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Example 3-C

An owner of rental property wishes to challenge the constitutionality of a federal statute that regulates the amount of rent he can charge. To this end, he provides one of his tenants with a lawyer and asks the tenant to file a “friendly suit” against him in which the tenant will allege that the rents charged by the landlord are in violation of the federal statute. The suit is filed in federal district court. May the district court adjudicate this claim?


No. The absence of an actual dispute between adverse parties is fatal to this lawsuit. There being no case or controversy, the court must dismiss. See United States v. Johnson, 319 U.S. 302 (1943) (dismissing a suit as collusive under similar facts).

§3.2.2 Constitutional Minimum Applied: Declaratory Relief

The proscription against advisory opinions does not preclude an Article III court from providing declaratory relief when requested to do so in the context of an actual case or controversy. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937). In an actual dispute between adverse parties involving their legal rights and obligations, declaratory relief is not merely advisory; it is legally binding upon the parties, and may be enforced through the application of other judicially imposed forms of relief. Thus both elements of the constitutional minimum are satisfied. There is an actual dispute between adverse parties involving their legal relations, and the relief issued by the Court will have a binding or conclusive effect upon that dispute.

Example 3-D

In Example 3-B, we concluded that the President could not ask the Supreme Court to advise her as to the legality of the contemplated executive order. Suppose, however, that after the order is promulgated, a state refuses to comply with various provisions of the order on the ground that the order violates a number of applicable statutes. Does this conflict create a justiciable case or controversy?


Yes. The appropriate officer of the executive branch may file a suit in federal court seeking a declaratory judgment with respect to the legality of the President’s action and the obligations of the recalcitrant state. There is an actual controversy between the executive branch and the state, and the relief sought, a declaratory judgment, will be binding on the parties and enforceable if necessary.

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