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Constitutional Law II
Valparaiso University School of Law
Lind, JoEllen


Article III, Sec. 2: Defines power of federal judiciary as that of deciding “cases” and “controversies”

Judiciability Limitations:
1. Prohibits advisory opinions
a. must be actual dispute between adverse litigants (Opinion of the Justices)
b. must be a substantial likelihood that the decision will bring about some change or have some effect (Hayburn’s Case)
c. must not direct federal courts to reopen decided cases, rendering those opinions basically advisory (Plaut v. Spendthrift Farms, see below)
d. Reasons for the prohibition:
i. Separation of powers: courts are given the power to decide cases, not hypothesize on unsubstantiated factual scenarios
ii. Conservation of judicial resources
iii. Better decision-making occurs if there is a concrete factual record
2. Standing (who can bring a lawsuit)
3. Ripeness (when can the suit be brought- usually plaintiffs conduct is looked at)
4. Mootness (when can the suit be brought- usually defendants conduct, or lack thereof, is looked at)
5. Political question doctrine (what the suit’s subject matter may include)

Federal courts will not decide cases on constitutional grounds if other grounds for the decision exist.

Hayburn’s Case (1792)
Congress enacted a law that allowed Revolutionary War veterans to file pension claims in US District Courts- these judges would then inform the Sec. Of War of the nature and amount of the benefit to be awarded.
Five SC justices, sitting as circuit judges found this approach to be unconstitutional.
First, it was not of a judicial nature
Second, their judicial actions might be revised and controlled by the legislature or executive branch thus a violation of separation of powers would also be present
Again, this would mean their opinions would be treated as advisory opinions.

Plaut v. Spendthrift Farms, Inc.: Legislation that directs the federal courts to reopen cases on which the courts have passed final judgment unconstitutionally violates the separation of powers doctrine because it requires the courts to decide that the law applied to a completed case was different than the courts concluded it was.
– Violates the Art. III principle that federal courts are empowered to “decide” cases.
– Would turn decisions already issued by a court into advisory opinions because the legislation basically says that those decisions could be ignored and new suits asserted.

Declaratory Judgments
Not advisory opinions so long as they meet elements for judicial review. (adversarial proceeding, involving a real controversy.)


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.

Standing Requirements:
1) injury in fact
2) causation
3) redressability
4) no 3rd party standing
5) zone of interest
Constitutionally mandated; Congress cannot suspend
1. Injury. Injury in fact. Plaintiff must allege he has suffered or imminently will suffer a direct (not hypothetical or conjectural), personal injury.
a. 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 injunction.
b. 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.
c. 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. Injury must be fairly traceable to Δ’s conduct such that…
3. Redressability. …a favorable federal court decision is likely to create a remedy for the injury.
a. 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.
b. 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.
c. Indigent πs alleging injury from unavailability of health care procedures from hospital did not have standing to challenge the IRS’s revenue ruling on the hospital because it was “purely speculative” whether that ruling was responsible for the denial of medical services. Simon v. Eastern Kentucky Welfare Rights Org.
d. πs opposing construction of nuclear facility had standing to challenge a statute limiting liability for nuclear accidents although no accident had occurred because but for the statute, the nuclear plant would not have been built. Duke Power Co. v. Carolina Environmental Study Group.

Prudential; Congress may override (Policy reasons underlie these two)
4. Personal right. Party generally may assert only his own rights and cannot raise claims of a 3d party not before the court.
a. Person may sue to protect the rights of a third party when (1) relationship between parties is such that the person suing may advocate effectively for the right (i.e., the interests of the parties sufficiently close) and (2) there are genuine obstacles to the 3d party asserting her rights. Singleton v. Wulff.
b. White person who was party to a restrictive covenant had standing to bring suit alleging discrimination on behalf of blacks who were not (and could not become) parties to the covenant. Barrows v. Jackson.
c. Bartender had standing to challenge law establishing different legal drinking ages for female and male customers on behalf of the male potential customers. Craig v. Boren.
d. Mother of a death-row inmate did not have standing to petition for a stay of execution on behalf of her son who knowingly waived right to appeal. Gilmore v. Utah.
5. Generalized Grievances Prohibited. “Taxpayer Suits.” Generalized grievances are prohibited (those grievances shared with everyone else).
a. The fact that many—even thousands—of other people share your injury does not make it a “generalized grievance.” If the only basis for your standing is that as a citizen/voter the government isn’t complying with the law, or as a taxpayer the government is taxing/spending contrary to the constitution, then you have a generalized grievance and it is prohibited.
b. Congress cannot pass a general override of Article III by simply creating a right for anyone (absent particularized injury) to sue. Federal Election Commission v. Akins. Congress may create a right, the violation of which results in standing for suit.
c. Absent direct injury, taxpayer status does not confer standing on an individual to challenge the constitutionality of federal government actions. U.S. v. Richardson.
d. Taxpayer status confers standing to challenge Congressional authorization of expenditures that violate separation of church and state. Flast v. Cohen.
e. Taxpayer status does not confer standing to challenge the constitutionality of a donation of property authorized under Congress’ “Property Power.” Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., et. al.

Allen v. Wright: Standing requires a plaintiff to allege a personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief. In Allen, the Court refused standing to parents of minority children attending public school districts that are under a duty to desegregate (or are likely to fall under such duty) who wished to challenge IRS regulations for continuing to permit tax-exempt status to private schools that discriminated against racial minorities.
– the asserted right to have the government act in accordance with law is not sufficient, standing alone, to confer federal jurisdiction
o π alleged that their ability to attend integrated public schools was harmed
o π also alleged stigmatic injury that Government is assisting race discrimination by giving the tax exempt status. Why does the court not recognize this as a valid harm? If the basis for the lawsuit is simply “The government is violating the law and that upsets me” is not enough; then everyone in the world could sue and it would bog down the court resources.
– stigmatizing injury accords a basis for standing only to persons who are personally denied treatment by the discriminatory conduct
– no direct link between the actor and the harm: harm was caused by a 3rd party and the π had no standing.
o The white parents sending their kids to a private school is the result of their own actions (they’re the 3d party)
o “Posner-ian” argument: A favorable ruling to the π would cause the price of private schools to go up, which would then encourage more white parents to send their students to public schools
– Brennen’s Dissent: The children’s denial of an opportunity to receive a desegregated education satisfies the standing requirement
o The π was able to link the benefiting schools to the alleged IRS practice and should have passed the standing test
– Stevens & Blackmun Dissent: Purpose of a standing inquiry is to measure the π’s stake in a case’s outcome, not whether the court has the authority to provide it with the exact remedy it seeks

Lujan v. Defenders of Wildlife: Congressional statutes cannot confer standing to plaintiffs who suffered no actual or imminent injury in fact. In Lujan, the court held that the Constitution does not authorize Congress to pass legislation creating “citizen suits” that confer standing on citizens who would not otherwise be able to allege an injury in fact.
– Separation of Powers: Congress may not convert the undifferentiated public interest in an Executive officer’s compliance with a law into an individual right to sue. To do so would transfer to the courts the President’s constitutional duty to “take Care that the Laws be faithfully executed.”
– Burden of Proof. The three standing elements are not mere pleading requirements but are indispensable elements of π’s case which must be proven.
– “Injury in fact” test requires more than an injury to a cognizable interest. It requires that π be himself among the injured. [p. 42, III(A)] o Neither “past exposure” to illegal conduct nor “some day” intentions without concrete future plans are sufficient to support “actual or imminent injury”
o “It goes beyond the limit, however, and into pure speculation and fantasy, to say that anyone who observes or works with an endangered species, anywhere in the world, is appreciably harmed by a single project affecting some portion of that species with which he has no more specific connection.” [p. 43] – Redressability. Injunction unlikely to stop the projects endangering certain species because US Aid to the projects is relatively small portion of their funding. Also, the funding agencies may or may not even be bound by the Secretary (the Δ)’s regulation.
– Blackmun’s Dissent: πs raise genuine issues of material fact regarding injury and redressability. Also, Court’s rejection of “procedural inquiries” is vague and overbroad.

Prudential Standing Requirements

The Prohibition of Third-Party Standing

Singleton v. Wulff: Person may sue to protect the rights of a third party when (1) relationship between parties is such that the person suing may advocate effectively for the right (i.e., the interests of the parties sufficiently close) and (2) there are genuine obstacles to the 3d party asserting her rights. In Singleton, two Missouri doctors who performed abortions challenged a state

hibiting use or distribution of contraceptives.
– In 80 years, only one criminal prosecution occurred. Therefore, prosecution is unlikely.
– Douglas’ Dissent: Majority decision gives πs the choice to violate the law and either wait to be caught to challenge the statute or hope they don’t get caught, and that isn’t fair.

Abbot Laboratories v. Gardner: A case is ripe for federal court resolution when (1) the issues presented are appropriate for a judicial decision (is it a pure legal issue, for which we have a concrete record and do not need further facts) and (2) the parties would face hardship if the court declined to hear the case. In Abbot, drug companies challenged Congressional legislation to print the “established name” of the drugs on their labels in a specific font size and type.
– The huge financial burden for the companies is the “hardship” imposed if the court didn’t review the issue.
– The high costs and impacts that would arise if the court delayed hearing the case outweighed the risks of a premature decision.


Mootness examines whether there is a live controversy (that is, an actual controversy between adverse litigants) at all stages of federal court litigation. Basically the dispute between the parties has gone away.
Case can become moot at any level of litigation.
Usually plaintiff’s are seeking injunctive type relief and this claim has been made moot either by span of time, or actions by defendants.
Claims for damages inherently cannot be moot.

Three Exceptions to the Mootness Doctrine:
1. Wrongs capable of repetition but evading review [by named π only] a. Elections: Case in which π challenged state’s petition requirement was not mooted by passing of election day because the case was likely to be repeatable but avoid review. Moore v. Ogilvie.
b. Pregnancy: Case in which π challenged state law outlawing abortion was not mooted by end of π’s pregnancy because case was likely to be repeatable but avoid review because of the short duration of pregnancy. Roe v. Wade.
c. (Moot) Admission to School: Law student challenging affirmative action policy of law school was moot because student was allowed to attend and graduate; student’s personal situation not repeatable. Defunis v. Odegaard.
2. Voluntary cessation
a. To moot π’s case by claim of voluntary cessation, Δ has “heavy burden” of showing that it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Environmental Services. By contrast, a π seeking to show ripeness must show that Δ’s allegedly wrongful behavior is likely to occur or continue, rendering injury impending.
3. Class action suits
a. Appeal of trial court’s denial of class certification does not become moot because the named party’s case becomes moot. U.S. Parole Commission v. Geraghty.

FEC v. Wisc. Right to Life, Inc. (2007) C.J. Roberts
FEC argued that the WRTL case was moot because the 2004 election was over and the ads it wished to air, nor does it signify reason to believe that a significant dispute over senate filibusters of judicial nominees will occur in the foreseeable future.
The FEC was demanding a level of specificity in the “repetition” of the WRTL’s political adverts that were too stringent for the SC to accept.
SC states as long as there’s a reasonable expectation that the same controversy (running of the ads during the blackout periods) is likely to occur involving the same party then the court has jurisdiction to decide the cases.

Voluntary Cessation:
Friends of the Earth, Inc. v. Laidlaw Environmental Services: Δ’s voluntary cessation of actions that are the subject of a Complaint does not make the lawsuit moot unless Δ proves there is no reasonable chance that he can resume those actions. In Friends, Δ argued that its compliance with national pollution standards and its closing of an offending plant mooted a citizen suit that alleged violations of the Clean Water Act.
– Δ kept its National Pollutant Discharge Elimination System license, indicating that the violations could occur again—it certainly was far from clear that there was no chance they could resume!

Class Action:
US Parole Commission v. Geraghty: Appeal of a lower court’s denial of class certification does not become moot due to the mootness of the named π’s case. In Geraghty, federal prisoners appealed a Dist. Court’s denial of their class certification (for a suit challenging federal parole release guidelines) when Geraghty, the named π, was released from prison.
– The dispute remains live between members of the potential class and the Δ even if the named π’s case is moot
– “Personal Stake” still exists: The named π can still strongly advocate for reversal of class certification denial even if his case becomes moot.