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Constitutional Law II
Valparaiso University School of Law
Levinson, Rosalie Berger

Constitutional Law II- Levinson, Fall 2011
I. The Separation of Federal Powers: Limits on the Federal Judicial Power
A. Justiciability Limits:
The two types of justiciability limits are
constitutional (cases and controversies based on Article III), and 
prudential (prudent judicial administration).
The following five justiciability doctrines determine which matters the federal courts can hear and decide:
1. Prohibition of Advisory Opinions
2. Standing (who can bring a lawsuit)
3. Ripeness (when can the suit be brought)
4. Mootness (when can the suit be brought)
5. Political question doctrine (what the suit’s subject matter may include)
1. Prohibition of Advisory Opinions
Advisory opinions are opinions that give advice about particular legislative or executive action when no party before the court has suffered specific injury. Federal courts are prevented from issuing opinions on abstract or hypothetical questions.
Cases that are to be tried in federal court must meet the following requirements:
there must be actual dispute between adverse litigants
there must be a substantial likelihood that the court’s decision will bring about some change or have some effect.
must not direct federal courts to reopen decided cases, rendering those opinions basically advisory
The following are reasons why advisory opinions are prohibited:
Separation of powers: courts are given the power to decide cases, not hypothesize on unsubstantiated factual scenarios; advisory opinions can blur the lines between the court and legislature. (The judicial role is limited to actual disputes, not giving advice to Congress or the President).
Conservation of judicial resources
Better decision-making occurs if there is a concrete factual record
An example of the Supreme Court denying an advisory opinion is the following: Thomas Jefferson, as Secretary of State, can’t write to the Supreme Court and ask for informal advice on a treaty with France.
Plaut v. Spendthrift Farm, Inc. (1995) – Congress passed legislation allowing cases on which the federal courts had rendered final decisions to be re-opened in some situations. The Supreme Court held the legislation was unconstitutional because congress can’t undue the finality of the judiciary since the previous decisions regarding this law were already made. Thus, the legislation passed by Congress would make the first decisions advisory opinions.
violates the Art. III principle that federal courts are empowered to “decide” cases
would turn decisions already issued into advisory opinions by saying that final decisions could be ignored
 Declaratory judgments are when the court is requested to state what the legal effect would be of proposed conduct by one or both parties. Declaratory judgments must be concrete questions or controversies; thus, they are justiciable.
2. Standing (who can bring a lawsuit)
Standing is the determination of whether a specific person is the proper party to bring a matter to the court for adjudication. It is the issue of whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.
There are two types of standing:
Constitutional Standing
Examples of constitutional standing requirements
Allen v. Wright (1984) – Parents of black students attending public schools did not have standing because the injury was not direct (the fact that discrimination was aided in the IRS’s standards for determining whether a school was discriminating wasn’t strong enough). Also, the injury was not fairly traceable and redressability was unlikely (getting rid of tax exempt statute might not stop discrimination). This case demonstrates that standing will not usually be found where a litigant claims that tax incentives have caused a third party to injure him, since the causation component will be too attenuated.
Lujan v. Defenders of Wildlife (1992) – Plaintiffs claimed a right to sue the secretary of the interior. The court ruled that the plaintiffs did not standing, and the injury can’t just be a special interest. There was no direct injury here and the citizen suit provision didn’t allow the suit because general claims and general results are not allowed. Also, there was no imminent injury; thus, redressability would not be available.
Massachusetts v. Environmental Protection Agency (2007) – The US Supreme Court found that the petitioners did have standing to sue EPA. Massachusetts argued that global warming would cause sea levels to rise and the State would lose valuable beachfront property. But in order to have standing an injury has to be 'imminent'.  Was sea level rise really an imminent threat?  Also, can Massachusetts show that their sea level rise is directly caused by the emissions that they are asking EPA to regulate? The majority found that Massachusetts had standing because, as a sovereign they had a special duty to protect their citizens.
state sovereignty
SC created special rule for States in standing reqs- Congress can change causation & redress ability
Congress can create fed. statutory right for individuals to have standing
causality- minimum is enough
The following three elements are constitutional requirements for standing:
1. Injury
Plaintiff must allege that he has suffered an injury
The injury must be actual or imminent; not conjectural or hypothetical
Procedural injuries do not exist (i.e. the government violating a procedure)
City of Los Angeles v. Lyons (1983) – Plaintiff challenged the use of choke hold but did not have standing because he did not successfully show a real and immediate threat that he’d be stopped and given an illegal choke hold again (wanted damages and an injunction to stop the practice of the choke hold).  π illegally put into chokehold by LAPD officers had standing to sue them individually for damages (or the City) but did not have standing to sue City for an injunction absent a sufficient likelihood that he would again be wronged in a similar way. City of L.A. v. Lyons. Introduces theory of bifurcated standing, the idea that π may have standing for damages but not for an injuction.
United States v. Hays (1995) – A challenge of districting as racially discriminating didn’t have standing because the plaintiff did not live within the district. Thus, the challenge was just a generalized grievance, and not a direct injury.  πs challenging the constitutionality of a state voting apportionment scheme did not have standing because they did not live in the district where the violation allegedly occurred. U.S. v. Hays.
Federal Election Commission v. Akins (1998) – The Court ruled that Congress could create a right to information, and that denial of that right was an injury sufficient for standing (injury was the inability to obtain information). πs who challenged a Federal Elections Commission ruling that American Israel Political Action Committee was not an election committee had standing based on claim they were denied information that election committees were statutorily required to reveal. FEC v. Akins.
2. Causation
Determine if the defendant caused the injury
The injury has to be fairly traceable to the challenged action of the defendant and not the result of the independent action of a 3rd party not b/f the court
3. Redressability
Asks whether or not the court can provide a remedy
Examples- the causation and redressability requirements 
Linda R. S. v. Richard D. (1973) – No standing for mother who wanted illegitimate father prosecuted for failure to pay child support. The court ruled that it wasn’t certain that the prosecution wouldn’t cause him to pay the support; thus, it’s not redressable.  π mother who alleged injury for not receiving child support did not have standing to sue for enforcement of a state “dead-beat dad” statute because it was not likely that jailing the father would remedy π’s injury. Linda R. v. Richard D.
Warth v. Seldin (1975) – No standing for people wishing for exclusion of zoning rules since they wouldn’t be able to live in the area at issue anyway. Also, redressability wouldn’t occur because it’s too specific of a claim. πs who alleged injury from lack of low-income housing did not have standing to challenge restrictive zoning regulations because it was not likely that absence of regulations would cause contractors to build low-income housing. Warth v. Seldon.
Simon v. Eastern Kentucky Welfare Rights Organization (1976) – Plaintiffs that weren’t allowed me

led that the plaintiff did not have standing to claim a violation of the establishment clause when property was made available to a religious institution through a conveyance from the Federal Property and Administrative Services Act. The land just so happened to go to the religious group. Also, this wasn’t taxing or spending because the executive branch made this decision, not Congress.
Hein v. Freedom from Religion Foundation (2007) – taxpayers lacked standing to challenge expenditures from general executive revenue as violating the Establishment Clause
cited Lujan v. Defenders of Wildlife, 504 U. S. 555, 573–574 (1992) “a plaintiff raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy.”
if ruled for the Foundation it would not open a floodgate of lawsuits, “Because almost all Executive Branch activity is ultimately funded by some congressional appropriation, extending the Flast exception to purely executive expenditures would effectively subject every federal action—be it a conference, proclamation or speech—to Establishment Clause challenge by any taxpayer in federal court.”
to allow standing in this type of case “would also raise serious separation-of-powers concerns.”
“'Relaxation of standing requirements is directly related to the expansion of judicial power,
We do not extend Flast, but we also do not overrule it. We leave Flast as we found it.” (= further limited Flast)
Arizona Christian School Tuition Organization v. Winn (2011) – A group of Arizona taxpayers challenged a state law that provides tax credits to people who donate to school tuition organizations that in turn provide scholarships to students who want to attend private or religious schools. The taxpayers claimed a violation of the Establishment Clause.
The Supreme Court ruled 5-4 that the plaintiffs did not have standing to bring suit. Writing for the majority, Justice Kennedy stated, “This Court has rejected the general proposition that an individual who has paid taxes has a ‘continuing, legally cognizable interest in ensuring that those funds are not used by the Government in a way that violates the Constitution.’” Ultimately, the Supreme Court found that any damages or harm claimed by the taxpayers by virtue of simply being a taxpayer would be pure speculation because the issue at hand was a tax credit and not a government expenditure.
3. Ripeness (when can the suit be brought)
ripeness seeks to separate matters that are premature for review (because injury is speculative and never may occur)
usually person can challenge legality only when he is prosecuted for violating it – problem w/denying pre-enforcement review is that person left w/choice of violating it and risk prosecution, or unnecessarily obey an unconstitutional law
2 issues in determining ripeness
                1) the fitness of the issues for judicial decision – has law been enforced yet?
where inevitability that law will be enforced is patent, dsnt matter that there is time delay before enforced
but court wants to know facts concerning enforcement
                2) the hardship to the parties of withholding court consideration (how much will they be harmed?)