Ashwander v. Tennessee Valley Authority

Ashwander v. Tennessee Valley Authority

Argued December 19, 1935
Decided February 17, 1936
Full case name Ashwander v. Tennessee Valley Authority
Citations

297 U.S. 288 (more)

Prior history Certiorari to the Circuit Court of Appeals for the Fifth Circuit, 78 F.2d 578
Holding
Congress did not abuse its power with the Tennessee Valley Authority, a government corporation established as part of the New Deal to improve the economy of the state.
Court membership
Chief Justice
Charles E. Hughes
Case opinions
Plurality Hughes
Concurrence Brandeis, joined by Cardozo, Roberts, Stone
Concur/dissent McReynolds

Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936), was a United States Supreme Court case that provided the first elaboration of the doctrine of "Constitutional avoidance".

Background

In Ashwander, the Supreme Court faced a challenge to the constitutionality of a congressional program of development of the Wilson Dam. The plaintiffs, preferred stockholders of the Alabama Power Company, had unsuccessfully protested to the corporation about its contracts with the Tennessee Valley Authority ("TVA"). Plaintiffs then brought suit against the corporation, the TVA, and others alleging breach of contract and advancing a broad constitutional challenge to the governmental program.[1] In December 1934, Federal Judge William Irwin Grubb held that the government had no right to engage in the power business except to dispose of a surplus incidental to the exercise of some other Constitutional function. While he did not directly rule that the TVA was unconstitutional, he issued an injunction that caused Senator George Norris, prime sponsor of the New Deal's power program, to declare: "The effect of the injunction is practically to nullify the whole TVA Act." [2] In July 1935, the injunction was overturned by the 5th Federal Circuit Court in New Orleans.[3] When the matter reached the Supreme Court, the plurality did not reach the broadest constitutional questions presented by plaintiffs, but instead upheld Congress's constitutional authority to dispose of electric energy generated at the dam and validated the contracts.[4]

Plurality opinion

At the outset, the plurality rejected the government's argument that the preferred stockholders did not have standing to bring the suit because the government program was directly competing with a private company.[5] The plurality then considered the scope of the constitutional issue presented. The plurality found the scope "limited to the validity of the contract" between the parties, rather than extending to the broad challenge to the validity of the entire TVA program.[6] Although the plurality refused to issue an advisory opinion on plaintiffs' broader hypothetical and contingent constitutional claims, it did review the constitutionality of the legislation insofar as the plaintiffs had presented facts of a legitimate "case or controversy."[7]

Based on the concrete dispute before the Court, the plurality concluded that Congress had the war and commerce power authority to construct the Wilson Dam. The plurality also found that the disposal of the electric energy generated pursuant to the provisions of the contracts at issue was lawful.[8] Thus, the judgment in Ashwander, in which Justice Brandeis concurred, ultimately did completely avoid a constitutional issue.

Concurrence

Justices Cardozo, Roberts and Stone joined the Brandeis concurrence. The concurring Justices would have affirmed the court of appeals' judgment "without passing on it," although they agreed with the plurality's conclusion on the constitutional issues it reached. The court of appeals had decided, like the plurality, that Congress had the constitutional authority to construct the Wilson Dam and dispose of the surplus energy thereby produced. The concurrence, however, would have affirmed this judgment without reaching the merits because of other infirmities in plaintiffs' case.

Brandeis primarily objected to plaintiffs' standing.[9] His concurrence disagreed with the plurality's conclusion that the preferred stockholders could bring the action because they had already voiced their complaints to the corporation without success. Brandeis concluded that plaintiffs had no "right to interfere" in corporate governance under the substantive law, and because the stockholders could allege no injury which the substantive law recognized, they lacked standing to bring suit.[10]

The concurrence then raised an equity bar to the requested relief. The preferred stockholders could not show the "irreparable injury" to their property rights necessary to obtain relief in equity. Plaintiffs had only a limited interest in the corporation and the district court had made no finding that the proposed transactions with the TVA endangered their property interests.

Brandeis also examined other potential hurdles standing between the Court and the constitutional issues. He concluded that the power company was estopped from bringing a challenge and thus its stockholders had lost any right to bring a challenge. Finally, according to Brandeis, even if plaintiffs had standing under the substantive law, "courts should, in the exercise of their [equitable] discretion, refuse an injunction unless the alleged invalidity is clear." Brandeis urged a presumption in favor of the validity of any legislative act until "its violation of the [C]onstitution is proved beyond all reasonable doubt."[11]

Formulation of the avoidance doctrine

The particular part of the Ashwander concurrence that has become famous is its articulation of "[t]he practice in constitutional cases." In describing that "practice," Brandeis set out a broad formulation of the avoidance doctrine.

Brandeis characterized judicial review of the constitutionality of legislative acts as a grave and delicate power for use by fallible, human judges only when its use cannot conscientiously be avoided.[12] This reluctance to use the power of judicial review was, according to Brandeis, predicated on the separation of powers principle that one branch must not "encroach upon the domain of another." Brandeis identified two prominent limitations on the federal judicial power based on the separation principle: the "case or controversy" requirement and the rule that federal courts have no power to render advisory opinions. Brandeis linked a host of justiciability doctrines, including political question and standing inquiries, to these limitations.

Brandeis recited traditional Article III jurisprudence by recognizing well-established constitutional limits on the federal judicial power. The concurrence's theme of judicial restraint is not inconsistent with the plurality's decision: a federal court should only decide an actual Article III controversy when the facts present one, and should refuse to render an advisory opinion on the entire TVA program. Brandeis then relied on the avoidance doctrine to argue that the Court should not reach the merits of the constitutional issue.

Brandeis described how the Court had developed "prudential" rules — meaning nonconstitutional, self-imposed restraints — by which to avoid "passing upon a large part of all the constitutional questions" presented to it, despite having jurisdiction to hear them. He described the avoidance doctrine as consisting of a "series" of seven rules:

  1. "The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding ...";
  2. "The Court will not 'anticipate a question of constitutional law in advance of the necessity of deciding it.'"
  3. "The Court will not 'formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.'"
  4. The Court will not pass upon a constitutional question, although properly presented by the record, if there is also present some other ground upon which the case may be disposed.
  5. The Court will not pass upon the constitutionality of a statute unless the plaintiff was injured by operation of the statute.
  6. "The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits."
  7. Even if "serious doubt[s]" concerning the validity of an act of Congress are raised, the Court will first ascertain "'whether a construction of the statute is fairly possible by which the question may be avoided.'"

Brandeis concludes his discussion of the avoidance doctrine with this warning: "One branch of the government cannot encroach upon the domain of another, without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule."[13]

Analysis of the seven rules

Rules related to Article III requirements

The first rule bars collusive suits as not proper cases or controversies under Article III. Brandeis relied on Atherton Mills v. Johnston, in which the Court dismissed a challenge to a congressional act regulating child labor as moot, in support of the first rule.[14] As Professor Alexander Bickel points out, however, Atherton Mills was "a case of quite conventional mootness, hardly apt as an illustration of judicial self-restraint in constitutional litigation."[15] Mootness, a justiciability doctrine, serves to ensure that a controversy is "live" and in need of judicial resolution.[16] For Brandeis, however, Atherton Mills represented the issue of collusive suits arranged to obtain fast and convenient adjudication of constitutional issues.[17] Brandeis elaborated on this concern in Ashwander, declaring judicial review of the constitutionality of legislative acts legitimate only as a last resort, and as a necessity in the determination of real, earnest and vital controversies between individuals.[18] It was never the thought that a party beaten in the legislature could transfer to the courts, by means of a friendly suit, an inquiry as to the constitutionality of the legislative act.[19]

Federal courts thereby safeguard their limited power by barring such nonadversarial, fake controversies — suits over which an Article III court has no jurisdiction.[20] The Court has described the requirement of standing as "closely related" to the rule against entertaining friendly, collusive suits.[21] This first rule of avoidance also overlaps with the ripeness requirement, discussed in conjunction with the second rule.

The second rule of the avoidance doctrine mirrors the ripeness requirement in that it obliges federal courts to refrain from deciding a dispute prematurely.[22] The primary rationale for the ripeness doctrine, another justiciability doctrine arising from the case or controversy requirement, is "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements."[23] In a leading case on ripeness, Poe v. Ullman, the Court relied on the avoidance doctrine to set the stage for its decision that the controversy was not ripe.[24] In Poe, Justice Felix Frankfurter described the Ashwander rules as arising from the "historically defined, limited nature and function of courts" and from the separation of powers principle.[25]

Moreover, the rules recognize that adjudication within an adversary system functions best in the presence of "a lively conflict" between actively pressed antagonistic demands, making resolution of the controverted issue a practical necessity.[26] Frankfurter termed the justiciability doctrines of standing, ripeness, and mootness as merely "several manifestations ... of the primary conception that federal judicial power is to be exercised to strike down legislation ... only at the instance of one who is himself immediately harmed, or immediately threatened with harm, by the challenged action."[27] The first two rules of the avoidance doctrine are, thus, closely linked to well-recognized justiciability requirements, and serve as alternative, but not distinctive, limitations on the federal judicial power.[28]

Standing, another justiciability doctrine derived from the "case or controversy" requirement, requires a litigant to allege that she has personally suffered or imminently will suffer a concrete injury, fairly traceable to the defendant's conduct, and that the court's decision will likely redress her injury.[29] Standing includes both constitutional and prudential components. The third rule of the avoidance doctrine requires federal courts facing constitutional issues to rule no more broadly than the precise facts require.[30] This rule may reflect the fact-specific focus of the standing inquiry. The fifth rule, which requires that the challenged legislation injure the plaintiff, mirrors the injury and causation components of the standing requirement.[31]

Cases construing the prudential component of the standing doctrine have relied on the avoidance doctrine. Prudence gives rise to, among other doctrines, the prohibition against third-party standing.[32] One policy underlying the prohibition is the desire to avoid unnecessary constitutional adjudication.[33] The Court, in explicating the bar against third-party standing, has described Brandeis' Ashwander rules as "offering the standing requirement as one means by which courts avoid unnecessary constitutional adjudications."[34] A second prudential restriction is the bar against finding standing for a generalized grievance — a harm shared in substantially equal measure by all or a large group of citizens.[35] The Court has also linked this standing bar to the avoidance doctrine: the requirement of an individualized injury serves to ensure that "there is a real need to exercise the power of judicial review in order to protect the interests of the complaining party."[36] Indeed, the avoidance doctrine may be an early formulation of the justiciability doctrines.

Rules three and five of the avoidance doctrine thus echo concerns addressed by the constitutional and prudential limitations of standing and ripeness. In some cases, the tenets of the avoidance doctrine addressed above — rules 1, 2, 3 and 5 — may serve to buttress the conclusion that a case is not justiciable, or that a case is justiciable but the court will voluntarily decline to exercise its jurisdiction for prudential reasons. The avoidance doctrine as set out in these rules functions primarily as a supplement to established doctrines of standing and ripeness.

Rules reflecting largely prudential concerns

The sixth rule of the avoidance doctrine provides that a court will not rule upon the constitutionality of a statute at the instance of one who has benefitted from the statute. In support of this rule, Brandeis cited cases in which a party waived its ability to object to a statute because the party had pursued benefits afforded under the statute in one proceeding prior to challenging the statute's constitutionality in a separate judicial proceeding.[37] The Supreme Court later distinguished cases relying on the "estoppel to sue" doctrine as being cases in which "litigants had received or sought advantages from the statute that they wished to attack, advantages other than the mere right to sue."[38] The sixth rule may be of relatively little importance today. To the extent the estoppel principle was based on a doctrine forbidding parties from asserting inconsistent positions in judicial proceedings,[39] Federal Rule of Civil Procedure 8(a) now expressly allows alternative or inconsistent allegations. Moreover, broad modern principles of claim preclusion appear to address adequately the concern reflected in the cases cited for the estoppel principle.

The seventh rule of the avoidance doctrine derives from the familiar canon of statutory construction that a statute "ought not to be construed to violate the Constitution if any other possible construction remains available."[40] The canon and the rule are identical and, not surprisingly, often used interchangeably.[41] Indeed, the canon of statutory construction is grounded in large part upon the well-established practice of not reaching constitutional questions unnecessarily.[42] The seventh rule poses an alternative to the directive of the last resort rule. Through statutory construction rules, it may also be possible to avoid a constitutional question.[43]

See also

References

  1. ↑ Ashwander, 297 U.S. at 316-17. Plaintiffs argued that the federal government, through the TVA, was undertaking a "coup" which "would open every essential industry and service to direct and permanent governmental competition." Id. at 291-92. Plaintiffs challenged the TVA program's "validity in every respect, in its entirety, and in detail, asserting that the program and all of its essentials, the means employed to promote it, its dominant objectives, and its arbitrary methods, do not consist with the letter and spirit of the Constitution." 297 U.S. at 293; see also 297 U.S. at 317.
  2. ↑ "Business & Finance: Grubb on Surplus". Time Magazine. March 4, 1935.
  3. ↑ "Judiciary: Curses & Blessings". Time Magazine. July 29, 1935.
  4. ↑ Ashwander, 297 U.S. at 339-40. The district court below did not reach plaintiffs' request for general declaratory relief, but it did annul the contract at issue, enjoin transfer of the transmission lines and auxiliary properties, and enjoin the municipal defendants from "making or performing any contracts with the [TVA] for the purchase of power." 297 U.S. at 317. The court of appeals reversed, finding that Congress had the constitutional authority to construct the Wilson Dam and dispose of the surplus energy thereby produced. 297 U.S. at 318.
  5. ↑ Ashwander, 297 U.S. at 318 ("while their stock holdings are small, they have a real interest and there is no question that the suit was brought in good faith").
  6. ↑ Ashwander, 297 U.S. at 324. The government urged the Court to construe the constitutional issue narrowly. Id. at 310-11. The Court agreed: "The pronouncements, policies and program of the [TVA] and its directors, their motives and desires, did not give rise to a justiciable controversy save as they had fruition in action of a definite and concrete character constituting an actual or threatened interference with the rights of the persons complaining." 297 U.S. at 324. The single dissenter, however, would have considered plaintiffs' allegation that, "while pretending to act within their powers to improve navigation, the United States, through corporate agencies, are really seeking to accomplish what they have no right to undertake — the business of developing, distributing and selling electric power." 297 U.S. at 357 (McReynolds, J., dissenting). After evaluating the evidence presented in support of that allegation, he found that the trial court's ruling should be affirmed. 297 U.S. at 372.
  7. ↑ Ashwander, 297 U.S. at 325. The government claimed that the shareholders' complaints were "premature," "hypothetical" and "speculative" because some portions of the constitutional challenge were based on future, contingent acts. 297 U.S. at 313-14. The plurality agreed:
    [P]laintiffs had no right to demand that the directors should start a litigation to obtain a general declaration of the unconstitutionality of the [TVA] in all its bearings or a decision of abstract questions as to the right of the [TVA] and of the Alabama Power Company in possible contingencies. 297 U.S. at 325.
  8. ↑ Ashwander, 297 U.S. at 330-40 (construing U.S. Constitution Article IV, Section 3)
  9. ↑ Ashwander, 297 U.S. at 341; see also Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics, pp. 119-21 (2d ed. 1986) (calling Brandeis' primary concern in Ashwander one of standing). This standing concern is nearly identical to Brandeis' primary objection to jurisdiction in the draft opinion in Atherton Mills v. Johnston, 259 U.S. 13 (1922). See Bickel, notes 76 and 149, for discussion of Atherton Mills. Heated debate over appropriate access to the courts for those asserting corporate interests was reflected in several cases during the 1936 term. Felix Frankfurter and Adrian S. Fisher, "The Business of the Supreme Court at the October Terms, 1935 and 1936," 51 Harvard Law Review 577 (1938).
  10. ↑ Ashwander, 297 U.S. at 341-44. The concurrence attempted to distinguish prior decisions in stockholder cases where the Court had rendered decisions, 297 U.S. at 349-52, or, alternatively, urged that the prior cases be overruled. 297 U.S. at 352-53.
  11. ↑ Ashwander, 297 U.S. at 355 (quoting Justice Washington's opinion in Ogden v. Saunders, 25 U.S. (12 Wheat.) 212, 270 (1827)).
  12. ↑ Ashwander, 297 U.S. at 345. Brandeis notes early in his opinion that the Supreme Court "has frequently called attention to the 'great gravity and delicacy' of its function in passing upon the validity of an act of Congress."
  13. ↑ Ashwander, 297 U.S. (quoting Sinking-Fund Cases v. U.S. Central Pacific Railroad Co., 99 U.S. 700, 718 (1871)). For a different cast of the separation of powers principle, see generally Robert A. Katzmann, "The Underlying Concerns," in Judges and Legislators p. 14 (Robert A. Katzmann ed., 1988) (discussing separation of powers as "separated institutions sharing powers,' not separate institutions"); David B. Frohnmayer, "The Separation of Powers: An Essay on the Vitality of a Constitutional Idea," 52 Oregon Law Review 211 (1973).
  14. ↑ Atherton Mills v. Johnston, 259 U.S. 13, 16 (1922); see Bickel, supra note 7, at 3. Brandeis also cited to Chicago & Grand Trunk R.R. v. Wellman, 143 U.S. 339 (1892), which is described in Harlan's dissent in Poe v. Ullman: "the parties sought a ruling as to whether a particular passenger rate was unconstitutionally confiscatory, having stipulated all the debatable and contingent facts which otherwise might have rendered a constitutional decision unnecessary." 367 U.S. 497, 529 (1961). Atherton Mills presented a challenge to the Child Labor Tax Act by a father of a child employed at a mill, who alleged that his son was about to be discharged due to the impact of the tax. The father alleged that the resultant loss of his son's wages would injure him. He sought an injunction to keep the mill from discharging his son. The district court issued the injunction, finding the Act unconstitutional, and the case proceeded to the Supreme Court. Atherton Mills, 259 U.S. at 13-15.
  15. ↑ Alexander M. Bickel (1957), The Unpublished Opinions of Mr. Justice Brandeis, p. 3.
  16. ↑ "Mootness avoids unnecessary federal court decisions, limiting the role of the judiciary and saving the courts' institutional capital for cases truly requiring decisions." Chemerinsky, supra note 38, at 110. The justifications for the doctrine, however, have been challenged. Susan Bandes, The Idea of a Case, 42 Stanford Law Review 227 (1990); Evan Tsen Lee, "Deconstitutionalizing Justiciability: The Example of Mootness," 105 Harvard Law Review 605 (1992) (maintaining that mootness should not be considered a constitutional doctrine, but merely a prudential rule); Henry P. Monaghan, "Constitutional Adjudication: The Who and When," 82 Yale Law Journal 1363 (1973) (debunking the judicial capital argument as "assum[ing] precisely what is at issue").
  17. ↑ Bickel, supra, at 3. Brandeis argued in the unpublished opinion in Atherton Mills that the suit was merely a collusive, fictitious controversy between the parties — essentially, the child employee and employer. Id. at 6-7. The draft mirrors Brandeis' suspicion, articulated elsewhere, of claims for declaratory relief. See Willing v. Chicago Auditorium Ass'n, 277 U.S. 274, 289 (1928) (Brandeis said declaratory relief was beyond the scope of Article III judicial power, and there was no statutory authorization for declaratory judgments at that time). The Court, in Nashville, Chattanoga & St. L. Ry. v. Wallace, disagreed. 288 U.S. 249, 264 (1933) (declaratory judgments are justiciable as long as the case retains the essentials of an adversary proceeding, involving a real, not a hypothetical, controversy). In 1934, Congress passed the Declaratory Judgment Act, the constitutionality of which was upheld in Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 244 (1937). Despite the Declaratory Judgment Act, the avoidance doctrine still applies. Poe v. Ullman, 367 U.S. 497, 506 (1961) (stating that the declaratory judgment procedure "does not permit litigants to invoke the power of this Court to obtain constitutional rulings in advance of necessity"); Rescue Army v. Municipal Court of L.A., 331 U.S. 549, 573 n.41 (stating that discretionary element in declaratory judgment jurisdiction offers convenient instrument for making effective the avoidance doctrine).
  18. ↑ Ashwander, 297 U.S. at 346.
  19. ↑ Id. (quoting Chicago and Grand Trunk Ry. Co. v. Wellman, 143 U.S. 339, 345 (1892)); see Brilmayer, supra note 39, at 300 (stating that Article III's case or controversy requirement "has traditionally been understood to include the power to resolve abstract legislative issues, including constitutional issues, but only as a necessary byproduct of the resolution of particular disputes between individuals"); Bandes, supra note 78.
  20. ↑ See, e.g., Bickel, supra note 7, at 1-2 (in the draft opinion of Atherton Mills, Brandeis pointed out that neither the employee, his father nor the mill wanted the challenged tax). In Carter v. Carter Coal Company, 298 U.S. 238 (1936), decided the same term as Ashwander, Justice Brandeis joined Justice Cardozo's dissent from the majority opinion, which reached the merits of a constitutional challenge to Congressional legislation regulating the coal industry in an obviously collusive suit. In Carter Coal, the president of a coal company sued the coal company to enjoin its compliance with the legislation and the Court found the legislation in part unconstitutional. 298 U.S. at 278-79. Justice Cardozo reasoned in dissent, quoting Brandeis in Ashwander, that there was no need to reach some of the constitutional issues. Id. at 325. For other instances in which the Court has rejected collusive suits, see United States v. Johnson, 319 U.S. 302, 303-05 (1943) (action dismissed where plaintiff sued defendant at defendant's request, and defendant financed and controlled litigation); Muskrat v. United States, 219 U.S. 346, 362-63 (1911) (suit between Native Americans and federal government was not justiciable merely because Congress had passed legislation authorizing suit to resolve constitutional question when their interests were not adverse).
  21. ↑ Flast v. Cohen, 392 U.S. 83, 100 (1968).
  22. ↑ Poe v. Ullman, 367 U.S. 497, 508-09 (1961) (dispute not ripe due to no real threat of criminal prosecution of plaintiffs under Connecticut statute regulating contraceptives); see Brilmayer, supra note 39; Gene R. Nichol Jr., "Ripeness and the Constitution," 54 University of Chicago Law Review 153 (1987); Jonathan D. Varat, "Variable Justiciability and the Duke Power Case," 58 Texas Law Review 273 (1980).
  23. ↑ Abbott Laboratories v. Gardner, 387 U.S. 136, 148 (1967); see Rescue Army v. Municipal Court of L.A., 331 U.S. 549, 575-85 (1947) (dispute not ripe because an incomplete factual record rendered a constitutional decision premature).
  24. ↑ Poe, 367 U.S. 497, 498, 508-09 (1961) (the Court declined to address plaintiffs' claim that Connecticut law regulating contraceptive use and related medical advice violated the Fourteenth Amendment). As the Court instructed in Poe, "'The best teaching of this Court's experience admonishes us not to entertain constitutional questions in advance of the strictest necessity.'" 367 U.S. at 503 (quoting Parker v. County of Los Angeles, 338 U.S. 327, 333 (1949)). Justice Frankfurter wrote for four members of the Court, and Justice Brennan concurred in the judgment, although four justices would have reached the constitutional issue. 367 U.S. at 509-55. Justice Brennan's brief, pivotal opinion in Poe reasons that the "true controversy" was the opening of large scale birth-control clinics and that that controversy simply was not ripe on the facts because the State had made no "definite and concrete" attempt to enforce the law. Constitutional adjudication could await such factual development, he concluded. 367 U.S. at 509.
  25. ↑ Poe, 367 U.S. at 503 (Such concerns "press with special urgency in cases challenging legislative action or state judicial action as repugnant to the Constitution."); see also United Public Workers v. Mitchell, 330 U.S. 75, 104 (1947).
  26. ↑ Poe, 367 U.S. at 503.
  27. ↑ Poe, 367 U.S. at 504 (emphasis added); see also Bickel, supra note 57, at 116 (both the time lag and the "flesh-and-blood facts" of a dispute secured by standing and the requirements of a case or controversy are important to legitimating judicial review of legislative action).
  28. ↑ It is not surprising that many rules within the avoidance doctrine overlap with other justiciability and jurisdictional rules: the doctrine is a "series of rules" reflecting the larger canon of judicial self-restraint. Such rules are frequently and perhaps necessarily overlapping. See Bickel, supra note 57, at 71, 118, 125.
  29. ↑ Allen v. Wright, 468 U.S. 737, 751 (1984); Cherminsky, supra note 38, § 2.3. For background on the standing doctrine, see Bandes, supra note 78; Gene R. Nichol, "Injury and the Disintegration of Article III," 74 California Law Review 1915 (1986) (and earlier articles by Nichol cited therein); Antonin Scalia, "The Doctrine of Standing as an Essential Element of the Separation of Powers," 17 Suffolk University Law Review 881 (1983); Cass Sunstein, "Standing and the Privatization of Public Law," 88 Columbia Law Review 1432 (1988).
  30. ↑ The third rule of the avoidance doctrine was a focus of debate in the Court's controversial decision upholding the constitutionality of Missouri's abortion statute in Webster v. Reproductive Health Services, 492 U.S. 490 (1989). In Webster, the five-member majority upheld the state's prohibition against public employees assisting in the performance of an abortion which was not necessary to save a mother's life. 492 U.S. at 507, 522.
  31. ↑ The doctrine of standing, like the avoidance doctrine, reflects "the Art. III notion that federal courts may exercise power only 'in the last resort, as a necessity,' and only when adjudication is 'consistent with a system of separated powers and [the dispute is one] traditionally thought to be capable of resolution through the judicial process.'" Allen v. Wright, 468 U.S. 737, 752 (quoting Chicago & Grand Trunk R.R. v. Wellman, 143 U.S. 339, 345 (1892) and Flast v. Cohen, 392 U.S. 83, 97 (1968)); see David Logan, "Standing to Sue: A Proposed Separation of Powers Analysis," 1984 Wisconsin Law Review 37 (1984) (arguing that standing requirements are applied more stringently to constitutional claims).
  32. ↑ Singleton v. Wulff, 428 U.S. 106, 124 (Powell, J., concurring in part and dissenting in part) (citing Brandeis' discussion of the avoidance doctrine in Ashwander). As a general rule, a litigant can raise only her own claims, not those of another. Third party standing also implicates the basic concept of a right, which includes the power of the rightholder to choose whether to exercise that right.
  33. ↑ Singleton, 428 U.S. at 124 n.3 (Powell, J., concurring in part and dissenting in part). A second justification for the prohibition against third-party standing is the Court's need for effective advocacy through a traditional controversy. Id.
  34. ↑ Singleton, 428 U.S. at 114.
  35. ↑ See, e.g., City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983) (person injured by police "chokehold" could seek damages but had no standing to seek injunctive relief against future use of "chokehold" because he could not show sufficient likelihood of imminent personal harm and irreparable injury); Warth v. Seldin, 422 U.S. 490, 499 (1975); Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 221-27 (1974).
  36. ↑ Schlesinger, 418 U.S. at 221 (emphasis added) (challenging holding of Armed Forces Reserve commissions by members of Congress under Incompatibility Clause of Article I, § 6). The Court also found the avoidance doctrine "particularly applicable" in Schlesinger because the litigants sought an interpretation of a constitutional provision which had not been construed by the federal courts.
  37. ↑ See, e.g., Wall v. Parrot Silver & Copper Co., 244 U.S. 407, 411-12 (party which instituted proceeding for valuation of its stock under state legislation could not afterward assert the constitutional invalidity of legislation); Great Falls Mfg. Co. v. Attorney General, 124 U.S. 581, 598-600 (1888) (party which commenced Court of Claims proceeding for compensation after its property was taken for public use could not separately challenge the constitutionality of the taking in federal court).
  38. ↑ See Oklahoma v. United States Civil Service Commission, 330 U.S. 127, 139-40 & n.14 (1947).
  39. ↑ See Leonard v. Vicksburg, Shreveport, & Pacific Railroad Co., 198 U.S. 416, 423 (1905).
  40. ↑ Rust v. Sullivan, 500 U.S. 173 (1991) (quoting Edward J. Debartolo Corp. v. Florida Gulf Coast Bldg. and Const. Trades Council, 485 U.S. 568, 575 (1988)). A discussion of statutory construction is beyond the scope of this Article. A classic review of the canons is presented in Karl N. Llewellyn's "Remarks on the Theory of Appellate Decision and the Rules or Canons about How Statutes are to be Construed," 3 Vanderbilt Law Review 395, 401-06 (1950) (arguing that the canons of statutory construction provide little guidance because, for every canon, there is an equally weighty opposing canon). See Richard A. Posner (1985), The Federal Courts: Crisis And Reform, p. 276 (giving examples of same). A collection of intriguing articles commemorating Llewellyn's attack on the canons and examining the reemergence of the canons in recent judicial decisions is contained in "Symposium: A Reevaluation of the Canons of Statutory Interpretation," 45 Vanderbilt Law Review 529 (1992).
  41. ↑ Rust, 111 S. Ct. at 1788 (O'Connor, J., dissenting). Justice O'Connor also cites the second rule of the avoidance doctrine in support of her argument not to decide constitutional questions in advance of the strictest necessity. Id. As in Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993), she refused to join the dissenters in Rust who reached the merits of, and dissented from the majority on, the constitutional issues. See also Gregory v. Ashcroft, 111 S. Ct. 2395 (1991) (interpreting age discrimination statute so as to avoid Tenth Amendment problem).
  42. ↑ United States v. Locke, 471 U.S. 84, 92 (1984).
  43. ↑ See Rust, 111 S. Ct. at 1759.
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