Article III, Section 2, Clause 1:
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.
The potential for abuse of judicial power was of concern to the Founding Fathers, leading them to establish limits on the circumstance 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, 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—." 1
This passage, and the language of Article III, § 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 reenforced by the refusal of the Convention to assign the judges the extra-judicial functions which some members of the Convention – Madison and 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. 2 A similar fate befell suggestions that the Chief Justice be a member of a privy council to assist the President 3 and that the President or either House of Congress be able to request advisory opinions of the Supreme Court. 4 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. 5 Moreover, the refusal of the Justices to participate in a congressional plan for awarding veterans' pensions 6 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 out the two strands. 7
The Two Classes of Cases and Controversies
By the terms of the foregoing section, the judicial power extends to nine classes of cases and controversies, which fall into two general groups. In the words of Chief Justice Marshall in Cohens v. Virginia: 8 "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." 9
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." 10 The meaning attached to the terms "cases" and "controversies" 11 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." 12 "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." 13
Chief Justice 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." 14 Of the "case" and "controversy" requirement, Chief Justice 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." 15 Justice 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. 16
From these quotations may be isolated several factors which, in one degree or another, go to make up a "case" and "controversy."
The presence of adverse litigants with real interests to contend for is a standard which has been stressed in numerous cases, 17 and the requirement implicates a number of complementary factors making up a justiciable suit. The requirement was one of the decisive factors, if not the decisive one, in Muskrat v. United States, 18 in which the Court struck down a statute authorizing certain named Cherokee citizens to bring a test suit against the United States to determine the validity of a law affecting the allocation of Cherokee lands. Attorney's fees of both sides were to be paid out of tribal funds deposited in the United States Treasury. "The judicial power," said the Court, ". . . is the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction. . . . It is true the United States is made a defendant to this action, but it has no interest adverse to the claimants. The object is not to assert a property right as against the government, or to demand compensation for alleged wrongs because of action upon its part. The whole purpose of the law is to determine the constitutional validity of this 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." 19
Concerns regarding adversity also arise when the executive branch chooses to enforce, but not defend in court, federal statutes that it has concluded are unconstitutional. In United States v. Windsor, 20 the Court considered the Defense of Marriage Act (DOMA), which excludes same-sex partners from the definition of "spouse" as used in federal statutes. 21 DOMA was challenged by the surviving member of a same-sex couple (married in Canada), who was seeking to claim a spousal federal estate tax exemption. Although the executive branch continued to deny the exemption, it also declined to defend the statute based on doubts as to whether it would survive scrutiny under the equal protection component of the Fifth Amendment's Due Process Clause. Consequently, the Bipartisan Legal Advisory Group of the House of Representatives (BLAG) 22 intervened to defend the statute. The Court held that, despite the decision not to defend, the failure of the United States to provide a refund to the taxpayer constituted an injury sufficient to establish standing, leaving only "prudential" limitations on judicial review at issue. 23 The Court concluded that the "prudential" concerns were outweighed by the presence of BLAG to offer an adversarial presentation of the issue, the legal uncertainty that would be caused by dismissing the case, and the concern that the executive branch's assessment of the constitutionality of the statute would be immunized from judicial review. 24
Collusive and Feigned Suits
Adverse litigants are lacking in those suits in which two parties have gotten together to bring a friendly suit to settle a question of interest to them. Thus, in Lord v. Veazie, 25 the latter had executed a deed to the former warranting that he had certain rights claimed by a third person, and suit was instituted to decide the "dispute." Declaring that "the whole proceeding was in contempt of the court, and highly reprehensible," the Court observed: "The contract set out in the pleadings was made for the purpose of instituting this suit. . . . The 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 opposed to that of other persons, who are not parties to the suit. . . . And their conduct is the more objectionable, because they have brought up the question upon a statement of facts agreed upon between themselves . . . and upon a judgment pro forma entered by their mutual consent, without any actual judicial decision. . . ." 26 "Whenever," said the Court in another case, "in pursuance of an honest and actual antagonistic assertion of rights by one individual against another, there is presented a question involving the validity of any act of any legislature, State or federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must . . . determine whether the act be constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. 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 the legislative act." 27 Yet several widely known constitutional decisions have been rendered in cases in which friendly parties contrived to have the actions brought and in which the suits were supervised and financed by one side. 28 There are also instances in which there may not be in fact an adverse party at certain stages; that is, instances when the parties do not actually disagree, but where the Supreme Court and the lower courts are empowered to adjudicate. 29
Moreover, adversity in parties has often been found in suits by stockholders against their corporation in which the constitutionality of a statute or a government action is drawn in question, even though one may suspect that the interests of plaintiffs and defendant are not all that dissimilar. Thus, in Pollock v. Farmers' Loan & Trust Co., 30 the Court sustained the jurisdiction of a district court which had enjoined the company from paying an income tax even though the suit was brought by a stockholder against the company, thereby circumventing a statute which forbade the maintenance in any court of a suit to restrain the collection of any tax. 31 Subsequently, the Court sustained jurisdiction in cases brought by a stockholder to restrain a company from investing its funds in farm loan bonds issued by federal land banks 32 and by preferred stockholders against a utility company and the TVA to enjoin the performance of contracts between the company and TVA on the ground that the statute creating it was unconstitutional. 33 Perhaps most notorious was Carter v. Carter Coal Co., 34 in which the president of the company brought suit against the company and its officials, among whom was Carter's father, a vice president of the company, and in which the Court entertained the suit and decided the case on the merits. 35
Substantial Interest: Standing
Perhaps the most important element of the requirement of adverse parties may be found in the "complexities and vagaries" of the standing doctrine. "The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated." 36 The "gist of the question of standing" is whether the party seeking relief has "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." 37 This practical conception of standing has now given way to a primary emphasis upon separation of powers as the guide. "[T]he ‘case or controversy’ requirement defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded. The several doctrines that have grown up to elaborate that requirement are ‘founded in concern about the proper - and properly limited - role of the courts in a democratic society.’" 38
Standing as a doctrine is composed of both constitutional and prudential restraints on the power of the federal courts to render decisions, 39 and is almost exclusively concerned with such public law questions as determinations of constitutionality and review of administrative or other governmental action. 40 As such, it is often interpreted according to the prevailing philosophies of judicial activism and restraint, and narrowly or broadly in terms of the viewed desirability of access to the courts by persons seeking to challenge legislation or other governmental action. The trend in the 1960s was to broaden access; in the 1970s, 1980s, and 1990s, it was to narrow access by stiffening the requirements of standing, although Court majorities were not entirely consistent. The major difficulty in setting forth the standards is that the Court's generalizations and the results it achieves are often at variance. 41
The standing rules apply to actions brought in federal courts, and they have no direct application to actions brought in state courts. 42
Generalized or Widespread Injuries
Persons do not have standing to sue in federal court when all they can claim is that they have an interest or have suffered an injury that is shared by all members of the public. Thus, a group of persons suing as citizens to litigate a contention that membership of Members of Congress in the military reserves constituted a violation of Article I, § 6, cl. 2, was denied standing. 43 "The only interest all citizens share in the claim advanced by respondents is one which presents injury in the abstract. . . . [The] claimed nonobservance [of the clause], standing alone, would adversely affect only the generalized interest of all citizens in constitutional governance." 44
Notwithstanding that a generalized injury that all citizens share is insufficient to confer standing, where a plaintiff alleges that the defendant's action injures him in "a concrete and personal way," "it does not matter how many [other] persons have [also] been injured. . . . [W]here a harm is concrete, though widely shared, the Court has found injury in fact." 45
Save for a narrow exception, standing is also lacking when a litigant attempts to sue to contest governmental action that he claims injures him as a taxpayer. In Frothingham v. Mellon, 46 the Court denied standing to a taxpayer suing to restrain disbursements of federal money to those states that chose to participate in a program to reduce maternal and infant mortality; her claim was that Congress lacked power to appropriate funds for those purposes and that the appropriations would increase her taxes in future years in an unconstitutional manner. Noting that a federal taxpayer's "interest in the moneys of the Treasury . . . is comparatively minute and indeterminate" and that "the effect upon future taxation, of any payment out of the funds . . . [is] remote, fluctuating and uncertain," the Court ruled that plaintiff had failed to allege the type of "direct injury" necessary to confer standing. 47
Taxpayers were found to have standing, however, in Flast v. Cohen, 48 to contest the expenditure of federal moneys to assist religious-affiliated organizations. The Court asserted that the answer to the question whether taxpayers have standing depends on whether the circumstances of each case demonstrate that there is a logical nexus between the status asserted and the claim sought to be adjudicated. First, there must be a logical link between the status of taxpayer and the type of legislative enactment attacked; this means that a taxpayer must allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Article I, § 8, rather than also of incidental expenditure of funds in the administration of an essentially regulatory statute. Second, there must be a logical nexus between the status of taxpayer and the precise nature of the constitutional infringement alleged; this means that the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the taxing and spending power, rather than simply arguing that the enactment is generally beyond the powers delegated to Congress. Both Frothingham and Flast met the first test, because they attacked a spending program. Flast met the second test, because the Establishment Clause of the First Amendment operates as a specific limitation upon the exercise of the taxing and spending power, but Frothingham did not, having alleged only that the Tenth Amendment had been exceeded. The Court reserved the question whether other specific limitations constrain the Taxing and Spending Clause in the same manner as the Establishment Clause. 49
Since Flast, the Court has refused to expand taxpayer standing. Litigants seeking standing as taxpayers to challenge legislation permitting the CIA to withhold from the public detailed information about its expenditures as a violation of Article I, § 9, cl. 7, and to challenge certain Members of Congress from holding commissions in the reserves as a violation of Article I, § 6, cl. 2, were denied standing, in the former cases because their challenge was not to an exercise of the taxing and spending power and in the latter because their challenge was not to legislation enacted under Article I, § 8, but rather was to executive action in permitting Members to maintain their reserve status. 50 An organization promoting church-state separation was denied standing to challenge an executive decision to donate surplus federal property to a church-related college, both because the contest was to executive action under valid legislation and because the property transfer was not pursuant to a Taxing and Spending Clause exercise but was taken under the Property Clause of Article IV, § 3, cl. 2. 51 The Court also refused to create an exception for Commerce Clause violations to the general prohibition on taxpayer standing. 52
Most recently, a Court plurality held that, even in Establishment Clause cases, there is no taxpayer standing where the expenditure of funds that is challenged was not specifically authorized by Congress, but came from general executive branch appropriations. 53
Where expenditures "were not expressly authorized or mandated by any specific congressional enactment," a lawsuit challenging them "is not directed at an exercise of congressional power and thus lacks the requisite 'logical nexus' between taxpayer status 'and the type of legislative enactment attacked.'" 54
Local taxpayers attacking local expenditures have generally been permitted more leeway than federal taxpayers insofar as standing is concerned. Thus, in Everson v. Board of Education, 55 a municipal taxpayer was found to have standing to challenge the use of public funds for transportation of pupils to parochial schools. 56 But, in Doremus v. Board of Education, 57 the Court refused an appeal from a state court for lack of standing of a taxpayer challenging Bible reading in the classroom. The taxpayer's action in Doremus, the Court wrote, "is not a direct dollars-and-cents injury but is a religious difference." 58 This rationale was similar to the spending program-regulatory program distinction of Flast. But, even a dollar-and-cents injury resulting from a state spending program will apparently not constitute a direct dollars-and-cents injury. The Court in Doremus wrote that a taxpayer challenging either a federal or a state statute "must be able to show not only that the statute is invalid but that he has sustained or is in immediate danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally." 59
Constitutional Standards: Injury in Fact, Causation, and Redressability
Although the Court has been inconsistent, it has now settled upon the rule that, "at an irreducible minimum," the constitutional requisites under Article III for the existence of standing are that the plaintiff must personally have: 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. 60
For a time, the actual or threatened injury requirement noted above included an additional requirement that such injury be the product of "a wrong which directly results in the violation of a legal right." 61 In other words, the injury needs to be "one of property, one arising out of contract, one protected against tortuous invasion, or one founded in a statute which confers a privilege." 62 It became apparent, however, that the "legal right" language was "demonstrably circular: if the plaintiff is given standing to assert his claims, his interest is legally protected; if he is denied standing, his interest is not legally protected." 63 Despite this test, the observable tendency of the Court was to find standing in cases which were grounded in injuries far removed from property rights. 64
In any event, the "legal rights" language has now been dispensed with. Rejection of this doctrine occurred in two administrative law cases in which the Court announced that parties had standing when they suffered "injury in fact" to some interest, "economic or otherwise," that is arguably within the zone of interest to be protected or regulated by the statute or constitutional provision in question. 65 Political, 66 environmental, aesthetic, and social interests, when impaired, now afford a basis for making constitutional attacks upon governmental action. 67 "But deprivation of a procedural right without some concrete interest that is affected by the deprivation – a procedural right in vacuo – is insufficient to create Article III standing." 68 Moreover, while Congress has the power to define injuries and articulate "chains of causation" that will give rise to a case or controversy, a plaintiff does not "automatically satisf[y] the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize a person to sue to vindicate that right." 69
The breadth of the "injury-in-fact" concept may be discerned in a series of cases involving the right of private parties to bring actions under the Fair Housing Act to challenge alleged discriminatory practices, even where discriminatory action was not directed against parties to a suit, Theses case held that the subjective and intangible interests of enjoying the benefits of living in integrated communities were sufficient to permit them to attack actions that threatened or harmed those interests. 70 Or, there is important case of FEC v. Akins, 71 which addresses the ability of Congress to confer standing and to remove prudential constraints on judicial review. Congress had afforded persons access to Commission information and had authorized "any person aggrieved" by the actions of the FEC to sue. The Court found "injury-in-fact" present where plaintiff voters alleged that the Federal Election Commission had denied them information respecting an organization that might or might not be a political action committee. 72 Another area where the Court has interpreted this term liberally are injuries to the interests of individuals and associations of individuals who use the environment, affording them standing to challenge actions that threatened those environmental conditions. 73
Even citizens who bring qui tam actions under the False Claims Act – actions that entitle the plaintiff ("relator") to a percentage of any civil penalty assessed for violation – have been held to have standing, on the theory that the government has assigned a portion of its damages claim to the plaintiff, and the assignee of a claim has standing to assert the injury in fact suffered by the assignor. 74 Citing this holding and historical precedent, the Court upheld the standing of an assignee who had promised to remit the proceeds of the litigation to the assignor. 75 The Court noted that "federal courts routinely entertain suits which will result in relief for parties that are not themselves directly bringing suit. Trustees bring suits to benefit their trusts; guardians at litem bring suits to benefit their wards; receivers bring suit to benefit their receiverships; assignees in bankruptcy bring suit to benefit bankrupt estates; and so forth." 76
Beyond these historical anomalies, the Court has indicated that, for parties lacking an individualized injury to seek judicial relief on behalf of an absent third party, there generally must be some sort of agency relationship between the litigant and the injured party. In Hollingsworth v. Perry, 77 the Court considered the question of whether the official proponents of Proposition 8, 78 a state measure that amended the California Constitution to define marriage as a union between a man and a woman, had standing to defend the constitutionality of the provision on appeal. After rejecting the argument that the proponents of Proposition 8 had a particularized injury in their own right, 79 the Court considered the argument that the plaintiffs were formally authorized through some sort of official act to litigate on behalf of the State of California.
Although the proponents were authorized by California law to argue in defense of the proposition, 80 the Court found that this authorization, by itself, was insufficient to create standing. The Court expressed concern that, although California law authorized the proponents to argue in favor of Proposition 8, the proponents were still acting as private individuals, not as state officials 81 or as agents that were controlled by the state. 82 Because the proponents did not act as agents or official representatives of the State of California in defending the law, the Court held that the proponents only possessed a generalized interest in arguing in defense of Proposition 8 and, therefore, lacked standing to appeal an adverse district court decision. 83
More broadly, the Court has been wary in constitutional cases of granting standing to persons who alleged threats or harm to interests that they shared with the larger community of people at large; it is unclear whether this rule against airing "generalized grievances" through the courts 84 has a constitutional or a prudential basis. 85
In a number of cases, particularly where a plaintiff seeks prospective relief, such as an injunction or declaratory relief, the Supreme Court has strictly construed the nature of the injury-in-fact necessary to obtain such judicial remedy. First, the Court has been hesitant to assume jurisdiction over matters in which the plaintiff seeking relief cannot articulate a concrete harm.  86 For example, in Laird v. Tatum, the Court held that plaintiffs challenging a domestic surveillance program lacked standing when their alleged injury stemmed from a "subjective chill", as opposed to a "claim of specific present objective harm or a threat of specific future harm."  87 And in Spokeo, Inc. v. Robins, the Court explained that a concrete injury requires that an injury must "actually exist" or there must be a "risk of real harm," such that a plaintiff who alleges nothing more than a bare procedural violation of a federal statute cannot satisfy the injury-in-fact requirement.  88
Second, the Court has required plaintiffs seeking equitable relief to demonstrate that the risk of a future injury is of a sufficient likelihood; past injury is insufficient to create standing to seek prospective relief.  89 The Court has articulated the threshold of likelihood of future injury necessary for standing in such cases in various ways,  90 generally refusing to find standing where the risk of future injury is speculative.  91 More recently, in Clapper v. Amnesty International USA, the Court held that, in order to demonstrate Article III standing, a plaintiff seeking injunctive relief must prove that the future injury, which is the basis for the relief sought, must be "certainly impending"; a showing of a "reasonable likelihood" of future injury is insufficient.  92 Moreover, the Court in Amnesty International held that a plaintiff cannot satisfy the imminence requirement by merely "manufacturing" costs incurred in response to speculative, non-imminent injuries.  93 A year after Amnesty International, the Court in Susan B. Anthony List v. Driehaus  94 reaffirmed that pre-enforcement challenges to a statute can occur "under circumstances that render the threatened enforcement sufficiently imminent."  95 In Susan B. Anthony List, an organization planning to disseminate a political advertisement, which was previously the source of an administrative complaint under an Ohio law prohibiting making false statements about a candidate or a candidate's record during a political campaign, challenged the prospective enforcement of that law. The Court, in finding that the plaintiff's future injury was certainly impending, relied on the history of prior enforcement of the law with respect to the advertisement, coupled with the facts that "any person" could file a complaint under the law, and any threat of enforcement of the law could burden political speech.  96
Of increasing importance are causation and redressability, the second and third elements of standing, recently developed and held to be of constitutional requisite. A plaintiff must show its injuries are fairly traceable to the conduct complained of. 97 Thus, poor people who had been denied service at certain hospitals were held to lack standing to challenge IRS policy of extending tax benefits to hospitals that did not serve indigents, because they could not show that alteration of the tax policy would cause the hospitals to alter their policies and treat them. 98 Or, low-income persons seeking the invalidation of a town's restrictive zoning ordinance were held to lack standing, because they had failed to allege with sufficient particularity that the complained-of injury – inability to obtain adequate housing within their means – was fairly attributable to the ordinance instead of to other factors, so that voiding of the ordinance might not have any effect upon their ability to find affordable housing. 99 Similarly, the link between fully integrated public schools and allegedly lax administration of tax policy permitting benefits to discriminatory private schools was deemed too tenuous, the harm flowing from private actors not before the courts and the speculative possibility that directing denial of benefits would result in any minority child being admitted to a school. 100
But the Court did permit plaintiffs to attack the constitutionality of a law limiting the liability of private utilities in the event of nuclear accidents and providing for indemnification, on a showing that "but for" the passage of the law there was a "substantial likelihood," based upon industry testimony and other material in the legislative history, that the nuclear power plants would not be constructed and that therefore the environmental and aesthetic harm alleged by plaintiffs would not occur; thus, a voiding of the law would likely relieve the plaintiffs of the complained of injuries. 101 And in a case where a creditor challenged a bankruptcy court's structured dismissal of a Chapter 11 case that denied the creditor the opportunity to obtain a settlement or assert a claim with "litigation value," the Court held that a decision in the creditor's favor was likely to redress the loss. 102 Operation of these requirements makes difficult but not impossible the establishment of standing by persons indirectly injured by governmental action, that is, action taken as to third parties that is alleged to have injured the claimants as a consequence. 103
In a case permitting a plaintiff contractors' association to challenge an affirmative-action, set-aside program, the Court seemed to depart from several restrictive standing decisions in which it had held that the claims of attempted litigants were too "speculative" or too "contingent." 104 The association had sued, alleging that many of its members "regularly bid on and perform construction work" for the city and that they would have bid on the set-aside contracts but for the restrictions. The Court found the association had standing, because certain prior cases under the Equal Protection Clause established a relevant proposition. "When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The ‘injury in fact’ in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit." 105 The association, therefore, established standing by alleging that its members were able and ready to bid on contracts but that a discriminatory policy prevented them from doing so on an equal basis. 106
Redressability can be present in an environmental "citizen suit" even when the remedy is civil penalties payable to the government. The civil penalties, the Court explained, "carried with them a deterrent effect that made it likely, as opposed to merely speculative, that the penalties would redress [plaintiffs’] injuries by abating current violations and preventing future ones." 107
Prudential Standing Rules
Even when Article III constitutional standing rules have been satisfied, the Court has held that principles of prudence may counsel the judiciary to refuse to adjudicate some claims. 108 The rule is "not meant to be especially demanding," 109 and it is clear that the Court feels free to disregard any of these prudential rules when it sees fit. 110 Congress is also free to legislate away prudential restraints and confer standing to the extent permitted by Article III. 111 The Court has identified three rules as prudential ones, 112 only one of which has been a significant factor in the jurisprudence of standing. The first two rules are that the plaintiff's interest, to which she asserts an injury, must come within the "zone of interest" arguably protected by the constitutional provision or statute in question 113 and that plaintiffs may not air "generalized grievances" shared by all or a large class of citizens. 114 The important rule concerns the ability of a plaintiff to represent the constitutional rights of third parties not before the court.
Standing to Assert the Rights of Others
Usually, one may assert only one's interest in the litigation and not challenge the constitutionality of a statute or a governmental action because it infringes the protectable rights of someone else. 115 In Tileston v. Ullman, 116 an early round in the attack on a state anti-contraceptive law, a doctor sued, charging that he was prevented from giving his patients needed birth control advice. The Court held that he had no standing; no right of his was infringed, and he could not represent the interests of his patients.
There are several exceptions to the general rule, however, that make generalization misleading. Many cases allow standing to third parties who demonstrate a requisite degree of injury to themselves and if under the circumstances the injured parties whom they seek to represent would likely not be able to assert their rights. Thus, in Barrows v. Jackson, 117 a white defendant who was being sued for damages for breach of a restrictive covenant directed against African Americans – and therefore able to show injury in liability for damages – was held to have standing to assert the rights of the class of persons whose constitutional rights were infringed. 118 Similarly, the Court has permitted defendants who have been convicted under state law – giving them the requisite injury – to assert the rights of those persons not before the Court whose rights would be adversely affected through enforcement of the law in question. 119 In fact, the Court has permitted persons who would be subject to future prosecution or future legal action – thus satisfying the injury requirement – to represent the rights of third parties with whom the challenged law has interfered with a relationship. 120
It is also possible, of course, that one's own rights can be affected by action directed at someone from another group. 121 A substantial dispute was occasioned in Singleton v. Wulff, 122 over the standing of doctors who were denied Medicaid funds for the performance of abortions not "medically indicated" to assert the rights of absent women to compensated abortions. All the Justices thought the Court should be hesitant to resolve a controversy on the basis of the rights of third parties, but they divided with respect to the standards exceptions. Four Justices favored a lenient standard, permitting third party representation when there is a close, perhaps confidential, relationship between the litigant and the third parties and when there is some genuine obstacle to third party assertion of their rights; four Justices would have permitted a litigant to assert the rights of third parties only when government directly interdicted the relationship between the litigant and the third parties through the criminal process and when litigation by the third parties is in all practicable terms impossible. 123 Following Wulff, the Court emphasized the close attorney-client relationship in holding that a lawyer had standing to assert his client's Sixth Amendment right to counsel in challenging application of a drug-forfeiture law to deprive the client of the means of paying counsel. 124 A "next friend" that is asserting the rights of another must establish that he has a "close relationship" with the real party in interest who is unable to litigate his own cause because of a "hindrance," 125 such as mental incapacity, lack of access to courts, or other disability. 126
A variant of the general rule is that one may not assert the unconstitutionality of a statute in other respects when the statute is constitutional as to him. 127 Again, the exceptions may be more important than the rule. Thus, an overly broad statute, especially one that regulates speech and press, may be considered on its face rather than as applied, and a defendant to whom the statute constitutionally applies may thereby be enabled to assert its unconstitutionality. 128
Legal challenges based upon the allocation of governmental authority under the Constitution, e.g., separation of powers and federalism, are generally based on a showing of injury to the disadvantaged governmental institution. The prohibition on litigating the injuries of others, however, does not appear to bar individuals from bringing these suits. For instance, injured private parties routinely bring separation-of-powers challenges, 129 even though one could argue that the injury in question is actually upon the authority of the affected branch of government. Then, in Bond v. United States, 130 the Court considered whether a criminal defendant could raise federalism arguments based on state prerogatives under the Tenth Amendment. 131 There, the Court held that individuals could raise Tenth Amendment challenges, because states are not the "sole intended beneficiaries of federalism," and an individual has a "direct interest in objecting to laws that upset the constitutional balance between the National Government and the States . . . ."  132
Organizations do not have standing as such to represent their particular concept of the public interest, 133 but organizations have been permitted to assert the rights of their members. 134 In Hunt v. Washington State Apple Advertising Comm’n, 135 the Court promulgated elaborate standards, holding that an organization or association "has standing to bring suit on behalf of its members 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." Similar considerations arise in the context of class actions, in which the Court holds that a named representative with a justiciable claim for relief is necessary when the action is filed and when the class is certified, but that following class certification there need be only a live controversy with the class, provided the adequacy of the representation is sufficient. 136
Standing of States to Represent Their Citizens
The right of a state to sue as parens patriae, in behalf of its citizens, has long been recognized. 137 No state, however, may be parens patriae of its citizens "as against the Federal Government." 138 But a state may sue to protect the its citizens from environmental harm, 139 and to enjoin other states and private parties from engaging in actions harmful to the economic or other well-being of it citizens. 140 The state must be more than a nominal party without a real interest of its own, merely representing the interests of particular citizens who cannot represent themselves; 141 it must articulate an interest apart from those of private parties that partakes of a "quasi-sovereign interest" in the health and well-being, both physical and economic, of its residents in general, although there are suggestions that the restrictive definition grows out of the Court's wish to constrain its original jurisdiction and may not fit such suits brought in the lower federal courts. 142
Standing of Members of Congress
The lower federal courts, principally the D.C. Circuit, developed a body of law governing the standing of Members of Congress, as Members, to bring court actions, usually to challenge actions of the executive branch. 143 When the Supreme Court finally addressed the issue on the merits in 1997, however, it severely curtailed Member standing. 144 All agree that a legislator "receives no special consideration in the standing inquiry," 145 and that he, along with every other person attempting to invoke the aid of a federal court, must show "injury in fact" as a predicate to standing. 146 What such injury in fact may consist of, however, has been the subject of debate.
A suit by Members for an injunction against continued prosecution of the Indochina war was held maintainable on the theory that if the court found the President's actions to be beyond his constitutional authority, the holding would have a distinct and significant bearing upon the Members' duties to vote appropriations and other supportive legislation and to consider impeachment. 147 The breadth of this rationale was disapproved in subsequent cases. The leading decision is Kennedy v. Sampson, 148 in which a Member was held to have standing to contest the alleged improper use of a pocket veto to prevent from becoming law a bill the Senator had voted for. Thus, Congressmen were held to have a derivative rather than direct interest in protecting their votes, which was sufficient for standing purposes, when some "legislative disenfranchisement" occurred. 149 In a comprehensive assessment of its position, the Circuit distinguished between (1) a diminution in congressional influence resulting from executive action that nullifies a specific congressional vote or opportunity to vote in an objectively verifiable manner, which will constitute injury in fact, and (2) a diminution in a legislator's effectiveness, subjectively judged by him, resulting from executive action, such a failing to obey a statute, where the plaintiff legislator has power to act through the legislative process, in which injury in fact does not exist. 150 Having thus established a fairly broad concept of Member standing, the Circuit then proceeded to curtail it by holding that the equitable discretion of the court to deny relief should be exercised in many cases in which a Member had standing but in which issues of separation of powers, political questions, and other justiciability considerations counseled restraint. 151
Member or legislator standing has been severely curtailed, although not quite abolished, in Raines v. Byrd. 152 Several Members of Congress, who had voted against passage of the Line Item Veto Act, sued in their official capacities as Members of Congress to invalidate the law, alleging standing based on the theory that the statute adversely affected their constitutionally prescribed lawmaking power. 153 Emphasizing its use of standing doctrine to maintain separation-of-powers principles, the Court adhered to its holdings that, in order to possess the requisite standing, a person must establish that he has a "personal stake" in the dispute and that the alleged injury suffered is particularized as to him. 154 Neither requirement, the Court held, was met by these legislators. First, the Members did not suffer a particularized loss that distinguished them from their colleagues or from Congress as an entity. Second, the Members did not claim that they had been deprived of anything to which they were personally entitled. "[A]ppellees’ claim of standing is based on loss of political power, not loss of any private right, which would make the injury more concrete. . . . If one of the Members were to retire tomorrow, he would no longer have a claim; the claim would be possessed by his successor instead. The claimed injury thus runs (in a sense) with the Member’s seat, a seat which the Member holds . . . as trustee for his constituents, not as a prerogative of personal power." 155
So, there is no such thing as Member standing? Not necessarily so, because the Court turned immediately to preserving (at least a truncated version of) Coleman v. Miller, 156 in which the Court had found that 20 of the 40 members of a state legislature had standing to sue to challenge the loss of the effectiveness of their votes as a result of a tie-breaker by the lieutenant governor. Although there are several possible explanations for the result in that case, the Court in Raines chose to fasten on a particularly narrow point. "[O]ur holding in Coleman stands (at most . . .) for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified." 157 Because these Members could still pass or reject appropriations bills, vote to repeal the Act, or exempt any appropriations bill from presidential cancellation, the Act did not nullify their votes and thus give them standing. 158
In a subsequent case, the Court reaffirmed the continued viability of Coleman 159 in concluding that legislators, when authorized by the legislature, could have standing to assert an "institutional injury" to that legislative body. 160 Specifically, the Court held in Arizona State Legislature v. Arizona Independent Redistricting Commission that the Arizona legislature had standing to challenge the validity of the Arizona Independent Redistricting Commission and the commission’s 2012 map of congressional districts because the legislature had been "stripped" of what the plaintiff considered its "exclusive constitutionally guarded role" in redistricting. 161 Comparing the Arizona legislature’s role to the "institutional injury" suffered by the plaintiffs in Coleman, the Court viewed the Arizona legislators’ injury as akin to that of the Coleman legislators. Specifically, the Court likened the instant case to Coleman because the Arizona Constitution and the ballot initiative that provided for redistricting by an independent commission would have
completely nullif[ied] any vote
now or by the legislature
in the future
purporting to adopt a redistricting plan. 162 However, in Arizona State Legislature, the Court left open the question of whether Congress, in a lawsuit against the President over an institutional injury to the legislative branch, would likewise have standing, as such a lawsuit would "raise separation-of-powers concerns absent" in the case before the Court. 163
Notwithstanding Coleman and Arizona State Legislature, the Court continued to express skepticism about standing questions concerning legislative plaintiffs. In Virginia House of Delegates v. Bethune-Hill, the Court held that a single chamber of the Virginia legislature—the House of Delegates of its General Assembly—lacked standing to defend state redistricting legislation that the lower court had invalidated. 164 In so holding, the Court, citing Raines, reasoned that just as individual members “lack standing to assert the institutional interests of a legislature,” “a single House of a bicameral legislature lacks capacity to assert interests belonging to the legislature as a whole.” 165 In response to the argument that redistricting altered the composition of the House of Delegates and therefore amounted to an Article III injury, the Court observed that the House had “no cognizable interest in the identity of its members,” as the public chose its members. 166 As a consequence, while the Court has recognized the a single chamber of a legislature may be able to assert injuries unique to that chamber, 167 the Virginia House of Delegates decision indicates that the invalidation of a law does not necessarily inflict a discrete, cognizable injury on “each organ of government that participated in the law’s passage.” 168
Standing to Challenge Lawfulness of Governmental Action
Standing to challenge governmental action on statutory or other non-constitutional grounds has a constitutional content to the degree that Article III requires a "case" or "controversy," necessitating a litigant who has sustained or will sustain an injury so that he will be moved to present the issue "in an adversary context and in a form historically viewed as capable of judicial resolution." 169 Liberalization of standing in the administrative law field has been notable.
The "old law" required that in order to sue to contest the lawfulness of agency administrative action, one must have suffered a "legal wrong," that is, "the right invaded must be a legal right," 170 requiring some resolution of the merits preliminarily. An injury-in-fact was insufficient. A "legal right" could be established in one of two ways. It could be a common-law right, such that if the injury were administered by a private party, one could sue on it; 171 or it could be a right created by the Constitution or a statute. 172 The statutory right most relied on was the judicial review section of the Administrative Procedure Act, which provided 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." 173 Early decisions under this statute interpreted the language as adopting the "legal interest" and "legal wrong" standard then prevailing as constitutional requirements of standing, which generally had the effect of limiting the type of injury cognizable in federal court to economic ones. 174
In 1970, however, the Court promulgated a two-pronged standing test: if the litigant (1) has suffered injury-in-fact and if he (2) shows that the interest he seeks to protect is arguably within the zone of interests to be protected or regulated by the statutory guarantee in question, he has standing. 175 Of even greater importance was the expansion of the nature of the cognizable injury beyond economic injury to encompass "aesthetic, conservational, and recreational" interests as well. 176 "Aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process." 177 Thus, plaintiffs who pleaded that they used the natural resources of the Washington area, that rail freight rates would deter the recycling of used goods, and that their use of natural resources would be disturbed by the adverse environmental impact caused by the nonuse of recyclable goods, had standing as "persons aggrieved" to challenge the rates set. Neither the large numbers of persons allegedly injured nor the indirect and less perceptible harm to the environment was justification to deny standing. The Court granted that the plaintiffs might never be able to establish the "attenuated line of causation" from rate setting to injury, but that was a matter for proof at trial, not for resolution on the pleadings. 178
Much debate has occurred in recent years with respect to the validity of "citizen suit" provisions in the environmental laws, especially in light of the Court's retrenchment in constitutional standing cases. The Court in insisting on injury in fact as well as causation and redressability has curbed access to citizen suits, 179 but that Congress may expansively confer substantial degrees of standing through statutory creations of interests remains true.
The Requirement of a Real Interest
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." 180 A party cannot maintain a suit "for a mere declaration in the air." 181 In Texas v. ICC, 182 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." 183 And in Ashwander v. TVA, 184 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." 185
Concepts of real interest and abstract questions appeared prominently in United Public Workers v. Mitchell, 186 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. 187
In 1793, the Court unanimously refused to grant the request of President Washington and Secretary of State Jefferson to construe the treaties and laws of the United States pertaining to questions of international law arising out of the wars of the French Revolution. 188 Noting the constitutional separation of powers and functions in his reply, Chief Justice Jay said: "These being in certain respects checks upon each other, and our being Judges of a Court in the last resort, are considerations which afford strong arguments against the propriety of our extra-judicially deciding the questions alluded to, especially as the power given by the Constitution to the President, of calling on the heads of departments for opinions, seem to have been purposely as well as expressly united to the Executive departments." 189 Although the Court has generally adhered to its refusal, Justice Jackson was not quite correct when he termed the policy a "firm and unvarying practice. . . ." 190 The Justices in response to a letter calling for suggestions on improvements in the operation of the courts drafted a letter suggesting that circuit duty for the Justices was unconstitutional, but they apparently never sent it; 191 Justice Johnson communicated to President Monroe, apparently with the knowledge and approval of the other Justices, the views of the Justices on the constitutionality of internal improvements legislation; 192 and Chief Justice Hughes in a letter to Senator Wheeler on President Roosevelt's Court Plan questioned the constitutionality of a proposal to increase the membership and have the Court sit in divisions. 193 Other Justices have individually served as advisers and confidants of Presidents in one degree or another. 194
Nonetheless, the Court has generally adhered to the early precedent and would no doubt have developed the rule in any event, as a logical application of the case and controversy doctrine. As Justice Jackson wrote when the Court refused to review an order of the Civil Aeronautics Board, which in effect was a mere recommendation to the President for his final action: "To revise or review an administrative decision which has only the force of a recommendation to the President would be to render 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. This Court early and wisely determined that it would not give advisory opinions even when asked by the Chief Executive. 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." 195 The Court's early refusal to render advisory opinions has discouraged direct requests for advice so that the advisory opinion has appeared only collaterally in cases where there was a lack of adverse parties, 196 or where the judgment of the Court was subject to later review or action by the executive or legislative branches of government, 197 or where the issues involved were abstract or contingent. 198
Rigid emphasis upon such elements of judicial power as finality of judgment and award of execution coupled with equally rigid emphasis upon adverse parties and real interests as essential elements of a case and controversy created serious doubts about the validity of any federal declaratory judgment procedure. 199 These doubts were largely dispelled by Court decisions in the late 1920s and early 1930s, 200 and Congress quickly responded with the Federal Declaratory Judgment Act of 1934. 201 Quickly tested, the Act was unanimously sustained. 202 "The principle involved in this form of procedure," the House report said, "is 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." 203 The Senate report 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." 204
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. . . ." 205 Upholding the Act, the Court wrote: "The Declaratory Judgment Act of 1934, 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. The word ‘actual’ is one of emphasis rather than of definition. Thus the operation of the Declaratory Judgment Act is procedural only. In providing remedies and defining procedure in relation to cases and controversies in the constitutional sense the Congress is acting within its delegated power over the jurisdiction of the federal courts which the Congress is authorized to establish." 206 Finding that the case presented a definite and concrete controversy, the Court held that a declaration should have been issued. 207
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." 208 As Justice Douglas wrote: "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. Basically, the question in each case is 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." 209 It remains, therefore, for the courts to determine in each case the degree of controversy necessary to establish a case for purposes of jurisdiction. Even then, however, the Court is under no compulsion to exercise its jurisdiction. 210 Use of declaratory judgments to settle disputes and identify rights in many private areas, like insurance and patents in particular but extending into all areas of civil litigation, except taxes, 211 is common. The Court has, however, at various times demonstrated a substantial reluctance to have important questions of public law, especially regarding the validity of legislation, resolved by such a procedure. 212 In part, this has been accomplished by a strict insistence upon concreteness, ripeness, and the like. 213 Nonetheless, even at such times, several noteworthy constitutional decisions were rendered in declaratory judgment actions. 214
As part of the 1960s hospitality to greater access to courts, the Court exhibited a greater receptivity to declaratory judgments in constitutional litigation, especially cases involving civil liberties issues. 215 The doctrinal underpinnings of this hospitality were sketched out by Justice Brennan in his opinion for the Court in Zwickler v. Koota, 216 in which the relevance to declaratory judgments of the Dombrowski v. Pfister 217 line of cases involving federal injunctive relief against the enforcement of state criminal statutes was in issue. First, it was held that the vesting of "federal question" jurisdiction in the federal courts by Congress following the Civil War, as well as the enactment of more specific civil rights jurisdictional statutes, "imposed the duty upon all levels of the federal judiciary to give due respect to a suitor’s choice of a federal forum for the hearing and decision of his federal constitutional claims." 218 Escape from that duty might be found only in "narrow circumstances," such as an appropriate application of the abstention doctrine, which was not proper where a statute affecting civil liberties was so broad as to reach protected activities as well as unprotected activities. Second, the judicially developed doctrine that a litigant must show "special circumstances" to justify the issuance of a federal injunction against the enforcement of state criminal laws is not applicable to requests for federal declaratory relief: "a federal district court has the duty to decide the appropriateness and the merits of the declaratory request irrespective of its conclusion as to the propriety of the issuance of the injunction." 219 This language was qualified subsequently, so that declaratory and injunctive relief were equated in cases in which a criminal prosecution is pending in state court at the time the federal action is filed 220 or is begun in state court after the filing of the federal action but before any proceedings of substance have taken place in federal court, 221 and federal courts were instructed not to issue declaratory judgments in the absence of the factors permitting issuance of injunctions under the same circumstances. But in the absence of a pending state action or the subsequent and timely filing of one, a request for a declaratory judgment that a statute or ordinance is unconstitutional does not have to meet the stricter requirements justifying the issuance of an injunction. 222
Just as standing historically has concerned who may bring an action in federal court, the ripeness doctrine concerns when it may be brought. Formerly, it was a wholly constitutional principle requiring a determination that the events bearing on the substantive issue have happened or are sufficiently certain to occur so as to make adjudication necessary and so as to assure that the issues are sufficiently defined to permit intelligent resolution. The focus was on the harm to the rights claimed rather than on the harm to the plaintiff that gave him standing to bring the action, 223 although, to be sure, in most cases the harm is the same. But in liberalizing the doctrine of ripeness in recent years the Court subdivided it into constitutional and prudential parts 224 and conflated standing and ripeness considerations. 225
The early cases generally required potential plaintiffs to expose themselves to possibly irreparable injury in order to invoke federal judicial review. Thus, in United Public Workers v. Mitchell, 226 government employees alleged that they wished to engage in various political activities and that they were deterred from their desires by the Hatch Act prohibitions on political activities. As to all but one plaintiff, who had himself actually engaged in forbidden activity, the Court held itself unable to adjudicate because the plaintiffs were not threatened with "actual interference" with their interests. The Justices viewed the threat to plaintiffs' rights as hypothetical and refused to speculate about the kinds of political activity they might engage in or the Government's response to it. "No threat of interference by the Commission with rights of these appellants appears beyond that implied by the existence of the law and the regulations." 227 Similarly, resident aliens planning to work in the Territory of Alaska for the summer and then return to the United States were denied a request for an interpretation of the immigration laws that they would not be treated on their return as excludable aliens entering the United States for the first time, or alternatively, for a ruling that the laws so interpreted would be unconstitutional. The resident aliens had not left the country and attempted to return, although other alien workers had gone and been denied reentry, and the immigration authorities were on record as intending to enforce the laws as they construed them. 228 Of course, the Court was not entirely consistent in applying the doctrine. 229
It remains good general law that pre-enforcement challenges to criminal and regulatory legislation will often be unripe for judicial consideration because of uncertainty of enforcement, 230 because the plaintiffs can allege only a subjective feeling of inhibition or fear arising from the legislation or from enforcement of it, 231 or because the courts need before them the details of a concrete factual situation arising from enforcement in order to engage in a reasoned balancing of individual rights and governmental interests. 232 But one who challenges a statute or possible administrative action need demonstrate only a realistic danger of sustaining an injury to his rights as a result of the statute's operation and enforcement and need not await the consummation of the threatened injury in order to obtain preventive relief, such as exposing himself to actual arrest or prosecution. When one alleges an intention to engage in conduct arguably affected with a constitutional interest but proscribed by statute and there exists a credible threat of prosecution thereunder, he may bring an action for declaratory or injunctive relief. 233 Similarly, the reasonable certainty of the occurrence of the perceived threat to a constitutional interest is sufficient to afford a basis for bringing a challenge, provided the court has sufficient facts before it to enable it to intelligently adjudicate the issues. 234
Of considerable uncertainty in the law of ripeness is Duke Power, in which the Court held ripe for decision on the merits a challenge to a federal law limiting liability for nuclear accidents at nuclear power plants, on the basis that, because the plaintiffs had sustained an injury-in-fact and had standing, the Article III requisite of ripeness was satisfied and no additional facts arising out of the occurrence of the claimed harm would enable the court better to decide the issues. 235 Should this analysis prevail, ripeness as a limitation on justiciability will decline in importance.
A case initially presenting all the attributes necessary for federal court litigation may at some point lose some attribute of justiciability and become "moot." The usual rule is that an actual controversy must exist at all stages of trial and appellate consideration and not simply at the date the action is initiated. 236 "Under Article III of the Constitution, federal courts may adjudicate only actual, ongoing cases or controversies. . . . Article III denies federal courts the power ‘to decide questions that cannot affect the rights of litigants in the case before them,’ . . . and confines them to resolving ‘real and substantial controvers[ies] 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.’ This case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate. To sustain our jurisdiction in the present case, it is not enough that a dispute was very much alive when suit was filed, or when review was obtained in the Court of Appeals. . . . The parties must continue to have a ‘personal stake in the outcome’ of the lawsuit." 237 Because, with the advent of declaratory judgments, it is open to the federal courts to "declare the rights and other legal relations" of the parties with res judicata effect, 238 the question in cases alleged to be moot now seems largely if not exclusively to be decided in terms of whether an actual controversy continues to exist between the parties rather than in terms of any additional older concepts. 239So long as concrete, adverse legal interests between the parties continue, a case is not made moot by intervening actions that cast doubt on the practical enforceability of a final judicial order. 240
Cases may become moot because of a change in the law, 241 or in the status of the parties, 242 or because of some act of one of the parties which dissolves the controversy. 243 But the Court has developed several exceptions. Thus, in criminal cases, although the sentence of the convicted appellant has been served, the case "is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction." 244 The "mere possibility" of such a consequence, even a "remote" one, is enough to find that one who has served his sentence has retained the requisite personal stake giving his case "an adversary cast and making it justiciable." 245 This exception has its counterpart, as well, where the Court has held that even the remote possibility of recovery can obviate mootness concerns. 246
A second exception, the "voluntary cessation" doctrine, focuses on whether challenged conduct which has lapsed or the utilization of a statute which has been superseded is likely to recur. 247 Thus, cessation of the challenged activity by the voluntary choice of the person engaging in it, especially if he contends that he was properly engaging in it, will moot the case only if it can be said with assurance "that ‘there is no reasonable expectation that the wrong will be repeated.’" 248 This amounts to a "formidable burden" of showing with absolute clarity that there is no reasonable prospect of renewed activity. 249 Otherwise, "[t]he defendant is free to return to his old ways" and this fact would be enough to prevent mootness because of the "public interest in having the legality of the practices settled." 250In this vein, the Court in Campbell-Ewald Co. v. Gomez, informed by principles of contract law, held that an unaccepted offer to settle a lawsuit amounts to a "legal nullity" that fails to bind either party and therefore does not moot the litigation. 251
Still a third exception concerns the ability to challenge short-term conduct which may recur in the future, which has been denominated as disputes "capable of repetition, yet evading review." 252 Thus, in cases in which (1) the challenged action is too short in its duration to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party would be subjected to the same action again, mootness will not be found when the complained-of conduct ends. 253 This exception is frequently invoked in cases involving situations of comparatively limited duration, such as elections, 254 pregnancies, 255 short sentences in criminal cases, 256 the award of at least some short-term federal government contracts, 257 and the issuance of injunctions that expire in a brief period. 258
An interesting and potentially significant liberalization of the law of mootness, perhaps as part of a continuing circumstances exception, is occurring in the context of class action litigation. 259 It is now clearly established that, when the controversy becomes moot as to the plaintiff in a certified class action, it still remains alive for the class he represents so long as an adversary relationship sufficient to constitute a live controversy between the class members and the other party exists. 260 The Court was closely divided, however, with respect to the right of the named party, when the substantive controversy became moot as to him, to appeal as error the denial of a motion to certify the class which he sought to represent and which he still sought to represent. The Court held that in the class action setting there are two aspects of the Article III mootness question, the existence of a live controversy and the existence of a personal stake in the outcome for the named class representative. 261 Finding a live controversy, the Court determined that the named plaintiff retained a sufficient interest, "a personal stake," in his claimed right to represent the class in order to satisfy the "imperatives of a dispute capable of judicial resolution;" that is, his continuing interest adequately assures that "sharply presented issues" are placed before the court "in a concrete factual setting" with "self-interested parties vigorously advocating opposing positions." 262
The immediate effect of the decision is that litigation in which class actions are properly certified or in which they should have been certified will rarely ever be mooted if the named plaintiff (or in effect his attorney) chooses to pursue the matter, even though the named plaintiff can no longer obtain any personal relief from the decision sought. 263 Of much greater potential significance is the possible extension of the weakening of the "personal stake" requirement in other areas, such as the representation of third-party claims in non-class actions and the initiation of some litigation in the form of a "private attorneys general" pursuit of adjudication. 264 In Genesis Healthcare Corporation v. Symczyk, 265 the Court appeared to follow the "personal stake" rule applicable to class actions in the context of "collective actions" under the Fair Labor Standards Act, at least to the extent that actions that would moot the plaintiff's claims prior to a "conditional certification" by the court would likewise moot the collective action.
Retroactivity Versus Prospectivity
One of the distinguishing features of an advisory opinion is that it lays down a rule to be applied to future cases, much as does legislation generally. It should therefore follow that an Article III court could not decide purely prospective cases, cases which do not govern the rights and disabilities of the parties to the cases. 266 The Court asserted that this principle is true, while applying it only to give retroactive effect to the parties to the immediate case. 267 Yet, occasionally, the Court did not apply its holding to the parties before it, 268 and in a series of cases beginning in the mid-1960s it became embroiled in attempts to limit the retroactive effect of its – primarily but not exclusively 269 – constitutional-criminal law decisions. The results have been confusing and unpredictable. 270
Prior to 1965, "both the common law and our own decisions recognized a general rule of retrospective effect for the constitutional decisions of this Court . . . subject to [certain] limited exceptions." 271 Statutory and judge-made law have consequences, at least to the extent that people must rely on them in making decisions and shaping their conduct. Therefore, the Court was moved to recognize that there should be a reconciling of constitutional interests reflected in a new rule of law with reliance interests founded upon the old. 272 In both criminal and civil cases, however, the Court's discretion to do so has been constrained by later decisions.
In the 1960s, when the Court began its expansion of the Bill of Rights and applied its rulings to the states, it became necessary to determine the application of the rulings to criminal defendants who had exhausted all direct appeals but who could still resort to habeas corpus, to those who had been convicted but still were on direct appeal, and to those who had allegedly engaged in conduct but who had not gone to trial. At first, the Court drew the line at cases in which judgments of conviction were not yet final, so that all persons in those situations obtained retrospective use of decisions, 273 but the Court later promulgated standards for a balancing process that resulted in different degrees of retroactivity in different cases. 274 Generally, in cases in which the Court declared a rule that was "a clear break with the past," it denied retroactivity to all defendants, with the sometime exception of the appellant himself. 275 With respect to certain cases in which a new rule was intended to overcome an impairment of the truth-finding function of a criminal trial 276 or to cases in which the Court found that a constitutional doctrine barred the conviction or punishment of someone, 277 full retroactivity, even to habeas claimants, was the rule. Justice Harlan strongly argued that the Court should sweep away its confusing balancing rules and hold that all defendants whose cases are still pending on direct appeal at the time of a law-changing decision should be entitled to invoke the new rule, but that no habeas claimant should be entitled to benefit. 278
The Court later drew a sharp distinction between criminal cases pending on direct review and cases pending on collateral review. For cases on direct review, "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past." 279 Justice Harlan's habeas approach was first adopted by a plurality in Teague v. Lane 280 and then by the Court in Penry v. Lynaugh. 281 Thus, for collateral review in federal courts of state court criminal convictions, the general rule is that "new rules" of constitutional interpretation – those "not 'dictated by precedent existing at the time the defendant's conviction became final'" 282 – will not be applied. 283 However, "[a] new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a 'watershed rul[e] of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding." 284 Put another way, a new rule will be applied in a collateral proceeding only if it places certain kinds of conduct "beyond the power of the criminal law-making authority to prescribe" or constitutes a "new procedure[ ] without which the likelihood of an accurate conviction is seriously diminished." 285 In Montgomery v. Louisiana, the Court extended the holding of Teague beyond the context of federal habeas review, such that when a new substantive rule of constitutional law controls the outcome of a case, state collateral review courts must give retroactive effect to that rule in the same manner as federal courts engaging in habeas review. 286
As a result, at least with regard to the first exception, the Court has held that the Teague rule is constitutionally based, 287 as substantive rules set forth categorical guarantees that place certain laws and punishments beyond a state’s power, making "the resulting conviction or sentence . . . by definition . . . unlawful." 288In contrast, procedural rules are those that are aimed at enhancing the accuracy of a conviction or sentence by regulating the manner of determining the defendant’s guilt. 289 As a consequence, with respect to a defendant who did not receive the benefit of a new procedural rule, the possibility exists that the underlying conviction or sentence may "still be accurate" and the "defendant’s continued confinement may still be lawful" under the Constitution. 290 In this vein, the Court has described a substantive rule as one that alters the range of conduct that the law punishes, or that prohibits "a certain category of punishment for a class of defendants because of their status or offense." 291 Under the second exception it is "not enough under Teague to say that a new rule is aimed at improving the accuracy of a trial. More is required. A rule that qualifies under this exception must not only improve accuracy, but also alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding." 292
What the rule is to be, and indeed if there is to be a rule, in civil cases has been disputed to a rough draw in recent cases. As was noted above, there is a line of civil cases, constitutional and nonconstitutional, in which the Court has declined to apply new rules, the result often of overruling older cases, retrospectively, sometimes even to the prevailing party in the case. 293 As in criminal cases, the creation of new law, through overrulings or otherwise, may result in retroactivity in all instances, in pure prospectivity, or in partial prospectivity in which the prevailing party obtains the results of the new rule but no one else does. In two cases raising the question when states are required to refund taxes collected under a statute that is subsequently ruled unconstitutional, the Court revealed itself to be deeply divided. 294 The question in Beam was whether the company could claim a tax refund under an earlier ruling holding unconstitutional the imposition of certain taxes upon its products. The holding of a fractionated Court was that it could seek a refund, because in the earlier ruling the Court had applied the holding to the contesting company, and, once a new rule has been applied retroactively to the litigants in a civil case, considerations of equality and stare decisis compel application to all. 295 Although partial or selective prospectivity is thus ruled out, neither pure retroactivity nor pure prospectivity is either required or forbidden.
Four Justices adhered to the principle that new rules, as defined above, may be applied purely prospectively, without violating any tenet of Article III or any other constitutional value. 296 Three Justices argued that all prospectivity, whether partial or total, violates Article III by expanding the jurisdiction of the federal courts beyond true cases and controversies. 297 Apparently, the Court now has resolved this dispute, although the principal decision was by a five-to-four vote. In Harper v. Virginia Dep’t of Taxation, 298 the Court adopted the principle of the Griffith decision in criminal cases and disregarded the Chevron Oil approach in civil cases. Henceforth, in civil cases, the rule is: "When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule." 299 Four Justices continued to adhere to Chevron Oil, however, 300 so that with one Justice each retired from the different sides one may not regard the issue as definitively settled. 301 Future cases must, therefore, be awaited for resolution of this issue.
In some cases, a court will refuse to adjudicate a case despite the fact that it presents all the qualifications that we have considered to make it a justiciable controversy; it is in its jurisdiction, presented by parties with standing, and it is a case in which adverseness and ripeness exist. Such are cases that present a "political question." Although the Court has referred to the political question doctrine as "one of the rules basic to the federal system and this Court’s appropriate place within that structure," 302 it has also been remarked that "[i]t is, measured by any of the normal responsibilities of a phrase of definition, one of the least satisfactory terms known to the law. The origin, scope, and purpose of the concept have eluded all attempts at precise statements." 303
It has been suggested that it may be more useful to itemize the categories of questions that have been labeled political rather than to attempt to isolate the factors that a court will consider to identify such cases. 304 The Court has to some extent agreed, noting that the criteria applied by the Court in political questions cases can vary depending on the issue involved. 305 Regardless of which approach is taken, however, the Court's narrowing of the rationale for political questions in Baker v. Carr, 306 discussed below, appears to have changed the nature of the inquiry radically.
Origins and Development
In the first decade after ratification of the Constitution, the Court in Ware v. Hylton 307 refused to pass on the question whether a treaty had been broken, and in Martin v. Mott, 308 the Court held that the President acting under congressional authorization had exclusive and unreviewable power to determine when the militia should be called out. But the roots of the doctrine are most clearly seen in Marbury v. Madison, 309 where Chief Justice Marshall stated: "The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions in their nature political, or which are, by the constitution and laws, submitted to the executive can never be made in this court." 310
In Luther v. Borden, 311 however, the Court made clear that the doctrine went beyond considerations of interference with executive functions. This case, arising from the Dorr Rebellion (a period of political unrest in Rhode Island), considered the claims of two competing factions vying to be declared the lawful government of Rhode Island. 312 Chief Justice Taney, for the Court, began by saying that the answer was primarily a matter of state law that had been decided in favor of one faction by the state courts. 313 Insofar as the Federal Constitution had anything to say on the subject, the Chief Justice continued, that was embodied in the clause empowering the United States to guarantee to every state a republican form of government, 314 and this clause committed the determination of that issue to Congress.
"Under this article of the Constitution it rests with Congress to decide what government is the established one in a State. For as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not. And when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal." 315 Here, the contest had not proceeded to a point where Congress had made a decision, "[y]et the right to decide is placed there, and not in the courts." 316
Moreover, in effectuating the provision in the same clause that the United States should protect states against domestic violence, Congress had vested discretion in the President to use troops to protect a state government upon the application of the legislature or the governor. Before he could act upon the application of a legislature or a governor, the President "must determine what body of men constitute the legislature, and who is the governor . . . ." No court could review the President's exercise of discretion in this respect; no court could recognize as legitimate a group vying against the group recognized by the President as the lawful government. 317 Although the President had not actually called out the militia in Rhode Island, he had pledged support to one of the competing governments, and this pledge of military assistance if it were needed had in fact led to the capitulation of the other faction, thus making an effectual and authoritative determination not reviewable by the Court. 318
The Doctrine Before Baker v. Carr
Over the years, the political question doctrine has been applied to preclude adjudication of a variety of other issues. In particular, prior to Baker v. Carr, 319 cases challenging the distribution of political power through apportionment and districting, 320 weighted voting, 321 and restrictions on political action 322 were held to present nonjusticiable political questions. Certain factors appear more or less consistently through most of the cases decided before Baker, and it is perhaps best to indicate the cases and issues deemed political before attempting to isolate these factors.
1. Republican Form of Government. By far the most consistent application of the doctrine has been in cases in which litigants asserted claims under the republican form of government clause. 323 The attacks were generally either on the government of the state itself 324 or involved a challenge regarding the manner in which it had acted. 325 There have, however, been cases involving this clause in which the Court has reached the merits. 326
2. Recognition of Foreign States. Although there is language in the cases that would, if applied, serve to make all cases touching on foreign affairs and foreign policy political questions, 327 whether the courts can adjudicate a dispute in this area has often depended on the context in which it arises. Thus, the determination by the President whether to recognize the government of a foreign state 328 or who is the de jure or de facto ruler of a foreign state 329 is conclusive on the courts. In the absence of a definitive executive action, however, the courts will review the record to determine whether the United States has accorded a sufficient degree of recognition to allow the courts to take judicial notice of the existence of the state. 330 Moreover, the courts have often determined for themselves what effect, if any, should be accorded the acts of foreign powers, recognized or unrecognized. 331
3. Treaties. Similarly, the Court, when dealing with treaties and the treaty power, has treated as political questions whether the foreign party had constitutional authority to assume a particular obligation 332 and whether a treaty has lapsed because of the foreign state's loss of independence 333 or because of changes in the territorial sovereignty of the foreign state. 334 On the other hand, the Court will not only interpret the domestic effects of treaties, 335 but it will at times interpret the effects bearing on international matters. 336 The Court has generally deferred to the President and Congress with regard to the existence of a state of war and the dates of the beginning and ending and of states of belligerency between foreign powers, but the deference has sometimes been forced. 337
4. Enactment or Ratification of Laws. Ordinarily, the Court will not look behind the fact of certification as to whether the standards requisite for the enactment of legislation 338 or ratification of a constitutional amendment 339 have in fact been met, although it will interpret the Constitution to determine what the basic standards are. 340 Further, the Court will decide certain questions if the political branches are in disagreement. 341
From this limited review of the principal areas in which the political question doctrine seemed most established, it is possible to extract some factors that seemingly convinced the courts that the issues presented went beyond the judicial responsibility. These factors, stated baldly, would appear to be the lack of requisite information and the difficulty of obtaining it, 342 the necessity for uniformity of decision and deference to the wider responsibilities of the political departments, 343 and the lack of adequate standards to resolve a dispute. 344 But present in all the political cases was (and is) the most important factor: a "prudential" attitude about the exercise of judicial review, which emphasizes that courts should be wary of deciding on the merits any issue in which claims of principle as to the issue and of expediency as to the power and prestige of courts are in sharp conflict. The political question doctrine was (and is) thus a way of avoiding a principled decision damaging to the Court or an expedient decision damaging to the principle. 345
Baker v. Carr
In Baker v. Carr, 346 the Court undertook a major reformulation and rationalization of the political question doctrine, which has considerably narrowed its application. Following Baker, the whole of the apportionment-districting-election restriction controversy previously immune to federal-court adjudication was considered and decided on the merits, 347 and the Court's subsequent rejection of the doctrine in other cases disclosed narrowing in other areas as well. 348
According to Justice Brennan, who delivered the opinion of the Court, "it is the relationship between the judiciary and the coordinate branches of the Federal Government, and not the federal judiciary’s relationship to the States, which gives rise to the 'political question.'" 349 Thus, the "nonjusticiability of a political question is primarily a function of the separation of powers." 350 "Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution." 351 Following a discussion of several areas in which the doctrine had been used, Justice Brennan continued: "It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers."
The Justice went on to list a variety of factors to be considered, noting that "[p]rominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question." 352
Powell v. McCormack
Because Baker had apparently restricted the political question doctrine to intrafederal issues, there was no discussion of the doctrine when the Court held that it had power to review and overturn a state legislature's refusal to seat a member-elect because of his expressed views. 353 But in Powell v. McCormack, 354 the Court was confronted with a challenge to the exclusion of a member-elect by the United States House of Representatives. Its determination that the political question doctrine did not bar its review of the challenge indicates the narrowness of application of the doctrine in its present state. Taking Justice Brennan's formulation in Baker of the factors that go to make up a political question, 355 Chief Justice Warren determined that the only critical one in this case was whether there was a "textually demonstrable constitutional commitment" to the House to determine in its sole discretion the qualifications of members. 356
In order to determine whether there was a textual commitment, the Court reviewed the Constitution, the Convention proceedings, and English and United States legislative practice to ascertain what power had been conferred on the House to judge the qualifications of its members; finding that the Constitution vested the House with power only to look at the qualifications of age, residency, and citizenship, the Court thus decided that in passing on Powell's conduct and character the House had exceeded the powers committed to it and thus judicial review was not barred by this factor of the political question doctrine. 357 Although this approach accords with the "classicist" theory of judicial review, 358 it circumscribes the political question doctrine severely, inasmuch as all constitutional questions turn on whether a governmental body has exceeded its specified powers, a determination the Court traditionally makes, whereas traditionally the doctrine precluded the Court from inquiring whether the governmental body had exceeded its powers. In short, the political question consideration may now be one on the merits rather than a decision not to decide.
Chief Justice Warren disposed of the other factors present in political question cases in slightly more than a page. Because resolution of the question turned on an interpretation of the Constitution, a judicial function which must sometimes be exercised "at variance with the construction given the document by another branch," there was no lack of respect shown another branch. Nor, because the Court is the "ultimate interpreter of the Constitution," will there be "multifarious pronouncements by various departments on one question," nor, since the Court is merely interpreting the Constitution, is there an "initial policy determination" not suitable for courts. Finally, "judicially . . . manageable standards" are present in the text of the Constitution. 359 The effect of Powell was to discard all the Baker factors inhering in a political question, with the exception of the textual commitment factor, and that was interpreted in such a manner as seldom if ever to preclude a judicial decision on the merits.
The Doctrine Reappears
Despite the apparent narrowing of the doctrine in Baker and Powell, the Court has not abandoned it. Reversing a lower federal court ruling subjecting the training and discipline of National Guard troops to court review and supervision, the Court held that under Article I, § 8, cl. 16, the organizing, arming, and disciplining of such troops are committed to Congress and by congressional enactment to the Executive Branch. "It would be difficult to think of a clearer example of the type of governmental action that was intended by the Constitution to be left to the political branches, directly responsible – as the Judicial Branch is not – to the elective process. Moreover, it is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches." 360
The suggestion of the infirmity of the political question doctrine was rejected, since "because this doctrine has been held inapplicable to certain carefully delineated situations, it is no reason for federal courts to assume its demise." 361 In staying a grant of remedial relief in another case, the Court strongly suggested that the actions of political parties in national nominating conventions may also present issues not meet for judicial resolution. 362 A challenge to the Senate's interpretation of and exercise of its impeachment powers was held to be nonjusticiable; there was a textually demonstrable commitment of the issue to the Senate, and there was a lack of judicially discoverable and manageable standards for resolving the issue. 363
Despite the occasional resort to the doctrine, the Court continues to reject its application in language that confines its scope. Thus, when parties challenged the actions of the Secretary of Commerce in declining to certify, as required by statute, that Japanese whaling practices undermined the effectiveness of international conventions, the Court rejected the Government's argument that the political question doctrine precluded decision on the merits. The Court's prime responsibility, it said, is to interpret statutes, treaties, and executive agreements; the interplay of the statutes and the agreements in this case implicated the foreign relations of the Nation. "But under the Constitution, one of the Judiciary’s characteristic roles is to interpret statutes, and we cannot shirk this responsibility merely because our decision may have significant political overtones." 364
After requesting argument on the issue, the Court held that a challenge to a statute on the ground that it did not originate in the House of Representatives as required by the Origination Clause was justiciable. 365 Turning back reliance on the various factors set out in Baker, in much the same tone as in Powell v. McCormack, the Court continued to evidence the view that only questions textually committed to another branch are political questions. Invalidation of a statute because it did not originate in the right House would not demonstrate a "lack of respect" for the House that passed the bill. "[D]isrespect," in the sense of rejecting Congress’s reading of the Constitution, "cannot be sufficient to create a political question. If it were every judicial resolution of a constitutional challenge to a congressional enactment would be impermissible." 366 That the House of Representatives has the power and incentives to protect its prerogatives by not passing a bill violating the Origination Clause did not make this case nonjusticiable. "[T]he fact that one institution of Government has mechanisms available to guard against incursions into its power by other governmental institutions does not require that the Judiciary remove itself from the controversy by labeling the issue a political question." 367
The Court also rejected the contention that, because the case did not involve a matter of individual rights, it ought not be adjudicated. Political questions are not restricted to one kind of claim, but the Court frequently has decided separation-of-power cases brought by people in their individual capacities. Moreover, the allocation of powers within a branch, just as the separation of powers among branches, is designed to safeguard liberty. 368 Finally, the Court was sanguine that it could develop "judicially manageable standards" for disposing of Origination Clause cases, and, thus, it did not view the issue as political in that context. 369
In Zivotosky v. Clinton, 370 the Court declined to find a political question where a citizen born in Jerusalem sought, pursuant to federal statute, to have "Israel" listed on his passport as his place of birth, the Executive Branch having declined to recognize Israeli sovereignly over that city. Justice Roberts, for the Court, failed to even acknowledge the numerous factors set forth in Justice Brennan's Baker opinion save two — whether there is a textually demonstrable commitment of the issue to another department or a lack of judicially discoverable and manageable standards for resolving it. 371 The Court noted that while the decision as whether or not to recognized Jerusalem as the capital of Israel might be exclusively the province of the Executive Branch, there is "no exclusive commitment to the Executive of the power to determine the constitutionality of a statute," 372 such as whether Congress is encroaching on Presidential powers. Similarly, this latter question, while perhaps a difficult one, is amenable to the type of separation of powers "standards" used by the Court in other separation of powers cases.
In Rucho v. Common Cause, the Supreme Court articulated a slightly different statement of the political question doctrine in holding that claims of unconstitutionally partisan gerrymandering—that is, claims that the boundaries of a legislative district were impermissibly based on partisan considerations—were nonjusticiable. 373 Quoting a prior opinion from Justice Kennedy, the Court said that “[a]ny standard for resolving such claims must be grounded in a ‘limited and precise rationale’ and be ‘clear, manageable, and politically neutral.’” 374 After looking to 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” 375 for evaluating “when partisan activity goes too far.” 376 Viewing plaintiffs in political gerrymandering cases to be asking “courts to make their own political judgment about how much representation particular political parties deserve,” the Court held that “federal courts are not equipped to apportion political power as a matter of fairness.” 377 Chief Justice Roberts’s opinion for the Court emphasized that intervening in disputes over partisan redistricting meant that federal courts would be injecting themselves “into the most heated partisan issues,” 378 and that courts “would risk assuming political, not legal, responsibility for a process that often produces ill will and distrust.” 379 It was against this background that the Court concluded that it was “vital” to “act only in accord with especially clear standards.” 380