Advisory Opinion

Author:Jonathon D. Varat

Page 51

Article III of the Constitution extends the JUDICIAL POWER OF THE UNITED STATES only to the decision of CASES OR CONTROVERSIES. Since 1793, when the Supreme Court declined, in the absence of a concrete dispute, to give legal advice to President GEORGE WASHINGTON on the correct interpretation of treaties with France and Britain, the Court has refused steadfastly to issue advisory opinions, finding them inconsistent with Article III. This refusal is required whether the request seeks advice on interpretation of existing law or on the constitutionality of pending LEGISLATION or anticipated action. The Justices' view is that the federal courts function not as lawyers giving advice but as judges limited to deciding cases presented by adverse parties with a real, not a hypothetical, dispute, one that is subject to judicial resolution and the granting of meaningful relief. The Court held in Aetna Life Insurance Co. v. Haworth (1937) that the prohibition against advisory opinions does not preclude declaratory relief, but there must be a concrete controversy between parties of adverse legal positions which a DECLARATORY JUDGMENT can settle.

If doubts exist about the constitutionality of a proposed government policy or the legality of a contemplated application of current law, an advisory opinion could prevent the interim harm that adoption and application of law subsequently found invalid would cause. Moreover, advisory opinions could save time, money, and effort in deliberation and enforcement by clarifying legal limitations before invalid action is taken. Clearing away unlawful options could also contribute to the quality and focus of public debate and accountability.

The rule against advisory opinions responds to different considerations, however. It limits workload, but the dominant concerns involve judicial competence to decide issues in an advisory context and the place of the federal judiciary in a regime characterized by SEPARATION OF POWERS. Fear that decision before a dispute arises would be...

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