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ArtIII.S2.C1.2.6.1 Ripeness Doctrine: Overview

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.

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,1 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 parts2 and conflated standing and ripeness considerations.3

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,4 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.5 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.6 Of course, the Court was not entirely consistent in applying the doctrine.7

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,8 because the plaintiffs can allege only a subjective feeling of inhibition or fear arising from the legislation or from enforcement of it,9 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.10 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.11 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.12

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.13 Should this analysis prevail, ripeness as a limitation on justiciability will decline in importance.

Footnotes

  1.  Jump to essay-1United Public Workers v. Mitchell, 330 U.S. 75 (1947); International Longshoremen's Union v. Boyd, 347 U.S. 222 (1954). For recent examples of lack of ripeness, see Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726 (1998); Texas v. United States, 523 U.S. 296 (1998).
  2.  Jump to essay-2Regional Rail Reorganization Act Cases, 419 U.S. 102, 138–148 (1974) (certainty of injury a constitutional limitation, factual adequacy element a prudential one).
  3.  Jump to essay-3Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 81–82 (1978) (that plaintiffs suffer injury-in-fact and such injury would be redressed by granting requested relief satisfies Article III ripeness requirement; prudential element satisfied by determination that Court would not be better prepared to render a decision later than now). But compare Renne v. Geary, 501 U.S. 312 (1991).
  4.  Jump to essay-4330 U.S. 75 (1947).
  5.  Jump to essay-5330 U.S. at 90. In CSC v. National Ass'n of Letter Carriers, 413 U.S. 548 (1973), without discussing ripeness, the Court decided on the merits anticipatory attacks on the Hatch Act. Plaintiffs had, however, alleged a variety of more concrete infringements upon their desires and intentions than the UPW plaintiffs had.
  6.  Jump to essay-6International Longshoremen's Union v. Boyd, 347 U.S. 222 (1954). See also Electric Bond Co. v. SEC, 303 U.S. 419 (1938); Alabama State Federation of Labor v. McAdory, 325 U.S. 450 (1945); Public Service Comm’n v. Wycoff Co., 344 U.S. 237 (1952); Socialist Labor Party v. Gilligan, 406 U.S. 583 (1972).
  7.  Jump to essay-7In Adler v. Board of Educ., 342 U.S. 485 (1952), without discussing ripeness, the Court decided on the merits a suit about a state law requiring dismissal of teachers advocating violent overthrow of the government, over a strong dissent arguing the case was indistinguishable from Mitchell. Id. at 504 (Justice Frankfurter dissenting). In Cramp v. Board of Pub. Instruction, 368 U.S. 278 (1961), a state employee was permitted to attack a non-Communist oath, although he alleged he believed he could take the oath in good faith and could prevail if prosecuted, because the oath was so vague as to subject plaintiff to the risk of unfair prosecution and the potential deterrence of constitutionally protected conduct. Id. at 283–84. See also Baggett v. Bullitt, 377 U.S. 360 (1964); Keyishian v. Board of Regents, 385 U.S. 589 (1967).
  8.  Jump to essay-8E.g., Poe v. Ullman, 367 U.S. 497 (1961) (no adjudication of challenge to law barring use of contraceptives because in 80 years of the statute's existence the state had never instituted a prosecution). But compare Epperson v. Arkansas, 393 U.S. 97 (1968) (merits reached in absence of enforcement and fair indication state would not enforce it); Vance v. Amusement Co., 445 U.S. 308 (1980) (reaching merits, although state asserted law would not be used, although local prosecutor had so threatened; no discussion of ripeness, but dissent relied on Poe, id. at 317–18).
  9.  Jump to essay-9E.g., Younger v. Harris, 401 U.S. 37, 41–42 (1971); Boyle v. Landry, 401 U.S. 77 (1971); Golden v. Zwickler, 394 U.S. 103 (1969); O’Shea v. Littleton, 414 U.S. 488 (1974); Spomer v. Littleton, 414 U.S. 514 (1974); Rizzo v. Goode, 423 U.S. 362 (1976). In the context of the ripeness to challenge of agency regulations, as to which there is a presumption of available judicial remedies, the Court has long insisted that federal courts should be reluctant to review such regulations unless the effects of administrative action challenged have been felt in a concrete way by the challenging parties, i.e., unless the controversy is ripe. See, of the older cases, Abbott Laboratories v. Gardner, 387 U.S. 136 (1967); Toilet Goods Ass'n, Inc. v. Gardner, 387 U.S. 158 (1967); Gardner v. Toilet Goods Ass'n, Inc., 387 U.S. 167 (1967). More recent cases include Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993); Lujan v. National Wildlife Federation, 497 U.S. 871, 891 (1990).
  10.  Jump to essay-10E.g., California Bankers Ass'n v. Schultz, 416 U.S. 21 (1974); Hodel v. Virginia Surface Mining & Recl. Ass'n, 452 U.S. 264, 294–297 (1981); Renne v. Geary, 501 U.S. 312, 320–323 (1991).
  11.  Jump to essay-11Steffel v. Thompson, 415 U.S. 452 (1974); Wooley v. Maynard, 430 U.S. 705, 707–708, 710 (1977); Babbitt v. United Farm Workers, 442 U.S. 289, 297–305 (1979) (finding some claims ripe, others not). Compare Doe v. Bolton, 410 U.S. 179, 188–189 (1973), with Roe v. Wade, 410 U.S. 113, 127–128 (1973). See also Planned Parenthood v. Danforth, 428 U.S. 52 (1976); Colautti v. Franklin, 439 U.S. 379 (1979).
  12.  Jump to essay-12Buckley v. Valeo, 424 U.S. 1, 113–118 (1976); Regional Rail Reorganization Act Cases, 419 U.S. 102, 138–148 (1974) (holding some but not all the claims ripe). See also Goldwater v. Carter, 444 U.S. 996, 997 (Justice Powell concurring) (parties had not put themselves in opposition).
  13.  Jump to essay-13Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 81–82 (1978). The injury giving standing to plaintiffs was the environmental harm arising from the plant's routine operation; the injury to their legal rights was alleged to be the harm caused by the limitation of liability in the event of a nuclear accident. The standing injury had occurred, the ripeness injury was conjectural and speculative and might never occur. See id. at 102 (Justice Stevens concurring in the result). It is evident on the face of the opinion and expressly stated by the objecting Justices that the Court used its standing/ripeness analyses in order to reach the merits, so as to remove the constitutional cloud cast upon the federal law by the district court decision. Id. at 95, 103 (Justices Rehnquist and Stevens concurring in the result).
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