Prohibition Against Advisory Opinions [Justiciablity Doctrine 1/5]]

Question 1

Muskrat v. US [1911] - Can Congress authorize matters for judicial review that are NOT cases or controversies?

Answer 1

Facts: An Act of Congress in 1901 allowed land to Cherokee Indians. Congress passed acts in 1904 and 1906 that limited the rights that Indians on the land could exercise over it. Some Cherokee already on the land contended that this act had the potential to unconstitutionally deprive them of their property. Congress passed an act in 1906, granting federal courts the jx to hear cases from Indians contesting the constitutionality of the 1902 + 1906 acts. Under the act, Muskrat filed suit in Ct of Claims + appealed to Supreme Ct.

Congress could NOT create JX for judicial review of a specific matter by way of legislation.
- Because “the right to declare an act of Congress unconstitutional could only be exercised when a PROPER CASE between OPPOSING PARTIES was submitted for judicial determination.
- Constitution granted the jusiciary power to decide “cases” and “controversies” but did NOT grant a “general veto power … upon the legislation of Congress.”

Question 2

The right to declare an act of Congress unconstitutional could **ONLY **be exercised when [Marbury]:

Answer 2

1. A **proper case **between opposing parties was submitted for judicial determinations that there was no general veto power in the court upon the legislation of Congress; AND
2. The authority to declare an act unconstitutionall sprung from the requirement that the court, [in adminstering the law and pronouncing judgment between the parties to a case and choosing between the requirement of the fundamental law established by the people and embodies in the Constitution and an act of the agents of the people, acting under authority of the Constitution] should enfore the Constitution as the supreme law of the land

Question 3

[???] The right to declare a law unconstitutional arises when

Answer 3

an act of Congress relied upon by one or the other of such parties in determinine their rights is in** conflict with the fundamental law**.
- This attempt to obtain a judicial declaration of the validity of the act of Congress is not presented in a “case” or “controversy,” to which, [under the Constitution of the US], the judicial power alone extends.
- The questions involved in the proceeding as to the validity of the legislation may arise in suit between individuals….