The Ban on Advisory Opinions

The Ban on Advisory Opinions

The case-or-controversy requirement has several consequences, and the most familiar is the rule against advisory opinions. An advisory opinion is a court's ruling on a legal question that does not arise in a live dispute, usually requested by a person or governmental actor who wants guidance before taking some action and who has no opponent in court.¹ With no adverse party and no judgment that binds anyone, the ruling resolves no particular case and only expounds the law in the abstract. That is why the modern explanation of the ban is formal: a request for an advisory opinion does not present a case or controversy within the meaning of Article III.² The federal rule is a distinctive choice, because other legal systems accept the practice. English courts regularly gave advisory opinions at the time of the founding, the Canadian Supreme Court still gives them from time to time, ten state high courts do the same, and international tribunals such as the International Court of Justice are among the bodies that render them.³ The federal courts have consistently refused.

The refusal dates to the Washington administration, and the Court has since called the ban "the oldest and most consistent thread in the federal law of justiciability."⁴ That seniority gives the ban a second function. Courts routinely defend rulings on other justiciability questions by pointing to the need to avoid issuing advice in disguise, so the ban operates as a fixed reference point that guides how the neighboring doctrines are applied.⁵ Standing shows the link clearly, since its demand for an immediate interest in the claim expresses the no-advisory-opinions principle.⁶ The root idea is that the federal courts' power to expound the law comes from their power to resolve concrete disputes and does not extend beyond that setting.⁷ It is the same connection Marshall drew in Marbury between judicial review and the decision of a case, now applied to requests for advice instead of requests for rulings on statutes.

The subsections that follow take the ban in order: its origin in the Justices' response to a request from President Washington, the reasons courts insist on concrete disputes, the way the ban applies when the President or Congress wants the Court's view in advance, and the related finality principle that keeps federal courts from acting when another branch can revise their decisions. The first of these is the founding-era episode itself, which the next subsection, The 1793 Refusal, describes.

The 1793 Refusal

The ban on advisory opinions began with a request from the executive branch that the Justices turned down. In 1793 the United States was trying to stay out of the war between Britain and France, and President Washington had proclaimed a policy of neutrality. France insisted that the 1778 treaty with the United States allowed its ambassador to commission privateers, meaning privately owned armed ships licensed to attack an enemy's shipping, in American ports, a position Washington saw as colliding with his proclamation.⁸ In July of that year Secretary of State Thomas Jefferson, writing for the President, put twenty-nine questions to the Supreme Court about the treaty, international law, and neutrality.⁹ Some of the questions were practical, and Jefferson put one of them this way: "May we, within our own ports, sell ships to both parties, prepared merely for merchandise? May they be pierced for guns?"¹⁰ No ship had been seized and no owner had sued, so each question asked what the law would require or allow before any dispute existed.

The first two reasons share a mechanism that is easiest to see by following what would have happened if the Justices had answered. The judiciary's contribution to the system of checks is to review what another branch has done, in a dispute brought by someone affected, after the action exists and its consequences can be seen. A Justice who had helped the President decide in advance what the law permits would already be committed to a view, and a later challenge to the same action would find the reviewing court partly reviewing its own advice. The last-resort position sharpens the problem, because no higher tribunal can correct the Court, so a hasty answer given at the executive's request, without adverse parties and in the heat of the moment, would harden into settled law before anyone had tested its consequences.¹⁶ The Justices' own history shows the risk from the other direction. In 1790 Chief Justice Jay and several colleagues answered a letter from Washington by saying that the duty to ride circuit was unconstitutional, Washington was unmoved and the practice continued, and when it was finally challenged in litigation more than a decade later the Court upheld it, contrary to its earlier informal view.¹⁷ Advice the executive may ignore costs the Court some of its authority, and advice the Court later contradicts costs it more.

The third reason reads the constitutional text as a structure. Article II lets the President call on the heads of the executive departments for opinions, and the Justices took that grant as a deliberate choice about where the executive's advice would come from, since a Constitution that names one channel for legal counsel and omits the judges gives no sign that the judges were meant to be consulted.¹⁸ The reply left Washington to find legal advice within his own branch, and the Attorney General was the officer to whom the Court pointed him.¹⁹ The letter did not announce, in so many words, a flat prohibition on advisory opinions, but the Court has long understood it as establishing one.²⁰ Because English judges of the founding era gave such opinions freely, the American refusal cannot rest on inherited practice, and the Court has since said that the implicit policies of Article III, and not history alone, impose the rule.²¹ The rule that results is that federal courts will not render opinions on abstract or hypothetical questions when no party who has suffered or faces injury is before them.²²

That pair isolates the variable the rule turns on. Treaty and neutrality questions are ordinary judicial work when a litigant with an injury presents them, so the feature that disqualified Jefferson's list was the absence of any injured party. The modern statement of the ban says the same thing formally: a request for an advisory opinion does not present a case or controversy within the meaning of Article III.²³ The same analysis governs any exam stem in which a President or legislator asks the Court for a view on a planned course of action. The Court may not respond, however important or well framed the question, and the same question can be reached later if an affected party sues.²⁴ The next subsection develops the practical reasons courts insist on that concreteness.

Why Concrete Disputes Matter

The refusal of 1793 rested on the separation of powers and on the Justices' position as a court of last resort.²⁶ Modern explanations add a practical case, and it comes down to what a live dispute puts in front of a court. A matter is concrete enough to decide when it supplies specific facts, parties with opposing stakes, and a judgment that will bind them. Some of the reasons below describe what a court can see and hear when those features are present. Others describe what its judgment can accomplish, and the last concern the court's place in a government of separated powers. Each reason also runs in reverse, which shows what goes wrong when a court is asked for advice instead of a decision.

The facts come first, because a constitutional claim usually cannot be judged until a court knows what happened. A standard illustration involves a city that requires a permit for meetings in a public park and refuses one for a particular event. Whether the refusal violates free speech and assembly depends on what the event was, whether similar groups have been allowed to meet in the park, whether there was a substantial danger of violence, and what problems of noise, traffic, littering, or damage to property the event would have created.²⁷ A lawsuit by the organization that was denied the permit puts those facts in a record, and the court can weigh the free-speech claim against them.

A citizen who has no planned meeting, was refused no permit, and has never used the park, but who believes the permit rule is unconstitutional in general, offers nothing of the kind.²⁸ With no event, applicant, or enforcement to examine, any ruling would pronounce on the permit rule as a whole without showing how it works on any actual speaker. The variable that separates the two plaintiffs is whether a concrete event exists for the facts to describe. The same dependence on facts runs through constitutional law generally: whether an activity substantially affects interstate commerce turns on actual market facts, and whether speech may be punished depends on the words used and the setting in which they were spoken.²⁹

Facts alone do not improve a decision unless someone puts them to use, and that is the work of adverse parties. Opponents with a stake in the result each press the weak points of the other side's position, so the court receives a clash of genuine adversary argument exploring every aspect of the issue.³⁰ A request for advice reverses that incentive. The person asking usually wants a particular answer, so the briefing may leave relevant issues unexplored, and a suit brought mainly to obtain an opinion is more likely to be collusive.³¹ The Justices' own experience shows the cost. Chief Justice Jay and several colleagues told President Washington informally that riding circuit was unconstitutional, and when the question later arrived in real litigation, with a precise case before the Court, it decided the other way.³² Requests for advice also tend to arrive in the heat of the moment, which deprives the court of the detached perspective that unfolding litigation affords.³³

A live dispute also lets a court decide less. When the facts of a real controversy are before it, the court can often resolve the case on a narrower ground, such as a reading of a statute, and avoid a constitutional ruling altogether.³⁴ The Court has built rules for its own governance around this advantage: it will not anticipate a question of constitutional law before it must decide it, and it will not formulate a rule broader than the precise facts require.³⁵

The mechanism is that facts confine a ruling. A rule written for a particular record takes its shape from that record, while a rule written for a hypothetical question has nothing to hold it back, so the court risks an abstract pronouncement that proves unwise or overbroad.³⁶ The statute in Muskrat v. United States shows the extreme case, because Congress authorized a suit whose only question was the validity of other statutes, and that arrangement foreclosed the narrower alternative.³⁷

A third reason concerns the court's authority. Advisory opinions need not bind anyone, so the branch that asked is free to disregard what it hears. A court's power depends on its judgments being obeyed, and opinions that are routinely ignored cost the court some of that power. President Washington was unmoved by the Justices' letter on circuit riding, and the practice simply continued.³⁸ If the issue later reaches the court in litigation after the advice was ignored, the court must either adhere to an opinion that was never tested by adversaries or repudiate its own earlier words, and either course is awkward.³⁹

The last reason ties the ban back to Marbury. Marshall justified judicial review as a reluctant power, one a court exercises because the case before it cannot be decided otherwise.⁴⁰ Judicial lawmaking is easiest to reconcile with democratic theory when it is the inevitable byproduct of deciding individual disputes.⁴¹ A power to give advice on constitutional questions would exceed that reluctant power, because it would multiply the occasions on which unelected judges could intrude on the democratic process and fix their views into constitutional law with no concrete case requiring them to do so.⁴² Time spent on abstract questions also distracts judges from the dispute-resolving work that justifies their role in the first place.⁴³

None of this makes advisory opinions worthless, and the federal rule is better understood as a choice than as a necessity. Advisory opinions avoid the delays and uncertainties of ordinary litigation, make judicial review available sooner, and can expose drafting errors and unintended consequences in a bill before it becomes law.⁴⁴ English courts gave them regularly at the founding, the Canadian Supreme Court and ten state high courts still give them, and international tribunals do the same.⁴⁵ Even within the United States the idea has had advocates: shortly before the 1937 Court-packing crisis, President Roosevelt briefly considered a plan that would have required the Court to rule on a law's validity before its passage.⁴⁶

The price of declining is real. The Court often postpones the exercise of its special competence, and the harm done by an unconstitutional law while the system waits for a dispute to mature may never be fully undone by a later decision.⁴⁷ The American rule accepts that cost in exchange for decisions that rest on better information and show more restraint. Because the choice is built into Article III as the Court reads it, a federal court cannot take the other side of the tradeoff even when Congress invites it, and Muskrat declined to rule on the validity of a statute despite Congress's express invitation.⁴⁸

On an exam stem, the working question is whether the matter is concrete enough to decide, meaning whether specific facts, adverse parties, and a binding judgment are all present. A request from the President, a legislator, or a curious citizen for a ruling on a general legal question fails that test, and the same question passes once an injured party sues an opposing party over a particular application. Students lose this issue when they treat the importance of the question as a reason for the court to answer it, because federal courts cannot reach out to resolve even vital constitutional questions at the behest of Congress and the President.⁴⁹

Advice for Political Branches

Requests for advisory opinions reach a federal court only rarely, but the ban does its most visible work when a political branch wants the Court's view before it acts.⁵¹ The request takes one of two forms. The President may ask whether a contemplated executive action is lawful, or Congress may ask the Court to comment on the constitutionality of proposed legislation, and the Court may do neither.⁵² The reason follows from the two elements of a case or controversy set out at the start of this chapter. In neither request is there an actual dispute between adverse parties over their own legal relations, and in neither is there any suggestion that the Court's opinion would be more than a nonbinding statement of the Justices' views.⁵³ With adversity and effective relief both absent, nothing is left for the Court to decide.

Each branch has its own reasons for asking, and seeing them shows why the answer is still no. A branch that obtains the Court's view before acting generally hopes to avoid later lawsuits armed with the force of that opinion.⁵⁴ The hope fails on its own terms. A request of this kind does not formally join opposing parties, and interested persons have no right or obligation to take part in it, so they cannot fairly be bound by the result, and the opinion cannot operate as a preclusive bar to later suits.⁵⁵ The requester therefore receives less protection than it wanted, while the Court has already staked out a position on an action that may later come before it in an adversary suit. Requests also tend to arrive in the heat of the moment, which deprives the Court of the detached perspective that unfolding litigation affords, and a branch that ignores the advice leaves the Court in an awkward position if the issue later returns in a lawsuit.⁵⁶ The costs fall on the Court's independence and credibility, and the benefit the requester hoped for does not materialize.

Only one fact moved between the two stages of that scene: the order was contemplated in the first and has issued in the second. Before issuance, no one is injured and no one stands on the other side, so the question whether the order fits the statutes is hypothetical, and a ruling would be a nonbinding recital of the Court's views. After issuance, the state's larger share of the costs is an injury, the officer implementing the order is an opponent, and an injunction would bind both, so the court may decide the legality of the order because its opinion is no longer merely advisory.⁵⁷ Whether an opinion is advisory therefore depends on the setting in which the question arrives, and the identical question is off limits in one setting and routine in the other. The executive branch has a route of its own once a dispute exists: if a state refuses to comply with the order, the appropriate federal officer may sue the state for a declaratory judgment on the order's legality, because the controversy is real and the judgment will bind both sides, a point developed in the later section on declaratory judgments.⁵⁸ The legislative request follows the same pattern. Congress may not ask for comment on a bill, but anyone who wants to challenge the resulting law must become involved in a lawsuit, either by being sued or by suing someone, and a test case does not lose its genuineness merely because both sides want a ruling on a contentious constitutional question.⁵⁹

That qualification is exactly what makes the next problem difficult. A test case is acceptable when the adversity in it is real, and trouble arises when Congress tries to supply the adversity by statute. In Muskrat v. United States, a 1902 act provided for the transfer of Cherokee property from tribal to individual ownership, and later acts enlarged the number of Cherokees permitted to enroll and tightened the restrictions on alienation.⁶⁰ Plaintiffs claimed that these later acts amounted to a taking of property without just compensation. A special act of Congress then authorized them to sue in the Court of Claims, with a right of appeal to the Supreme Court, to determine the validity of the later acts; the United States was the named defendant, and if the plaintiffs won, the statute authorized the government to pay their attorneys' fees.⁶¹

The Supreme Court reversed and directed dismissal for want of jurisdiction. The government purported to be the defendant but had no interest in the outcome, and the plaintiffs asserted no property right against it and demanded no compensation for wrongs it had done.⁶² The jurisdictional act was merely an attempt to provide a test in the Supreme Court of the validity of an act of Congress without regard to the requirement of a case or controversy, and that attempt was unconstitutional.⁶³ The Court relied on the premise that the United States had no interest adverse to the plaintiffs and that a judgment which could not be executed in a legal sense would amount to no more than an expression of opinion on the statutes' validity, a premise that has been described as debatable.⁶⁴ The rule drawn from the case is firm nonetheless: Congress cannot make the United States a defendant in federal court unless the United States truly has an interest adverse to the plaintiff.⁶⁵

The reason runs back to Marbury. A court may declare a statute unconstitutional only because, in deciding an actual controversy, it must choose the fundamental law over a conflicting statute, and outside that setting there is no general power to revise the actions of Congress.⁶⁶ Article III's limit is a limit on what Congress may confer, so a statute cannot supply what the Constitution requires. If naming a defendant were enough to create a case, Congress could route any constitutional question about its own enactments to the Court on demand, and the Court would be issuing advisory opinions under a statutory label. The same logic binds private litigants, since parties who want a constitutional ruling cannot confer jurisdiction on a federal court by agreeing to be opponents.⁶⁷

The constitutional question in Muskrat was never beyond the courts' reach, however, and the contrast shows which fact decided the case. The restriction on alienation was self-executing, so a Cherokee who sold land to a private party in violation of it would produce a suit between two interested parties that could properly test the restriction. The enrollment provision had already been challenged by Cherokees seeking to enjoin the Secretaries of Interior and Treasury from enlarging the rolls, and the Court affirmed the decision upholding the acts the following year.⁶⁸ Injured parties suing officials who were about to act supplied a real controversy. The special act, by contrast, gave the Court jurisdiction over the constitutional issue alone, although in a real case the Court might never reach it, for instance by finding that the plaintiffs were not Cherokees or by deciding on a narrower ground.⁶⁹ A more carefully written statute could have created an appropriate test case, but Congress cannot grant jurisdiction to obtain what is really an advisory opinion.⁷⁰

A related limit protects the same separation from the other direction. The doctrines that bar advisory opinions and nonjusticiable disputes help preserve the judiciary's independence by precluding debilitating entanglements between the courts and the two political branches, and the general principle is that executive or administrative duties of a nonjudicial nature may not be imposed on judges holding office under Article III.⁷¹ In Mistretta v. United States the Court nonetheless recognized significant exceptions and approved some nonadjudicatory activities in a "twilight area" where the activities of the branches merge.⁷² The principle rests on the same concern that underlies the ban on advice: a judiciary drawn into the political branches' work loses the distance it needs to review that work later.

On an exam stem in which the President, a legislator, or Congress seeks the Court's view, the first question is where the matter sits in time and who stands on the other side. A request about a contemplated order or a pending bill fails. An order that has issued, or a law applied to someone who sues, passes. A statute that authorizes named plaintiffs to sue the United States passes only if the United States has a genuine stake adverse to theirs. Students lose this issue when they treat a nominal defendant as though the label supplied the adversity Article III requires, because the importance of the question, or an express invitation from Congress or the President, does not let a federal court reach out to resolve it.⁷³

Finality and Hayburn's Case

A federal court can be put in the position of an adviser without anyone asking it a hypothetical question. Congress need only hand it a task whose result another branch is free to overturn. The finality limit addresses that situation: the courts will not act if their decisions are subject to executive or legislative review.⁷⁶ The link to the ban on advisory opinions is direct. A decision that binds no one until a political officer approves it operates as a recommendation, and a recommendation on a legal question is advice, so a court that issues one has done what the preceding subsections taught it may not do. The last subsection ended on the danger of loading judges with nonjudicial duties. Finality looks at the same entanglement from the other side, asking whether the political branches can reach into work the judges have already done.

The founding-era example is Hayburn's Case. A 1792 statute told disabled Revolutionary War veterans who wanted pensions to apply to the circuit court, which would decide whether the applicant was in fact a veteran and disabled and would certify its conclusion to the Secretary of War. The Secretary was to place the applicant on the pension list unless he had cause to suspect imposition or mistake.⁷⁷ As the scheme worked, a favorable judicial determination was followed by the Secretary's review and then by a decision in Congress on whether the pension would be paid.⁷⁸ The circuit courts, on which five of the Supreme Court Justices sat, uniformly refused to entertain the petitions. They reasoned that the business was not properly judicial in nature and that the Secretary's power to suspend the decision deprived the proceeding of the finality a court's judgment requires.⁷⁹ The Supreme Court never decided the case itself, because Congress amended the statute before a decision, but the circuit judges' refusal is the source of the principle.⁸⁰

The two grounds the Justices gave have separate logic. Describing the duty as "not of a judicial nature" reflects what a judgment is. A judgment conclusively resolves the matter, while a certificate the Secretary may disregard resolves nothing until the Secretary agrees, which leaves the court in the role of an adviser to the executive.⁸¹ The independence ground does subtler work. Article III gives judges tenure during good behavior and a salary that cannot be reduced, and those guarantees exist to insulate the process of decision from executive and legislative influence. If the executive can set a decision aside, the insulation fails, because a judge who knows that another officer holds the last word has every reason to decide with that officer's reaction in mind. Whether the guarantees reach that far is debated, but the federal courts apply the principle scrupulously.⁸² The Justices themselves called revision and control of the courts' action by the legislature and an executive officer "radically inconsistent with the independence of that judicial power which is vested in the courts."⁸³

What the principle forbids is review by the political branches, and that qualifier does the work. Decisions of Article III courts may be reviewed by higher Article III courts, but not by the executive or the legislature.⁸⁴ Article III creates a judicial department made up of inferior courts and one supreme Court, and a trial court's decision is not the department's last word while an appeal remains available.⁸⁵ A district court judgment that the court of appeals may affirm or reverse is therefore not advice, because the judicial department is reviewing its own work. When an executive officer or Congress holds the power of review, an outsider has the final say. The modern Court confirmed in Plaut v. Spendthrift Farm that Hayburn's Case survives as the principle that Congress cannot vest review of the decisions of Article III courts in officials of the Executive Branch.⁸⁶

Finality must also be kept apart from efficacy. Congress can frustrate a money judgment against the United States by refusing to appropriate the money to pay it, and any other federal judgment is ineffective in practice if the executive fails to enforce it.⁸⁷ Those are failures of efficacy. The judgment remains final because no political branch holds legal power to revise, reverse, or set it aside, so the question is who may alter the decision and not whether the decision will in fact be carried out.

On an exam stem, the working question is who, if anyone, can legally change the decision after the court makes it. A statute that lets an executive officer or Congress disregard or revise a federal court's determination bars the court from acting, and a higher federal court's power to reverse does not. Students lose this issue when they treat a political branch's refusal to pay or enforce a final judgment as a defect in finality, since nonpayment affects only whether the judgment is carried out.