambia County v. McMillan, the Supreme Court remanded a case affirmed by the appellate court on constitutional grounds because the district court also found a statutory violation.[1137] The Supreme Court instructed the appellate court to determine if it could affirm the district court's decision based on the statutory rather than the constitutional ruling.[1138] In other cases, the Court has avoided ruling on a constitutional question by deciding a case based on statutory reasons not considered by the lower court.[1139] For instance, the Court resolved Siler v. Louisville & Nashville Railroad by ruling that the Railroad Commission violated a Kentucky statute--an issue the Kentucky state court had not considered.[1140] By reaching this conclusion, the Court avoided addressing Siler's constitutional questions.[1141]

Siler concerned questions of federal and state law. While the Supreme Court interpreted the Kentucky statute in Siler, the Court often remands cases involving constitutional and state law issues to state courts so they can first resolve state law questions. Consistent with this approach, the Supreme Court has dismissed state court appeals based on constitutional questions if state law can sustain the judgment.[1142] Besides avoiding constitutional questions, remanding state law questions to state courts has other advantages: First, the Court avoids using its resources to decide questions where its decisions would be advisory.[1143] Second, the Court acknowledges state expertise and autonomy to interpret state laws.[1144] Declining to rule on a constitutional question when a ruling on either of two state laws could resolve the case,[1145] the Court observed:

The doctrine that the Court will not "anticipate a question of constitutional law in advance of the necessity of deciding it" . . . is a well-settled doctrine of this Court which, because it carries a special weight in maintaining proper harmony in federal-state relations, must not yield to the claim of the relatively minor inconvenience of postponement of decision.Id. at 211-12 (citations omitted).

Third, the Court avoids having to rule on unfamiliar state law. In Spector Motor Service v. McLaughlin, the Court ruled that federal litigation should be held pending state court resolution of "intertwined" local law.[1146] Justice Felix Frankfurter stated:

[W]e have insisted that federal courts do not decide questions of constitutionality on the basis of preliminary guesses regarding local law. Avoidance of such guesswork, by holding the litigation in the federal courts until definite determinations on local law are made by the state courts, merely heeds this time-honored canon of constitutional adjudication.Id. See also Burford v. Sun Oil Co., 319 U.S. 315, 333 (1943); City of Chicago v. Fieldcrest Dairies, 316 U.S. 168, 173 (1942).

The Court has used the Last Resort Rule to avoid politically contentious issues. For example, in Railroad Commission of Texas v. Pullman Co., the Court directed the parties to litigate their state law questions in state court and ordered the lower federal court to hold the federal case in abeyance pending the state litigation. By doing this, the Court avoided ruling on the politically charged issue of whether the Railroad Commission of Texas violated the Constitution by requiring white Pullman conductors, and not black Pullman porters, to operate sleeping cars. Reasoning that "[s]uch constitutional adjudication plainly can be avoided if a definitive ruling on the state issue would terminate the controversy," Justice Frankfurter stated: "[The equal protection issue] touches a sensitive area of social policy upon which the federal courts ought not to enter unless no alternative to its adjudication is open."[1147]

Constitutional-Doubt Canon[edit | edit source]

Posited on the premise that Congress "legislates in the light of constitutional limitations,"[1148] the Constitutional-Doubt Canon provides that federal courts should construe statutes so that they do not violate the Constitution.[1149] Describing the Constitutional-Doubt Canon, Justice Louis Brandeis stated: "When the validity of an act . . . is drawn in question, and even if a serious doubt of constitutionality is raised . . . [the Court] will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided."[1150] Consequently, if a statute is susceptible to two plausible interpretations, one of which violates the Constitution, the Constitutional-Doubt Canon instructs courts to choose the interpretation consistent with the Constitution.[1151] If the statute is not susceptible to a plausible constitutional interpretation, the Constitutional-Doubt Canon is inapplicable.[1152] The Constitutional-Doubt Canon cannot be construed to make a statute broader[1153] or be applied to Executive actions.[1154]

The Constitutional-Doubt Canon provides a way for the Court to avoid ruling on constitutional questions that are contentious or where the Court's interpretation would meet with general, public disfavor. By choosing to interpret a statute to conform with constitutional requirements, the Court communicates to Congress, in effect, what the Court believes the Constitution requires. As Congress has the power to amend law, if Congress disagrees with how the Court has interpreted a statute, Congress can revise the statute. While this leaves open the possibility that the Court will have to revisit the constitutional question in the context of the revised statute, the Constitutional-Doubt Canon has allowed the issue to be publicly vetted further and possibly resolved through the political process. If Congress does not amend the statute, the Court's constitutionally compliant interpretation of the statute governs despite another interpretation having possibly been a more natural reading of the statute.

The Court has stressed that the Constitutional-Doubt Canon does not give courts leeway to interpret a statute in a manner that effectively rewrites the statute to conform to the Constitution.[1155] In United States v. Locke, the Court stated: "[w]e cannot press statutory construction 'to the point of disingenuous evasion' even to avoid a constitutional question."[1156] Instead, applying conventional tools of statutory interpretation, the Court must find the statute to be subject to two valid interpretations. In Jennings v. Rodriguez, the Court stated: "The canon of constitutional avoidance 'comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction.'"[1157]

The Constitutional-Doubt Canon has been criticized as incentivizing the Court to interpret statutes in ways that appear to defy the statute's express language in order to avoid resolving contentious constitutional questions.[1158] However, the Court may believe that a political, rather than judicial, resolution to certain issues would be preferable for the Nation. For instance, in United States v. Seeger[1159] and Welsh v. United States,[1160] the Court was confronted with whether the conscientious objector provisions of Section 6(j) of the Universal Military Training and Service Act violated the Constitution's Establishment and Free Exercise Clauses. Among other things, Section 6(j) specified "belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code" for conscientious-objector status.[1161]

Using the Constitutional-Doubt Canon, the Court avoided ruling on what the Establishment and Free Exercise Clauses consider "religion" in Seeger and Welsh, allowing more time for public consensus to form on the issue. In Seeger, the draft board denied conscientious-objector status to Daniel Seeger because he did not meet the Section 6(j) requirement of having beliefs based on a Supreme Being. Despite Section 6(j) expressly precluding beliefs based on "philosophical views" or a "personal moral code," the Court interpreted Section 6(j)'s "belief in a relation to a Supreme Being" requirement to cover Seeger's "sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption."[1162] By finding the draft board to have misread Section 6(j), the Court avoided addressing the implications of the case for the Establishment and Free Exercise Clauses, while finding Seeger entitled to conscientious-objector status. Hinting at how the Court might have resolved the case on constitutional grounds, the Court noted that "[t]his construction avoids imputing to Congress an intent to classify different religious beliefs, exempting some and excluding others, and is in accord with the well-established congressional policy of equal treatment for those whose opposition to service is grounded in their religious tenets."[1163]

The Supreme Court's Section 6(j) interpretation in Seeger, however, provided limited guidance to draft boards on how to distinguish persons with "essentially political, sociological, or philosophical views"[1164] who did not qualify for conscientious-objector status from those with "[a] sincere and meaningful belief . . . parallel to that filled by the God of those admittedly qualifying for exemption"[1165] who did. The result was that several years later the Court was confronted with a near replica of Seeger. In Welsh, Elliott Ashton Welsh II challenged the draft board's denial of conscientious objector status under Seeger.[1166] Welsh, however, characterized his beliefs as not religious.[1167] Revisiting Section 6(j), the Court construed it to cover individuals, like Welsh, "whose consciences, spurred by deeply held moral, ethical, or religious beliefs, would give them no rest or peace if they allowed themselves to become a part of an instrument of war"[1168] notwithstanding Section 6(j)'s express language that "essentially political, sociological, or philosophical views or a merely personal moral code"[1169] did not qualify for conscientious-objector status. In short, the Seeger and Welsh Courts essentially interpreted Section 6(j)'s definition of religious belief to encompass theistic and non-theistic worldviews depending on "whether the beliefs professed by a registrant are sincerely held and whether they are, in [the conscientious objector applicant's] own scheme of things, religious"[1170] despite Congress's express language in Section 6(j) excluding "political, sociological, or philosophical views, or a merely personal moral code."[1171]

One criticism of the Constitutional-Doubt Canon is that it can result in tenuous statutory interpretations that undermine the Court's credibility and defeat the purpose of judicial review to "declare all acts contrary to the manifest tenor of the Constitution void."[1172] For instance, in his concurring opinion in Welsh, Justice John Marshall Harlan II expressed dismay with the Court's use of statutory construction in Seeger and Welsh,[1173] stating: "[T]he liberties taken with the statute both in Seeger and today's decision cannot be justified in the name of the familiar doctrine of construing federal statutes in a manner that will avoid all possible constitutional infirmities in them."[1174] Justice Harlan observed that the natural reading of Section 6(j) and its legislative history clearly indicated Congress's intent that conscientious-objector status be limited to those whose beliefs were theistic. The result of the Court's interpretations, in Justice Harlan's view, deprived Section 6(j) of "all meaning in order to avert the collision between its plainly intended purpose and the commands of the Constitution."[1175] Nevertheless, the Constitutional-Doubt Canon provided a way for the Court to return the contentious issue to the political branches for further debate and consideration.

Federal Question Jurisdiction[edit | edit source]

Overview of Federal Question Jurisdiction[edit | edit source]

The Constitution authorizes the federal courts to exercise jurisdiction over all cases "arising under" the Constitution or the laws or treaties of the United States. The federal courts' power to hear such cases is often referred to as "arising under" jurisdiction or "federal question" jurisdiction.[1176] The Supreme Court has explained that a case arises under the Constitution or laws of the United States "whenever its correct decision depends on the construction of either."[1177]

Historical Background on Federal Question Jurisdiction[edit | edit source]

Near the beginning of the Constitutional Convention, the delegates expressed an intent to create a Federal Judiciary with jurisdiction to hear cases arising under federal statutory law.[1178] Federal jurisdiction over cases involving the Constitution and treaties was added to drafts of Article III later in the Convention.[1179] Even as the Framers planned to vest federal question jurisdiction in the federal courts, they generally accepted that state courts would play a significant role in interpreting and applying federal law and did not make the constitutional grant of jurisdiction over cases arising under federal law exclusive to the federal courts.[1180] On the other hand, the Framers entertained concerns about whether state courts would apply federal law correctly, uniformly, and without bias.[1181] To mitigate those concerns, the Constitution allowed for Supreme Court appellate review of state judicial decisions involving issues related to federal treaties, statutes, or constitutional law.[1182] The Constitution also granted Congress discretion to establish lower federal courts, which could consider questions arising under the Constitution or federal law or treaties in the first instance.[1183]

In the Federalist Papers, Alexander Hamilton explained that the grant of federal question jurisdiction in Article III was based on the "obvious consideration that there ought always to be a constitutional method of giving efficacy to constitutional provisions."[1184] Specifically, he argued, "restrictions on the authority of the state legislations" must rest upon either "a direct negative on the state laws, or an authority in the federal courts, to overrule such as might be in manifest contravention of the articles of union."[1185] Hamilton noted that the Framers had adopted the latter approach of authorizing enforcement by the federal courts, which he "presume[d] will be most agreeable to the states."[1186]

The Constitution vests federal judicial power in "one supreme Court" and any lower federal courts that Congress creates.[1187] The Constitutional provisions authorizing the establishment of lower federal courts and the grant of federal question jurisdiction to those courts are not self-executing, but instead had to be implemented (if at all) through federal legislation.[1188] In the Judiciary Act of 1789, Congress created lower federal courts but did not grant them general federal question jurisdiction.[1189] This meant that litigants could sue in state court to enforce rights under the Constitution or a federal law or treaty, then appeal to the U.S. Supreme Court if the state courts rejected a federal constitutional challenge to a state law or held invalid a federal law or treaty.[1190] In the late eighteenth century, Congress enacted statutes granting the lower federal courts jurisdiction over selected cases arising under federal law, such as suits relating to patents.[1191]

Broader statutory grants of federal question jurisdiction were enacted in the nineteenth century. Following the Civil War, Congress granted the federal courts jurisdiction over civil rights cases, seeking to protect newly created federal civil rights.[1192] The current statutory grant of federal jurisdiction over civil rights cases is codified at 28 U.S.C. § 1343, which authorizes the district courts to hear civil actions including suits to redress the deprivation "under color of any State law," of any "right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States," and suits "[t]o recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote."[1193] Plaintiffs frequently rely on Section 1343 to bring suits in federal court under 42 U.S.C. § 1983, challenging state and local governmental practices including racial discrimination, electoral malapportionment and suffrage restrictions, unconstitutional police practices, and state restrictions on access to welfare and other public assistance.[1194]

In 1875, Congress enacted legislation conferring general federal question jurisdiction on the lower federal courts.[1195] The 1875 statute included an amount in controversy requirement, creating federal court jurisdiction over federal question suits only if the plaintiff sought money damages of more than five hundred dollars. Since that time, Congress has expanded the availability of general federal question jurisdiction by repealing the amount in controversy requirement.[1196] Additional statutory provisions grant the federal courts subject matter jurisdiction to enforce federal law in specific areas.[1197]

Constitutional and Statutory Grants of Federal Question Jurisdiction[edit | edit source]

The federal courts' authority to hear federal question cases is rooted in both constitutional text and a number of implementing statutes.[1198] The Constitution authorizes the Federal Judiciary to hear "all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority."[1199] The Supreme Court held in the 1821 case Cohens v. Virginia that a case "arises under" the Constitution or laws of the United States "whenever its correct decision depends on the construction of either," and that cases arising under federal law include all cases that "grow out of the legislation of Congress, whether they constitute the right or privilege, or claim or protection, or defense of the party, in whole or in part, by whom they are asserted."[1200]

Congress also plays a role in conferring federal question jurisdiction. The Constitution vests federal judicial power in "one supreme Court" and any lower federal courts that Congress creates.[1201] When Congress creates lower federal courts, it generally also specifies (either then or in a separate statute) what portions of the federal judicial power those courts may exercise.[1202] In Osborn v. Bank of the United States, decided three years after Cohens, the Court explained that the "arising under" clause in Article III "enables the judicial department to receive jurisdiction to the full extent of the constitution, laws, and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting on it."[1203] Writing for the Court, Chief Justice John Marshall opined, "when a question to which the judicial power of the Union is extended by the constitution, forms an ingredient of the original cause, it is in the power of Congress to give the [lower federal courts] jurisdiction of that cause, although other questions of fact or of law may be involved in it."[1204] Thus, although the Constitution grants the Judiciary as a whole the power to adjudicate federal questions, it generally leaves to Congress the authority to confer that jurisdiction on specific federal courts.[1205]

Within that constitutional framework, the current general federal question statute, 28 U.S.C § 1331, grants the federal district courts "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."[1206] Additional statutes grant the federal courts jurisdiction over certain specific categories of cases arising under the Constitution and federal law.[1207] Although the language of Section 1331 is similar to the constitutional text authorizing the grant of federal question jurisdiction, the Supreme Court has held that the statutory grant of jurisdiction in Section 1331 is narrower than the full authority Congress might choose to confer consistent with the constitutional authorization.[1208] In a 2016 case, the Court explained that it

has long read the words "arising under" in Article III to extend quite broadly, "to all cases in which a federal question is 'an ingredient' of the action." . . . In the statutory context, however, we opted to give those same words a narrower scope "in the light of [§ 1331's] history[,] the demands of reason and coherence, and the dictates of sound judicial policy."Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning, 578 U.S. 374, 385 (2016) (quoting Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 807 (1986); Romero v. International Terminal Operating Co., 358 U.S. 354, 379 (1959)) (alterations in original).

Because cases that fall within the narrower statutory grant of federal question jurisdiction also fall within the broader constitutional grant, most court cases considering the scope of federal question jurisdiction focus on application of the relevant jurisdictional statute and do not reach constitutional questions.[1209]

In determining whether a case satisfies the general federal question statute, courts ask whether a federal question appears in the plaintiff's "well-pleaded complaint."[1210] This means that, as a statutory matter, the existence of a federal question depends on the actual claims that the plaintiff raises, and the existence of an actual or potential defense to liability based on federal law is not sufficient to establish federal question jurisdiction.[1211] This is an example of when statutory federal question jurisdiction is less than the constitutional maximum, which can include cases involving only a federal defense.[1212]

The Supreme Court has explained that most cases subject to arising under jurisdiction "are covered by Justice [Oliver Wendell] Holmes' statement that a 'suit arises under the law that creates the cause of action,'" meaning that "the vast majority" of federal question cases raise claims based directly on federal law.[1213] Less often, a case may arise under the laws of the United States "if a well-pleaded complaint establishe[s] that its right to relief under state law requires resolution of a substantial question of federal law in dispute between the parties."[1214] For instance, in Smith v. Kansas City Title & Trust Co., the Court held that federal question jurisdiction existed in a state law suit by a shareholder claiming that a corporation could not lawfully buy certain federal bonds because the issuance of the bonds was unconstitutional.[1215]

As a matter of both constitutional scope and statutory authority, federal question jurisdiction is not limited to suits originally filed in federal court. Beginning with the enactment Section 25 the Judiciary Act of 1789, Congress has granted the Supreme Court jurisdiction to review decisions of the states' highest courts when those decisions involve certain issues arising under the Constitution, treaties, or federal law.[1216] The Supreme Court upheld Section 25 against a constitutional challenge in Martin v. Hunter's Lessee.[1217] In addition, as explained in more detail in a later section, if a plaintiff files a case subject to federal court jurisdiction in state court, the defendant may elect to remove the case to federal court.[1218] Once the federal courts have jurisdiction over a case, they have the authority to decide any issue necessary to the disposition of the case, including questions of law or fact that do not arise under federal law.[1219]

Substantive Claims and Defenses in Federal Question Cases[edit | edit source]

Federal question jurisdiction is the basis for many of the Supreme Court's high-profile cases. In particular, federal question cases may involve claims of an actual or threatened invasion of the plaintiff's constitutional rights by some act of public authority. The "arising under" clause thus provides the main textual basis for the implied power for federal courts to review the constitutionality of legislation and other government actions.[1220]

There are multiple types of legal claims that may give rise to federal question jurisdiction.[1221] Congress often creates federal question jurisdiction by enacting legislation creating substantive legal rights or obligations and explicitly granting the courts jurisdiction to enforce them.[1222] Sometimes this jurisdiction is exclusive. For instance, the federal courts have exclusive jurisdiction over federal criminal cases and cases arising under bankruptcy, antitrust, or copyright law.[1223] In other areas, Congress allows both state and federal courts to hear cases based on federal statutes.[1224] For example, 28 U.S.C. § 1343 grants the federal courts jurisdiction over civil rights claims arising under the Constitution or federal law, including claims under 42 U.S.C. § 1983,[1225] but state courts may also hear such claims.[1226]

Federal question cases may also arise under treaties to which the United States is a party. The Supreme Court has held that some treaties are "self-executing" and thus "directly enforceable as domestic law in our courts," while others are not.[1227] If a treaty is not self-executing, Congress must enact legislation to implement the treaty before it can be enforced in U.S. court.[1228]

In addition, the constitutional judicial power of federal courts extends to cases arising under judge-made legal doctrines. One example of this is cases involving federal common law. "Common law" refers to legal rules drawn from judicial decisions, rather than a statute or constitution.[1229] Although the Supreme Court famously announced in Erie Railroad v. Tompkins that "[t]here is no federal general common law,"[1230] it is well settled that there are some areas where courts apply federal common law, and the Supreme Court has held that the federal courts have the power to hear federal common law claims.[1231] Federal courts primarily create and apply federal common law in two circumstances: where a federal rule of decision is necessary to protect uniquely federal interests, or where Congress has given the courts the power to develop substantive law.[1232]

A related example of judge-made law that raises constitutional issues subject to federal question jurisdiction is the doctrine articulated in Bivens v. Six Unknown Named Agents.[1233] Bivens and its progeny allowed individuals to sue federal agents directly under the Constitution without a federal statute authorizing relief.[1234] More recent Supreme Court cases have construed Bivens narrowly.[1235]

Other times, federal question jurisdiction exists even though the case, as originally filed, includes only state law civil claims or criminal charges. For instance, a state law civil claim may be filed in federal court, or removed from state to federal court before trial, if a "right to relief under state law requires resolution of a substantial question of federal law in dispute between the parties."[1236] In other cases, litigation based on state law questions may proceed through the state courts before receiving federal court review. This often occurs in cases where a civil or criminal defendant invokes the Constitution or a federal statute as a defense to liability. Under the general federal question statute, the federal district courts do not have statutory jurisdiction to hear those cases in the first instance.[1237] However, they fall within the constitutional bounds of federal question jurisdiction,[1238] and Congress has granted the Supreme Court statutory jurisdiction to hear such cases on appeal from a decision of a state's highest court.[1239] A number of high-profile cases have come to the Supreme Court in this way. For instance, the First Amendment case New York Times v. Sullivan involved a state law libel claim that was originally litigated in the Alabama courts.[1240] Likewise, Lawrence v. Texas, in which the Court struck down a state law banning consensual sexual activity between people of the same sex, was an appeal to the U.S. Supreme Court from a state criminal conviction.[1241]

Both constitutional and statutory federal question jurisdiction may also exist based on the identity of a party, particularly when a party has sufficiently close ties to the federal government.[1242] The Constitution specifically grants federal courts jurisdiction over "Controversies to which the United States shall be a Party," but those cases may also be understood to fall within federal question jurisdiction.[1243] The federal courts have statutory jurisdiction over suits where the United States itself is either a plaintiff or a defendant.[1244] Similarly, federal statutes authorize the removal to federal court of certain state law civil and criminal claims against federal officers or other persons acting pursuant to federal authority.[1245] The Supreme Court rejected a constitutional challenge to the removal of claims against federal revenue officers in Tennessee v. Davis, explaining that federal court jurisdiction over such cases implicated the federal government's fundamental interest in "preserving its own existence" against state proceedings that might undermine federal authority.[1246]

Article III also allows Congress to grant federal court jurisdiction in cases involving federally chartered corporations, such as banks or railroads. In Osborn v. Bank of the United States, Chief Justice John Marshall held that Congress's authorization for the Bank of the United States to sue and be sued also granted the federal courts jurisdiction over all cases to which the bank was a party.[1247] Similarly, in the Pacific Railroad Removal Cases, the Court held that tort actions against railroads with federal charters could be removed to federal courts solely based on federal incorporation.[1248] In a 1992 case, American National Red Cross v. S. G., the Court held that when a federal statutory charter expressly mentions the federal courts in a provision allowing an entity to sue and be sued, the charter creates federal question jurisdiction over such suits.[1249] Congress has enacted legislation limiting the extent to which some federally chartered corporations can sue or be sued in federal court based solely on federal incorporation.[1250]

Federal question cases usually involve the application of federal substantive law, whether as the direct basis for a claim or defense or as a substantial legal question that may determine rights under state law. Some scholars and advocates take an expansive view of constitutional federal question jurisdiction under a theory known as "protective jurisdiction," arguing that Congress has the constitutional power to confer federal jurisdiction over claims based entirely on state law.[1251] They posit that in areas where Congress has the authority to legislate pursuant to one of its enumerated powers,[1252] it could enact a jurisdictional statute that creates no new substantive federal legal rights or obligations.[1253] The jurisdictional statute would itself be the law of the United States within the meaning of Article III, and would validly create federal question jurisdiction, even though Congress enacted no substantive rule of decision. The Supreme Court has declined to adopt the doctrine, instead finding other bases for federal court jurisdiction in cases where it might apply.[1254]

Removal from State Court to Federal Court[edit | edit source]

The Constitution's grant of federal question jurisdiction over cases "arising under" the Constitution, laws, and treaties of the United States extends to some cases filed in state court. Congress has provided that a state court defendant may remove a case to federal court if the case could originally have been brought in federal court.[1255] The current general removal statute is codified at 28 U.S.C. § 1441, and additional statutes authorize removal in specific circumstances.[1256]

In Martin v. Hunter's Lessee, the Supreme Court likened removal before trial to federal appellate review of state court judgments, asserting that both served the purposes of promoting fairness and ensuring the uniform interpretation of federal law.[1257] Decades later, in Chicago & N.W. Railway v. Whitton's Administrator, the Court upheld a removal statute against a constitutional challenge.[1258] The Court expressed "doubt" as to whether removal before trial "can properly be called an exercise of appellate jurisdiction," stating that removal might "more properly be regarded as an indirect mode by which the Federal court acquires original jurisdiction of the causes."[1259] However, noting that both state and federal courts had frequently recognized the constitutionality of removal statutes, the Court concluded that, except where the Constitution expressly specifies original or appellate jurisdiction, Congress has discretion to legislate "the manner and conditions upon which [the federal judicial power] shall be exercised."[1260]

In Tennessee v. Davis, the Court considered the constitutionality of a statute that allowed removal to federal court of state court civil or criminal proceedings against any federal revenue officer "on account of any act done under color of his office or of any [federal revenue] law."[1261] The Court explained that federal court jurisdiction over such cases implicated the federal government's fundamental interest in "preserving its own existence," preventing states from undermining federal policies by prosecuting federal agents.[1262] The Court stated, "Cases arising under the laws of the United States are such as grow out of the legislation of Congress, [whether] they constitute th[e] right or privilege, or claim or protection, or defence of the party, in whole or in part."[1263] It held that the Constitution's grant of federal question jurisdiction extended to the protection of federal agents performing their official duties, and that the removal statute was a valid grant of federal question jurisdiction under the Necessary and Proper Clause.[1264]

The modern analog to the federal officer removal statute at issue in Davis is codified in 28 U.S.C. § 1442.[1265] The Supreme Court has construed that statute broadly to cover all cases where federal officers can raise a colorable defense arising out of their duty to enforce federal law.[1266] The Court has interpreted other removal statutes, such as the civil rights removal statute, more narrowly.[1267]

Supplemental Jurisdiction[edit | edit source]

A single case may simultaneously involve claims that give rise to federal court jurisdiction and claims that, standing alone, would not. The federal courts may often consider both sets of claims together under the doctrine of supplemental jurisdiction. The doctrine is grounded in the broad interpretation of Article III jurisdiction articulated in Osborn v. Bank of the United States, where Chief Justice John Marshall explained that the Constitution grants the federal courts jurisdiction when a federal question "forms an ingredient of the original cause, . . . although other questions of fact or of law may be involved in it."[1268] Supreme Court cases and federal legislation identify circumstances in which federal courts may exercise supplemental jurisdiction to hear claims over which they would not otherwise have jurisdiction, including state law claims between non-diverse parties.[1269]

One form of supplemental jurisdiction, also called ancillary jurisdiction, pendent jurisdiction, or pendent claim jurisdiction, exists when a claim that would not otherwise be subject to federal court jurisdiction arises from the same set of facts as a claim that is subject to federal court jurisdiction.[1270] Some sources use the term pendent jurisdiction to refer to cases where related federal and non-federal claims appear in a plaintiff's complaint.[1271] By contrast, ancillary jurisdiction may refer to cases where a complaint raises one or more claims subject to federal court jurisdiction, then a defendant responds by raising compulsory counterclaims that would not independently meet the jurisdictional requirements.[1272]

The doctrine of ancillary jurisdiction has its roots in the 1861 case Freeman v. Howe.[1273] Freeman involved federal court proceedings related to the seizure of rail cars. The original parties were from different states, and the case proceeded in federal court pursuant to diversity jurisdiction. Other parties who did not satisfy the requirements for diversity jurisdiction then sought to intervene and assert rights to the seized property. The Supreme Court held that the federal courts could hear claims from the non-diverse parties, stating that an equitable claim like those at issue "is not an original suit, but ancillary and dependent, supplementary merely to the original suit, . . . and is maintained without reference to the citizenship or residence of the parties."[1274]

By contrast, in Kokkonen v. Guardian Life Ins. Co., the Court held that the federal courts lacked ancillary jurisdiction to hear state law breach of contract claims related to a settlement agreement that resolved earlier federal court litigation.[1275] Justice Antonin Scalia's majority opinion identified two purposes of ancillary jurisdiction: "to permit disposition by a single court of claims that are, in varying respects and degrees, factually interdependent," or "to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees."[1276] The Court held that federal jurisdiction over the breach of contract claims would not serve those purposes.

With respect to pendent jurisdiction over state and federal claims contained in a single complaint, the Supreme Court in Siler v. Louisville & Nashville R.R. considered whether federal courts could exercise jurisdiction over a case involving federal constitutional claims and claims under state law.[1277] The court explained that the constitutional claims gave rise to federal court jurisdiction, and thereafter the federal court could "decide all the question[s] in the case, even though it decided the Federal questions adversely to the party raising them," and even if it declined to decide the federal questions and instead resolved the case on state law grounds.[1278]

The Supreme Court articulated a test for when courts should exercise pendent jurisdiction in the 1933 case Hurn v. Oursler.[1279] In that case, the Court distinguished between "a case where two distinct grounds in support of a single cause of action are alleged, one only of which presents a federal question"--which was subject to ancillary jurisdiction--and "a case where two separate and distinct causes of action are alleged, one only of which is federal in character" --which was not.[1280]

Lower federal courts had difficulty applying the rule in Hurn, and several decades later the Court articulated a new test in United Mine Workers v. Gibbs.[1281] Stating that courts applying Hurn had been "unnecessarily grudging" in hearing pendent claims, the Court explained:

Pendent jurisdiction, in the sense of judicial power, exists whenever there is [a federal question claim], and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional "case."Id. at 725.

To warrant the exercise of pendent jurisdiction, "[t]he state and federal claims must derive from a common nucleus of operative fact."[1282] But if the federal issues are substantial and plaintiff's federal and state claims "are such that he would ordinarily be expected to try them all in one judicial proceeding, then . . . there is power in federal courts to hear the whole."[1283] Although the Gibbs Court held that the "judicial power" under the Constitution allowed for pendent jurisdiction in a large class of cases, the Court also emphasized that federal courts could properly decline to exercise that power over state claims based on "considerations of judicial economy, convenience and fairness to litigants," as well to foster comity between federal and state courts.[1284]

Pendent jurisdiction does not exist if a plaintiff's federal claim is insubstantial or patently without merit.[1285] The Supreme Court has also held that when the Eleventh Amendment bars a federal claim against state officials, federal courts may not exercise jurisdiction over pendent state law claims.[1286] If a federal claim is substantial enough to confer jurisdiction but is dismissed before trial, or if a pendent state law claim substantially predominates, a federal court may be justified in dismissing the state claim.[1287] However, there is no requirement that federal courts resolve cases involving both federal and state law claims on federal grounds when possible.[1288] On the contrary, the doctrine of constitutional avoidance counsels that federal courts should not decide federal constitutional claims if they can avoid doing so, meaning that it may be an abuse of discretion for a federal court to reach a federal constitutional question when it could decide a case on state law grounds.[1289]

The foregoing cases considered when federal courts may exercise supplemental jurisdiction over claims over which they would not otherwise have jurisdiction. A related doctrine, sometimes called pendent party jurisdiction, allows the federal courts to hear claims involving parties who might not otherwise be subject to federal subject matter jurisdiction.[1290]

In 1978, in Owen Equipment & Erection Co. v. Kroger, the Supreme Court announced a limit on pendent party jurisdiction, holding that a plaintiff could not amend her complaint to add a claim against a third-party defendant that was a resident of the plaintiff's home state.[1291] The Court again limited pendent party jurisdiction in the 1989 case Finley v. United States.[1292] Justice Antonin Scalia's majority opinion in Finley declined to disturb the doctrine of pendent claim jurisdiction laid out in Gibbs, and explicitly acknowledged that pendent party jurisdiction also fell within the constitutional grant of federal judicial power. However, the Court declined to "read jurisdictional statutes broadly" in support of pendent party jurisdiction.[1293] The majority emphasized that its holding, based on application of the jurisdictional statutes, "can of course be changed by Congress."[1294]

The following year, Congress enacted legislation that expressly granted the federal courts pendent party jurisdiction.[1295] Codified at 28 U.S.C. § 1367, the statute provides that, subject to certain limitations, once the federal district courts have jurisdiction over a case, they "shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution," including "claims that involve the joinder or intervention of additional parties."[1296] Section 1367(b) codified the holding in Owen Equipment imposing limits on the federal courts' ability to exercise supplemental jurisdiction over certain claims by plaintiffs against non-diverse defendants.[1297] More generally, the Supreme Court has explained that Section 1367 "codified [the] principles" of Gibbs and related cases in a supplemental jurisdiction statute that "combines the doctrines of pendent and ancillary jurisdiction under a common heading."[1298]

Admiralty and Maritime Jurisdiction[edit | edit source]

Overview of Admiralty and Maritime Jurisdiction[edit | edit source]

The federal courts' jurisdiction over admiralty and maritime cases derives from the Constitution and federal statutes. Article III of the Constitution extends the federal judicial power to "all Cases of admiralty and maritime Jurisdiction."[1299] By giving the Federal Judiciary jurisdiction over admiralty cases--and authorizing Congress to regulate that jurisdiction[1300]--the Framers sought to ensure that federal courts would resolve cases that might implicate the Nation's foreign policy.[1301] The Framers also recognized that uniform federal admiralty jurisdiction could protect maritime commerce from the diverse and unpredictable procedural rules that state admiralty courts had applied under the Articles of Confederation.[1302]

Beginning with the Judiciary Act of 1789, Congress established the federal district courts and granted them "exclusive" and "original"[1303] subject matter jurisdiction over any "civil case of admiralty or maritime jurisdiction."[1304] Congress also allowed state courts to exercise concurrent jurisdiction over admiralty cases in which plaintiffs seek traditional common law remedies.[1305] Under the "saving to suitors clause" in Section 9 of the Judiciary Act, courts retain concurrent jurisdiction over most contract and tort claims that fall within federal admiralty jurisdiction because a plaintiff may bring a personal action against an individual defendant seeking common law remedies (e.g., payment of money damages).[1306] However, in general, plaintiffs must pursue actions in federal court when they seek remedies that lie against property in rem, such as the seizure of a vessel to enforce a maritime lien.[1307]

Much of the Supreme Court's jurisprudence on admiralty jurisdiction has examined the territorial extent of such jurisdiction and which types of cases fall within this limited grant of jurisdiction. Generally, courts consider the location in which a tort or crime occurs to be a major factor when determining whether the tort or crime falls within admiralty jurisdiction.[1308] The Court has held that, under the Constitution, admiralty jurisdiction extends to all navigable public waters, regardless of whether they are saltwater or freshwater, or subject to the ebb and flow of the tide.[1309] Admiralty jurisdiction also extends to contracts, regardless of where they are entered into or to be performed, provided that their subject matter is "essentially maritime."[1310]

When a federal court exercises admiralty jurisdiction over a case,[1311] it follows a special set of procedural rules. Notably, jury trials are unavailable in civil admiralty proceedings[1312] unless Congress provides otherwise.[1313] Thus, in federal admiralty proceedings, the judge typically decides issues of both law and fact. When a federal or state court exercises admiralty jurisdiction over a case, the judge must apply the substantive rules of federal maritime law,[1314] which is a type of federal common law[1315] that Congress may revise.[1316] In the absence of controlling federal maritime law, federal courts have sometimes applied substantive state law in admiralty cases when it would not interfere with the uniformity of federal maritime law.[1317] In some cases, such as those involving maritime torts in a state's territorial waters, the Court has held that state law may supplement federal maritime law with additional remedies.[1318]

This group of essays examines the Constitution's grant of federal judicial power over cases of admiralty and maritime jurisdiction. The first essay provides an overview of the historical development of admiralty and maritime jurisdiction in the United States. Subsequent essays examine Supreme Court decisions that interpret the territorial and conceptual scope of this jursidiction. The essays conclude by discussing when concurrent federal and state jurisdiction exists over maritime claims and, alternatively, when such claims fall within the exclusive admiralty jurisdiction of the federal courts.

Historical Background on Admiralty and Maritime Jurisdiction[edit | edit source]

The Constitution's Framers were familiar with the concept of a separate and specialized admiralty jurisdiction. Prior to the Founding, the British Crown commissioned vice-admiralty courts in the American colonies.[1319] These courts, which were subordinate to the English admiralty courts, exercised jurisdiction over maritime cases that arose in the colonies independently of the colonial courts of common law and equity.[1320]

In the years leading up to the American Revolution, the jurisdiction of the independent vice-admiralty courts led to disputes between the colonists and the British Crown. For example, the colonists objected to the Crown's prosecution of colonists in the vice-admiralty courts, without trial by jury, for allegedly violating a British tax law, the 1765 Stamp Act.[1321] In 1774, the First Continental Congress's delegates cited this extension of British admiralty courts' jurisdiction "beyond their ancient limits" as one of the major grievances against Great Britain.[1322] Denial to the colonists of trial by jury in the vice-admiralty courts helped to motivate the colonists' 1776 Declaration of Independence, which cited the British King depriving the colonists "in many cases, of the benefits of Trial by Jury" as a justification for separating from Great Britain.[1323]

After declaring independence, each state established its own admiralty courts.[1324] State admiralty courts adopted a wide variety of procedural practices, particularly with respect to the availability of jury trials.[1325] Although the Articles of Confederation authorized Congress to establish a tribunal to hear appeals from state admiralty courts in prize cases, this appeal mechanism failed to resolve many conflicts among state admiralty court decisions.[1326]

Records of the Federal Convention of 1787 do not provide much insight into the Framers' reasons for conferring admiralty jurisdiction on the Federal Judiciary.[1327] Delegate Charles Pinckney's plan for the federal government, which he had submitted to the Convention, would have authorized Congress to establish separate admiralty courts in each of the states.[1328] In addition, the issue of admiralty jurisdiction received a brief mention in a Convention debate over whether the Constitution should specifically create lower federal courts.[1329] Delegate James Wilson argued that the "national Government" should have jurisdiction over admiralty cases because they would often implicate controversies with foreign parties that should remain outside of state court jurisdiction.[1330]

Toward the end of the Convention, the Committee of Detail, which was responsible for drafting the Constitution, included the clause granting the Federal Judiciary admiralty and maritime jurisdiction in one of its drafts.[1331] This clause would establish uniform federal jurisdiction to resolve conflicts among the states with respect to prize cases, and the Convention delegates appear to have accepted it without controversy.[1332]

Writing in the Federalist Papers in support of the Constitution's ratification, Alexander Hamilton maintained that even the most adamant opponents of a strong central government had acknowledged that the Federal Judiciary should take cognizance of admiralty cases.[1333] Such cases, he wrote, "depend on the laws of nations, and so commonly affect the rights of foreigners, that they fall within the considerations which are relative to the public peace."[1334] The Founders believed that admiralty jurisdiction should extend to the adjudication of prize cases involving the capture of foreign ships[1335] and torts involving foreign ships,[1336] both of which could implicate foreign affairs.[1337] Hamilton also argued that federal courts should have exclusive jurisdiction in admiralty cases in order to provide uniform practices with respect to jury trials, which varied widely in state courts.[1338]

By giving the Federal Judiciary jurisdiction over admiralty cases--and authorizing Congress to regulate that jurisdiction[1339]--the Framers sought to ensure that federal courts would resolve cases that might implicate the nation's foreign policy.[1340] The Framers also recognized that uniform federal admiralty jurisdiction could protect maritime commerce from the diverse and unpredictable procedural rules that state admiralty courts had applied under the Articles of Confederation.[1341] After the Constitution's ratification, commercial maritime activity continued to expand throughout the United States. The importance of uniform admiralty jurisdiction grew as the Nation acquired new territories with inland waters and new inventions like the steamboat increased commerce on U.S. waterways.[1342]

Federal Admiralty and Maritime Jurisdiction Generally[edit | edit source]

Since the Founding, the Supreme Court has grappled with the scope of federal courts' "admiralty and maritime" jurisdiction under Article III of the Constitution and federal statutes.[1343] The Supreme Court has held that "all suits involving maritime claims, regardless of the remedy sought, are cases of admiralty and maritime jurisdiction within the meaning of Article III whether they are asserted in the federal courts or, under the saving clause, in the state courts."[1344] Generally, the Court's cases analyzing admiralty jurisdiction have addressed when particular claims qualify as "maritime." Such cases have examined: (1) the territorial extent of such jurisdiction; (2) its subject matter scope; and (3) the availability of concurrent state court jurisdiction over maritime claims.

The Supreme Court has held that neither Congress, the states, nor U.S. courts can enlarge admiralty jurisdiction beyond its constitutional limits.[1345] Congress has successfully enlarged the Judiciary Act's initial statutory grant of admiralty jurisdiction to the lower federal courts on several occasions,[1346] which suggests that it has not granted the courts admiralty jurisdiction to the full extent that the Constitution allows.[1347] However, the precise boundaries that the Constitution establishes for this jurisdiction remain unclear.[1348] The Court has suggested that various historical and policy-based considerations may delineate the jurisdiction's boundaries, including the types of maritime cases that state admiralty courts could adjudicate at the time of the Constitution's adoption;[1349] the Framers' reasons for conferring admiralty jurisdiction on the Federal Judiciary (for example, to establish more uniformity in admiralty proceedings);[1350] and Congress's practical need to address new "maritime concerns."[1351]

The extent to which Congress may reduce the scope of admiralty jurisdiction is also unclear. In one case, the Supreme Court suggested that "grave" constitutional questions would arise if the Court interpreted the Jones Act to prohibit federal courts from exercising admiralty jurisdiction over a seaman's personal injury claims against his employer while allowing such suits at common law.[1352] The Court avoided ruling on whether the statute would encroach on the Constitution's grant of admiralty jurisdiction by construing the Jones Act to allow the seaman to sue either on the "admiralty side" of a federal court with trial by judge or the "law side" of the court with a right to a jury trial.[1353] The Court's decision suggests that the Constitution may impose some limits on Congress's ability to withdraw certain maritime-related claims from admiralty jursidiction, at least when those claims remain cognizable in common law courts.

Territorial Extent of Admiralty Jurisdiction[edit | edit source]

Generally, courts consider the location in which a tort or crime occurs to be a major factor when determining whether the tort or crime falls within admiralty jurisdiction.[1354] Early in U.S. history, the Supreme Court interpreted the territorial extent of federal admiralty jurisdiction in accordance with the rules of the English admiralty courts.[1355] As a result, the Court construed that jurisdiction narrowly, limiting it to causes of action that arose on the high seas and rivers subject to the ebb and flow of the tide.[1356]

The law changed significantly in the mid-nineteenth century when the Court held that the English rules on jurisidiction at the time of the U.S. Constitution's adoption could not limit the territorial extent of federal admiralty jursidiction.[1357] In The Propeller Genesee Chief v. Fitzhugh,[1358] the Court reviewed a federal law that extended admiralty jursidiction over certain claims that arose on the Great Lakes and connecting waters.[1359] The Court upheld the law, determining that the Constitution's initial grant of admiralty jurisdiction embraced such waters, even if they were beyond the ebb and flow of the tide.[1360] A couple of decades later, the Court specifically held that admiralty jurisdiction, as conferred by the Constitution and federal statutes, extended to claims arising on all navigable waters of the United States.[1361]

Thus, according to modern understanding, admiralty jurisdiction extends to all public waters that are navigable in fact,[1362] regardless of whether they are saltwater or freshwater, or subject to the ebb and flow of the tide.[1363]

Jurisdiction Over Categories of Admiralty Cases[edit | edit source]

In the modern era, most cases that fall within admiralty jurisdiction involve one of two subjects: torts committed on the high seas or other navigable waters; or maritime contracts or services, which often relate to shipping on navigable waters.[1364] State courts may have concurrent jurisdiction over maritime contract or tort claims that fall within federal admiralty jurisdiction when the defendant brings a personal action against a defendant, but generally only federal admiralty courts may exercise jurisdiction over cases in which the plaintiff seeks remedies against property in rem.[1365]

Congress has also granted federal district courts sitting in admiralty exclusive and original jurisdiction over prize and seizure cases.[1366] Historically, prize cases have involved property (e.g., a ship) used by an enemy, captured during wartime, and brought into the United States.[1367] The court's jurisidiction extends to proceedings in which a party seeks to acquire title legally to property taken as a prize.[1368]

Cases involving the seizure and forfeiture of vessels for violating federal law or another nation's laws also fall within the exclusive admiralty jurisdiction of federal courts.[1369] Vessels may be seized for engaging in activities such as conducting prohibited trade[1370] or violating the revenue laws.[1371] Federal courts also have exclusive jurisdiction over criminal cases against U.S. persons or vessels that arise within the special maritime and territorial jurisdiction of the United States, which generally encompasses navigable waters within U.S. territory but outside of any particular state's jurisdiction.[1372]

Torts Committed on Navigable Waters[edit | edit source]

Maritime torts include injuries to persons,[1373] damages to property arising out of collisions or other negligent acts,[1374] product liability suits,[1375] and violent dispossession of property.[1376] Cases involving tort claims fall within admiralty jurisdiction when two requirements are met: (1) the commission or consummation of the act that gives rise to the claim occurs on navigable waters;[1377] and (2) the tort bears a significant relationship to traditional maritime activity.[1378]

The first requirement for admiralty jurisdiction, which is based on the location of the incident, is satisfied if the tort arises on the high seas or on other navigable waters of the United States.[1379] Prior to Congress's enactment of the Extension of Admiralty Jurisdiction Act of 1948, the Supreme Court had held that some claims arising from injury or damage to property caused by a vessel on navigable waters did not fall within admiralty jurisdiction when they were consummated on land (e.g., collision of a ship with a bridge).[1380] In the Extension Act,[1381] Congress enlarged admiralty jurisdiction to encompass many of these claims. The Court implicitly upheld that expansion of admiralty jurisdiction as within constitutional limits[1382] when determining that the jurisdiction ecompassed a tort that arose when a longshoreman slipped on loose beans that spilled from negligently packed cargo on a dock during a vessel's unloading.[1383] In addition to Congress's expansion of admiralty jurisdiction, the Court has maintained a few historical exceptions to a strict situs test for maritime jurisdiction.[1384] However, even with such congressional and judicial guidance, it may occasionally be difficult to distinguish maritime torts from land-based torts. For example, the Court held that admiralty jurisdiction did not extend to an injury caused by defective pier-based equipment that a dock worker suffered when unloading a vessel; thus, the worker had to resort to state law for a remedy.[1385]

The Supreme Court's jurisprudence on the second factor, which asks whether the tort bears a significant relationship to a traditional maritime activity, may also raise complex interpretive questions. For example, in Executive Jet Aviation v. City of Cleveland, a jet aircraft departing a Cleveland airport collided with seagulls, crashed, and sank into the navigable state territorial waters of Lake Erie.[1386] The owners of the aircraft sued a federal air traffic controller and others for negligence, seeking to invoke the admiralty jurisdiction of the federal courts.[1387] The Court held that, in addition to establishing that the commission or consummation of the wrongful act took place on navigable waters,[1388] the plaintiffs had to show that the tort bore a "significant relationship to traditional maritime activity."[1389] Because a land-based aircraft's flight between two locations within the United States's continental boundaries did not possess such a relationship, the Court held that federal courts could not exercise admiralty jurisdiction.[1390] However, the Court's opinion in Executive Jet suggests that Congress may have some flexibility to expand admiralty jurisdiction to encompass claims like those at issue in the case by enacting laws that, for example, enlarge the concept of a "traditional maritime activity."[1391]

In other cases, the Supreme Court has determined that admiralty jurisdiction exists because a case involves a traditional maritime activity. For example, the Court upheld the exercise of admiralty jursidiction over a collision between two private pleasure boats on navigable waters--even though pleasure boating was not exclusively a commercial activity--because such a collision could impact maritime commerce.[1392] For similar reasons, the Court held that a dredging company's vessel was engaged in a traditional maritime activity when it damaged an underwater freight tunnel while performing maintenance work.[1393]

Maritime Contracts or Services[edit | edit source]

In contract cases, the subject matter of the contract, claim, or service controls whether a claim falls within admiralty jurisdiction.[1394] Contracts "purely maritime, and touching rights and duties appertaining to commerce and navigation, are cognizable in the admiralty."[1395] The Supreme Court has not established a clear test for when a transaction is a maritime contract. Instead, the Court has declared that the "boundaries of admiralty jurisdiction over contracts" are "conceptual rather than spatial" and "have always been difficult to draw."[1396] The Court has examined "precedent and usage" when determining whether a contract is essentially maritime.[1397]

Contract cases that fall within federal admiralty jurisdiction[1398] include actions for pilotage charges[1399] or towage;[1400] actions for repair of a vessel already used in navigation;[1401] actions on bottomry or respondentia bonds;[1402] agreements of consortship between the masters of two vessels engaged in wrecking;[1403] cases arising under marine insurance policies;[1404] charter parties;[1405] compensation for temporary wharfage;[1406] contracts for loading or unloading vessels;[1407] contracts for transportation of passengers or merchandise by ship,[1408] which includes contracts of affreighment;[1409] contracts with materialmen for the repair or supply of a foreign ship;[1410] salvage services;[1411] suits by seamen for wages;[1412] and surveys of damaged vessels.[1413]

Exclusivity of Federal Admiralty and Maritime Jurisdiction[edit | edit source]

In Article III of the Constitution, the Framers granted the Federal Judiciary jurisdiction over "admiralty and maritime" cases to ensure that courts would apply uniform rules in deciding cases that could affect domestic commerce and might implicate foreign affairs.[1414] In the Judiciary Act of 1789, Congress conferred exclusive admiralty jurisdiction on the federal district courts[1415] while preserving concurrent state court jurisdiction over common law remedies so that the states could supplement the administration of federal maritime law.[1416]

In practice, state courts retain concurrent jurisdiction over most contract and tort cases that fall within federal admiralty jurisdiction because a plaintiff may bring a personal action seeking common law remedies against an individual defendant in most of these cases.[1417] In an in personam case[1418] under the common law, liability attaches to property only to the extent of the individual defendant's title in that property.[1419] When bringing such maritime actions against defendants, the plaintiff may choose either federal or state court.

By contrast, the Supreme Court has held that, as a matter of statute, federal courts have exclusive admiralty jurisdiction over cases in which the plaintiff seeks remedies for maritime torts or contracts that lie against property in rem (e.g., the seizure of a vessel to enforce a maritime lien).[1420] For example, the Court held invalid a California court's application of a statute that allowed the state's courts to subject vessels to condemnation and sale in lawsuits brought directly against the vessels for breaches of maritime contracts.[1421] The Court determined that the federal courts traditionally had exclusive jurisdiction under the Judiciary Act over such in rem admiralty proceedings.[1422] Such actions were not saved by the Judiciary Act's savings clause because they were based on civil (i.e., statutory) law rather than common law.[1423]

Other in rem cases that are subject to the federal courts' exclusive jurisdiction include cases involving limitation of a shipowner's liability;[1424] prize, capture, and seizure cases;[1425] and suits against the United States.[1426] Only a federal court sitting in admiralty may enforce a maritime lien, which may arise, for example, out of a maritime contract or tort.[1427] State legislatures may enact laws providing for state court jurisdiction over in rem maritime actions only in certain, narrowly defined circumstances.[1428]

In the absence of controlling federal maritime law, courts have sometimes applied substantive state law in admiralty cases when it would not interfere with the uniformity of federal maritime law.[1429] For example, in Southern Pacific Co v. Jensen, the Supreme Court held that a state could not apply its workers' compensation law to stevedores injured when unloading a ship at a wharf in navigable waters under a maritime contract.[1430] The Court reasoned that workers' compensation was not a common law remedy preserved for the state courts under the Judiciary Act, and that its application would interfere with the general maritime law's uniformity in violation of the Constitution.[1431] In Knickerbocker Ice Co. v. Stewart, the Court held that Congress could not authorize the states to establish their own workers' compensation laws for maritime employees.[1432] Although the Constitution permits Congress to legislate on maritime rights, obligations, and remedies, it forbids Congress from delegating its power to the states to create new rights by permitting the states to modify the maritime law in a manner that would "work material injury" to the "characteristic features" of the law or interfere with its uniformity.[1433]

Other provisions of the Constitution may also influence federal admiralty jurisdiction. For example, the Eleventh Amendment prohibits federal courts sitting in admiralty from entertaining jurisdiction over lawsuits brought in rem against state-chartered vessels without the state's consent.[1434] However, the Eleventh Amendment does not bar admiralty courts from hearing lawsuits in rem in which litigants seek to recover state property, like a shipwreck, that the state does not actually possess.[1435]

Cases to Which the United States Is a Party[edit | edit source]

Overview of Cases to Which the United States Is a Party[edit | edit source]

Article III authorizes federal courts to exercise jurisdiction over "Controversies to which the United States shall be a Party."[1436] While the Constitution does not explicitly authorize the federal government to bring suits, since the early years of the Republic, the Supreme Court and Congress have accepted that the United States can both sue and be sued, subject to certain legal limits.[1437] The following essays discuss constitutional issues that may arise when the United States files suit as a plaintiff,[1438] including suits by the federal government against the states.[1439] The essays then briefly explore legal questions related to suits where the United States or a federal entity is a defendant.[1440]

Right of the United States to Sue[edit | edit source]

Although the Constitution does not explicitly authorize the federal government to bring suits, the Supreme Court, Congress, and legal commentators have long accepted the federal government's ability to do so. In his 1833 Commentaries on the Constitution of the United States, Justice Joseph Story noted that while "an express power is no where given in the constitution, the right of the United States to sue in its own courts is clearly implied in that part respecting the judicial power."[1441] Justice Story reasoned, "all the usual incidents appertaining to a personal sovereign, in relation to contracts, and suing, and enforcing rights, so far as they are within the scope of the powers of the government, belong to the United States, as they do to other sovereigns."[1442] Through the Judiciary Act of 1789 and subsequent amendments to the Act, Congress has granted federal district courts jurisdiction to hear civil suits brought by the United States as party plaintiff in law or equity.[1443]

In 1818, the Supreme Court ruled that the United States could sue in its own name in all contract cases without congressional authorization for such suits.[1444] The Court later extended this rule to other types of actions in which the government seeks to vindicate its own interests.[1445]

The Court has also upheld statutes granting the federal government authority to sue to vindicate certain interests of the general public. For instance, in United Steelworkers v. United States, the Court upheld a provision of the Labor Management Relations Act of 1949 that authorized the Attorney General to sue for an injunction against strikes that imperil national health or safety.[1446] The Court held that the statue could require courts to "exercis[e] powers of a legislative or executive nature."[1447] It further held that the statute properly "recognize[s] certain rights in the public to have unimpeded for a time production in industries vital to the national health or safety" and "makes the United States the guardian of these rights in litigation."[1448] In the 1960 case United States v. Raines, the Court upheld a provision of the Civil Rights Act of 1957 that authorized the Attorney General to sue for injunctive relief against interference with voting rights.[1449] In response to the challengers' argument that it was "beyond the power of Congress to authorize the United States to bring [an] action in support of private constitutional rights," the Court held that "there is the highest public interest in the due observance of all the constitutional guarantees, including those that bear the most directly on private rights, and we think it perfectly competent for Congress to authorize the United States to be the guardian of that public interest in a suit for injunctive relief."[1450]

In the absence of a statutory provision to the contrary, the Attorney General initiates suits by the federal government in the name of the United States.[1451] To date, the Supreme Court has declined to address whether the United States may sue to protect the constitutional rights of its citizens without statutory authorization.[1452]

Suits Against States[edit | edit source]

Controversies to which the United States is a party include suits brought by the federal government as plaintiff against states as party defendants.[1453] The first Supreme Court case involving the federal government suing a state arose from a late-nineteenth Century action by the United States to recover on bonds issued by North Carolina.[1454] While the parties did not raise the question of federal court jurisdiction over the suit, the Court, in deciding the case on its merits in favor of the state, tacitly assumed that it had jurisdiction to hear such cases.

Two years later, the State of Texas directly challenged the federal courts' jurisdiction over it in response to a bill in equity the United States brought to determine the boundary between Texas and the Territory of Oklahoma.[1455] Texas, among other things, contended that the United States could not sue a state without the state's consent. The Supreme Court held that it had jurisdiction over the suit. Emphasizing that under Article III federal jurisdiction encompasses cases to which the United States and a state are parties, Justice John Marshall Harlan noted that the Constitution made no exception for suits brought by the United States.[1456] With respect to the state's argument that it had not consented to the suit, the Court concluded that Texas had given consent to be sued by the United States "when [it was] admitted to the Union upon an equal footing in all respects with the other States."[1457]

The Supreme Court routinely accepted jurisdiction over suits by the federal government against states in subsequent cases. In 1926, the Court decided a dispute between the United States and Minnesota over land patents that the United States had issued to Minnesota in breach of U.S. trust obligations to the Chippewa tribe.[1458] Similarly, in a 1931 case, the Court took jurisdiction of a suit by the United States against Utah to quiet title to land forming the beds of certain sections of the Colorado River and its tributaries with the states.[1459] In 1947, the Court exercised jurisdiction over a suit the United States brought against California to determine ownership of and paramount rights over submerged land and the oil and gas thereunder off the coast of California between the low-water mark and the three-mile limit.[1460] The Court decided like suits against Louisiana and Texas in 1950.[1461]

In contrast to the foregoing cases, in the 1935 case United States v. West Virginia, the Court dismissed a suit in equity brought by the United States to determine the navigability of the New and Kanawha Rivers.[1462] While the Court stated that it "can no longer be doubted" that the Supreme Court's original jurisdiction "includes cases brought by the United States against a state,"[1463] it concluded that the case before it was not justiciable because it presented "no actual or threatened interference with the authority of the United States."[1464] West Virginia thus does not appear to cast doubt on the authority of the United States to sue a state in federal court. Instead, it instructs that such suits remain subject to generally applicable justiciability requirements.[1465]

In addition to allowing the United States to initiate suits against the states, the Court has also, at times, allowed the federal government to intervene in suits between states.[1466]

Suits Against the United States and Sovereign Immunity[edit | edit source]

In addition to suits brought by the federal government as a plaintiff, "Controversies to which the United States shall be a Party" may include cases brought against the United States as a defendant.[1467] Those cases fall within Article III's grant of federal court jurisdiction;[1468] however, the doctrine of sovereign immunity may limit such suits.

While state sovereign immunity is rooted in part in the Eleventh Amendment,[1469] no provision of the Constitution expressly grants the federal government immunity from suit. Instead, most judges and commentators agree that federal sovereign immunity is a common law doctrine drawn from pre-Founding English law.[1470] Since the early years of the Republic, the Supreme Court has repeatedly adopted the position that the United States may not be sued unless it consents.[1471] The Court has applied the doctrine of sovereign immunity to bar suits from proceeding without consent against the federal government for actions of its agents or employees[1472] and against federal agencies[1473] and government corporations.[1474] The Court has further held that any waiver of sovereign immunity must come from an act of Congress; Executive officials are powerless either to waive such immunity or to confer jurisdiction on a federal court.[1475] In the 2019 case Thacker v. Tennessee Valley Authority, the Court rejected a separation of powers challenge to a statute that waived the immunity of a government-owned corporation.[1476]

Congress has waived federal sovereign immunity through statutes such as the Administrative Procedure Act,[1477] the Federal Tort Claims Act,[1478] and the Tucker Act.[1479] In the absence of a waiver of sovereign immunity authorizing suits against the government itself, the Supreme Court has at times allowed suits to go forward against federal officials sued in their individual capacity.[1480] For instance, in Bivens v. Six Unknown Named Agents[1481] and its progeny, the Court allowed individuals to sue federal agents directly under the Constitution without a federal statute authorizing relief.[1482] More recent Supreme Court cases have construed Bivens narrowly.[1483]

Controversies Between Two or More States[edit | edit source]

Historical Background on Controversies Between Two or More States[edit | edit source]

The extension of federal judicial power to controversies between states and the vesting of original jurisdiction in the Supreme Court of suits to which a state is a party had its origin in experience. Prior to independence, disputes between colonies claiming charter rights to territory were settled by the Privy Council. Under Article IX of the Articles of Confederation, Congress was made "the last resort on appeal" to resolve "all disputes and differences . . . between two or more States concerning boundary, jurisdiction, or any other cause whatever," and to constitute what in effect were ad hoc arbitral courts for determining such disputes and rendering a final judgment therein. When the Philadelphia Convention met in 1787, serious disputes over boundaries, lands, and river rights involved ten states.[1484] It is hardly surprising, therefore, that during its first sixty years the only state disputes coming to the Supreme Court were boundary disputes[1485] or that such disputes constitute the largest single number of suits between states. Since 1900, however, as the result of the increasing mobility of population and wealth and the effects of technology and industrialization, other types of cases have occurred with increasing frequency.

Boundary Disputes Between States[edit | edit source]

Among the earlier suits between states, the suit between New Jersey and New York[1486] is significant for applying a rule laid down earlier in Chisholm v. Georgia (i.e., that the Supreme Court may proceed ex parte if a state refuses to appear when duly summoned). The long drawn out litigation between Rhode Island and Massachusetts is also significant for its rulings: that, although the Constitution does not extend the judicial power to all controversies between states, it does not exclude any;[1487] that a boundary dispute is a justiciable and not a political question;[1488] and that a prescribed rule of decision is unnecessary in such cases. On the last point, Justice Henry Baldwin stated:

The submission by the sovereigns, or states, to a court of law or equity, of a controversy between them, without prescribing any rule of decision, gives power to decide according to the appropriate law of the case (11 Ves. 294); which depends on the subject-matter, the source and nature of the claims of the parties, and the law which governs them. From the time of such submission, the question ceases to be a political one, to be decided by the sic volo, sic jubeo, of political power; it comes to the court, to be decided by its judgment, legal discretion and solemn consideration of the rules of law appropriate to its nature as a judicial question, depending on the exercise of judicial power; as it is bound to act by known and settled principles of national or municipal jurisprudence, as the case requires.Id. at 737. Chief Justice Roger B. Taney dissented because of his belief that the issue was not one of property in the soil, but of sovereignty and jurisdiction, and hence political. Id. at 752-53. For different reasons, it should be noted, a suit between private parties respecting soil or jurisdiction of two states, to which neither state is a party, does not come within the original jurisdiction of the Supreme Court. Fowler v. Lindsey, 3 U.S. (3 Dall.) 411 (1799). For recent boundary cases, see United States v. Maine (Rhode Island and New York Boundary Case), 469 U.S. 504 (1985); United States v. Louisiana (Alabama and Mississippi Boundary Case), 470 U.S. 93 (1985); United States v. Maine, 475 U.S. 89 (1986); Georgia v. South Carolina, 497 U.S. 336 (1990); Mississippi v. Louisiana, 506 U.S. 73 (1992).

Modern Suits Between States[edit | edit source]

Beginning with Missouri v. Illinois & Chicago District,[1489] which sustained jurisdiction to entertain an injunction suit to restrain the discharge of sewage into the Mississippi River, water rights, the use of water resources, and the like, have been a source of suits between states. Such suits have been especially frequent in the western states,[1490] where water is in short supply, but they have not been confined to any one region.[1491] In Kansas v. Colorado,[1492] the Court established the principle of the equitable division of river or water resources between conflicting state interests.[1493]

In the 1931 case, New Jersey v. New York,[1494] New Jersey sought to enjoin New York for diverting water into the Hudson River watershed for New York's use in such a way as to diminish the flow of the Delaware River in New Jersey, injure its shad fisheries, and harm the saline contents of the Delaware River. Justice Oliver Wendell Holmes, writing for the majority, explained:

A river is more than an amenity, it is a treasure. It offers a necessity of life that must be rationed among those who have power over it. New York has the physical power to cut off all the water within its jurisdiction. But clearly the exercise of such a power to the destruction of the interest of lower States could not be tolerated. And on the other hand equally little could New Jersey be permitted to require New York to give up its power altogether in order that the river might come down to it undiminished. Both States have real and substantial interests in the River that must be reconciled as best they may.Id. at 342. See also Nebraska v. Wyoming, 325 U.S. 589 (1945); Idaho ex rel. Evans v. Oregon, 462 U.S. 1017 (1983). In Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493 (1971), the Court held it had jurisdiction of a suit by a state against citizens of other states to abate a nuisance allegedly caused by the dumping of mercury into streams that ultimately run into Lake Erie, but it declined to permit the filing because the presence of complex scientific issues made the case more appropriate for first resolution in a district court. See also Texas v. New Mexico, 462 U.S. 554 (1983); Nevada v. United States, 463 U.S. 110 (1983)

In Florida v. Georgia, the Supreme Court issued two opinions concerning how to apportion water from an interstate river basin known as the Apalachicola-Chattahoochee-Flint (ACF) River basin.[1495] Florida, the downstream state, alleged that Georgia overconsumed the ACF basin's waters, leading to the collapse of its local oyster industry and harming Florida's river ecosystems.[1496] After agreeing to exercise original jurisdiction, the Supreme Court appointed a Special Master to take evidence and issue a report with recommendations on how to resolve the dispute.[1497] The Court explained that "given the complexity of many water-division cases, the need to secure equitable solutions, the need to respect the sovereign status of the States, and the importance of finding flexible solutions to multi-factor problems, we typically appoint a Special Master and benefit from detailed factual findings."[1498]

The Special Master in Florida v. Georgia recommended that the Court dismiss the case because the relief Florida sought--a limitation on Georgia's consumptive use of ACF Basin waters--would not redress the alleged injury without also joining the Army Corps of Engineers (Corps) as party to the case.[1499] Although the Corps operated a dam that controlled the amount of water flowing southward into Florida, it was not a defendant in the suit because it was protected by sovereign immunity.[1500] The Special Master recommended dismissing the case based on the "single, discrete" conclusion that Florida's injury could not be redressed without a judicial decree that was binding on both Georgia and the Corps as defendants.[1501] Florida lodged exceptions to the Special Master's report, and, in a 5-4 opinion issued in 2018, the Supreme Court declined to adopt the Special Master's recommendation of dismissal.[1502]

At the outset of its 2018 opinion, the Supreme Court summarized "several related but more specific sets of principles" that govern the doctrine of equitable apportionment in interstate disputes between two states.[1503] The Court remanded the case to the Special Master assigned to the dispute, concluding that he had applied too strict a standard on the issue of redressability.[1504] The Court advised the Special Master that, "[c]onsistent with the principles that guide our inquiry in this context, answers need not be 'mathematically precise or based on definite present and future conditions.' Approximation and reasonable estimates may prove 'necessary to protect the equitable rights of a State.' . . . Flexibility and approximation are often the keys to success in our efforts to resolve water disputes between sovereign States that neither Congress 'nor the legislature of either State' has been able to resolve."[1505]

On remand, a newly appointed Special Master recommended that the Supreme Court dismiss Florida's request for equitable apportionment, and the Court agreed.[1506] In a unanimous opinion issued in 2021, the Supreme Court held that Florida did not meet its evidentiary burden to show that Georgia's consumption of ACF Basin waters caused Florida's alleged harm.[1507] Rather, the evidence suggested Florida's mismanagement of its own fisheries contributed to its oyster industry's collapse, and Florida did not show any "actual" or "real-world" damage to its ecosystems.[1508]

Other types of interstate disputes of which the Court has taken jurisdiction include suits by a state as the donee of the holders of bonds issued by another state, and the ability to collect thereon;[1509] by Virginia against West Virginia to determine the proportion of the public debt of the original State of Virginia that the latter owed the former;[1510] and by Arkansas to enjoin Texas from interfering with the performance of a contract by a Texas foundation to contribute to the construction of a new hospital in the medical center of the University of Arkansas.[1511] Other examples include a suit brought by one state against another to enforce a contract between the two,[1512] a suit in equity between states for the determination of a decedent's domicile for inheritance tax purposes,[1513] and a suit by two states to restrain a third from enforcing a natural gas measure that purported to restrict the interstate flow of natural gas from the state in the event of a shortage.[1514]

In Texas v. New Jersey,[1515] the Court adjudicated a multistate dispute about which state should be allowed to escheat intangible property consisting of uncollected small debts held by a corporation. Emphasizing that the states could not constitutionally provide a rule of settlement and that no federal statute governed the matter, the Court evaluated the possible rules and chose the one easiest to apply and least likely to lead to continuing disputes.[1516]

In general, in taking jurisdiction of these suits, along with those involving boundaries and the diversion or pollution of water resources, the Supreme Court relied on the liberal construction of the term "controversies between two or more States" that the Court enunciated in Rhode Island v. Massachusetts,[1517] and Chief Justice John Marshall fortified in dictum in Cohens v. Virginia[1518] that "it is entirely unimportant, what may be the subject of controversy. Be it what it may, these parties have a constitutional right to come into the Courts of the Union."[1519]

Cases Where the Court Has Declined Jurisdiction[edit | edit source]

Centering its attention upon the elements of a case or controversy, the Court has declined jurisdiction in certain circumstances. For example, in Alabama v. Arizona,[1520] where Alabama sought to enjoin nineteen states from regulating or prohibiting the sale of convict-made goods, the Court stated that jurisdiction of suits between states will be exercised only when absolutely necessary.[1521] The Court explained that the equity requirements in a suit between states are more exacting than in a suit between private persons, and that a plaintiff state asking leave to sue another state must show the threatened injury to be of great magnitude and imminent.[1522] The Court further explained that the burden on the plaintiff state to establish all the elements of a case is greater than the burden generally required by a plaintiff seeking an injunction in cases between private parties.[1523]

Pursuing a similar line of reasoning, the Court declined to take jurisdiction of a suit brought by Massachusetts against Missouri and certain of its citizens to prevent Missouri from levying inheritance taxes upon intangibles held in trust in Missouri by resident trustees.[1524] In holding that the complaint presented no justiciable controversy, the Court declared that, to constitute such a controversy, the complainant state must show that it "has suffered a wrong through the action of the other State, furnishing ground for judicial redress, or is asserting a right against the other State which is susceptible of judicial enforcement according to . . . the common law or equity systems of jurisprudence."[1525] The fact that the trust property was sufficient to satisfy the claims of both states and that recovery by either would not impair any rights of the other distinguished the case from Texas v. Florida,[1526] where the Court held the contrary. Furthermore, the Missouri statute providing for reciprocal privileges in levying inheritance taxes did not confer upon Massachusetts any contractual right.[1527] The Court then proceeded to reiterate its earlier rule that a state may not invoke the original jurisdiction of the Supreme Court for the benefit of its residents or to enforce the individual rights of its citizens.[1528] Moreover, the Court held that Massachusetts could not invoke the original jurisdiction of the Court by making citizens of Missouri parties to a suit that was not otherwise maintainable.[1529] Accordingly, Massachusetts was held to have an adequate remedy in Missouri's courts or in a federal district court in Missouri.[1530]

In 2020, the Supreme Court declined to allow Texas to file a bill of complaint in which Texas alleged that four states allowed "material illegality"[1531] in the 2020 general elections held in their states.[1532] Texas argued that alleged flaws in voting processes in Pennsylvania, Georgia, Michigan, and Wisconsin affected an "outcome determinative" number of votes in the 2020 presidential election.[1533] The Supreme Court denied Texas's motion under the rationale that Texas lacked standing because it did not have a "judicially cognizable interest in the manner in which another State conducts its elections."[1534]

Enforcement Authority[edit | edit source]

In 2015, the Court, noting that proceedings under its original jurisdiction are "basically equitable,"[1535] took the view that its enforcement authority encompasses ordering disgorgement of part of one state's gain from its breach of an interstate compact, as well as reforming certain agreements adopted by the states.[1536] In so doing, the Court emphasized that its enforcement authority derives both from its "inherent authority" to apportion interstate streams between states equitably and from Congress's approval of interstate compacts.[1537] As to its inherent authority, the Court noted that states bargain for water rights "in the shadow of" the Court's broad power to apportion them equitably and it is "difficult to conceive" that a state would agree to enter an agreement as to water rights if the Court lacked the power to enforce the agreement.[1538] The Court similarly reasoned that its remedial authority "gains still greater force" because a compact between the states, "having received Congress's blessing, counts as federal law."[1539] The Court stated, however, that an interstate compact's "legal status" as federal law could also limit the Court's enforcement power because the Court cannot order relief that is inconsistent with a compact's express terms.[1540]

States and Citizens of Other States[edit | edit source]

Historical Background on Controversies Between a State and Citizens of Other States[edit | edit source]

The Supreme Court's decision in Chisholm v. Georgia[1541] that cases "between a state and citizens of another state" included those where a state was a party defendant provoked the proposal and ratification of the Eleventh Amendment. Since then, controversies between a state and citizens of another state include only those cases where the state has been a party plaintiff or has consented to be sued.[1542] As a party plaintiff, a state may bring actions against citizens of other states to protect its legal rights or in some instances as parens patriae to protect the health and welfare of its citizens. In general, the Court has tended to construe strictly this grant of judicial power, which simultaneously comes within its original jurisdiction, by applying the concepts of cases and controversies more rigorously than in cases between private parties.[1543] Specifically, in these circumstances, the Court holds rigorously to the rule that all the party defendants are citizens of other states[1544] and adheres to congressional distribution of its original jurisdiction concurrently with that of other federal courts.[1545]

Jurisdiction Confined to Civil Cases[edit | edit source]

Cohens v. Virginia[1546] includes dicta about whether the Supreme Court's original jurisdiction encompasses suits between a state and its own citizens. Long afterwards, the Supreme Court dismissed an action for want of jurisdiction because the record did not show that the corporation against which the suit was brought was chartered in another state.[1547] Subsequently, the Court has ruled that it will not entertain an action by a state to which its citizens are either parties of record or would have to be joined because of the effect of a judgment upon them.[1548] In dictum, Chief Justice John Marshall also indicated in Cohens that perhaps no jurisdiction existed over suits by states to enforce their penal laws.[1549] Sixty-seven years later, the Court wrote this dictum into law in Wisconsin v. Pelican Ins. Co.[1550] In Pelican, Wisconsin sued a Louisiana corporation to recover a judgment rendered in its favor by one of its own courts. Relying partly on the rule of international law that the courts of no country execute the penal laws of another; partly upon the Section 13 of the Judiciary Act of 1789, which vested the Supreme Court with exclusive jurisdiction of controversies of a civil nature where a state is a party; and partly on Justice James Iredell's dissent in Chisholm v. Georgia,[1551] where he confined the term "controversies" to civil suits, Justice Horace Gray ruled for the Court that, for purposes of original jurisdiction, "controversies between a State and citizens of another State" are confined to civil suits.[1552]

The State's Real Interest[edit | edit source]

Ordinarily, a state may not sue in its name unless it is the real party in interest with real interests. It can sue to protect its own property interests,[1553] and, if it sues for its own interest as owner of another state's bonds, rather than as an assignee for collection, jurisdiction exists.[1554] The Court refused to allow a state to sue when, to avoid Eleventh Amendment restrictions on suing states, the state had passed a statute to collect on another state's bonds held by one of its citizens.[1555] Nor can a state sue citizens of other states on behalf of its own citizens to collect claims.[1556]

Diversity Jurisdiction[edit | edit source]

Overview of Diversity Jurisdiction[edit | edit source]

Article III, Section 2, Clause 1, as interpreted by the Supreme Court, authorizes Congress to grant federal courts subject matter jurisdiction over controversies between citizens of different states--commonly known as "diversity jurisdiction."[1557] Although Justice Joseph Story concluded in the early case Martin v. Hunter's Lessee that "the language of [Article III]. . . . is manifestly designed to be mandatory upon the legislature," such that "Congress could not, without a violation of its duty, have refused to carry it into operation,"[1558] numerous subsequent Supreme Court decisions repudiated this stance, recognizing instead that Article III's grant of subject matter jurisdiction is permissive and subject to congressional discretion.[1559]

Congress has invoked this authority and enacted legislation granting federal courts diversity jurisdiction since the Judiciary Act of 1789.[1560] That statute conferred diversity jurisdiction only when a suit was between a citizen of the state in which the suit was brought and a citizen of another state.[1561] The Judiciary Act of 1789 further limited diversity jurisdiction to cases where the amount in controversy--that is, the value of the relief sought--was at least $5,000.[1562] The Judiciary Act of 1875 eliminated the requirement that one of the parties be a citizen of the forum state, requiring only diverse citizenship and a minimum jurisdictional amount in controversy.[1563] The current diversity jurisdiction provision is codified at 28 U.S.C. § 1332, and grants federal court jurisdiction in all civil actions between citizens of different states and between a citizen of a state and a subject of a foreign state if the amount in controversy exceeds $75,000.

Although the broad strokes of these requirements have remained the same since 1875, the statute has grown increasingly complex over the years. For instance, Congress amended the statutory provision via the Class Action Fairness Act of 2005 (CAFA).[1564] Among other changes, CAFA expanded federal courts' jurisdiction over class actions by substituting in these cases a minimal diversity-of-citizenship requirement in place of the usual complete diversity requirement, which requires each plaintiff be a citizen of a different state from each defendant. Under the minimal diversity requirement, federal courts possess diversity jurisdiction over a class action when any one of the plaintiffs is a citizen of a different state from any defendant.[1565] CAFA also imposed an amount-in-controversy threshold of $5,000,000 in class actions, and allowed plaintiffs to aggregate their monetary claims to calculate the statutory amount in controversy.[1566]

The following essays do not cover the extensive case law interpreting the various statutory requirements for diversity jurisdiction.[1567] They instead provide an overview of the constitutional parameters of diversity jurisdiction, including a historical perspective on the purpose of diversity jurisdiction; the Supreme Court's interpretations of the meaning of "citizens of different states" under Article III; and related federalism principles implicated by diversity jurisdiction.

Historical Background on Diversity Jurisdiction[edit | edit source]

The records of the Constitutional Convention do not shed substantial light on why the Framers included diversity jurisdiction among the judicial powers of the federal courts.[1568] The traditional explanation most often cited by judges and legal scholars is that the Framers provided diversity jurisdiction to address the concern that state courts would be prejudiced against out-of-state litigants, particularly if one party was an in-state resident.[1569]

Writings and statements of several Framers support this traditional explanation. For instance, at the Virginia Convention, James Madison stated his belief that the diversity jurisdiction clause was "salutary," citing the possibility that "a strong prejudice may arise in some states, against the citizens of others, who may have claims against them."[1570] In the Federalist Papers, Alexander Hamilton similarly argued that a national Judiciary "ought to preside in all cases in which one State or its citizens are opposed to another State or its citizens" to ensure "the inviolable maintenance of [the] equality of privileges and immunities to which the citizens of the Union will be entitled."[1571] Hamilton contended that a federal court, "having no local attachments, will be likely to be impartial between the different States and their citizens."[1572] Chief Justice John Marshall likewise explained in an early case that, while it might be true that state courts would "administer justice as impartially" as federal courts, "it is not less true that the [C]onstitution itself either entertains apprehensions on this subject, or views with such indulgence the possible fears and apprehensions of suitors" as to warrant the establishment of diversity jurisdiction in the federal courts.[1573]

Historians have proffered other explanations for the Constitution's diversity-jurisdiction provision.[1574] As the volume of diversity litigation in federal court has grown over the years, commentators continue to debate the purpose of diversity jurisdiction.[1575] Given that contemporary society has evolved significantly from the conditions that existed in 1789, questions have arisen periodically concerning the continued need for diversity jurisdiction, including whether to retain, abolish, or curtail to some degree the statutory grant of this form of federal subject matter jurisdiction.[1576]

Citizens of Different States and Diversity Jurisdiction[edit | edit source]

The constitutional grant of diversity jurisdiction extends to controversies between "Citizens of different States." Since Congress first exercised its constitutional prerogative to vest diversity jurisdiction in the federal courts in the Judiciary Act of 1789, the Supreme Court has considered the meaning of "Citizens of different States," and the constitutional reach of diversity jurisdiction, on numerous occasions.

In Hepburn v. Ellzey,[1577] Chief Justice John Marshall confined the meaning of the word "state" as used in the Constitution to "the members of the American confederacy," ruling that a citizen of the District of Columbia thus could not maintain a suit against a citizen of Virginia in federal court on the basis of diversity jurisdiction. Chief Justice Marshall noted that it was "extraordinary that the courts of the United States, which are open to aliens, and to the citizens of every state in the union, should be closed upon [citizens of the District of Columbia].--But this is a subject for legislative not for judicial consideration."[1578] The Court subsequently applied the same rule to citizens of the U.S. territories.[1579]

Whether the Chief Justice had in mind a constitutional amendment or a statute when he spoke of legislative consideration remains unclear. Congress addressed the issue in 1940 by statutorily conferring on federal district courts jurisdiction over civil actions, not involving federal questions, "between citizens of different States, or citizens of the District of Columbia, the Territory of Hawaii, or Alaska and any State or Territory."[1580] In National Mutual Ins. Co. v. Tidewater Transfer Co.,[1581] the Court upheld that amendment in a 5-4 decision, but a majority of Justices could not agree on the reasoning. Two Justices thought that Chief Justice Marshall's 1804 decision should be overruled, but the other seven Justices disagreed. Three of the seven Justices thought the statute could be sustained under Congress's power to enact legislation for District of Columbia inhabitants, but the remaining four plus the other two rejected this theory. The statute was upheld because a total of five Justices voted to sustain it, although of the two theories relied upon, seven Justices rejected one and six the other. The result, attributable to "conflicting minorities in combination,"[1582] means that Hepburn v. Ellzey is still good law insofar as it holds that the District of Columbia is not a state for purposes of Article III, but is overruled insofar as it holds that District citizens may not invoke federal diversity jurisdiction.[1583]

In a typical two-party case, "diversity" exists if a citizen of one state sues a citizen of another state. In a multiparty case, Chief Justice Marshall established in an early case, Strawbridge v. Curtiss, that there must be complete diversity--that is, no party on one side could be a citizen of any state of which any party on the other side was a citizen.[1584] In State Farm Fire & Casualty Co. v. Tashire, the Court clarified that this complete diversity requirement flows from the diversity jurisdiction statute, rather than from the constitutional grant of authority,[1585] noting that Chief Justice Marshall, in Strawbridge, "purported to construe only '[t]he words of the act of congress.'"[1586] Article III's diversity requirement, the Court held in Tashire, requires only that "any two adverse parties are not co-citizens" and thus "poses no obstacle to the legislative extension of federal jurisdiction" by requiring only minimal diversity.[1587]

Citizenship of Natural Persons and Corporations[edit | edit source]

For purposes of diversity jurisdiction, state citizenship of an individual is determined by the concept of domicile[1588] rather than residence.[1589] While the Supreme Court's definition has varied across cases,[1590] this generally means that a person is a citizen of the state that is his or her true, fixed, and permanent home and principal establishment, and to which he or she intends to return whenever he or she is absent from it.[1591] Actions may disclose this intention more clearly and decisively than statements.[1592] A person may change his or her domicile in an instant by taking up residence in a new place with the intention of remaining there indefinitely; he or she may obtain the benefit of diversity jurisdiction by making this change alone,[1593] provided the change is more than a temporary expedient.[1594]

Whether corporations, which are not explicitly referenced in Article III, should be treated as citizens of a certain state or states for purposes of diversity jurisdiction is a question with which the Supreme Court has long wrestled. The Court first directly addressed the issue in Bank of the United States v. Deveaux,[1595] in which Chief Justice John Marshall declared: "That invisible, intangible, and artificial being, that mere legal entity, a corporation aggregate, is certainly not a citizen; and consequently cannot sue or be sued in the courts of the United States, unless the rights of the members, in this respect, can be exercised in their corporate name." Nevertheless, the Court upheld diversity jurisdiction in that case because the members of the bank as a corporation were citizens of one state and the opposing party was a citizen of another. The holding that corporations were citizens of the states where their stockholders lived was reaffirmed a generation later,[1596] but pressures were building for change. While corporations were assuming an ever more prominent economic role, the Strawbridge rule, which required complete diversity between each plaintiff and each defendant,[1597] operated to close the doors of the federal courts to corporations with stockholders in many states.

The Supreme Court overruled Deveaux in 1844, when a divided Court held that "a corporation created by and doing business in a particular state, is to be deemed to all intents and purposes as a person, although an artificial person, an inhabitant of the same state . . . capable of being treated as a citizen of that state, as much as a natural person."[1598] Ten years later, the Court abandoned that rationale, but it achieved the same result by "indulg[ing] in the fiction that, although a corporation was not itself a citizen for diversity purposes, its shareholders would be conclusively presumed citizens of the incorporating State."[1599] "State of incorporation" remained the guiding rule for determining the place of corporate citizenship until Congress amended the jurisdictional statute in 1958.[1600] Concern over growing dockets and companies incorporating in states of convenience led to a "dual citizenship" rule, whereby "a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business."[1601] The right of foreign corporations to invoke diversity jurisdiction is not one that a state may require corporations to waive as a condition of doing business in that state.[1602]

Unincorporated associations, such as partnerships, joint stock companies, labor unions, governing boards of institutions, and the like, do not enjoy the same status as corporations. The actual citizenship of each of its members must be considered in determining whether diversity exists.[1603]

Insufficient or Manufactured Diversity[edit | edit source]

Historically, regardless of the parties' diverse citizenship, the Supreme Court has recognized two substantive exceptions to diversity jurisdiction: the domestic relations exception[1604]--which precludes federal courts from issuing divorce, alimony, or child custody decrees--and the probate exception--which precludes federal courts from probating a will or administering an estate.[1605] In Ankenbrandt v. Richards, the Court clarified that the domestic relations exception exists as a matter of statutory interpretation, and that Article III, Section 2 "does not mandate the exclusion of domestic relations from federal-court jurisdiction."[1606] In Marshall v. Marshall, the Court similarly interpreted the probate exception as a matter of statutory construction, confirming its narrow scope as "reser[ving] to state probate courts the probate or annulment of a will and the administration of a decedent's estate," and "preclud[ing] federal courts from endeavoring to dispose of property that is in the custody of a state probate court."[1607]

A litigant who, because of diversity of citizenship, has the option to sue in state or federal court, will generally consider the relative advantages and disadvantages of each forum in deciding where to pursue litigation. Where diversity is lacking, a litigant who perceives an advantage in the federal forum will sometimes attempt to create diversity. In the Judiciary Act of 1789, Congress exempted from diversity jurisdiction suits on choses of action in favor of an assignee unless the suit could have been brought in federal court if no assignment had been made.[1608] Nevertheless, a person could create diversity by a bona fide change of domicile even if that is the sole motive of creating domicile.[1609]

Similarly, one could create diversity, or defeat it, by choosing a personal representative of the requisite citizenship.[1610] Most attempts to manufacture or create diversity have involved corporations. A corporation cannot get into federal court by transferring its claim to a subsidiary incorporated in another state.[1611] For a time, the Supreme Court tended to look disapprovingly at collusory incorporations and the creation of dummy corporations for purposes of creating diversity.[1612] As discussed further in the next essay, however, the Court, in Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co.,[1613] upheld diversity in a case in which the plaintiff-corporation, a Kentucky corporation, dissolved itself and obtained a charter as a Tennessee corporation in order to file the action in federal court. At the time, federal courts applied federal common law rules that, compared to relevant state laws, were more favorable to the plaintiff.[1614]

State Law in Diversity Cases and the Erie Doctrine[edit | edit source]

Because a federal court's subject matter jurisdiction in diversity cases is predicated upon the fact that the opposing litigants are from different states, rather than upon questions of federal law, a foundational question in these cases is which law--federal or state--should apply. In the 1938 decision Erie Railroad v. Tompkins,[1615] the Supreme Court set forth what is now commonly known as the Erie doctrine, which generally requires a federal court to apply state substantive law, unless the matter before it is governed by federal law. In so holding, Erie repudiated a prior body of jurisprudence based upon the Court's 1842 decision in Swift v. Tyson.[1616] As legal commentators have noted, "[p]robably no Supreme Court decision rendered during the twentieth century has had as significant an impact on the distribution of judicial power between the federal government and the states as has [Erie]."[1617]

In both Swift and Erie, the Supreme Court considered Section 34 of the Judiciary Act of 1789, which provided that "[t]he laws of the several states" should generally apply in federal courts unless applicable federal laws require otherwise.[1618] In Swift, Justice Joseph Story ruled for the Court that state court decisions were not "laws" within the meaning of Section 34.[1619] Thus, while such state decisions were entitled to respect, they were generally not binding on federal judges except with regard to matters of a "local nature," such as statutory interpretations pertaining to real estate and other things of permanent locality.[1620] For nearly a century after Swift, the Court issued a series of decisions that expanded the areas in which federal judges were free to construct a federal common law, while restricting the definition of "local" laws.[1621]

Although there was some dissatisfaction with Swift,[1622] it was the Supreme Court's decision in Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co.[1623] that brought disagreement on these choice-of-law issues to its apex. In Black & White, a Kentucky corporation that sought the application of more favorable federal common law was permitted to create diversity jurisdiction by reincorporating in another state, even though the only change made to the corporation was its state of incorporation; the corporation's name, officers, shareholders, and location of the business all remained the same.[1624] A Court majority, over a strong dissent by Justice Oliver Wendell Holmes,[1625] found no collusion and upheld diversity jurisdiction. The resulting application of federal common law allowed the corporation to prevail on its claims when it would have otherwise lost under state law had it sued in state court.[1626] Perhaps more than any other decision, Black & White precipitated Erie's overruling of Swift.[1627]

In Erie, a citizen of Pennsylvania sued a railroad incorporated in New York for injuries caused by the defendant's train while the plaintiff was walking along the tracks.[1628] Relevant Pennsylvania law, according to the defendant, would have limited the railroad's liability because the plaintiff was a trespasser, while applicable federal common law would permit him to recover for negligence as a licensee who was allowed on the premise.[1629] After the plaintiff sued and recovered in a New York federal court, the railroad appealed, eventually presenting the issue to the Supreme Court as to whether the matter concerned a question of "local" law under Swift.[1630]

Writing for the Court in Erie, Justice Louis Brandeis overruled Swift. He explained that the Swift rule failed to bring about uniformity of decisions as intended.[1631] Moreover, its application prompted those seeking to avail themselves to more favorable federal rules to create diversity jurisdiction, resulting in discrimination against citizens of a state by noncitizens.[1632] Justice Brandeis further concluded the Swift rule was also unconstitutional because "Congress has no power to declare substantive rules of common law applicable in a State whether they be local in their nature or 'general,' be they commercial law or a part of the law of torts," and "[n]o clause in the Constitution purports to confer such a power upon the federal courts."[1633] Justice Brandeis also clarified that the unconstitutional assumption of power was made not by Congress, but by the Court itself: "[W]e do not hold unconstitutional § 34 of the Federal Judiciary Act of 1789 or any other Act of Congress. We merely declare that in applying the doctrine this Court and the lower courts have invaded rights which in our opinion are reserved by the Constitution to the several States."[1634]

As legal commentators have observed:

It is impossible to overstate the importance of the Erie decision. It announces no technical doctrine of procedure or jurisdiction, but goes to the heart of the relations between the Federal Government and the states, and returns to the states a power that had for nearly a century been exercised by the federal government.Wright & Miller, supra note here, § 4503. See also In Praise of Erie--And of the New Federal Common Law, in H. Friendly, Benchmarks 155 (1967)

Erie was remarkable in a number of ways aside from the doctrine it announced. It reversed a 96-year-old precedent, which counsel had specifically not questioned; it reached a constitutional decision when a statutory interpretation was available, though perhaps less desirable; and it marked the only time in United States constitutional history when the Court has held that it had undertaken an unconstitutional action.

The precise constitutional basis of Erie has been the subject of debate, however, with the Court at times seemingly distancing itself from Erie's constitutional holding.[1635] Nonetheless, in the years since the decision, the Court has reaffirmed the constitutional basis of Erie under which "neither Congress nor the federal courts can, under the guise of formulating rules of decisions for federal courts, fashion rules which are not supported by a grant of federal authority contained in Article I or some other section of the Constitution; in such areas state law must govern because there can be no other law."[1636] Erie ultimately appears to derive from the federalism principles embodied in the Tenth Amendment, which limits the federal government, including Congress and the federal courts, to the authority delegated to it by the Constitution and reserves those powers not so delegated to the states or to the people.[1637]

Since the Supreme Court's landmark 1938 decision, Erie Railroad v. Tompkins,[1638] the Court's jurisprudence on federal courts' application of state law in diversity cases has evolved. At first, the Supreme Court indicated that federal courts sitting in diversity were bound by state court decisions even when such decisions were not binding on other state judges. That is, federal courts sitting in diversity must follow not only the decisions of the highest court of a state, but also decisions of intermediate appellate courts[1639] and courts of first instance.[1640] The Court subsequently concluded that federal judges are to give careful consideration to lower state court decisions, but they generally must construe the state law themselves if the state's highest court has not spoken definitively on the question.[1641] In the event of a state supreme court reversal of an earlier decision, the federal courts are, of course, bound by the later decision, and a judgment of a federal district court, correct when rendered, must be reversed on appeal if the state's highest court subsequently changed the applicable law.[1642]

Conflicts-of-Law and Procedural Rules in Diversity Cases[edit | edit source]

In diversity jurisdiction cases that present conflicts-of-law issues--that is, in cases in which the laws of two or more states could apply to the dispute--the Court has reiterated that the district court is to apply the conflict-of-law rules of the state in which it sits. In other words, in a federal court case in State A in which the law of State B applies under State A's conflict-of-law rules, perhaps because a contract was made in State B or a tort was committed there, the federal court is to apply State A's conception of State B's law.[1643]

The greatest difficulty in applying the Erie doctrine, which generally directs federal courts sitting in diversity to apply state substantive law but federal procedural law, has been in cases in which the distinction between substantive and procedural rules is blurred.[1644] In 1945, in Guaranty Trust Co. of New York v. York, the Court held that a state statute of limitations, which was at times deemed a matter of "procedure" but would have barred suit in state court, applied to bar the case in federal court.[1645] The Court regarded the substance-procedure distinction as immaterial. Instead, "since a federal court adjudicating a state-created right solely because of the diversity of citizenship of the parties is for that purpose, in effect, only another court of the State, it cannot afford recovery if the right to recover is made unavailable by the State nor can it substantially affect the enforcement of the right as given by the State."[1646] This outcome-determinative standard, the Court explained, was compelled by Erie's "intent," which was to ensure that, in all cases where a federal court is exercising jurisdiction solely because of the parties' diverse citizenship, "the outcome of the litigation in the federal court should be substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in a State court."[1647]

The Supreme Court's application of the outcome-determinative standard created substantial doubt that the Federal Rules of Civil Procedure were valid in diversity jurisdiction cases.[1648] In 1965, however, the Court, in Hanna v. Plumer, limited the standard's application in matters governed by the Federal Rules.[1649] Under Hanna and its progeny, the outcome-determinative standard is not the proper test when the question is the application of one of the Federal Rules of Civil Procedure. Instead, if the rule is valid under the Rules Enabling Act--which authorizes the Supreme Court to prescribe general rules of practice and procedure and rules of evidence for the federal courts--and the Constitution, it is to be applied regardless of state law to the contrary.[1650]

Some uncertainty remains as to which law to apply--state or federal--in the absence of a federal statute or a Federal Rule of Civil Procedure. In Byrd v. Blue Ridge Rural Electric Cooperative, Inc., the Supreme Court said that "outcome" was no longer the sole determinant, and that countervailing considerations expressed in federal policy on the conduct of federal trials should be considered.[1651] Under this balancing standard, the Court held that a state rule that requires a judge (rather than a jury) to decide whether a particular defense applied in a tort action had to yield to a federal policy favoring juries, as reflected by the Seventh Amendment.[1652]

Later, in Gasperini v. Center for Humanities, Inc., the Supreme Court considered whether to apply a state statute--which gave state appellate courts the authority to determine if a damages award is excessive or inadequate if it deviates materially from what would be reasonable compensation--or a federal court-created practice of reviewing awards to determine whether they were so exorbitant that it shocked the conscience of the court.[1653] The Court first determined that the state statute was both substantive and procedural, and that substantial variation in damage awards would result depending on whether the state or the federal approach was applied.[1654] It then followed the mode of analysis under York, emphasizing the importance of federal courts reaching the same outcome as would the state courts,[1655] rather than what had been the prevailing standard under Byrd, in which the Court balanced state and federal interests to determine which law to apply.[1656] The Court's evolving approach to deciding whether state or federal law applies in these cases reflects a continuing difficulty of accommodating "the constitutional power of the states to regulate the relations among their citizens" on the one hand, and "the constitutional power of the federal government to determine how its courts are to be operated" on the other hand.[1657]

Although it seems clear that Erie applies in non-diversity cases in which the source of the right sued upon is state law,[1658] it is also evident that Erie is not always applicable in diversity cases, regardless of whether the issue is substantive or procedural. For instance, it may be that there is an overriding federal interest that compels national uniformity of rules, such as a case involving the appropriate rule for determining a bank's liability for guaranteeing a forged federal check;[1659] whether a tortfeasor is liable to the United States for hospitalization of a soldier and loss of his services;[1660] or the validity of a defense raised by a federal officer sued for allegedly committing libel in the course of his official duties.[1661] In such cases, when the issue is controlled by federal law, common or otherwise, the result is binding on state as well as on federal courts.[1662] As a result, notwithstanding Justice Louis Brandeis's oft-quoted statement that there is "no federal general common law,"[1663] there are areas of law where "federal judges may appropriately craft the rule of decision."[1664] Nonetheless, because legislative power is vested in Congress, federal common law plays a "necessarily modest role"[1665] under the Constitution; such common lawmaking must be "necessary to protect uniquely federal interests."[1666]

Land Grants by Different States[edit | edit source]

The Constitution allows federal courts to exercise jurisdiction over controversies "between Citizens of the same State claiming Lands under Grants of different States."[1667] The provision has its roots in the Articles of Confederation. The Articles of Confederation did not create an independent federal Judiciary, but provided that Congress would be "the last resort on appeal" in "controversies concerning the private right of soil claimed under different grants of two or more states" and could appoint commissioners or judges to constitute a court to resolve such disputes.[1668] An initial proposal from the Constitutional Convention's Committee of Detail would have adopted a similar approach and granted the Senate the authority to resolve certain disputes, including "Controversies concerning Lands claimed under different Grants of two or more States."[1669] That proposal was defeated in the Convention.[1670] The delegates later added the current clause to the jurisdiction of the Federal Judiciary without reported debate.[1671]

Congress has implemented the clause via legislation, vesting jurisdiction in the federal district courts.[1672] The provision has produced few Supreme Court cases, and none since the early twentieth century. The Court has explained that the constitutional provision and its implementing statute apply only to disputes between citizens of the same state.[1673] With respect to the reference to land grants "of different States," the Court has held that the provision applies even if one of the states at issue was previously part of the other.[1674]

Foreign States or Citizens[edit | edit source]

Controversies Between a State or its Citizens and Foreign States or Citizens[edit | edit source]

Article III allows federal courts to exercise jurisdiction over controversies "between a State, or the Citizens thereof, and foreign States, Citizens or Subjects."[1675] However, two post-ratification developments have limited the scope of federal court jurisdiction under this provision. First, the Supreme Court has applied the law of nations to hold that foreign states are generally immune from suit in U.S. federal courts without their consent.[1676] That immunity extends to suits brought by American states against foreign nations.[1677] Second, the Court has construed the Eleventh Amendment to bar suits by foreign states against a state of the United States.[1678]

In addition to the foregoing limits, the grants of jurisdiction in Article III, Section 2, Clause 1 are not self-executing. Instead, the constitutional text sets the maximum extent of federal court jurisdiction and leaves Congress discretion to determine how much of that jurisdiction to grant.[1679] Congress has always granted the federal courts less expansive jurisdiction than the Constitution authorizes, including with respect to cases involving foreign states or citizens. In 28 U.S.C. § 1332, Congress granted federal courts jurisdiction over disputes where "the matter in controversy" exceeds $75,000 between "citizens of a State and citizens or subjects of a foreign state" (except claims between citizens of a state and lawful permanent residents of the same state) or "a foreign state . . . as plaintiff and citizens of a State or of different States."[1680](a)(2), 1332(a)(4). Another provision of the statute, [1] 28 U.S.C. § 1332(a)(1), empowers the federal courts to hear "diversity" cases between citizens of different states. See Art. III, Sec. 2, Cl. 1: Overview of Diversity Jurisdiction.

Article III does not provide for federal court jurisdiction over disputes between one or more foreign states or their subjects to which no U.S. state or citizen is a party. However, suits that fall outside the scope of the constitutional and statutory grants of jurisdiction over suits between a state or its citizens and foreign states or citizens may proceed in federal court if they fall within another grant of Article III jurisdiction, for example because they involve questions arising under a federal law or treaty.[1681]

Suits Involving Foreign States[edit | edit source]

The Constitution authorizes federal courts to hear certain cases involving foreign states, but does not expressly provide foreign states a right of access to U.S. federal courts. Nonetheless, the Supreme Court has held that "[a] foreign sovereign, as well as any other foreign person, who has a demand of a civil nature against any person here, may prosecute it in our courts."[1682] The Court based that holding in part on general international law principles of comity[1683] and in part on the fact that "[t]he Constitution expressly extends the judicial power to controversies between a State, or citizens thereof, and foreign States, citizens, or subjects, without reference to the subject-matter of the controversy."[1684]

While foreign states may sue in U.S. court, the Supreme Court has repeatedly applied the doctrine of sovereign immunity to hold that a foreign state cannot be sued in federal court unless it consents to the suit.[1685] The doctrine of foreign sovereign immunity is not rooted in the text of the Constitution, but instead derives from "the principle of comity."[1686] Foreign sovereign immunity is not absolute. For instance, the Court has held that once a foreign government avails itself of the privilege of suing in the courts of the United States, it subjects itself to the procedures and rules of decision governing those courts and accepts whatever liabilities the court may decide to be a reasonable incident of bringing the suit.[1687] Thus, the Court has held that a foreign nation instituting a suit in federal court cannot invoke sovereign immunity as a defense to a counterclaim arising from of the same transaction.[1688] The Court has extended that holding to deny a defense of sovereign immunity on a counterclaim that was not related to the sovereign's initial claim but that was limited to the amount of the sovereign's claim, so it functioned as a setoff to the non-sovereign defendant's liability.[1689]

The political branches of the federal government, rather than the courts, are primarily responsible for determining when a foreign state may sue in federal court or claim sovereign immunity.[1690] Only a government that has been recognized by the political branches as the authorized government of the foreign state may maintain a suit on behalf of a national sovereign in the courts of the United States.[1691] Likewise, as the responsible agency for the conduct of foreign affairs, the State Department is generally responsible for suggesting to the courts that a sovereign be granted immunity from a particular suit.[1692]

Limits on Jurisdiction[edit | edit source]

The Supreme Court has narrowly construed the grant of jurisdiction over suits between a state or its citizens and foreign states or citizens. As in cases involving diversity jurisdiction,[1693] suits brought in federal court under this provision must clearly state in the record the citizenship of the parties. In 1809, the Supreme Court ruled that a federal court could not take jurisdiction of a case where the record described the plaintiffs as aliens and subjects of the United Kingdom, while the defendants were described as "late of the district of Maryland" but were not designated as citizens of Maryland.[1694] Twenty years later, the Court narrowly construed Section 11 of the Judiciary Act of 1789, which granted the federal courts jurisdiction over cases where an alien was a party, in order to keep it within the limits of this clause.[1695] The Court held that the judicial power did not apply to private suits in which an alien is a party, unless a citizen is the adverse party.[1696] The Court extended this interpretation in 1870, holding that if there is more than one plaintiff or defendant in a case, each plaintiff must be competent to sue and each defendant must be liable to suit.[1697] However, the Court has held that these rules do not preclude a suit between citizens of the same state if the plaintiffs are merely nominal parties and are suing on behalf of an alien.[1698]

The constitutional grant of jurisdiction over suits between a state or its citizens and foreign states or citizens does not apply to suits involving Indian tribes. In Cherokee Nation v. Georgia, Chief Justice John Marshall concluded that the Cherokee Nation was "a state" in the sense that it was "a distinct political society, separated from others, capable of managing its own affairs and governing itself."[1699] However, he concluded, the tribe was not "a state of the union"; nor was it a "foreign state" within the meaning of Article III's text, since it was a part of the United States and dependent upon it.[1700]

  1. Art. III, Sec. 2, Clause 1 Cases or Controversies.
  2. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 378 (1821).
  3. Art. III, Sec. 2, Clause 1 Cases or Controversies.
  4. Art. III, Sec. 2, Clause 1 Cases or Controversies.
  5. Muskrat v. United States, 219 U.S. 346, 356 (1911).
  6. The two terms may be used interchangeably, inasmuch as a "controversy," if distinguishable from a "case" at all, is so only because it is a less comprehensive word and includes only suits of a civil nature. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239 (1937).
  7. Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824).
  8. Muskrat v. United States, 219 U.S. 346 (1911).
  9. Lord v. Veazie, 49 U.S. (8 How.) 251 (1850).
  10. Alabama State Fed'n of Labor v. McAdory, 325 U.S. 450, 461 (1945) (stating that it is the Court's "considered practice not to decide abstract, hypothetical or contingent questions."); Giles v. Harris, 189 U.S. 475, 486 (1903) (stating that a party cannot maintain a suit "for a mere declaration in the air"); Texas v. ICC, 258 U.S. 158 (1922) ("It is only where rights, in themselves appropriate subjects of judicial cognizance, are being, or about to be, affected prejudicially by the application or enforcement of a statute that its validty may be called in question by a suitor and determined by an exertion of the judicial power."); Ashwander v. TVA, 297 U.S. 288, 324 (1936) ("The pronouncements, policies and program of the Tennessee Valley Authority and its directors, their motives and desires, did not give rise to a justiciable controversy save as they had fruition in action of a definite and concrete character constituting an actual or threatened interference with the rights of the person complaining."
  11. Baker v. Carr, 369 U.S. 186, 204 (1962). That persons or organizations have a personal, ideological interest sufficiently strong to create adverseness is not alone enough to confer standing; rather the adverseness is the consequence of one being able to satisfy the Article III requisite of injury in fact. Valley Forge Christian College v. Americans United, 454 U.S. 464, 482-486 (1982); Schlesinger v. Reservists Comm. To Stop the War, 418 U.S. 208, 225-226 (1974). Nor is the fact that, if plaintiffs have no standing to sue, no one would have standing, a sufficient basis for finding standing. Id. at 227.
  12. Valley Forge Christian College v. Americans United, 452 U.S. 464, 472 (1982); Allen v. Wright, 468 U.S. 737, 751 (1984); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Monsanto C. v. Geerston Seed Farms, 561 U.S. ___, No. 09-475, slip op. (2010). But see United States v. Parole Comm'n v. Geraghty, 445 U.S. 388 (1980).
  13. Schlesinger v. Reservists Comm. To Stop the War, 418 U.S. 208 (1974).
  14. Art. III, Section 2 Justiciability.
  15. See Art. III, Sec. 2, Cl. 1: Overview of Advisory Opinions.
  16. See Art. III, Sec. 2, Cl. 1: Overview of Standing.
  17. See, e.g., Gill v. Whitford, 138 S. Ct. 1916, 1923 (2018) ("[A] plaintiff seeking relief in federal court must first demonstrate that he has standing to do so, including that he has 'a personal stake in the outcome[.]'") (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).
  18. This essay focuses on whether the Framers intended Article III's "Case or Controversy" language to limit the justiciability of disputes in federal court. For analysis of the separate issue of whether and how the definition of "Case" may differ from the definition of "Controversy," compare, e.g., Akhil Reed Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. Rev. 205, 244 n.128 (1985) (suggesting that "Cases" and "Controversies" are "legally synonymous"), with, e.g., Robert J. Pushaw, Jr., Article III's Case/Controversy Distinction and the Dual Functions of Federal Courts, 69 Notre Dame L. Rev. 447, 448-49, 531 (1994) (concluding "that the Framers used 'cases' and 'controversy' as distinct terms to convey different meanings"); See also Art. III, Sec. 2, Cl. 1: Overview of Federal Question Jurisdiction (discussing the classes of "cases" and "controversies" established by Article III).
  19. Scholars have debated whether the historical evidence discussed in this essay supports the prevailing judicial interpretation of Article III. Compare, e.g., Bruce J. Terris, Ex Nihilo--The Supreme Court's Invention of Constitutional Standing, 45 Envtl. L. 849, 849 (2015) (concluding that there is no historical evidence "that the Framers meant [Article III's 'case or controversy' language] to require a showing of injury"), with, e.g., James Leonard & Joanne C. Brant, The Half-Open Door: Article III, The Injury-in-Fact Rule, and the Framers' Plan for Federal Courts of Limited Jurisdiction, 54 Rutgers L. Rev. 1, 2 (2001) ("[G]iven the historical context, the contemporary injury-in-fact rule is an acceptable interpretation of Article III because it reflects not only the Framers' likely concept of what the courts did, but also their view of the judicial role in maintaining the separation of powers."), and Ann Woolhandler & Caleb Nelson, Does History Defeat Standing Doctrine?, 102 Mich. L. Rev. 689, 691 (2004) ("We do not claim that history compels acceptance of the modern Supreme Court's vision of standing, or that the constitutional nature of standing doctrine was crystal clear from the moment of the Founding on. . . . We do, however, argue that history does not defeat standing doctrine; the notion of standing is not an innovation, and its constitutionalization does not contradict a settled historical consensus about the Constitution's meaning.").
  20. See Coleman v. Miller, 307 U.S. 433, 460 (1939) (Frankfurter, J.) ("[T]he framers of the Judiciary Article gave merely the outlines of what were to them the familiar operations of the English judicial system and its manifestations on this side of the ocean before the Union."); Raoul Berger, Standing to Sue in Public Actions: Is it a Constitutional Requirement?, 78 Yale L.J. 816, 816 (1969) ("[I]t is hardly to be doubted that the Framers contemplated resort to English practice for elucidation, and so the Supreme Court has often held.").
  21. See, e.g., Edward Coke, The Second Part of the Institutes of the Lawes of England 602 (1642) ("[T]he [K]ings [C]ourts that may award prohibitions, being informed either by the parties themselves, or by any stranger, that any [C]ourt [T]emporall or [E]cclesiasticall doth hold plea of that (whereof they have not jurisdiction) may lawfully prohibit the same.") (emphasis added).
  22. Att'y Gen. v. Bucknall, [1741] 26 Eng. Rep. 600, 600 ("Any persons, tho' the most remote in the contemplation of the charity, may be relators in an information. . . . It is not absolutely necessary that relators in an information for a charity, should be the persons principally interested.").
  23. 4 Matthew Bacon, A New Abridgement of the Law 244 (1736).
  24. See 3 William Blackstone, Commentaries on the Law of England 219-20 (William Carey Jones ed., 1916) ("[T]he law gives no private remedy for anything but a private wrong. Therefore, no action lies for a public or common nuisance, but an indictment only: because the damage being common to all the king's subjects, no one can assign his particular proportion of it: or if he could, it would be extremely hard, if every subject in the kingdom were allowed to harass the offender with separate actions. For this reason, no person, natural or corporate, can have an action for a public nuisance, or punish it; but only the king in his public capacity of supreme governor, and pater-familias of the kingdom. . . . Yet this rule admits of one exception; where a private person suffers some extraordinary damage, beyond the rest of the king's subjects, by a public nuisance; in which case he shall have a private satisfaction by action."). See also Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1551-52 (2016) (Thomas, J., concurring) (analyzing this excerpt from Blackstone's Commentaries in a modern Article III standing case).
  25. See, e.g., Evan Tsen Lee & Josephine Mason Ellis, The Standing Doctrine's Dirty Little Secret, 107 Nw. U. L. Rev. 169, 232 (2012) ("There is scant evidence in the constitutional record regarding the drafting of what became the cases or language of Article III . . . the wording of 'cases' or 'controversies' seemed almost an afterthought."); James Leonard & Joanne C. Brant, The Half-Open Door: Article III, The Injury-in-Fact Rule, and the Framers' Plan for Federal Courts of Limited Jurisdiction, 54 Rutgers L. Rev. 1, 38 (2001) ("[T]he Framers . . . said next to nothing about the meaning of the case and controversy language in Article III."); Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 Mich. L. Rev. 163, 173 (1992) ("There is relatively little explicit material on the Framers' conception of 'case or controversy.'").
  26. 1 The Records of the Federal Convention of 1787, at 21 (Max Farrand ed., 1911) [Farrand's Records].
  27. Id. at 140; 2 , id., at 298.
  28. See Russell Wheeler, Extrajudicial Activities of the Early Supreme Court, 1973 Sup. Ct. Rev. 123, 129 ("[T]he Constitutional Convention did not reject [this] motion, as is often assumed. The motion simply did not emerge from the Committee of Detail, to which he submitted it.") (footnote omitted); Raoul Berger, Standing to Sue in Public Actions: Is it a Constitutional Requirement?, 78 Yale L.J. 816, 830 n.72 (1969) (stating that the advisory opinion proposal "was referred to the Committee o[f] Detail and was heard of no more").
  29. 2 Farrand's Records, supra note here, at 341.
  30. Compare Art. II, Section 2 Powers (authorizing the President to "require the [o]pinion, in writing, of the principal [o]fficer in each of the executive [d]epartments") with Article III Judicial Branch (containing no analogous provision authorizing the President to require the federal courts to issue advisory opinions). See also Art. III, Sec. 2, Cl. 1: Overview of Advisory Opinions (defining "advisory opinions" and explaining that the Supreme Court has interpreted Article III to forbid federal courts from issuing them).
  31. See 2 Farrand's Records, supra note here, at 430.
  32. Id. ("Docr. Johnson moved to insert the words 'this Constitution and the' before the word 'laws.'").
  33. Id. ("Mr. Madison doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising Under the Constitution, & whether it ought not to be limited to cases of a Judiciary Nature. The right of expounding the Constitution in cases not of this nature ought not to be given to that Department.").
  34. Id. ("The motion of Docr. Johnson was agreed to nem: con:[.]").
  35. Id.
  36. Leonard & Brant, supra note here, at 39 (arguing that "the reference to 'Judiciary Nature'" in the Convention records reflects "that the Framers believed that there were constitutional restrictions on the sort of cases that the federal courts could hear").
  37. See 2 Farrand's Records, supra note here, at 430. See also Leonard & Brant, supra note here, at 39 ("[T]he reference to 'Judiciary Nature' is somewhat cryptic.").
  38. See, e.g., Jonathan T. Molot, Principled Minimalism: Restriking the Balance Between Judicial Minimalism and Neutral Principles, 90 Va. L. Rev. 1753, 1761-63 (2004) (explaining that the Federalists and Anti-Federalists both agreed that "judicial intrusions into the political realm" should be "limited").
  39. Brutus No. XII pt. 1. See also Brutus No. XI (expressing concern that the federal courts would exceed their jurisdiction); Brutus No. XV (warning "that the supreme court under this constitution would be exalted above all other power in the government, and subject to no control").
  40. The Federalist No. 83 (Alexander Hamilton). See also The Federalist No. 48 (James Madison) (stating that federal judges would have their powers limited by "landmarks, still less uncertain" than the restrictions limiting the political branches); The Federalist No. 78 (Alexander Hamilton) (arguing that the federal judiciary would be "the weakest of the three departments of power" in part because it would exercise "neither force nor will, but merely judgment"); The Federalist No. 81 (Alexander Hamilton) (emphasizing the "comparative weakness" of the Judicial Branch).
  41. 19 U.S. (6 Wheat.) 264 (1821).
  42. 19 U.S. at 378.
  43. Muskrat v. United States, 219 U.S. 346, 356 (1911).
  44. The two terms may be used interchangeably, inasmuch as a "controversy," if distinguishable from a "case" at all, is so only because it is a less comprehensive word and includes only suits of a civil nature. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239 (1937).
  45. Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824).
  46. In re Pacific Ry. Comm'n, 32 F. 241, 255 (C.C. Calif. 1887) (Justice Field). See also Smith v. Adams, 130 U.S. 167, 173-174 (1889).
  47. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-241 (1937). Cf. Public Service Comm'n v. Wycoff Co., 344 U.S. 237, 242 (1952).
  48. Flast v. Cohen, 392 U.S. 83, 94-95 (1968).
  49. "The jurisdiction of the federal courts can be invoked only under circumstances which to the expert feel of lawyers constitute a 'case or controversy.'" Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 149, 150 (1951).
  50. Alabama State Fed'n of Labor v. McAdory, 325 U.S. 450, 461 (1945).
  51. Giles v. Harris, 189 U.S. 475, 486 (1903).
  52. 258 U.S. 158 (1922).
  53. 258 U.S. at 162.
  54. 297 U.S. 288 (1936).
  55. 297 U.S. at 324. Chief Justice Charles Evans Hughes cited New York v. Illinois, 274 U.S. 488 (1927), in which the Court dismissed as presenting abstract questions a suit about the possible effects of the diversion of water from Lake Michigan upon hypothetical water power developments in the indefinite future, and Arizona v. California, 283 U.S. 423 (1931), in which it was held that claims based merely upon assumed potential invasions of rights were insufficient to warrant judicial intervention. See also Massachusetts v. Mellon, 262 U.S. 447, 484-485 (1923); New Jersey v. Sargent, 269 U.S. 328, 338-340 (1926); Georgia v. Stanton, 73 U.S. (6 Wall.) 50, 76 (1868).
  56. 330 U.S. 75 (1947).
  57. 330 U.S. at 89-91. Justices Hugo Black and William Douglas dissented, contending that the controversy was justiciable. Justice William Douglas could not agree that the plaintiffs should have to violate the act and lose their jobs in order to test their rights. In CSC v. National Ass'n of Letter Carriers, 413 U.S. 548 (1973), the concerns expressed in Mitchell were largely ignored as the Court reached the merits in an anticipatory attack on the Act. Compare Epperson v. Arkansas, 393 U.S. 97 (1968).
  58. 2 Records of the Federal Convention of 1787, at 430 (Max Farrand ed., 1911).
  59. The proposal was contained in the Virginia Plan. 1 Records of the Federal Convention of 1787, at 21 (Max Farrand ed., 1911). For the four rejections, see id. at 97-104, 108-10, 138-40; 2 Records of the Federal Convention of 1787, at 73-80, 298 (Max Farrand ed., 1911).
  60. Id. at 328-29, 342-44. Although a truncated version of the proposal was reported by the Committee on Detail, id. at 367, the Convention never took it up.
  61. Id. at 340-41. The proposal was referred to the Committee on Detail and never heard of again.
  62. 1 C. Warren, supra at 108-111; 3 Correspondence and Public Papers of John Jay 633-635 (H. Johnston ed., 1893); H. Wechsler, Principles, Politics, and Fundamental Law: Selected Essays 50-52 (1961).
  63. Hayburn's Case, 2 U.S. (2 Dall.) 409 (1792) (discussed in Art. III, Sec. 1: Inherent Power to Issue Judgments).
  64. See, e.g., Justice Louis Brandeis dissenting in Ashwander v. TVA, 297 U.S. 288, 341, 345-348 (1936). Cf. Flast v. Cohen, 392 U.S. 83, 97 (1968); Rescue Army v. Municipal Court, 331 U.S. 549, 568-575 (1947).
  65. Advisory Opinion Black's Law Dictionary (11th ed. 2019).
  66. United States v. Fruehauf, 365 U.S. 146, 157 (1961).
  67. E.g., Chi. & S. Air Lines v. Waterman S. S. Corp., 333 U.S. 103, 113-14 (1948) ("It has also been the firm and unvarying practice of Constitutional Courts to render no judgments not binding and conclusive on the parties and none that are subject to later review or alteration by administrative action.") (citing Hayburn's Case, 2 Dall. 409; United States v. Ferreira, 13 How. 40 (1852); Gordon v. United States, 117 U.S 697; In re Sanborn, 148 U.S. 222; Interstate Commerce Comm'n v. Brimson, 154 U.S. 447; La Abra Silver Mining Co. v. United States, 175 U.S. 423; Muskrat v. United States, 219 U.S. 346 (1911); United States v. Jefferson Electric Mfg. Co., 291 U.S. 386)).
  68. See, e.g., Muskrat v. United States, 219 U.S. 346, 361-63 (1911). For discussion of other constitutional requirements related to justiciability, see generally Art. III, Section 2 Justiciability.
  69. Flast v. Cohen, 392 U.S. 83, 96 (1968). See also Muskrat v. United States, 219 U.S. 346, 357 (1911) ("[T]he right to declare an act of Congress unconstitutional [can] only be exercised when a proper case between opposing parties was submitted for judicial determination . . . there [is] no general veto power in the court upon the legislation of Congress.") (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176-80 (1803)); Osborn v. Bank of United States, 22 U.S. 738, 819 (1824) ("[The Judicial Power] is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law.").
  70. Flast, 392 U.S. at 96-97 (1968) (quoting United States v. Fruehauf, 365 U.S. 146, 157 (1961)). See also Golden v. Zwickler, 394 U.S. 103, 108 (1969) ("[T]he federal courts established pursuant to Article III of the Constitution do not render advisory opinions. . . . '[C]oncrete legal issues, presented in actual cases, not abstractions,' are requisite.").
  71. Erwin Chemerinsky, Federal Jurisdiction § 2.2 (6th ed. 2012). See also California v. Texas, 141 S. Ct. 2104, 2116 (2021) ("To find standing here to attack an unenforceable statutory provision would allow a federal court to issue what would amount to an advisory opinion without the possibility of any judicial relief." (internal quotes and citation omitted)); Carney v. Adams, 141 S. Ct. 493, 498 (2020).
  72. Evan Tsen Lee, Deconstitutionalizing Justiciability: The Example of Mootness, 105 Harv. L. Rev. 603, 648 (1992) (arguing that the Supreme Court has been "extremely sloppy" in the use of the phrase "advisory opinions").
  73. See Art. III, Sec. 2, Cl. 1: Advisory Opinions and Declaratory Judgments.
  74. See Art. III, Sec. 2, Cl. 1: Advisory Opinion Doctrine.
  75. See Art. III, Sec. 2, Cl. 1: Advisory Opinions and Declaratory Judgments.
  76. Flast v. Cohen, 392 U.S. 83, 96 (1968) ("[T]he power of English judges to delivery advisory opinions was well established [at the Founding].") (citing 3 K. Davis, Administrative Law Treatise 127-128 (1958)). See also 1 William Blackstone, Commentaries 162 (1765) (noting that Members of the House of Lords "have a right to be attended, and constantly are, by the judges of the court of king's bench and commonpleas, and such of the barons of the exchequer as are of the degree of the coif, or have been made serjeants at law; as likewise by the masters of the court of chancery; for their advice in point of law, and for the greater dignity of their proceedings."). But see Sackville's Case (1760), 28 Eng. Rep. 940, 2 Eden, 371 (issuing a formal, written extrajudicial opinion to the King as to whether an army officer could be tried by court martial, but noting that, according to Lord Mansfield, the judges are "very averse to giving extra-judicial opinions, especially where they affect a particular case").
  77. Mass. Const. ch. III, art. II. ("Each branch of the legislature, as well as the governor or the council, shall have authority to require the opinions of the justices of the supreme judicial court, upon important questions of law, and upon solemn occasions."). See also N.H. Const. art. 74 ("Each branch of the legislature as well as the governor and council shall have authority to require the opinions of the justices of the supreme court upon important questions of law and upon solemn occasions.").
  78. See James Madison, James Madison's Notes of the Constitutional Convention, Max Farrand, 1 The Records of the Federal Convention of 1787 17-23 (1911) (providing for "a convenient number of the National Judiciary, ought to compose a council of revision with authority to examine every act of the National Legislature before it shall operate"); Virginia (Randolph) Plan as Amended (providing that "the jurisdiction of the national Judiciary shall extend to . . . questions which involve the national peace and harmony."); James Madison, James Madison's Notes of the Constitutional Convention, Max Farrand, 2 The Records of the Federal Convention of 1787, at 334 ("Each branch of the Legislature, as well as the Supreme Executive shall have authority to require the opinions of the supreme Judicial Court upon important questions of law, and upon solemn occasions."). See also James Madison, James Madison's Notes of the Constitutional Convention, Max Farrand, 1 The Records of the Federal Convention of 1787 96-105 (1911) ("It was quite foreign from the nature of [the judicial] office to make them judges of the policy of public measures.") (quoting Elbridge Gerry, a delegate from Massachusetts).
  79. Art. III, Section 2 Justiciability.
  80. Compare with Art. II, Section 2 Powers ("The President . . . may require the Opinion, in writing, of the principal Officer in each of the executive Departments.") (emphasis added).
  81. 2 U.S. (2 Dall.) 409 (1792).
  82. Id. at 410, footnote.
  83. Id..
  84. Id. See also Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 219 (1995) (holding that congressional statute that "retroactively command[ed] the federal courts" to reopen final judgments was unconstitutional). But see Patchak v. Zinke, 138 S. Ct. 897, 905 (2018) (plurality) ("The separation of powers, among other things, prevents Congress from exercising the judicial power . . . At the same time, the legislative power is the power to make law, and Congress can make laws that apply retroactively to pending lawsuits, even when it effectively ensures that one side wins."); Bank Markazi v. Peterson, 136 S. Ct. 1310, 1325 (2016) ("Congress may indeed direct courts to apply new enacted, outcome-altering legislation in pending civil cases."). See also Constitution Annotated III.3.2.2.3.
  85. Id.
  86. See, e.g., Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 346-48 (1936) (Brandeis, J., concurring) (citing Hayburn's Case for the proposition that "the jurisdiction of federal courts is limited to actual cases and controversies; and that they have no power to give advisory opinions"). See also Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113-14 (1948) ("To revise or review an administrative decision which has only the force of a recommendation . . . would be to render an advisory opinion in its most obnoxious form."); United States v. Ferreira, 54 U.S. (13 How.) 40, 48 (1852) (noting that the powers of a commissioner to "adjust claims to lands or money" is not "judicial . . . in the sense in which judicial power is granted by the Constitution to the courts of the United States").
  87. Letter from Thomas Jefferson, Sec. of State, to Chief Justice Jay and Associate Justices (July 18, 1793), reprinted in Richard H. Fallon, Jr., et al., Hart and Wechsler's The Federal Courts and the Federal System 50-51 (7th ed. 2015).
  88. Id.
  89. Letter from Chief Justice Jay and Associate Justices to President George Washington (August 8, 1793) reprinted in Richard H. Fallon, Jr., et al., Hart and Wechsler's The Federal Courts and the Federal System 52 (7th ed. 2015).
  90. Vieth v. Jubelirer, 541 U.S. 267, 302 (2004) (plurality) (noting that 1793 correspondence involved "categorical" statement by the Court that the "giving of advisory opinions" was beyond the judiciary's power); Flast v. Cohen, 392 U.S. 83, 96 n.14 (1968) (noting that "[t]he rule against advisory opinions was established as early as 1793 . . . and the rule has been adhered to without deviation."). See also Muskrat v. United States, 219 U.S. 346, 354 (1911) (citing the 1793 correspondence in refusing to take jurisdiction over a case brought under a statute creating a lawsuit devised to test the constitutionality of a different statute).
  91. 333 U.S. 103 (1948).
  92. Id. at 113.
  93. Id.
  94. Id.
  95. 2 The Documentary History of the Supreme Court of the United States, 1789-1800: The Justices on Circuit: 1790-1794, at 89-91 (Maeva Marcus ed., 1985).
  96. 1 C. Warren, The Supreme Court in United States History 595-597 (1926).
  97. Reorganization of the Judiciary: Hearings on S. 1392 Before the Senate Judiciary Committee, 75th Congress, 1st Sess. (1937), pt. 3, 491. See also Chief Justice Roger B. Taney's private advisory opinion to the Secretary of the Treasury that a tax levied on the salaries of federal judges violated the Constitution. S. Tyler, Memoirs of Roger B. Taney 432-435 (1876).
  98. E.g., Acheson, Removing the Shadow Cast on the Courts, 55 A.B.A.J. 919 (1969); Jaffe, Professors and Judges as Advisors to Government: Reflections on the Roosevelt-Frankfurter Relationship, 83 Harv. L. Rev. 366 (1969). The issue earned the attention of the Supreme Court when it upheld the congressionally authorized service of federal judges on the Sentencing Commission. Mistretta v. United States, 488 U.S. 361, 397-408 (1989) (citing examples and detailed secondary sources).
  99. See Evan Tsen Lee, Deconstitutionalizing Justiciability: The Example of Mootness, 105 Harv. L. Rev. 603, 648 (1992); see also Wright, Miller, & Cooper, 13 Fed. Prac. & Proc. Juris. § 3529.1 (3d ed.) (discussing different uses of the term).
  100. See, e.g., Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (noting that "[t]he exercise of judicial power under Art. III of the Constitution depends on the existence of a case or controversy" and that this is tied to the lack of power to issue advisory opinions); North Carolina v. Rice, 404 U.S. 244, 246 (1971) (dismissing case on grounds of mootness, noting that "this Court [has] no power to issue advisory opinions"); Hall v. Beals, 396 U.S. 45, 48 (1969) (in holding that recent amendment by Colorado Legislature rendered case moot, observing that "The case has therefore lost its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract propositions of law"); Pub. Workers v. Mitchell, 330 U.S. 75, 89 (1947) (in finding that plaintiffs' claims not a justiciable "case or controversy" under Article III, noting that "[a]s is well known, the federal courts established pursuant to Article III of the Constitution do not render advisory opinions"); St. Pierre v. United States, 319 U.S. 41, 42 (1943) ("A federal court is without power to decide moot questions or to give advisory opinions which cannot affect the rights of the litigants in the case before it.").
  101. See Herb v. Pitcairn, 324 U.S. 117, 126 (1945) ("We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion."). See also Lambrix v. Singletary, 520 U.S. 518, 522-23 (1997) ("We in fact lack jurisdiction to review such independently supported judgments on direct appeal: since the state-law determination is sufficient to sustain the decree, any opinion of this Court on the federal question would be purely advisory.").
  102. See Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 346-48 (1936) (Brandeis, J., concurring) (noting that the federal courts "have no power to give advisory opinions" and discussing rules by which the Court has "avoiding passing upon a large part of all the constitutional questions pressed upon it for decision"). See also Lee, supra note here, at 648-49 (discussing application of "advisory opinion" label to dicta).
  103. Erwin Chemerinsky, Federal Jurisdiction § 2.2 (6th ed. 2012) (noting that "the Supreme Court expressly refers to the ban on advisory opinions less frequently than the other justiciability doctrines").
  104. See Herb, 324 U.S. at 126 ("We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion."). See also Lambrix, 520 U.S. at 522-23 ("We in fact lack jurisdiction to review such independently supported judgments on direct appeal: since the state-law determination is sufficient to sustain the decree, any opinion of this Court on the federal question would be purely advisory."). But see 16B Charles A. Wright, Arthur R. Miller, et al., Federal Practice and Procedure § 4021 (3d ed. 2018) (explanation that adequate-state-ground rule rests on prohibition against rendering advisory opinions is "circular"; in addition, "advisory opinion doctrine is [ ] inadequate to describe the full range of practice with respect to state law questions.").
  105. Stovall v. Denno, 388 U.S. 293, 301 (1967) (refusing to make a criminal procedure rule generally retroactive, holding it applied only to future cases plus the case announcing the rule, despite the resulting inequality to other pending cases, noting that the rule could not be purely prospective because of "[s]ound policies of decision-making, rooted in the command of Article III of the Constitution that we resolve issues solely in concrete cases or controversies"). See also Richard H. Fallon, Jr., et al., Hart and Wechsler's The Federal Courts and the Federal System 54 (7th ed. 2015) (evaluating arguments about whether purely prospective decision would constitute an advisory opinion forbidden by Article III).
  106. See, e.g., Fallon, supra note here, at 55 (asking whether "[w]hen a Court renders alternative holdings, has it violated constitutional norms?").
  107. Id. at 56 (citing examples of extrajudicial expressions of Justices' views).
  108. In a few other areas, courts issue opinions that might be considered "advisory," insofar as they do not directly affect the parties before the court. See Thomas Healy, The Rise of Unnecessary Constitutional Rulings, 83 N.C. L. Rev. 847 (2005) (considering the Court's examination of "unnecessary" constitutional issues in four contexts, qualified immunity, habeas corpus, harmless error, and Fourth Amendment good faith, and considering whether and when this practice can be consistent with the ban on advisory opinions). However, the Supreme Court has not addressed whether this practice can be reconciled with the ban on advisory opinions.
  109. Declaratory Judgment, Black's Law Dictionary (11th ed. 2019).
  110. See Piedmont & Northern Ry. v. United States, 280 U.S. 469, 477 (1930) ("What plaintiffs are seeking is, therefore, in substance, a declaratory judgment that the Railway is within the exemption contained in paragraph 22 of the Act. Such a remedy is not within either the statutory or the equity jurisdiction of federal courts."); Willing v. Chi. Auditorium Ass'n, 277 U.S. 274, 289 (1928) ("What the plaintiff seeks is simply a declaratory judgment. To grant that relief is beyond the power conferred upon the federal judiciary.").
  111. Fidelity Nat'l Bank & Tr. Co. v. Swope, 274 U.S. 123 (1927); Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249 (1933). Wallace was cited with approval inMedimmune, Inc. v. Genentech, Inc., 549 U.S. 118, 120 (2007) ("Article III's limitation of federal courts' jurisdiction to "Cases' and "Controversies,' reflected in the "actual controversy' requirement of the Declaratory Judgment Act, 28 U.S.C. § 2201(a), [does not] require[ ] a patent licensee to terminate or be in breach of its license agreement before it can seek a declaratory judgment that the underlying patent is invalid, unenforceable, or not infringed.").
  112. 48 Stat. 955, as amended, 28 U.S.C. §§ 2201-2202 .
  113. 48 Stat. 955. The language remains quite similar. 28 U.S.C. § 2201.
  114. 300 U.S. 227 (1937).
  115. Id. at 237-39.
  116. Id. at 239-40.
  117. Id. at 242.
  118. Id. at 240-41.
  119. Id. at 244.
  120. Id.
  121. 523 U.S. 740 (1998).
  122. Id. at 742-43.
  123. Id. at 748-49.
  124. Id. at 749.
  125. Alabama State Fed'n of Labor v. McAdory, 325 U.S. 450, 461 (1945).
  126. Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941).
  127. Id.
  128. Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491, 494 (1942); Pub. Serv. Comm'n v. Wycoff Co., 344 U.S. 237, 243 (1952); Pub. Affairs Assocs. v. Rickover, 369 U.S. 111, 112 (1962). See also Wilton v. Seven Falls Co., 515 U.S. 277 (1995).
  129. Congress added an exception to the Declaratory Judgment Act with respect to federal taxes in 1935. 49 Stat. 1027. The Tax Injunction Act of 1937, 50 Stat. 738, 28 U.S.C. § 1341, prohibited federal injunctive relief directed at state taxes but said nothing about declaratory relief. It was held to apply, however, in California v. Grace Brethren Church, 457 U.S. 393 (1982). Earlier, in Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293 (1943), the Court had reserved the issue but held that considerations of comity should preclude federal courts from giving declaratory relief in such cases. Cf. Fair Assessment in Real Estate Ass'n v. McNary, 454 U.S. 100 (1981).
  130. E.g., Ashwander v. Tennessee Valley Auth., 297 U.S. 288 (1936); Electric Bond Co. v. SEC, 303 U.S. 419 (1938); United Pub. Workers v. Mitchell, 330 U.S. 75 (1947); Eccles v. Peoples Bank, 333 U.S. 426 (1948); Rescue Army v. Municipal Court, 331 U.S. 549, 572-73 (1947).
  131. United Pub. Workers, 330 U.S. 75; Poe v. Ullman, 367 U.S. 497 (1961); Altvater v. Freeman, 319 U.S. 359 (1943); International Longshoremen's Union v. Boyd, 347 U.S. 222 (1954); Pub. Serv. Comm'n v. Wycoff Co., 344 U.S. 237 (1952).
  132. E.g., Currin v. Wallace, 306 U.S. 1 (1939); Perkins v. Elg, 307 U.S. 325 (1939); Ashwander v. Tennessee Valley Auth., 297 U.S. 288 (1936); Evers v. Dwyer, 358 U.S. 202 (1958).
  133. See, e.g., GTE Sylvania, Inc. v. Consumers Union of United States, Inc., 445 U.S. 375, 382 (1980) (holding that Article III limits "the business of federal courts to questions presented in an adversary context") (quoting Flast v. Cohen, 392 U.S. 83, 95 (1968)).
  134. See United States Nat'l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 446 (1993) (quoting Muskrat v. United States, 219 U.S. 346, 359 (1911)) (brackets omitted). See also Ayestas v. Davis, 138 S. Ct. 1080, 1090 (2018) ("[C]ases and controversies in our legal system are adversarial in nature.").
  135. See, e.g., GTE Sylvania, 445 U.S. at 382-83 (stating that "[t]he clash of adverse parties" in a lawsuit "sharpens the presentation of issues upon which the court so largely depends for illumination of difficult questions") (quoting O'Shea v. Littleton, 414 U.S. 488, 494 (1974)) (ellipses omitted).
  136. Moore v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 47, 48 (1971) (per curiam). See also, e.g., GTE Sylvania, 445 U.S. at 383.
  137. See, e.g., Muskrat, 219 U.S. at 362 (holding that Congress "exceeded the limitations of legislative authority" by purporting to authorize federal courts to adjudicate disputes between non-adverse parties); id. at 361 (holding that Article III limits the federal judicial power to "determin[ing] actual controversies arising between adverse litigants").
  138. See, e.g., Flast, 392 U.S. at 100 ("[T]he standing requirement is closely related to, although more general than, the rule that federal courts will not entertain friendly suits or those which are feigned or collusive in nature.") (internal citations omitted); Baker v. Carr, 369 U.S. 186, 204 (1962) ("Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions? This is the gist of the question of standing.") (emphases added).
  139. See, e.g., Princeton Univ. v. Schmid, 455 U.S. 100, 102 (1982) (per curiam) ("We do not sit to decide hypothetical issues or to give advisory opinions about issues as to which there are not adverse parties before us.") (emphases added); Flast, 392 U.S. at 96-97 ("[T]he rule against advisory opinions also recognizes that such suits often 'are not pressed before the Court with that clear concreteness provided . . . from a clash of adversary argument[.]'") (quoting United States v. Fruehauf, 365 U.S. 146, 157 (1961)) (emphases added); Muskrat, 219 U.S. at 362 ("If such actions . . . are sustained, the result will be that this court, instead of keeping within the limits of judicial power, and deciding cases or controversies arising between opposing parties . . . will be required to give opinions in the nature of advice concerning legislative action[.]") (emphases added). See generally Art. III, Sec. 2, Cl. 1: Overview of Advisory Opinions (analyzing the bar on advisory opinions).
  140. See, e.g., United States v. Windsor, 570 U.S. 744, 755-63 (2013) (rejecting argument that defendant's nondefense of statute challenged by plaintiff rendered the parties insufficiently adverse partly because the parties had satisfied Article III's standing requirements).
  141. 49 U.S. (8 How.) 251 (1850).
  142. Id. at 252.
  143. Id. at 251.
  144. See id. at 252.
  145. Id. at 253 ("[T]he plaintiff in error is the son-in-law, and the defendant in error is the son, of said Samuel Veazie.").
  146. Id. at 252.
  147. Id.
  148. See id. at 256 (holding that the judgment issued by the lower court was "a nullity and void").
  149. See id. at 255 ("It is the office of courts of justice to decide the rights of persons and of property, when the persons interested cannot adjust them by agreement between themselves,--and to do this upon the full hearing of both parties.").
  150. See id. ("[A]ny attempt, by a mere colorable dispute, to obtain the opinion of the court upon a question of law which a party desires to know for his own interest or his own purposes, when there is no real and substantial controversy between those who appear as adverse parties to the suit, is an abuse which courts of justice have always reprehended, and treated as a punishable contempt of court.").
  151. See id. at 254 ("The court is satisfied . . . that the contract set out in the pleadings was made for the purpose of instituting this suit, and that there is no real dispute between the plaintiff and defendant. On the contrary, it is evident that their interest in the question brought here for decision is one and the same, and not adverse; and that in these proceedings the plaintiff and defendant are attempting to procure the opinion of this court upon a question of law.").
  152. See id. ("[T]he plaintiff and defendant are attempting to procure the opinion of this court upon a question of law, in the decision of which they have a common interest as opposed to that of other persons, who are not parties to this suit, who had no knowledge of it while it was pending in the Circuit Court, and no opportunity of being heard there in defence of their rights.").
  153. See id. ("[T]heir conduct is the more objectionable, because they have brought up the question upon a statement of facts agreed on between themselves, without the knowledge of the parties with whom they were in truth in dispute.").
  154. Compare, e.g., Chicago & G. T. Ry. v. Wellman, 143 U.S. 339, 345 (1892) ("It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of [a] legislative act."); Cleveland v. Chamberlain, 66 U.S. 419, 425-26 (1861) ("This appeal must be dismissed. Selah Chamberlain is, in fact, both appellant and appellee. . . . There is no material difference between this case and that of Lord vs. Veazie[.] . . . It is plain that this is no adversary proceeding, no controversy between the appellant and the nominal appellee."), with, e.g., Pollock v. Farmers' Loan & Tr. Co., 15 S. Ct. 673, 674-75, 679 (1895) (determining that a particular lawsuit between a company and its stockholders "was not a collusive one"), vacated, 158 U.S. 601 (1895).
  155. 219 U.S. 346 (1911).
  156. See Martin H. Redish & Andrianna D. Kastanek, Settlement Class Actions, The Case-or-Controversy Requirement, and the Nature of the Adjudicatory Process, 73 U. Chi. L. Rev. 545, 567 (2006) (describing Muskrat as "[t]he leading decision" for the proposition "that the case-or-controversy language of Article III mandates litigant adverseness").
  157. 219 U.S. at 348-49.
  158. Id. at 350-51, 361-62.
  159. Id. at 348-50.
  160. Id. at 360.
  161. Id. at 363.
  162. Id. at 351, 361 (quoting Art. III, Section 2 Justiciability).
  163. Id. at 361.
  164. Id.
  165. Id.
  166. Id.
  167. See id. at 361-62 (explaining that the plaintiffs sought "to determine the constitutional validity of [a] class of legislation, in a suit not arising between parties concerning a property right necessarily involved in the decision in question, but in a proceeding against the government in its sovereign capacity, and concerning which the only judgment required is to settle the doubtful character of the legislation in question").
  168. Id.
  169. Id. at 362.
  170. Id. at 361.
  171. Id. at 362 ("The questions involved in this proceeding as to the validity of the legislation may arise in suits between individuals, and when they do and are properly brought before this [C]ourt for consideration they, of course, must be determined in the exercise of its judicial functions."). That is not to say, however, that Article III categorically precludes plaintiffs from filing lawsuits to challenge a statute's constitutionality. See, e.g., MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 129 (2007) (explaining that Article III does not forbid plaintiffs from "seek[ing] a declaratory judgment regarding the constitutionality of a . . . statute") (citing Steffel v. Thompson, 415 U.S. 452, 458-60 (1974)). See also Judgment, Black's Law Dictionary (11th ed. 2019) (defining a "declaratory judgment" as "a binding adjudication that establishes the rights and other legal relations of the parties").
  172. See, e.g., Flast v. Cohen, 392 U.S. 83, 100 (1968) (noting "the rule that federal courts will not entertain friendly suits or those which are feigned or collusive in nature") (internal citation omitted); Poe v. Ullman, 367 U.S. 497, 505 (1961) (Frankfurter, J.) (discussing "the Court's refusal to entertain cases which disclosed a want of a truly adversary contest, of a collision of actively asserted and differing claims").
  173. 319 U.S. 302, 303-05 (1943).
  174. See 300 U.S. 227, 242 (1937) ("There is here a dispute between parties who face each other in an adversary proceeding. The dispute relates to legal rights and obligations arising from the contracts of insurance. . . . Prior to this suit, the parties had taken adverse positions with respect to their existing obligations. Their contentions concerned the disability benefits which were to be payable upon prescribed conditions. On the one side, the insured claimed that he had become totally and permanently disabled and hence was relieved of the obligation to continue the payment of premiums and was entitled to the stipulated disability benefits. . . . On the other side, the company made an equally definite claim that the alleged basic fact did not exist, that the insured was not totally and permanently disabled and had not been relieved of the duty to continue the payment of premiums[.] . . . Such a dispute is manifestly susceptible of judicial determination."). See also Art. III, Sec. 2, Cl. 1: Overview of Advisory Opinions (discussing other aspects of Aetna's holding).
  175. See, e.g., Moore v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 47, 48 (1971) (per curiam) (holding that case presented "no case or controversy within the meaning of Art[icle] III" because "both litigants desire[d] precisely the same result"); Flast, 392 U.S. at 100 (noting "the rule that federal courts will not entertain friendly suits or those which are feigned or collusive in nature") (internal citation omitted); Poe, 367 U.S. at 505 (Frankfurter, J.) (discussing "the Court's refusal to entertain cases which disclosed a want of a truly adversary contest" or the lack of "a collision of actively asserted and differing claims").
  176. 337 U.S. 426, 429-31 (1949).
  177. See ICC Termination Act of 1995, Pub. L. No. 104-88, § 101, 109 Stat. 803 (1995) ("The Interstate Commerce Commission is abolished.").
  178. 337 U.S. at 428.
  179. Id. at 429.
  180. Id.
  181. Id. (quoting 28 U.S.C. § 46 (1949)).
  182. See id. at 430 ("There is much argument with citation of many cases to establish the long-recognized general principle that no person may sue himself. Properly understood the general principle is sound, for courts only adjudicate justiciable controversies. They do not engage in the academic pastime of rendering judgments in favor of persons against themselves. Thus a suit filed by John Smith against John Smith might present no case or controversy which courts could determine.").
  183. Id. at 431.
  184. See id. at 430 ("This suit . . . is a step in proceedings to settle who is legally entitled to sums of money, the Government or the railroads.").
  185. See id. ("While this case is United States v. United States, et al., it involves controversies of a type which are traditionally justiciable.").
  186. 418 U.S. 683, 692 (1974).
  187. A subpoena is "a writ or order commanding a person to appear before a court or other tribunal, subject to a penalty for failing to comply." Subpoena, Black's Law Dictionary (11th ed. 2019). A subpoena duces tecum is "a subpoena ordering the witness to appear in court and to bring specified documents, records, or things." Id. See also Fed. R. Crim. P. 17(c) (governing subpoenas duces tecum in federal criminal cases).
  188. 418 U.S. at 686-88.
  189. Id. at 692.
  190. Id. at 697.
  191. See id. at 696-97.
  192. Id. at 697.
  193. Michael Herz, United States v. United States: When Can the Federal Government Sue Itself?, 32 Wm. & Mary L. Rev. 893, 895 (1991). See also, e.g., Joseph W. Mead, Interagency Litigation and Article III, 47 Ga. L. Rev. 1217, 1219 (2013) (claiming that it is "surprisingly common" for courts to adjudicate "litigation between federal agencies").
  194. See Dir., Office of Workers' Comp. Programs, Dep't of Labor v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 128 (1995) (analyzing ICC and emphasizing that "the status of the Government as a statutory beneficiary or market participant must be sharply distinguished from the status of the Government as regulator or administrator").
  195. See 462 U.S. 919, 930 n.5, 939-40 (1983).
  196. See 570 U.S. 744, 756-63 (2013).
  197. See 140 S. Ct. 2183, 2196-97 (2020).
  198. See id. at 2194-95; Windsor, 570 U.S. at 752; Chadha, 462 U.S. at 923.
  199. See Seila Law, 140 S. Ct. at 2195, 2196-97; Windsor, 570 U.S. at 754; Chadha, 462 U.S. at 928.
  200. See Seila Law, 140 S. Ct. at 2196-97; Windsor, 570 U.S. at 756-63; Chadha, 462 U.S. at 930 n.5, 939-40.
  201. Cf. Windsor, 570 U.S. at 757 (discussing the prudential standing doctrine) (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)).
  202. See id. at 760 ("Unlike Article III requirements--which must be satisfied by the parties before judicial consideration is appropriate--the relevant prudential factors that counsel against hearing this case are subject to 'countervailing considerations [that] may outweigh the concerns underlying the usual reluctance to exert judicial power.'") (quoting ,422 U.S. 490, 500-01 (1975)).
  203. See, e.g., Seila Law, 140 S. Ct. at 2196 ("[A]micus contends that we should dismiss the case because the parties agree on the merits of the constitutional question and the case therefore lacks 'adverseness.' That contention, however, is foreclosed by United States v. Windsor.") (internal citation omitted).
  204. 462 U.S. at 923 (explaining that Chadha presented "a challenge to the constitutionality of the provision in § 244(c)(2) of the Immigration and Nationality Act . . . authorizing one House of Congress, by resolution, to invalidate the decision of the Executive Branch, pursuant to authority delegated by Congress to the Attorney General of the United States, to allow a particular deportable alien to remain in the United States").
  205. Id. at 928.
  206. Id. at 939 (quoting Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346 (1936) (Brandeis, J., concurring)).
  207. Id.
  208. Id. at 940 n.12. See also id. at 939 ("INS's agreement with Chadha's position does not alter the fact that the INS would have deported Chadha absent the Court of Appeals' judgment.").
  209. Id. at 940.
  210. Id.
  211. Id. at 930 n.5, 939-40. See also Va. House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1954 n.5 (2019) (discussing Chadha's adversity holding).
  212. 570 U.S. 744 (2013).
  213. Id. at 752 (citing 1 U.S.C. § 7). See also Art. VII: Historical Background on Ratification Clause (analyzing the Supreme Court's jurisprudence on sexual orientation).
  214. 570 U.S. at 750-51.
  215. See id. at 749-52, 753.
  216. Id. at 754.
  217. Id. at 756.
  218. See id. at 755 ("The United States has not complied with the [district court's ruling that the provision is unconstitutional]. Windsor has not received her refund, and the Executive Branch continues to enforce [the challenged provision]."). As the Supreme Court observed, the United States chose to continue enforcing the statute even though it believed the law was unconstitutional to maintain adversity between the parties and thereby allow the federal courts to adjudicate Windsor's constitutional challenge. See id. at 754.
  219. See id. at 759 ("[T]his case presents a justiciable controversy under Article III.").
  220. Id. (quoting INS v. Chadha, 462 U.S. 919, 940 n.12 (1983)) (internal quotation marks and brackets omitted).
  221. Id. at 757-59.
  222. Id. at 758.
  223. Id. at 759 (quoting Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346 (1936) (Brandeis, J., concurring)) (internal quotation marks omitted).
  224. Id. See also id. at 756 (concluding that dismissing the case as nonjusticiable would improperly "elide[ ] the distinction between two principles: the jurisdictional requirements of Article III and the prudential limits on its exercise"); id. at 760 ("Unlike Article III requirements--which must be satisfied by the parties before judicial consideration is appropriate--the relevant prudential factors that counsel against hearing this case are subject to 'countervailing considerations [that] may outweigh the concerns underlying the usual reluctance to exert judicial power.'") (quoting Warth v. Seldin, 422 U.S. 490, 500-01 (1975)).
  225. Id. at 754.
  226. Id. at 761.
  227. See 140 S. Ct. 2183, 2196-97 (2020).
  228. See id. at 2194.
  229. See id. at 2191 ("Congress provided that the CFPB would be led by a single Director, who serves for a longer term than the President and cannot be removed by the President except for inefficiency, neglect, or malfeasance. . . . The question before us is whether this arrangement violates the Constitution's separation of powers."); id. at 2194 (describing the law firm's argument "that the demand was invalid and must be set aside because the CFPB's structure violated the Constitution").
  230. See id. at 2195 ("[T]he Government agrees with petitioner on the merits of the constitutional question."). See also id. (noting that the Director of the CFPB "agree[d] with the Solicitor General's position . . . that her for-cause removal protection [wa]s unconstitutional").
  231. Id. An "amicus curiae" is "[s]omeone who is not a party to a lawsuit but who petitions the court or is requested by the court to file a brief in the action." Amicus Curiae, Black's Law Dictionary (11th ed. 2019).
  232. See 140 S. Ct. at 2196.
  233. See id. (quoting United States v. Windsor, 570 U.S. 744, 758 (2013)).
  234. See id. at 2196-97 ("Here, petitioner and the Government disagree about whether petitioner must comply with the civil investigative demand. The lower courts sided with the Government, and the Government has not volunteered to relinquish that victory and withdraw the demand. To the contrary, while the Government agrees that the agency is unconstitutionally structured, it believes it may nevertheless enforce the demand on remand. Accordingly, our 'decision will have real meaning' for the parties.") (quoting INS v. Chadha, 462 U.S. 919, 939 (1983)) (internal citation omitted).
  235. See id. at 2195-97.
  236. See id. at 2197 ("[A]s in Windsor, any prudential concerns with deciding an important legal question in this posture can be addressed by 'the practice of entertaining arguments made an amicus when the Solicitor General confesses error with respect to a judgment below,' which we have done.") (quoting Windsor, 570 U.S. at 760).
  237. Warth v. Seldin, 422 U.S. 490, 498 (1975) ("In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues."); Black's Law Dictionary 1536 (9th ed. 2009) (defining "standing" as "a party's right to make a legal claim or seek judicial enforcement of a duty or right").
  238. Federal courts must necessarily resolve standing inquiries before proceeding to the merits of a lawsuit. See, e.g., Davis v. FEC, 554 U.S. 724, 732 (2008). In fact, a court may raise the issue of standing sua sponte (i.e., of its own accord) in order to ensure that it has jurisdiction, even if no party to the lawsuit contests standing. See, e.g., Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 110 (2001) (per curiam). Although the Supreme Court must examine a litigant's standing when the lower court has erroneously assumed that standing exists, it will not investigate standing sua sponte in order to rule upon an issue that a lower court denied the litigant standing to bring before the court. Id.
  239. Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38 (1976) (quoting Warth, 422 U.S. at 498-99). See also Davis, 554 U.S. at 732; Simon, 426 U.S. at 37 ("No principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies. The concept of standing is part of this limitation.") (citation omitted); Warth, 422 U.S. at 498-99 ("In its constitutional dimension, standing imports justiciability: whether the plaintiff has made out a 'case or controversy' between himself and the defendant within the meaning of Art. III."). The Court has occasionally invoked the English common law tradition as supporting its inquiry into a litigant's standing. See, e.g., Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 132 (2011) ("In the English legal tradition, the need to redress an injury resulting from a specific dispute taught the efficacy of judicial resolution and gave legitimacy to judicial decrees. . . . The Framers paid heed to these lessons.").
  240. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (listing the elements of standing). For further discussion on the elements of Article III standing, see Art. III, Sec. 2, Cl. 1: Overview of Lujan Test.
  241. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 102 (1998) ("Article III, § 2, of the Constitution extends the 'judicial Power' of the United States only to 'Cases' and 'Controversies.' We have always taken this to mean cases and controversies of the sort traditionally amenable to and resolved by the judicial process.").
  242. The Supreme Court has indicated that if one party to a lawsuit has standing, other entities can join as parties without having to satisfy independently the demands of Article III, provided those parties do not seek a distinct form of relief from the party with standing. E.g., Horne v. Flores, 557 U.S. 433, 446 (2009) (determining that, because a school superintendent had standing to challenge lower court decisions in which he was named a defendant, the Court did not need to consider whether interveners, who were state legislators, had standing); Davis, 554 U.S. at 724 (requiring a litigant to have standing for each form of relief sought); Rumsfeld v. Forum for Acad. & Instit. Rights, Inc., 547 U.S. 47, 52 n.2 (2006) ("[T]he presence of one party with standing is sufficient to satisfy Article III's case-or-controversy requirement."); Director v. Perini N. River Assocs., 459 U.S. 297, 305 (1983) (stating that a justiciable controversy existed because an injured employee who sought coverage under the Longshoremen's and Harbor Workers' Compensation Act was a party respondent before the court and had standing, and thus there was no need to determine whether the Director of the Office of Workers' Compensation Programs, as the official responsible for administration and enforcement of the Act, had standing).
  243. FW/PBS Inc. v. Dallas, 493 U.S. 215, 231 (1990) ("[P]etitioners in this case must allege . . . facts essential to show jurisdiction. If they fail to make the necessary allegations, they have no standing.") (citations and internal quotation marks omitted).
  244. A party seeking to intervene in a lawsuit (i.e., seeking to join a lawsuit already in progress) as a matter of right must have Article III standing to seek judicial relief that differs from that sought by the other litigants with standing. Town of Chester v. Laroe Estates, Inc., No. 16-605, slip op. at 6 (U.S. June 5, 2017); Wittman v. Personhuballah, 578 U.S. 539, 543 (2016).
  245. Diamond v. Charles, 476 U.S. 54, 56 (1986).The Supreme Court also addressed standing on appeal in a 2011 case in which government employees that had obtained a favorable judgment on the basis of qualified immunity sought to appeal a lower court's ruling that their conduct had violated the Constitution. The Court held that these officials had Article III standing because they had a personal stake in seeing the ruling overturned, as its mere existence could lead to the risk of future liability for them. Camreta v. Greene, 563 U.S. 692, 703 (2011) ("If the official regularly engages in that conduct as part of his job . . . he suffers injury caused by the adverse constitutional ruling. So long as it continues in effect, he must either change the way he performs his duties or risk a meritorious damages action.").Standing on appeal may also be based on an alleged injury arising from the decision below--for example, where the lower court had ordered the appealing party to comply with a government demand that would injure that party, and overturning the lower court's decision would redress the injury by absolving the appealing party of an obligation to comply with the demand. See Seila Law LLC v. Consumer Fin. Prot. Bureau, No. 19-7 slip op. at 9 (U.S. June 29, 2020) (stating that a petitioner had "appellate standing" where the petitioner suffered a "concrete injury" that was "traceable to the decision below" and could be redressed by the Court). See also West Virginia v. Env't Prot. Agency, No. 20-1530, slip op. at 14 (U.S. June 30, 2022).
  246. Hollingsworth v. Perry, 570 U.S. 693 (2013); Davis ("[A] plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief sought. . . . While the proof to establish standing increases as the suit proceeds, the standing inquiry remains focused on whether the party invoking jurisdiction had the requisite stake in the outcome when the suit was filed.") (citations and internal quotation marks omitted). See also Nat'l Org. for Women v. Scheidler, 510 U.S. 249, 255-56 (1994) (observing that, at the pleading stage, the plaintiff may have standing sufficient to withstand a motion to dismiss if he sets forth "general factual allegations of injury resulting from the defendant's conduct") (citation omitted); Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (noting that the plaintiff's burden of proof on the standing issue differs depending on whether the case is at the pleading stage, the plaintiff is responding to a motion for summary judgment, or the case has gone to trial).
  247. Davis, 554 U.S. at 732-33 ("[I]t is not enough that the requisite interest exist at the outset. 'To qualify as a case fit for federal-court adjudication, an actual controversy must be extant at all stages of review, not merely at the time complaint is filed.'" (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997)). If an injury no longer exists as the litigation progresses, the court may also lack jurisdiction under the related doctrine of mootness. See Art. III, Sec. 2, Cl. 1: Overview of Mootness Doctrine to Art. III, Sec. 2, Cl. 1: Class Action Litigation and Mootness.
  248. Davis, 554 U.S. at 734 ("[A] plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief sought.") (internal quotation marks omitted).
  249. See, e.g., Los Angeles v. Lyons, 461 U.S. 95, 111 (1983) ("Lyons fares no better if it be assumed that his pending damages suit affords him Art. III standing to seek an injunction as a remedy for the claim arising out of the October 1976 events. The equitable remedy is unavailable absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again . . . ").
  250. E.g., Warth v. Seldin, 422 U.S. 490, 502 (1975) (stating that if "the plaintiff's standing does not adequately appear from all materials of record, the complaint must be dismissed"). But see Gill v. Whitford, No. 16-1161, slip op. at 21 (U.S. June 18, 2018) (declining to direct dismissal of a partisan gerrymandering case that involved "an unsettled kind of claim . . . the contours and justiciability of which are unresolved" and, therefore, remanding the case for further proceedings).
  251. As discussed below, the Court's standing jurisprudence has been inconsistent in approach over the years. See Art. III, Sec. 2, Cl. 1: Standing Doctrine from 1940s to 1970s.
  252. Although the Supreme Court has often stated that the standing inquiry focuses on whether the plaintiff is a proper party to maintain a claim for a particular form of judicial relief in federal court and not on the "issues he wishes to have adjudicated," the Court has acknowledged the difficulty in separating the plaintiff's status from the nature of his claims when applying principles of standing. Compare Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38 (1976) ("[S]tanding focuses on the party seeking to get his complaint before a federal court and not on the issues he wished to have adjudicated." (quoting Flast v. Cohen, 392 U.S. 83, 99 (1968) (internal quotation marks omitted)), with Allen v. Wright, 468 U.S. 737, 752 (1984) ("Typically, however, the standing inquiry requires careful judicial examination of a complaint's allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted.").
  253. E.g., Lujan, 504 U.S. at 576.
  254. See, e.g., Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 221223 (1974) (holding that an association of officers and enlisted members of the military reserves, as well as individual members, lacked standing to sue as taxpayers in a case arguing that the Incompatibility Clause of Article I forbid certain Members of Congress from holding commissions in the Armed Forces Reserve). Issues of standing may also arise in cases in which a litigant sues a private party under a law providing for a private right of action against a private defendant. E.g., Spokeo Inc., v. Robins, 578 U.S. 330, 342 (2016).
  255. Lujan, 504 U.S. at 576 ("Vindicating the public interest (including the public interest in Government observance of the Constitution and laws) is the function of Congress and the Chief Executive."); Frothingham v. Mellon, 262 U.S. 447, 488 (1923) ("We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional. That question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act. Then the power exercised is that of ascertaining and declaring the law applicable to the controversy."); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180 (1803). When reviewing administrative action or inaction of federal agencies, courts must be wary of intruding upon the President's duty under Article II, Section 3 of the Constitution to "take Care that the Laws be faithfully executed" by ordering the Executive to follow the law. Lujan, 504 U.S. at 577 (citing Art. II, Section 3 Duties).The Court has adhered to the standing doctrine even in cases in which no party exists who would have standing to challenge government action or inaction in the courts, noting that the political process is available to those seeking to vindicate generalized grievances. United States v. Richardson, 418 U.S. 166, 179 (1974).
  256. See supra note here. See also Hollingsworth v. Perry, 570 U.S. 693, 693-94 (2013) (characterizing the standing requirement as "an essential limit on [the Court's] power: It ensures that we act as judges, and do not engage in policymaking properly left to elected representatives."). For more on Article III's bar on advisory opinions and its relationship to standing doctrine, see Art. III, Sec. 2, Cl. 1: Overview of Advisory Opinions.
  257. Clapper v. Amnesty Int'l USA, 568 U.S. 398, 408-09 (2013) ("The law of Article III standing, which is built on separation of powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches."); Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 471 (1982) ("The judicial power of the United States defined by Art. III is not an unconditional authority to determine the constitutionality of legislative or executive acts."); id. at 474 ("Proper regard for the complex nature of our constitutional structure requires neither that the Judicial Branch shrink from a confrontation with the other two coequal branches of the Federal Government, nor that it hospitably accept for adjudication claims of constitutional violation by other branches of government where the claimant has not suffered cognizable injury."). Thus, the Court applies the standing requirements most stringently when litigants challenge the constitutionality of an action or omission by one or both of the political branches of government. Raines v. Byrd, 521 U.S. 811, 819-20 (1997) ("[O]ur standing inquiry has been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional."); Flast v. Cohen, 392 U.S. 83, 100, 101 (1968) ("The question whether a particular person is a proper party to maintain the action does not, by its own force, raise separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government. Such problems arise, if at all, only from the substantive issues the individual seeks to have adjudicated."). The Court later stated that "Flast failed to recognize that [standing] doctrine has a separation of powers component, which keeps courts within certain traditional bounds vis-a-vis the other branches . . . " Lewis v. Casey, 518 U.S. 343, 353 n.3 (1996). In the Court's early years, Chief Justice John Marshall noted that if federal courts could hear "every question under the Constitution," rather than traditional "cases" or "controversies," then federal courts would have jurisdiction over many issues that should be the subject of legislative discussion and decision. 4 Papers of John Marshall 95 (Charles Cullen ed., 1984) ("If the judicial power extended to every question under the Constitution it would involve almost every subject proper for legislative discussion and decision; if to every question under the laws and treaties of the United States it would involve almost every subject on which the executive could act. The division of power [among the branches of government] could exist no longer, and the other departments would be swallowed up by the judiciary."). The French sociologist and political theorist Alexis de Tocqueville once noted the benefits of the U.S. federal judiciary's requirement that a litigant have a direct stake in the outcome of legal proceedings to maintain a lawsuit, stating that: "It will be seen, also, that by leaving it to private interest to censure the law, and by intimately uniting the trial of the law with the trial of an individual, legislation is protected from wanton assaults and from the daily aggressions of party spirit. The errors of the legislator are exposed only to meet a real want; and it is always a positive and appreciable fact that must serve as the basis of a prosecution." 1 Alexis de Tocqueville, Democracy in America 102 (Philips Bradley, ed., 1945).
  258. Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 133 (2011) ("Continued adherence to the case-or-controversy requirement of Article III maintains the public's confidence in an unelected but restrained Federal Judiciary.").
  259. Spokeo, 578 U.S. at 337 ("Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy."); Summers v. Earth Island Inst., 555 U.S. 488, 492 (2009) ("In limiting the judicial power to 'Cases' and 'Controversies,' Article III of the Constitution restricts it to the traditional role of Anglo-American courts, which is to redress or prevent actual or imminently threatened injury to persons caused by private or official violation of law.")
  260. Lujan, 504 U.S. at 577.
  261. Id. ("To permit Congress to convert the undifferentiated public interest in executive officers' compliance with the law into an 'individual right' vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive's most important constitutional duty, to 'take Care that the Laws be faithfully executed.'") (quoting Art. II, Section 3 Duties).
  262. Baker v. Carr, 369 U.S. 186, 204 (1962) (stating that the parties invoking the court's jurisdiction must have "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.").
  263. United States v. SCRAP, 412 U.S. 669, 687 (1973) (stating that the injury-in-fact requirement of standing "prevents the judicial process from becoming no more than a vehicle for the vindication of the value interests of concerned bystanders"). See also Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009) ("While generalized harm to the forest or the environment will not alone support standing, if that harm in fact affects the recreational or even the mere esthetic interests of the plaintiff, that will suffice."); Diamond v. Charles, 476 U.S. 54, 62 (1986); Valley Forge Christian Coll., 454 U.S. at 472-73 ("[The standing requirement] tends to assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action. . . . The [Article III] aspect of standing also reflects a due regard for the autonomy of those persons likely to be most directly affected by a judicial order.").
  264. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 191 (2000) ("Standing doctrine functions to ensure, among other things, that the scarce resources of the federal courts are devoted to those disputes in which the parties have a concrete stake.").
  265. Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 146 (2011) ("Making the Article III standing inquiry all the more necessary are the significant implications of constitutional litigation, which can result in rules of wide applicability that are beyond Congress's power to change.").
  266. Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 222 (1974).
  267. United States v. Windsor, 570 U.S. 744, 760 (2013) ("Even when Article III permits the exercise of federal jurisdiction, prudential considerations demand that the Court insist upon 'that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.'" (quoting Baker, 369 U.S. at 204); Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004) (listing the three types of prudential restraints); Gladstone v. Village of Bellwood, 441 U.S. 91, 99-100 (1979).
  268. Lexmark Int'l Inc. v. Static Control Components, Inc., 572 U.S. 118, 127 n.3 (2014).
  269. Id.
  270. Id.
  271. Warth v. Seldin, 422 U.S. 490, 501 (1975) ("Congress may grant an express right of action to persons who otherwise would be barred by prudential standing rules.").
  272. Federal rules for standing do not apply in state courts, which may have their own rules not addressed in this essay. Asarco, Inc. v. Kadish, 490 U.S. 605, 617 (1989) ("We have recognized often that the constraints of Article III do not apply to state courts, and accordingly the state courts are not bound by the limitations of a case or controversy or other federal rules of justiciability even when they address issues of federal law, as when they are called upon to interpret the Constitution or . . . a federal statute."). However, when a state court enters a judgment in a case in which the plaintiffs would not have had standing had they brought the case in federal court, a party may have standing to appeal that judgment in federal court if the judgment rests upon an allegedly incorrect interpretation of federal law and causes the appellant direct injury. Id. at 623-24 ("When a state court has issued a judgment in a case where plaintiffs in the original action had no standing to sue under the principles governing the federal courts, we may exercise our jurisdiction on certiorari if the judgment of the state court causes direct, specific, and concrete injury to the parties who petition for our review, where the requisites of a case or controversy are also met.") (citations omitted).
  273. Ala. Power Co. v. Ickes, 302 U.S. 464, 479 (1938).
  274. Tenn. Elec. Power Co. v. TVA, 306 U.S. 118, 137-38 (1939). See also Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 140-41 (1951) ("The touchstone to justiciability is injury to a legally protected right"); Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 Mich. L. Rev. 163, 170 (1992) (noting that, prior to the 1970s, litigants "with a concrete interest could not bring suit unless the common law, or some other source of law, said so. But if a source of law conferred a right to sue, 'standing' existed, entirely independently of 'concrete interest' or 'injury in fact.'").
  275. Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 152 (1970) ("The first question is whether the plaintiff alleges that the challenged action has caused him injury in fact, economic or otherwise."). See also Boston Stock Exch. v. State Tax Comm'n, 429 U.S. 318, 320 n.3 (1977) (applying the injury-in-fact and zone of interest tests and finding that an out-of-state stock exchange had standing to bring a Commerce Clause challenge to a New York statute imposing a higher transfer tax on securities transactions involving an out-of-state sale). For more background on the decline of the "legal injury" test, see Art. III, Sec. 2, Cl. 1: Standing Doctrine from 1940s to 1970s.
  276. Steven L. Winter, The Metaphor of Standing and the Problem of Self-Governance, 40 Stan. L. Rev. 1371, 1375-76 (1988) (including both Fairchild and Frothingham in a discussion of the Court's earliest standing cases).
  277. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803) ("The province of the court is, solely, to decide on the rights of individuals . . . "). See also DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340 (2006) ("Chief Justice Marshall, in Marbury v. Madison . . . grounded the Federal Judiciary's authority to exercise judicial review and interpret the Constitution on the necessity to do so in the course of carrying out the judicial function of deciding cases.").
  278. 258 U.S. 126 (1922).
  279. 262 U.S. 478 (1923).
  280. Fairchild.
  281. Id. at 127-30. The plaintiff had sought an injunction to prevent the Secretary of State from proclaiming the ratification of the amendment and the U.S. Attorney General from enforcing it. Id.
  282. Fairchild, 258 U.S. at 129-30.
  283. Id. at 127-30 ("Plaintiff's alleged interest in the question submitted is not such as to afford a basis for this proceeding. . . . [I]t is not a case within the meaning of § 2 of Article III of the Constitution, which confers judicial power on the federal courts . . . ").
  284. Frothingham was consolidated with Massachusetts v. Mellon, another case in which the State of Massachusetts challenged the same statute. Frothingham, 262 U.S. at 478-79. The Court also held that Massachusetts lacked standing to bring suit on its own or on behalf of its citizens to challenge the statute. Id. at 480-86. For more on Massachusetts v. Mellon, see Art. III, Sec. 2, Cl. 1: Taxpayer Standing.
  285. Frothingham, 262 U.S. at 479.
  286. Id. at 486-87.
  287. Id.
  288. Id. at 488-89.
  289. Id.
  290. Id.
  291. See Flast v. Cohen, 392 U.S. 83, 92 (1968) ("[C]ommentators have tried to determine whether Frothingham establishes a constitutional bar to taxpayer suits or whether the Court was simply imposing a rule of self-restraint which was not constitutionally compelled.").
  292. Cass R. Sunstein, Standing and the Privatization of Public Law, 88 Colum. L. Rev. 1432, 1437-43 (1988).
  293. 306 U.S. 118, 144 (1939).
  294. Id. at 137, 147.
  295. 309 U.S. 470, 472, 477 (1940).
  296. Id. at 472-73, 476-77.
  297. Sunstein, What's Standing After Lujan?, supra note here, at 180-81.
  298. 5 U.S.C. § 702 (stating that a "person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute is entitled to judicial review thereof").
  299. See Sunstein, What's Standing After Lujan?, supra note here, at 180-81.
  300. Id. at 183-84 ("[C]ourts interpreted the 'legal wrong' test to allow many people affected by government decisions--including beneficiaries of regulatory programs--to bring suit to challenge government action. For example, courts concluded that displaced urban residents, listeners of radio stations, and users of the environment could proceed against the government to redress an agency's legally insufficient regulatory protection."). For additional examples of the Court's more permissive approach, see Duke Power Co. v. Carolina Envtl. Study Group Inc., 438 U.S. 59, 72, 74-78 (1978) (finding that individuals who lived near the site of a proposed nuclear plant had established standing to challenge a statute that would support the construction of the plant); Flast, 392 U.S. at 105-06 ("[W]e hold that a taxpayer will have standing consistent with Article III to invoke federal judicial power when he alleges that congressional action under the taxing and spending clause is in derogation of those constitutional provisions which operate to restrict the exercise of the taxing and spending power."); Hardin v. Ky. Utils. Co., 390 U.S. 1, 6-7 (1968) (determining that a competing utility company had standing to challenge the Tennessee Valley Authority (TVA)'s supply of power. See also Inv. Co. Inst. v. Camp, 401 U.S. 617, 621 (1971) ("Congress did legislate against the competition that the petitioners challenge.").
  301. See, e.g., Hardin, 390 U.S. at 6-7.
  302. See, e.g., United States v. SCRAP, 412 U.S. 669, 686-87 (1973) ("[N]either the fact that the appellees here claimed only a harm to their use and enjoyment of the natural resources of the Washington area, nor the fact that all those who use those resources suffered the same harm, deprives them of standing.").
  303. See, e.g., Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976) ("[T]he 'case or controversy' limitation of Art. III still requires that a federal court act only to redress injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court.").
  304. 405 U.S. 727, 734-35 (1972).
  305. Id.
  306. Id. Under the Court's current standing doctrine, such recreational or aesthetic injuries may serve as the basis for standing. See, e.g., Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009) ("While generalized harm to the forest or the environment will not alone support standing, if that harm in fact affects the recreational or even the mere esthetic interests of the plaintiff, that will suffice.").
  307. 412 U.S. 669 (1973). The Court later characterized the broad holding of the SCRAP case as extending standing "to the very outer limit of the law." Whitmore v. Arkansas, 495 U.S. 149, 159 (1990). And the Court's 2013 decision in Clapper v. Amnesty International, in which the Court rejected standing based on chains of attenuated causal inferences, suggests that SCRAP is no longer good law. See 568 U.S. 398, 414 (2013).
  308. Id. at 675-76.
  309. Id. at 688-89 ("Here, the Court was asked to follow a far more attenuated line of causation to the eventual injury of which the appellees complained--a general rate increase would allegedly cause increased use of nonrecyclable commodities as compared to recycled goods, thus resulting in the need to use more natural resources to produce such goods, some of which resources might be taken from the Washington area, and resulting in more refuse that might be discarded in national parks in the Washington area.").
  310. Id. at 688-89.
  311. Id.
  312. Id.
  313. Id. at 686-89 ("[N]either the fact that the appellees here claimed only a harm to their use and enjoyment of the natural resources of the Washington area, nor the fact that all those who use those resources suffered the same harm, deprives them of standing.").
  314. Id. at 687 ("To deny standing to persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody. We cannot accept that conclusion.").
  315. 422 U.S. 490, 493 (1975).
  316. Id. at 501.
  317. Id. at 504-07.
  318. 426 U.S. 26, 41-42 (1976) ("[T]he 'case or controversy' limitation of Art. III still requires that a federal court act only to redress injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court.").
  319. Id. at 28.
  320. See also, e.g., Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 260-64 (1977) (adopting a broad view of the standing requirement as encompassing both "constitutional limitations and prudential considerations").
  321. See, e.g., Allen v. Wright, 468 U.S. 737 (1984); Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 485 (1982).
  322. 504 U.S. 555, 560 (1992).
  323. 504 U.S. 555 (1992).
  324. Id. at 560-61.
  325. See Allen v. Wright, 468 U.S. 737, 753 n.19 (1984) ("To the extent there is a difference [between the causation and redressability requirements of standing], it is that the former examines the causal connection between the assertedly unlawful conduct and the alleged injury, whereas the latter examines the causal connection between the alleged injury and the judicial relief requested."). See also Sprint Commc'ns Co. v. APCC Servs., Inc., 554 U.S. 269, 288 (2008) ("[T]he general 'personal stake' requirement and the more specific standing requirements (injury in fact, redressability, and causation) are flip sides of the same coin. They are simply different descriptions of the same judicial effort to ensure, in every case or controversy, 'that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination.'") (citations and internal quotation marks omitted).
  326. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
  327. Spokeo, Inc. v. Robins, 578 U.S. 330, 340 (2016).
  328. See, e.g., Food Mktg. Inst. v. Argus Leader Media, No. 18-481, slip op. at 4-5 (U.S. June 24, 2019) (holding that the U.S. Department of Agriculture's disclosure of annual store-level data regarding redemption of Supplemental Nutrition Assistance Program benefits under the Freedom of Information Act would constitute a cognizable competitive and financial injury to grocery retailers); Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 324-26 (2008) (holding that a tribal court's exercise of jurisdiction over a discrimination claim against a non-Indian bank is a sufficiently concrete injury); Dep't of Commerce v. U.S. House of Representatives, 525 U.S. 316, 331 (1999) (determining that a voter's loss of a Representative to the United States Congress is a sufficiently concrete harm); GMC v. Tracy, 519 U.S. 278, 286 (1997) (stating that liability for payment of a tax that allegedly discriminated against out-of-state interests in violation of the Commerce Clause amounts to a concrete harm); Int'l Primate Prot. League v. Adm'rs of Tulane Educ. Fund, 500 U.S. 72, 77 (1991) (holding that a litigants' loss of a right to sue in the forum of their choosing is a concrete harm); Franchise Tax Bd. v. Alcan Aluminum, 493 U.S. 331, 336 (1990) (determining that shareholders' reduced returns on their investments from an accounting method employed by California in calculating taxable income of companies in which they had invested is a concrete harm); Meese v. Keene, 481 U.S. 465, 476 (1987) (finding the government's designation of film exhibitor's film as "political propaganda" is a sufficiently concrete harm for standing purposes).
  329. E.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 562-63 (1992).
  330. United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 686-87 (1973).
  331. See, e.g., Lujan, 504 U.S. at 572 n.7. See also FEC v. Akins, 524 U.S. 11, 21 (1998) (holding that a litigant's failure to obtain information that federal law requires to be disclosed can constitute a sufficiently concrete injury of his procedural statutory right for Article III standing purposes).
  332. See, e.g., Spokeo, 578 U.S. at 341 (noting that injuries to First Amendment rights to free speech and free exercise of religion may amount to concrete injuries). But see Laird v. Tatum, 408 U.S. 1, 13-16 (1972) (finding that civilians lacked standing to challenge the Department of the Army's alleged surveillance of peaceful political activity because they failed to allege a specific harm, beyond speculation, that it had a chilling effect on the exercise of their First Amendment rights).
  333. Dep't of Commerce v. U.S. House of Representatives, 525 U.S. 316, 331-32 (1999) (stating that "voters have standing to challenge an apportionment statute because they are asserting a plain, direct and adequate interest in maintaining the effectiveness of their votes.") (citations and internal quotation marks omitted).
  334. Allen v. Wright, 468 U.S. 737, 755 (1984) ("There can be no doubt that [the stigmatizing injury caused by racial discrimination] is one of the most serious consequences of discriminatory government action and is sufficient in some circumstances to support standing."). The Court has also held that a litigant may have standing when it alleges injury from the federal government's disregard of the basic structure of government established in the Constitution.
  335. Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 485 (1982) (indicating that psychological injuries stemming from the plaintiffs witnessing "conduct with which [they] disagree[d]" was an insufficient injury for standing).
  336. Summers v. Earth Island Inst., 555 U.S. 488, 497-98 (2009) (rejecting environmental organizations' argument that they had suffered a concrete injury because there was a "statistical probability" that at least some of their hundreds of thousands of members nationwide were threatened with concrete harm from Forest Service regulations); Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 39-40 (1976) ("We note at the outset that the five respondent organizations, which described themselves as dedicated to promoting access of the poor to health services, could not establish their standing on the basis of that goal. Our decisions make clear that an organization's abstract concern with a subject that could be affected by an adjudication does not substitute for the concrete injury required by [Article III]."). But see Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982) ("If, as broadly alleged, petitioners' steering practices have perceptibly impaired HOME's ability to provide counseling and referral services for low- and moderate-income home-seekers, there can be no question that the organization has suffered injury in fact. Such concrete and demonstrable injury to the organization's activities--with the consequent drain on the organization's resources--constitutes far more than simply a setback to the organization's abstract social interests.").
  337. For more on the Article III requirement that the plaintiff have suffered a particularized injury, see Art. III, Sec. 2, Cl. 1: Particularized Injury.
  338. No. 22-58 (U.S. June 23, 2023)
  339. Id. at 1.
  340. Id. at 2 (citing 8 U.S.C. § 1226(c); id. § 1231(a)(2)).
  341. Id. at 4-5..
  342. Id. at 5-6 (citing Linda R.S. v. Richard D., 410 U.S. 615, 619 (1973)).
  343. Id. at 13-14.
  344. Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016).
  345. Id. at 343.
  346. Lujan v. Defenders of Wildlife, 504 U.S. 555, 578 (1992) ("As we said in Sierra Club, statutory 'broadening of the categories of injury that may be alleged in support of standing is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury.'").
  347. Spokeo, 578 U.S. at 343; Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009). See also Thole v. U.S. Bank N.A., No. 17-1712, slip op. at 4 (U.S. June 1, 2020) (rejecting the argument that the existence of a general cause of action for participants in a defined-benefit plan in the Employee Retirement Income Security Act of 1974 sufficed to provide Article III standing).
  348. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.1 (1992).
  349. See Art. III, Sec. 2, Cl. 1: Particularized Injury.
  350. Lujan, 504 U.S. at 573-74 ("We have consistently held that a plaintiff raising only a generally available grievance about government--claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large--does not state an Article III case or controversy."); accord Gill v. Whitford, No. 16-1161, slip op. at 21 (U.S. June 18, 2018) (holding that voters who, at trial, alleged statewide injury to Wisconsin Democrats as a result of vote dilution from the state legislature's partisan gerrymandering lacked standing to challenge the constitutionality of that practice because they did not demonstrate individual and personal injury to their interests as voters in a particular district). But see United States v. Hays, 515 U.S. 737, 744 (1995) (noting that "[d]emonstrating the individualized harm our standing doctrine requires may not be easy in the racial gerrymandering context, as it will frequently be difficult to discern why a particular citizen was put in one district or another" but concluding that where a plaintiff resides in a "gerrymandered district, however, the plaintiff has been denied equal treatment because of the legislature's reliance on racial criteria, and therefore has standing to challenge the legislature's action").
  351. Spokeo, Inc. v. Robins, 578 U.S. 330, 340 n.7 (2016).
  352. FEC v. Akins, 524 U.S. 11, 21 (1998).
  353. 578 U.S. at 334.
  354. Id. at 334-36.
  355. Fair Credit Reporting Act §§ 607, 616, 15 U.S.C. §§ 1681e, 1681n.
  356. Spokeo, 578 U.S. at 334-36. The plaintiff had alleged that Spokeo had reported incorrect information concerning, among other things, his marital status and occupation, and thereby committed a technical violation of the FCRA that could damage his career prospects when he sought employment in the future. Id.
  357. Id. at 11.
  358. Id. See also Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992).
  359. Spokeo, 578 U.S. at 343.
  360. Id. For further discussion of Spokeo and its limits on Congress's ability to create new private rights of action, see Art. III, Sec. 2, Cl. 1: Particularized Injury. See also TransUnion LLC v. Ramirez, No. 20-297, slip op. at 2 (U.S. June 25, 2021) (holding that certain members of a class action lawsuit against a credit reporting agency brought under the Fair Credit Reporting Act had not suffered a concrete injury because misleading information in their credit files had not been provided to third parties); Thole v. U.S. Bank N.A., No. 17-1712 slip op. at 2, 5-6 (U.S. June 1, 2020) (holding that participants in a defined-benefit plan lacked a concrete stake in a lawsuit seeking monetary and injunctive relief to remedy alleged mismanagement of the plan where the plaintiffs' monthly payments were fixed and not tied to plan performance).
  361. Spokeo, 578 U.S. at 341.
  362. Id. at 11.
  363. Massachusetts v. EPA, 549 U.S. 497, 522 (2007) ("That these climate-change risks are 'widely shared' does not minimize Massachusetts' interest in the outcome of this litigation.").
  364. Id. at 522-23.
  365. Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (citations omitted). The "actual or imminent" injury prong of the Lujan test is related to the "redressability" prong. If the alleged injury is an imminent (i.e., future) harm, the litigant may demonstrate redressability only if the plaintiff has requested equitable relief (i.e., injunctive or declaratory relief). See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 105-09 (1998). On the other hand, if the injur