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Constitutional Law II
Elon University School of Law
Gaylord, Scott W.

        I.            Political Restraints on the Supreme Court
a.       Ways legislature or executive can influence/limit the judiciary:
i.      Judicial Selection, Impeachment, Budget control, Jurisdiction control, Constitutional amendment, Executive enforcement, or Executive Pardon
II.            The Doctrines of Justiciability (focus on proper role of the judiciary within our federalist system)
a.       Definition: even if a case involves an issue within the jurisdiction of federal courts, a federal court will not (or may not) hear the dispute unless it is in the appropriate posture. Such determinations are made at each level in federal courts, thus, a case suitable for adjudication at the district court may no longer be suitable for adjudication at the circuit court.
b.      Three general considerations underscore the Court’s justiciability doctrine:
i.      Who? When? What?
ii.      Reasons for justiciability requirements:
1.       Ensure controversies are based on concrete facts, ensure vigorous advocacy, promote judicial restraint, limit the quantity of litigation, restrain officious intermeddlers
c.       1) Advisory Opinions: Article III limits the jurisdiction of federal courts to “cases” or “controversies.” This language has been interpreted to exclude the issuance of “advisory opinions,” in which no case or controversy has yet arisen.
i.      Two factors must be met to avoid having suit dismissed as an advisory opinion:
1.       There must be an actual dispute between adverse parties (helps to explain the need for an injury for standing and why a case should be dismissed if moot).
2.       There must be a substantial likelihood that a decision in favor of a claimant will have some effect.
ii.      There are two types of advisory opinions:
1.       Classic Advisory Opinions: situations in which someone, often a member of the executive or legislative branch, is seeking an opinion about the validity or constitutionality of a law or other government action before it is enacted or enforced.
a.       Example: President asks Supreme Court for advice regarding the validity of a statute to a specific situation (i.e. sell of arms to Israel)
2.       Non-Final Opinions: opinions by federal courts that may be reversed or modified by the executive or legislative branch (or anyone other than a higher court)
a.       Example: Congress amends a law and tries to retroactively overrule a prior federal court ruling that used former statute. Holding of such would be that it is unconstitutional, because the Supreme Court’s decision in a particular case is final. By congress reversing such a decision, the decision would in essence only be an advisory opinion.
b.      Consider declaratory judgment actions.
d.      2) Standing: (most important justiciability doctrine)
i.      Definition: Reflects the Court’s determination that a particular person is the proper party to present a particular issue to the Court for resolution. Is this the right plaintiff to bring this constitutional suit? Does this plaintiff have a “concrete” stake in the outcome of this dispute?
1.       Part Constitutional and part Prudential. The prudential part may be waived by the Court or Congress; the Constitutional requirements may not be waived by either branch.
ii.      Constitutional Requirements: three elements are required by the “case or controversy” language of Article III. (Predicated under Article III). Congress cannot override.
1.        Injury in Fact: the plaintiff must show that he or she has suffered a concrete, particularized injury that has actually occurred or is imminent (i.e. a clear threat of injury, not speculative) (common law right, constitutional or statutory right)
a.       Ideally, the plaintiff will be able to show a physical injury (a tort), property damage, or economic loss (such as lost profits); often the best

typically involve suits to compel federal officials to enforce federal law. The Supreme Court has consistently held that though a plaintiff might be able to show some minuscule injury, the court will not hear the dispute where plaintiff’s injury is the same as all other U.S. citizens. Congress can confer citizen-standing, but only in cases where the plaintiff could otherwise satisfy the Article III requirements for standing.
b.      2) Taxpayer Standing (Generalized Grievances): as a general rule, plaintiffs who sue as “U.S. taxpayers” do not have standing. These cases typically involve suits to invalidate federal spending legislation or prohibit federal spending.
i.      EXCEPTION: There is one very narrow exception to this rule. If a plaintiff is suing to invalidate (1) an act by Congress (not executive) permitting expenditure of federal funds, (2) enacted under the Taxing and Spending Clause (but no other clause), (3) that violates the Establishment Clause (but no other clause), standing does not exist. Exception is limited to very precise criteria.
ii.      It is easier for local taxpayers (as opposed to federal taxpayers) to establish standing to challenge local government spending. In addition, federal taxpayers, of course, have standing to challenge their own tax bills.
c.       3) Third Party Standing: as a general rule, a plaintiff may assert only injuries that he or she has suffered and may not assert injuries suffered by others.