Article 3, Section 2, Clause 1 — Voluntary Cessation Doctrine

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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.

First, the Supreme Court has held that a party’s voluntary cessation of an unlawful practice will usually not moot its opponent’s challenge to that practice.[1](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/voluntary-cessation-doctrine#fn1art3 " See, e.g., United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1537 n.* (2018); Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019 n.1 (2017); Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 307 (2012); Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 609 (2001); City of Erie v. Pap’s A.M., 529 U.S. 277, 287–89 (2000); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000); Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, Fla., 508 U.S. 656, 662 (1993); Chi. Teachers Union, Local No. 1, AFT, AFL-CIO v. Hudson, 475 U.S. 292, 305 n.14 (1986); United States v. Generix Drug Corp., 460 U.S. 453, 456 n.6 (1983); City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982); City of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Allee v. Medrano, 416 U.S. 802, 810 (1974). ") Thus, “a defendant cannot automatically moot a case by simply ending its unlawful conduct once sued.” [2](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/voluntary-cessation-doctrine#fn2art3 " Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013). ") This exception to the mootness doctrine exists because if a litigant could defeat a lawsuit simply by temporarily ceasing its unlawful activities, there would be nothing to stop that litigant from engaging in that unlawful behavior again after the court dismissed the case[3](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/voluntary-cessation-doctrine#fn3art3 " See id. (explaining that, in the absence of the voluntary cessation doctrine, “a defendant could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where he left off, repeating this cycle until he achieves all his unlawful ends” ); Knox, 567 U.S. at 307 ( “[A] dismissal for mootness would permit a resumption of the challenged conduct as soon as the case is dismissed.” ); City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 n.1 (2001) ( “[A] party should not be able to evade judicial review, or to defeat a judgment, by temporarily altering questionable behavior.” ); City of Mesquite, 455 U.S. at 289 ( “In this case the city’s repeal of the objectionable language would not preclude it from reenacting precisely the same provision if the District Court’s judgment were vacated.” ); United States v. Trans-Mo. Freight Ass’n, 166 U.S. 290, 309 (1897) ( “If the mere dissolution of the association worked an abatement of the suit as to all the defendants . . . it is plain that they have thus discovered an effectual means to prevent the judgment of this court being given upon the question really involved in the case. The defendants having succeeded in the court below, it would only be necessary thereafter to dissolve their association and instantly form another of a similar kind, and the fact of the dissolution would prevent an appeal to this court or procure its dismissal if taken. This result does not and ought not to follow.” ). ") ; the litigant would effectively “be free to return to [its] old ways.” [4](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/voluntary-cessation-doctrine#fn4art3 " Allee, 416 U.S. at 811 (quoting Gray v. Sanders, 372 U.S. 368, 376 (1963)). See also, e.g., Friends of the Earth, 528 U.S. at 189 (same). ")

The 1982 case of City of Mesquite v. Aladdin’s Castle, Inc. illustrates how this “voluntary cessation” doctrine applies in practice.[5](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/voluntary-cessation-doctrine#fn5art3 " 455 U.S. 283. ") The plaintiff in City of Mesquite challenged the constitutionality of a municipal ordinance.[6](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/voluntary-cessation-doctrine#fn6art3 " Id. at 284–86. ") While the case was pending, however, the city repealed the offending provisions of the ordinance.[7](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/voluntary-cessation-doctrine#fn7art3 " Id. at 288. ") The Court, explaining that “a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice,” concluded that the city’s revision of the ordinance did not render the plaintiff’s challenge moot.[8](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/voluntary-cessation-doctrine#fn8art3 " Id. at 288–89. ") Because “the city’s repeal of the objectionable language” in the ordinance “would not preclude it from reenacting precisely the same provision” if the case were dismissed on mootness grounds, the Court concluded that it needed to “confront the merits of the” plaintiff’s constitutional challenge.[9](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/voluntary-cessation-doctrine#fn9art3 " Id. at 289. The Court subsequently elaborated that “City of Mesquite does not stand for the proposition that it is only the possibility that the selfsame statute will be enacted that prevents a case from being moot; if that were the rule, a defendant could moot a case by repealing the challenged statute and replacing it with one that differs only in some insignificant respect.” Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, Fla., 508 U.S. 656, 662 (1993). But see Princeton Univ. v. Schmid, 455 U.S. 100, 103 (1982) (per curiam) (deeming case moot, without explicitly mentioning the voluntary cessation doctrine, where intervening party “substantially amended its regulations” “while the case was pending on appeal” ). ")

The DeFunis v. Odegaard case discussed above, by contrast, exemplifies when the voluntary cessation doctrine will not save a case from dismissal.[10](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/voluntary-cessation-doctrine#fn10art3 " See 416 U.S. 312, 318 (1974) (per curiam). ") To reiterate, the petitioner in DeFunis claimed that certain law school admissions practices and criteria discriminated against him on the basis of race.[11](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/voluntary-cessation-doctrine#fn11art3 " Id. at 314–15. ") While the case was pending, however, the petitioner began taking classes at the law school, and had almost completed his law degree by the time the case reached the Supreme Court.[12](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/voluntary-cessation-doctrine#fn12art3 " Id. at 315–17. ") The Court rejected the petitioner’s argument that the voluntary cessation doctrine rendered the case justiciable because the case’s mootness had “partially stem[med] from a policy decision on the part of the respondent Law School authorities” to allow the petitioner to complete his law school studies and receive his diploma.[13](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/voluntary-cessation-doctrine#fn13art3 " Id. at 317. ") The Court emphasized that the respondents had not voluntarily ceased the allegedly discriminatory admissions practices that the petitioner challenged as unconstitutional; instead, the case became moot because the petitioner was just a few credits shy of completing his degree.[14](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/voluntary-cessation-doctrine#fn14art3 " See id. at 318. ") In other words, the case was moot not because the school stopped engaging in allegedly unlawful activity, but rather because the petitioner would “receive his diploma regardless of any decision th[e] Court might reach on the merits of th[e] case.” [15](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/voluntary-cessation-doctrine#fn15art3 " Id. at 317. ")

The Court has clarified several other aspects of the voluntary cessation doctrine. For one, if it is “absolutely clear” that the allegedly wrongful behavior will not recur after the court dismisses the case, then a case can become moot notwithstanding a party’s voluntary cessation of that unlawful behavior.[16](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/voluntary-cessation-doctrine#fn16art3 " Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019 n.1 (2017) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). See also, e.g., Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222 (2000) (per curiam) ( “Voluntary cessation of challenged conduct moots a case, however, only if it is 'absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’” ) (quoting United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203 (1968)). ") “The ‘heavy burden of persua[ding]’ the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness.” [17](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/voluntary-cessation-doctrine#fn17art3 " Friends of the Earth, 528 U.S. at 189 (quoting Concentrated Phosphate Export Ass’n, 393 U.S. at 203); see also FBI v. Fikre, No. <a href="/supremecourt/t