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§3.2.1 Constitutional Minimum Applied: Advisory Opinions and Collusive Suits

An important corollary to the case or controversy requirement is that an Article III court may not issue an advisory opinion—i.e., an opinion issued outside the context of a justiciable case or controversy. Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792). Consistent with this corollary, Congress may not ask the Supreme Court to comment upon the constitutionality of proposed legislation; nor may the President ask the Court to render an opinion on the legality of pending executive action. In neither situation is there an actual dispute between adverse parties involving the legal relations of those parties; similarly, in neither situation is there any suggestion that the Court’s opinion would be anything more than a nonbinding recital of the views of the Court. In short, there is no case or controversy.

Example 3-B

The President is considering issuing an executive order that would dramatically reduce the federal government’s share of welfare payments for temporary assistance for needy families (TANF). The net effect of the order will be to require states to shoulder a larger percentage of the costs of TANF. The President is uncertain whether the proposed executive order is consistent with a number of arguably relevant statutes and congressional funding mandates. She instructs the secretary of state to ask the Justices of the Supreme Court to render an opinion on that issue. Why will the Court decline to do so?


The President’s request does not arise out of an actual dispute between adverse parties—at least not in the sense that one normally associates with the judicial process; nor does the request ask for any type of binding or conclusive relief. In sum, the President is asking for an advisory opinion, and the Court may not issue such an opinion consistent with the case or controversy requirement of Article III.

On the other hand, if the executive order is issued, a party affected by the order—e.g., a state that will now have to shoulder a larger percentage of TANF payments—may file a suit against the appropriate executive officer and seek to enjoin implementation of the order. Under these circumstances, an Article III federal court, including the Supreme Court, could render an opinion on the legality of the executive action. There is an actual dispute between the state and the executive branch involving their legal relations, and any relief ordered by the court will be binding on the parties. In other words, the court’s opinion will not be merely “advisory.”

Although the circumstances under which an Article III court will be asked to issue an advisory opinion are rare, the underlying principles of this proscription provide the foundation for all other justiciability doctrines. Those doctrines—standing, ripeness, mootness, and political questions—are designed, at least in part, to ensure that Article III courts will not exercise authority under circumstances in which the basic elements of a constitutional case or controversy are lacking—i.e., in which a party is requesting nothing more than an advisory opinion.

Just as an Article III court will not entertain requests for advisory opinions, an Article III court will not entertain a collusive suit—i.e., a suit in which the parties attempt to fabricate an actual case or controversy.

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