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Ability To Sue

A. Justiciability

The Supreme Court and lower federal courts will only hear justiciable cases, i., cases appropriate for federal adjudication on the merits.

2. Sources of Justiciability
Standards The conditions necessary for justiciability are derived either from interpretations of the Article III, § 2 requirement that there be a “case or controversy,” or from general Supreme Court policies developed apart from the Constitution.

3. Requirements for Justiciability
A suit is justiciable when certain conditions are present. Mnemonic: SCRIMPS

a. Standing
A plaintiff must have standing to invoke the adjudicatory power of the federal courts. Standing is created when the plaintiff has a personal stake in the suit’s outcome. The “personal stake” requirement is met where:

i. There is distinct and palpable (not speculative) injury to the plaintiff;
ii. A fairly traceable causal connection exists between the claimed injury and the challenged conduct; and
iii. There is a substantial likelihood that the relief requested will prevent or redress the claimed injury. Taxpayer Standing A taxpayer will have standing to challenge a Congressional expenditure only if it meets the dual-nexus test established in Flast v. Cohen.

(1) The expenditure must be an exercise of power under the Taxing and Spending Clause.

(2) The expenditure must violate a specific constitutional provision which limits the taxing and spending power, such as the prohibition against an established religion. In reviewing a suit that requests more than one type of relief, the Supreme Court will impose a separate standing test for each.

b. Case or Controversy
The issues must arise out of an actual and current case or controversy between adverse litigants. Adjudication of hypothetical or removed disputes would result in advisory opinions .

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