Article 3, Section 2, Clause 1 — Advisory Opinion Doctrine And Practice

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Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

At the time of the Founding, both English law[1](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/advisory-opinion-doctrine-and-practice#fn1art3 " Flast v. Cohen, 392 U.S. 83, 96 (1968) ( “[T]he power of English judges to delivery advisory opinions was well established [at the Founding].” ) (citing 3 K. Davis, Administrative Law Treatise 127–128 (1958)). See also 1 William Blackstone, Commentaries 162 (1765) (noting that Members of the House of Lords “have a right to be attended, and constantly are, by the judges of the court of king’s bench and commonpleas, and such of the barons of the exchequer as are of the degree of the coif, or have been made serjeants at law; as likewise by the masters of the court of chancery; for their advice in point of law, and for the greater dignity of their proceedings.” ). But see Sackville’s Case (1760), 28 Eng. Rep. 940, 2 Eden, 371 (issuing a formal, written extrajudicial opinion to the King as to whether an army officer could be tried by court martial, but noting that, according to Lord Mansfield, the judges are “very averse to giving extra-judicial opinions, especially where they affect a particular case” ). ") and existing state constitutions[2](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/advisory-opinion-doctrine-and-practice#fn2art3 " Mass. Const. ch. III, art. II. ( “Each branch of the legislature, as well as the governor or the council, shall have authority to require the opinions of the justices of the supreme judicial court, upon important questions of law, and upon solemn occasions.” ). See also N.H. Const. art. 74 ( “Each branch of the legislature as well as the governor and council shall have authority to require the opinions of the justices of the supreme court upon important questions of law and upon solemn occasions.” ). ") allowed courts to issue advisory opinions. Nonetheless, the Framers declined to include explicit language in the Constitution that would have imposed an advisory role for the Supreme Court or other federal courts.[3](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/advisory-opinion-doctrine-and-practice#fn3art3 " See James Madison, James Madison’s Notes of the Constitutional Convention, Max Farrand, 1 The Records of the Federal Convention of 1787 17–23 (1911) (providing for “a convenient number of the National Judiciary, ought to compose a council of revision with authority to examine every act of the National Legislature before it shall operate” ); Virginia (Randolph) Plan as Amended (providing that “the jurisdiction of the national Judiciary shall extend to . . . questions which involve the national peace and harmony.” ); James Madison, James Madison’s Notes of the Constitutional Convention, Max Farrand, 2 The Records of the Federal Convention of 1787, at 334 ( “Each branch of the Legislature, as well as the Supreme Executive shall have authority to require the opinions of the supreme Judicial Court upon important questions of law, and upon solemn occasions.” ). See also James Madison, James Madison’s Notes of the Constitutional Convention, Max Farrand, 1 The Records of the Federal Convention of 1787 96–105 (1911) ( “It was quite foreign from the nature of [the judicial] office to make them judges of the policy of public measures.” ) (quoting Elbridge Gerry, a delegate from Massachusetts). ") The final version of Article III states only that the “judicial power shall extend to” certain categories of “Cases” and “Controversies.” [4](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/advisory-opinion-doctrine-and-practice#fn4art3 " U.S. Const. art. III, § 2. ") Although that language does not conclusively resolve the question of whether courts have the power to issue advisory opinions,[5](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/advisory-opinion-doctrine-and-practice#fn5art3 " Compare with U.S. Const. art. II, § 2 ( “The President . . . may require the Opinion, in writing, of the principal Officer in each of the executive Departments.” ) (emphasis added). ") the Supreme Court resolved the issue early in the nation’s history in two key cases.

The Supreme Court first issued a decision related to advisory opinions (albeit without using the term) in 1792, in Hayburn’s Case.[6](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/advisory-opinion-doctrine-and-practice#fn6art3 " 2 U.S. (2 Dall.) 409 (1792). ") In that case, the Supreme Court considered a petition for a writ of mandamus to direct a federal circuit court to proceed on a claim seeking a federal pension. The petitioner argued that the courts had failed to give effect to an act of Congress. The Court noted, however, that “the reasons assigned by the judges,” including Supreme Court Justices sitting on the circuit courts, “for declining to execute the . . . act of Congress, involve a great constitutional question.” [7](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/advisory-opinion-doctrine-and-practice#fn7art3 " Id. at 410, footnote. ") Specifically, those judges contended that pension decisions under the Act were not judicial duties that Congress could constitutionally assign to the courts because the Act subjected such decisions to “revision and control” by the legislature and an officer in the Executive department.[8](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/advisory-opinion-doctrine-and-practice#fn8art3 " Id.. ") They determined that such control was “radically inconsistent with the independence of that judicial power which is vested in the courts” by the Constitution.[9](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/advisory-opinion-doctrine-and-practice#fn9art3 " Id. See also Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 219 (1995) (holding that congressional statute that “retroactively command[ed] the federal courts” to reopen final judgments was unconstitutional). But see Patchak v. Zinke, 138 S. Ct. 897, 905 (2018) (plurality) ( “The separation of powers, among other things, prevents Congress from exercising the judicial power . . . At the same time, the legislative power is the power to make law, and Congress can make laws that apply retroactively to pending lawsuits, even when it effectively ensures that one side wins.” ); Bank Markazi v. Peterson, 136 S. Ct. 1310, 1325 (2016) ( “Congress may indeed direct courts to apply new enacted, outcome-altering legislation in pending civil cases.” ). ") While Hayburn’s Case remained pending, Congress enacted legislation providing an alternative means of relief for the pensioners; the Court then dismissed the mandamus petition without deciding the underlying constitutional question.[10](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/advisory-opinion-doctrine-and-practice#fn10art3 " Id. ") However, the circuit court opinions declining to issue non-final pension decisions have become an accepted part of the Court’s justiciability jurisprudence. The Court has since confirmed that it has no jurisdiction where an opinion would be subject to later review and revision, as such a ruling can amount to no more than advice.[11](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/advisory-opinion-doctrine-and-practice#fn11art3 " See, e.g., Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346–48 (1936) (Brandeis, J., concurring) (citing Hayburn’s Case for the proposition that “the jurisdiction of federal courts is limited to actual cases and controversies; and that they have no power to give advisory opinions” ). See also Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp. 333 U.S. 103, 113–14 (1948) ( “To revise or review an administrative decision which has only the force of a recommendation . . . would be to render an advisory opinion in its most obnoxious form.” ); United States v. Ferreira, 54 U.S. (13 How.) 40, 48 (1852) (noting that the powers of a commissioner to “adjust claims to lands or money” is not “judicial . . . in the sense in which judicial power is granted by the Constitution to the courts of the United States” ). ")

The Supreme Court produced the second early precedent against advisory opinions in 1793. In that year, President George Washington, seeking to determine the United States’ legal rights and obligations in relation to ongoing conflicts between the European powers of France and Britain, sent a letter through his Secretary of State, Thomas Jefferson, to the Justices of the Supreme Court.[12](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/advisory-opinion-doctrine-and-practice#fn12art3 " Letter from Thomas Jefferson, Sec. of State, to Chief Justice Jay and Associate Justices (July 18, 1793), reprinted in Richard H. Fallon, Jr., et al., Hart and Wechsler’s The Federal Courts and the Federal System 50–51 (7th ed. 2015). ") The letter asked if the Justices would be willing to render opinions on a number of legal questions of “considerable difficulty” that “do not give a cognizance of them to the tribunals of the country.” [13](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/advisory-opinion-doctrine-and-practice#fn13art3 " Id. ") The Justices declined to provide an answer. Chief Justice John Jay drafted a response to the President explaining that “[t]he lines of separation drawn by the Constitution between the three departments of government . . . and our being judges of a court in the last resort . . . are considerations which afford strong arguments against the propriety of our extrajudicially deciding the questions alluded to.” [14](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/advisory-opinion-doctrine-and-practice#fn14art3 " Letter from Chief Justice Jay and Associate Justices to President George Washington (August 8, 1793) reprinted in Richard H. Fallon, Jr., et al., Hart and Wechsler’s The Federal Courts and the Federal System 52 (7th ed. 2015). ") Although the letter was not an official opinion of the Court, the Court has since cited it as a major source of the rule against advisory opinions.[15](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/advisory-opinion-doctrine-and-practice#fn15art3 " Vieth v. Jubelirer, 541 U.S. 267, 302 (2004) (plurality) (noting that 1793 correspondence involved “categorical” statement by the Court that the “giving of advisory opinions” was beyond the judiciary’s power); Flast v. Cohen, 392 U.S. 83, 96 n.14 (1968) (noting that “[t]he rule against advisory opinions was established as early as 1793 . . . and the rule has been adhered to without deviation.” ). See also Muskrat v. United States, 219 U.S. 346, 354 (1911) (citing the 1793 correspondence in refusing to take jurisdiction over a case brought under a statute creating a lawsuit devised to test the constitutionality of a different statute). ")

Subsequent