Constitution Annotated

Article III, Section 2, Clause 1 — Adversity

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.

Essays on this page (5)

ArtIII.S2.C1.5 Adversity

ArtIII.S2.C1.5.1 Overview of Adversity Requirement

The requirement that a case involve litigants who are genuinely adverse to each other imposes another limitation on the justiciability of disputes in federal court.1 The Supreme Court has interpreted Article III of the Constitution to forbid federal courts from issuing binding judgments in cases that do not present “an honest and actual antagonistic assertion of rights by one party against another.”2 According to the Court, this adversity requirement helps ensure that the parties provide the Judiciary the factual information and legal advocacy it needs to resolve issues correctly.3 Thus, where all the parties in a case seek the same result, there is generally no “Case” or “Controversy” under Article III, and the Court lacks jurisdiction to issue a ruling.4 To the extent this limitation on federal jurisdiction derives from Article III of the Constitution, the courts may not modify it, and Congress cannot alter it without amending the Constitution.5

The adversity requirement is closely related to other constitutional justiciability doctrines, especially Article III standing6 and the bar against advisory opinions.7 As explained in greater detail below, however, the adversity requirement has diminished in importance at the same time as the Supreme Court has applied other Article III justiciability doctrines—particularly Article III standing—more stringently over time.8

Notes
  1. See, e.g., GTE Sylvania, Inc. v. Consumers Union of United States, Inc., 445 U.S. 375, 382 (1980) (holding that Article III limits “the business of federal courts to questions presented in an adversary context”) (quoting Flast v. Cohen, 392 U.S. 83, 95 (1968)). ↩
  2. See United States Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 446 (1993) (quoting Muskrat v. United States, 219 U.S. 346, 359 (1911)) (brackets omitted). See also Ayestas v. Davis, 138 S. Ct. 1080, 1090 (2018) (“[C]ases and controversies in our legal system are adversarial in nature.”). ↩
  3. See, e.g., GTE Sylvania, 445 U.S. at 382–83 (stating that “[t]he clash of adverse parties” in a lawsuit “sharpens the presentation of issues upon which the court so largely depends for illumination of difficult questions”) (quoting O’Shea v. Littleton, 414 U.S. 488, 494 (1974)) (ellipses omitted). ↩
  4. Moore v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 47, 48 (1971) (per curiam). See also, e.g., GTE Sylvania, 445 U.S. at 383. ↩
  5. See, e.g., Muskrat, 219 U.S. at 362 (holding that Congress “exceeded the limitations of legislative authority” by purporting to authorize federal courts to adjudicate disputes between non-adverse parties); id. at 361 (holding that Article III limits the federal judicial power to “determin[ing] actual controversies arising between adverse litigants”). ↩
  6. See, e.g., Flast, 392 U.S. at 100 (“[T]he standing requirement is closely related to, although more general than, the rule that federal courts will not entertain friendly suits or those which are feigned or collusive in nature.”) (internal citations omitted); Baker v. Carr, 369 U.S. 186, 204 (1962) (“Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions? This is the gist of the question of standing.”) (emphases added). ↩
  7. See, e.g., Princeton Univ. v. Schmid, 455 U.S. 100, 102 (1982) (per curiam) (“We do not sit to decide hypothetical issues or to give advisory opinions about issues as to which there are not adverse parties before us.”) (emphases added); Flast, 392 U.S. at 96–97 (“[T]he rule against advisory opinions also recognizes that such suits often ‘are not pressed before the Court with that clear concreteness provided . . . from a clash of adversary argument[.]’”) (quoting United States v. Fruehauf, 365 U.S. 146, 157 (1961)) (emphases added); Muskrat, 219 U.S. at 362 (“If such actions . . . are sustained, the result will be that this court, instead of keeping within the limits of judicial power, and deciding cases or controversies arising between opposing parties . . . will be required to give opinions in the nature of advice concerning legislative action[.]”) (emphases added). See generally ArtIII.S2.C1.4.1 Overview of Advisory Opinions (analyzing the bar on advisory opinions). ↩
  8. See, e.g., United States v. Windsor, 570 U.S. 744, 755–63 (2013) (rejecting argument that defendant’s nondefense of statute challenged by plaintiff rendered the parties insufficiently adverse partly because the parties had satisfied Article III’s standing requirements). ↩

ArtIII.S2.C1.5.2 Early Adversity Doctrine

The Supreme Court’s 1850 opinion in Lord v. Veazie is the seminal Supreme Court case establishing the adversity requirement.1 The defendant in Lord, John W. Veazie, wanted the legal right to use the Penobscot River in Maine for transportation and navigation.2 A gentleman named Moor, however, claimed to possess the sole right to navigate the river.3 Veazie therefore tried to obtain a judicial declaration that he, not Moor, had the right to use the river.4 Thus, Veazie and his brother-in-law,5 Nathaniel Lord, entered into a contract warranting that Veazie held “the right to use the waters of the Penobscot River.”6 Lord then sued Veazie and asked the court to decide whether Veazie or Moor held the rights to the river.7

The Lord Court determined that the federal courts could not—and should not—adjudicate the case.8 The Court first explained that federal courts exist to resolve disputes between adverse parties.9 Manufacturing a lawsuit between non-adverse parties solely to obtain a judicial opinion deciding a legal question, according to the Court, was an abuse of the judicial system.10 Applying that principle to the facts of Lord, the Court observed that there was no true dispute between Lord and Veazie, as they entered into their contract solely to obtain a judicial determination regarding which person held the rights to use the Penobscot River.11 The Court further protested that Lord had not named the true adverse party to that controversy—namely, Moor—as a defendant in the case, and had not even informed Moor of the lawsuit.12 Thus, the case was a collusive suit between two friendly parties that offered Moor no opportunity to defend his interests.13

On various occasions during the remainder of the nineteenth century, the Supreme Court invoked the principles it applied in Lord to evaluate whether litigants were sufficiently adverse.14 It was not until its 1911 opinion in Muskrat v. United States,15 however, that the Court held that the rule against deciding cases between non-adverse parties had a constitutional dimension.16 The plaintiffs in Muskrat sought to invalidate certain federal statutes affecting the allotment of Indian lands.17 Congress passed a law purporting to authorize the plaintiffs—and only those plaintiffs—to challenge those statutes in federal court.18 The plaintiffs, invoking that law, sued the United States to determine whether the allotment statutes were constitutional.19 Even though Congress purported to authorize the plaintiffs to file their lawsuit in federal court,20 the Muskrat Court still concluded that the Judiciary lacked jurisdiction to decide the case.21 The Court, invoking Article III, stated that the judicial power conferred by the Constitution only authorizes the federal courts to decide “cases” and “controversies”22 between adverse parties.23 The Court determined that the plaintiffs in Muskrat were not asking the courts to determine a controversy between adverse litigants as the Constitution contemplated.24 Although the plaintiffs had named the United States as the defendant in their case, the Court determined that the United States did not have any interest adverse to the plaintiffs.25 According to the Court, the plaintiffs were not trying to assert property rights against the government or obtain compensation for governmental wrongdoing;26 instead, the plaintiffs merely sought a judicial declaration that a federal law was invalid.27 The Supreme Court thus decided that Article III prohibited the federal courts from adjudicating the plaintiffs’ constitutional challenge.28 The Court further determined that the federal law purporting to authorize the plaintiffs to bring their lawsuit in federal court was invalid because it would require the courts to take a nonjudicial action:29 resolving legal issues without an “actual controvers[y] arising between adverse litigants.”30 The Court therefore ruled that Article III forbade the federal courts from deciding the constitutional issues in Muskrat until they arose in the context of a suit between true adversaries.31

The Supreme Court continued to insist on an adversarial controversy between litigants as a prerequisite to federal jurisdiction on various occasions throughout the mid-twentieth century.32 For instance, in the 1943 case of United States v. Johnson, the Court ruled that the district court should have dismissed a lawsuit as collusive because the plaintiff had “instituted [the proceeding] as a ‘friendly suit’ at [the] appellee’s request” in order to test a statute’s validity.33 The Court ruled in its 1937 opinion in Aetna Life Insurance Co. of Hartford, Connecticut v. Haworth, by contrast, that a particular insurance dispute was justiciable because the insurer and the insured had genuinely adverse interests.34

Notes
  1. 49 U.S. (8 How.) 251 (1850). ↩
  2. Id. at 252. ↩
  3. Id. at 251. ↩
  4. See id. at 252. ↩
  5. Id. at 253 (“[T]he plaintiff in error is the son-in-law, and the defendant in error is the son, of said Samuel Veazie.”). ↩
  6. Id. at 252. ↩
  7. Id. ↩
  8. See id. at 256 (holding that the judgment issued by the lower court was “a nullity and void”). ↩
  9. See id. at 255 (“It is the office of courts of justice to decide the rights of persons and of property, when the persons interested cannot adjust them by agreement between themselves,—and to do this upon the full hearing of both parties.”). ↩
  10. See id. (“[A]ny attempt, by a mere colorable dispute, to obtain the opinion of the court upon a question of law which a party desires to know for his own interest or his own purposes, when there is no real and substantial controversy between those who appear as adverse parties to the suit, is an abuse which courts of justice have always reprehended, and treated as a punishable contempt of court.”). ↩
  11. See id. at 254 (“The court is satisfied . . . that the contract set out in the pleadings was made for the purpose of instituting this suit, and that there is no real dispute between the plaintiff and defendant. On the contrary, it is evident that their interest in the question brought here for decision is one and the same, and not adverse; and that in these proceedings the plaintiff and defendant are attempting to procure the opinion of this court upon a question of law.”). ↩
  12. See id. (“[T]he plaintiff and defendant are attempting to procure the opinion of this court upon a question of law, in the decision of which they have a common interest as opposed to that of other persons, who are not parties to this suit, who had no knowledge of it while it was pending in the Circuit Court, and no opportunity of being heard there in defence of their rights.”). ↩
  13. See id. (“[T]heir conduct is the more objectionable, because they have brought up the question upon a statement of facts agreed on between themselves, without the knowledge of the parties with whom they were in truth in dispute.”). ↩
  14. Compare, e.g., Chicago & G. T. Ry. v. Wellman, 143 U.S. 339, 345 (1892) (“It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of [a] legislative act.”); Cleveland v. Chamberlain, 66 U.S. 419, 425–26 (1861) (“This appeal must be dismissed. Selah Chamberlain is, in fact, both appellant and appellee. . . . There is no material difference between this case and that of Lord vs. Veazie[.] . . . It is plain that this is no adversary proceeding, no controversy between the appellant and the nominal appellee.”), with, e.g., Pollock v. Farmers’ Loan & Tr. Co., 15 S. Ct. 673, 674–75, 679 (1895) (determining that a particular lawsuit between a company and its stockholders “was not a collusive one”), vacated, 158 U.S. 601 (1895). ↩
  15. 219 U.S. 346 (1911). ↩
  16. See Martin H. Redish & Andrianna D. Kastanek, Settlement Class Actions, The Case-or-Controversy Requirement, and the Nature of the Adjudicatory Process, 73 U. CHI. L. REV. 545, 567 (2006) (describing Muskrat as “[t]he leading decision” for the proposition “that the case-or-controversy language of Article III mandates litigant adverseness”). ↩
  17. 219 U.S. at 348–49. ↩
  18. Id. at 350–51, 361–62. ↩
  19. Id. at 348–50. ↩
  20. Id. at 360. ↩
  21. Id. at 363. ↩
  22. Id. at 351, 361 (quoting U.S. CONST. art. III, § 2). ↩
  23. Id. at 361. ↩
  24. Id. ↩
  25. Id. ↩
  26. Id. ↩
  27. See id. at 361–62 (explaining that the plaintiffs sought “to determine the constitutional validity of [a] class of legislation, in a suit not arising between parties concerning a property right necessarily involved in the decision in question, but in a proceeding against the government in its sovereign capacity, and concerning which the only judgment required is to settle the doubtful character of the legislation in question”). ↩
  28. Id. ↩
  29. Id. at 362. ↩
  30. Id. at 361. ↩
  31. Id. at 362 (“The questions involved in this proceeding as to the validity of the legislation may arise in suits between individuals, and when they do and are properly brought before this [C]ourt for consideration they, of course, must be determined in the exercise of its judicial functions.”). That is not to say, however, that Article III categorically precludes plaintiffs from filing lawsuits to challenge a statute’s constitutionality. See, e.g., MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 129 (2007) (explaining that Article III does not forbid plaintiffs from “seek[ing] a declaratory judgment regarding the constitutionality of a . . . statute”) (citing Steffel v. Thompson, 415 U.S. 452, 458–60 (1974)). See also JUDGMENT, BLACK’S LAW DICTIONARY (11TH ED. 2019) (defining a “declaratory judgment” as “a binding adjudication that establishes the rights and other legal relations of the parties”). ↩
  32. See, e.g., Flast v. Cohen, 392 U.S. 83, 100 (1968) (noting “the rule that federal courts will not entertain friendly suits or those which are feigned or collusive in nature”) (internal citation omitted); Poe v. Ullman, 367 U.S. 497, 505 (1961) (Frankfurter, J.) (discussing “the Court’s refusal to entertain cases which disclosed a want of a truly adversary contest, of a collision of actively asserted and differing claims”). ↩
  33. 319 U.S. 302, 303–05 (1943). ↩
  34. See 300 U.S. 227, 242 (1937) (“There is here a dispute between parties who face each other in an adversary proceeding. The dispute relates to legal rights and obligations arising from the contracts of insurance. . . . Prior to this suit, the parties had taken adverse positions with respect to their existing obligations. Their contentions concerned the disability benefits which were to be payable upon prescribed conditions. On the one side, the insured claimed that he had become totally and permanently disabled and hence was relieved of the obligation to continue the payment of premiums and was entitled to the stipulated disability benefits. . . . On the other side, the company made an equally definite claim that the alleged basic fact did not exist, that the insured was not totally and permanently disabled and had not been relieved of the duty to continue the payment of premiums[.] . . . Such a dispute is manifestly susceptible of judicial determination.”). See also ArtIII.S2.C1.4.1 Overview of Advisory Opinions (discussing other aspects of Aetna’s holding). ↩

ArtIII.S2.C1.5.3 Intra-Branch Litigation and Adversity Doctrine

Even though the Court continued to enforce the adversity requirement into the mid-to-late twentieth century,1 it gradually started to apply the doctrine more flexibly. In the 1949 case of United States v. Interstate Commerce Commission, for example, the Court ruled that despite the adversity doctrine, a governmental entity acting in one capacity may sometimes sue itself or another agency of the same government.2 In that case, the United States, acting as a shipper performing wharfage services, filed a complaint with a now-defunct3 federal agency called the Interstate Commerce Commission (ICC) against certain railroads.4 The ICC ruled for the railroads and against the United States.5 The United States then filed a federal lawsuit to set the ICC’s order aside.6 To comply with a statute requiring any plaintiff challenging an ICC order to sue the United States, the United States—as the plaintiff challenging the ICC’s order—named itself as one of the defendants.7 Although the Court acknowledged that, under normal circumstances, the adversity requirement bars a litigant from suing itself in federal court,8 it decided that the adversity doctrine did not render the case nonjusticiable.9 The real controversy in ICC, the Court explained, was not between the United States and itself, but between the United States and the railroads.10 Thus, the court reasoned, the case presented a justiciable dispute between adverse parties.11

Similarly, in the 1974 case of United States v. Nixon, the Court determined that an intra-branch dispute between two Executive officers was justiciable.12 In Nixon, a federal district court, at the request of a Special Prosecutor investigating an alleged conspiracy to defraud the United States and obstruct justice, had issued a subpoena duces tecum13 directing President Richard Nixon to produce certain tape recordings and documents.14 President Nixon argued that the district court could not issue the subpoena15 because the dispute was an intra-branch controversy between two Executive officers.16 The Court rejected President Nixon’s argument, reasoning that he and the Special Prosecutor were adverse enough to create a justiciable controversy.17 Because the Special Prosecutor’s interests conflicted with those of President Nixon, and because the dispute over the subpoena arose in a criminal case that fell comfortably within the federal Judiciary’s traditional powers, the Court held that Nixon presented an adversarial dispute despite the Executive Branch’s presence on both sides of the controversy.18 As a result of cases like Nixon and ICC, federal courts seldom dismiss intergovernmental disputes on adversity grounds alone19—at least when the relevant agencies are acting in different capacities.20

Notes
  1. See, e.g., Moore v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 47, 48 (1971) (per curiam) (holding that case presented “no case or controversy within the meaning of Art[icle] III” because “both litigants desire[d] precisely the same result”); Flast, 392 U.S. at 100 (noting “the rule that federal courts will not entertain friendly suits or those which are feigned or collusive in nature”) (internal citation omitted); Poe, 367 U.S. at 505 (Frankfurter, J.) (discussing “the Court’s refusal to entertain cases which disclosed a want of a truly adversary contest” or the lack of “a collision of actively asserted and differing claims”). ↩
  2. 337 U.S. 426, 429–31 (1949). ↩
  3. See ICC Termination Act of 1995, Pub. L. No. 104-88, § 101, 109 Stat. 803 (1995) (“The Interstate Commerce Commission is abolished.”). ↩
  4. 337 U.S. at 428. ↩
  5. Id. at 429. ↩
  6. Id. ↩
  7. Id. (quoting 28 U.S.C. § 46 (1949)). ↩
  8. See id. at 430 (“There is much argument with citation of many cases to establish the long-recognized general principle that no person may sue himself. Properly understood the general principle is sound, for courts only adjudicate justiciable controversies. They do not engage in the academic pastime of rendering judgments in favor of persons against themselves. Thus a suit filed by John Smith against John Smith might present no case or controversy which courts could determine.”). ↩
  9. Id. at 431. ↩
  10. See id. at 430 (“This suit . . . is a step in proceedings to settle who is legally entitled to sums of money, the Government or the railroads.”). ↩
  11. See id. (“While this case is United States v. United States, et al., it involves controversies of a type which are traditionally justiciable.”). ↩
  12. 418 U.S. 683, 692 (1974). ↩
  13. A subpoena is “a writ or order commanding a person to appear before a court or other tribunal, subject to a penalty for failing to comply.” SUBPOENA, BLACK’S LAW DICTIONARY (11th ed. 2019). A subpoena duces tecum is “a subpoena ordering the witness to appear in court and to bring specified documents, records, or things.” Id. See also FED. R. CRIM. P. 17(c) (governing subpoenas duces tecum in federal criminal cases). ↩
  14. 418 U.S. at 686–88. ↩
  15. Id. at 692. ↩
  16. Id. at 697. ↩
  17. See id. at 696–97. ↩
  18. Id. at 697. ↩
  19. Michael Herz, United States v. United States: When Can the Federal Government Sue Itself?, 32 WM. & MARY L. REV. 893, 895 (1991). See also, e.g., Joseph W. Mead, Interagency Litigation and Article III, 47 GA. L. REV. 1217, 1219 (2013) (claiming that it is “surprisingly common” for courts to adjudicate “litigation between federal agencies”). ↩
  20. See Dir., Office of Workers’ Comp. Programs, Dep’t of Labor v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 128 (1995) (analyzing ICC and emphasizing that “the status of the Government as a statutory beneficiary or market participant must be sharply distinguished from the status of the Government as regulator or administrator”). ↩

ArtIII.S2.C1.5.4 Executive Branch Determinations on Statute Constitutionality

Further demonstrating the Court’s more flexible application of the adversity doctrine in the past few decades are the 1983 case of Immigration and Naturalization Service v. Chadha,1 the 2013 case of United States v. Windsor,2 and the 2020 case of Seila Law LLC v. Consumer Financial Protection Bureau.3 Each of those cases involved constitutional challenges to federal statutes.4 In each case, the United States agreed with the challenger that the challenged law was unconstitutional, raising questions about whether the parties were genuinely adverse.5 In all three cases, the Court suggested that certain aspects of the adversity doctrine are not constitutional mandates, but are instead merely prudential constraints that do not categorically deprive the federal courts of jurisdiction.6 Prudential restrictions on the justiciability of disputes are judicially self-imposed limitations on federal jurisdiction that do not stem from Article III of the Constitution.7 While constitutional limitations on justiciability often impose insuperable barriers to the jurisdiction of the federal courts that neither Congress, nor the parties, nor the Judiciary itself can abrogate without an amendment to Article III, litigants may overcome prudential barriers to justiciability by showing that it would be prudent for the court to adjudicate the case in question.8 These cases therefore suggest that federal courts may sometimes adjudicate cases even if the plaintiff and the defendant desire the same ultimate result.9

In Chadha, the Court considered a constitutional challenge to a statute purporting to authorize a single house of Congress to pass a resolution overruling Executive Branch decisions not to deport certain otherwise deportable aliens.10 The appellant (the Immigration and Naturalization Service (INS)) and the appellee (an immigrant named Jagdish Rai Chadha) both agreed that the provision was unconstitutional,11 which created concerns that the case was not an adversarial controversy.12 The Supreme Court still concluded, however, that the parties were sufficiently adverse13 because the INS still intended to deport Chadha if the federal courts ultimately rejected his constitutional challenge.14 The Chadha Court acknowledged potential concerns about ruling on the provision’s constitutionality when neither of the named parties argued that the law was valid.15 Even so, the Court characterized those misgivings as purely prudential concerns, rather than insuperable constitutional obstacles to resolving the case.16 The Court ultimately determined that these prudential concerns did not bar the Court from deciding the issue because Congress had intervened in the case to defend the statute’s constitutionality, thus supplying the requisite adversity between the litigants.17

The Court again suggested that the adversity requirement has a non-constitutional, purely prudential component several decades later in Windsor.18 Windsor involved a constitutional challenge to a federal statute that defined “marriage” to include “only a legal union between one man and one woman as husband and wife.”19 The statute thus precluded persons in same-sex marriages from claiming federal estate tax exemptions for surviving spouses.20 The respondent, Edith Schlain Windsor, sued the United States to invalidate the provision and obtain a refund of certain federal taxes she paid when she inherited her same-sex spouse’s estate.21 The United States, however, agreed with Windsor that the provision was unconstitutional.22 Still, the United States continued to enforce the statute by denying refunds and assessing deficiencies against surviving spouses in same-sex marriages,23 including Windsor herself.24

The Windsor Court determined that the parties were adverse even though the United States and Windsor agreed that the provision was unconstitutional.25 The Court, citing Chadha, explained that “even where the Government largely agrees with the opposing party on the merits of the controversy, there is sufficient adverseness and an adequate basis for jurisdiction in the fact that the Government intended to enforce the challenged law against that party.”26 Because invalidating the challenged provision would require the United States to pay money it would not otherwise pay, the Court determined that the United States retained a sufficient stake in the lawsuit to render the case justiciable.27 The Court also suggested, however, that it might have found the case nonjusticiable if the Executive simply paid Windsor the requested refund rather than enforcing the challenged law.28

The Windsor Court acknowledged concerns that the parties might not be fully adverse to each other.29 As in Chadha, however, the Court characterized this risk as a remediable prudential issue, not an incurable jurisdictional defect.30 Once the Attorney General announced that it would not defend the challenged provision, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives intervened in the case to defend the law’s constitutionality.31 The Court therefore determined that “BLAG’s sharp adversarial presentation of the issues satisfie[d] the prudential concerns that otherwise might counsel against hearing an appeal from a decision with which the principal parties agree.”32

The Supreme Court reaffirmed Windsor’s adversity holding in its 2020 decision in Seila Law LLC v. Consumer Financial Protection Bureau.33 In that case, the Consumer Financial Protection Bureau (CFPB) issued a civil investigative demand to a law firm.34 The law firm argued that the demand was invalid because the CFPB’s structure violated the constitutional separation of powers.35 Because the federal government, as the respondent in the case, agreed that the CFPB’s structure contravened the separation of powers,36 the Court appointed an amicus curiae to defend the CFPB’s constitutionality.37

Although the court-appointed amicus urged the Court to consider whether the parties’ agreement that the CFPB’s structure was unconstitutional rendered the litigants insufficiently adverse to create a justiciable controversy, the Court ultimately ruled that the case was justiciable.38 Citing Windsor, the Court explained that “a lower court order that presents real-world consequences for the Government and its adversary suffices to support Article III jurisdiction—even if ‘the Executive may welcome’ an adverse order that ‘is accompanied by the constitutional ruling it wants.’”39 Because the United States had not agreed to withdraw the civil investigative demand against the law firm, a judicial decision upholding or invalidating the CFPB would still have significant consequences for the parties despite their overlapping legal positions.40 The Court thus determined that it had jurisdiction under Article III to issue such a decision.41 The Court further ruled that its appointment of an amicus curiae to defend the CFPB’s constitutionality adequately addressed any non-constitutional, prudential concerns about the parties’ adverseness.42

Chadha, Windsor, and Seila Law thus hold that the adversity requirement does not always bar federal courts from deciding cases in which the defendant agrees that the plaintiff is entitled to the relief he seeks. Those cases also suggest, however, that even though a defendant’s agreement with the plaintiff ’s legal arguments will not necessarily vitiate the court’s Article III jurisdiction, prudential concerns may counsel against resolving a case in which the parties have taken identical legal positions. As all three cases show, however, those concerns may lose force when a third party, such as a house of Congress or a court-appointed amicus curiae, appears in the litigation to supply the missing adversarial presentation of the pertinent legal issues.

Notes
  1. See 462 U.S. 919, 930 n.5, 939–40 (1983). ↩
  2. See 570 U.S. 744, 756–63 (2013). ↩
  3. See 140 S. Ct. 2183, 2196–97 (2020). ↩
  4. See id. at 2194–95; Windsor, 570 U.S. at 752; Chadha, 462 U.S. at 923. ↩
  5. See Seila Law, 140 S. Ct. at 2195, 2196–97; Windsor, 570 U.S. at 754; Chadha, 462 U.S. at 928. ↩
  6. See Seila Law, 140 S. Ct. at 2196–97; Windsor, 570 U.S. at 756–63; Chadha, 462 U.S. at 930 n.5, 939–40. ↩
  7. Cf. Windsor, 570 U.S. at 757 (discussing the prudential standing doctrine) (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)). ↩
  8. See id. at 760 (“Unlike Article III requirements—which must be satisfied by the parties before judicial consideration is appropriate—the relevant prudential factors that counsel against hearing this case are subject to ‘countervailing considerations [that] may outweigh the concerns underlying the usual reluctance to exert judicial power.’”) (quoting ,422 U.S. 490, 500–01 (1975)). ↩
  9. See, e.g., Seila Law, 140 S. Ct. at 2196 (“[A]micus contends that we should dismiss the case because the parties agree on the merits of the constitutional question and the case therefore lacks ‘adverseness.’ That contention, however, is foreclosed by United States v. Windsor.”) (internal citation omitted). ↩
  10. 462 U.S. at 923 (explaining that Chadha presented “a challenge to the constitutionality of the provision in § 244(c)(2) of the Immigration and Nationality Act . . . authorizing one House of Congress, by resolution, to invalidate the decision of the Executive Branch, pursuant to authority delegated by Congress to the Attorney General of the United States, to allow a particular deportable alien to remain in the United States”). ↩
  11. Id. at 928. ↩
  12. Id. at 939 (quoting Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346 (1936) (Brandeis, J., concurring)). ↩
  13. Id. ↩
  14. Id. at 940 n.12. See also id. at 939 (“INS’s agreement with Chadha’s position does not alter the fact that the INS would have deported Chadha absent the Court of Appeals’ judgment.”). ↩
  15. Id. at 940. ↩
  16. Id. ↩
  17. Id. at 930 n.5, 939–40. See also Va. House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1954 n.5 (2019) (discussing Chadha’s adversity holding). ↩
  18. 570 U.S. 744 (2013). ↩
  19. Id. at 752 (citing 1 U.S.C. § 7). See also ArtVII.1 Historical Background on Ratification Clause (analyzing the Supreme Court’s jurisprudence on sexual orientation). ↩
  20. 570 U.S. at 750–51. ↩
  21. See id. at 749–52, 753. ↩
  22. Id. at 754. ↩
  23. Id. at 756. ↩
  24. See id. at 755 (“The United States has not complied with the [district court’s ruling that the provision is unconstitutional]. Windsor has not received her refund, and the Executive Branch continues to enforce [the challenged provision].”). As the Supreme Court observed, the United States chose to continue enforcing the statute even though it believed the law was unconstitutional to maintain adversity between the parties and thereby allow the federal courts to adjudicate Windsor’s constitutional challenge. See id. at 754. ↩
  25. See id. at 759 (“[T]his case presents a justiciable controversy under Article III.”). ↩
  26. Id. (quoting INS v. Chadha, 462 U.S. 919, 940 n.12 (1983)) (internal quotation marks and brackets omitted). ↩
  27. Id. at 757–59. ↩
  28. Id. at 758. ↩
  29. Id. at 759 (quoting Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346 (1936) (Brandeis, J., concurring)) (internal quotation marks omitted). ↩
  30. Id. See also id. at 756 (concluding that dismissing the case as nonjusticiable would improperly “elide[ ] the distinction between two principles: the jurisdictional requirements of Article III and the prudential limits on its exercise”); id. at 760 (“Unlike Article III requirements—which must be satisfied by the parties before judicial consideration is appropriate—the relevant prudential factors that counsel against hearing this case are subject to ‘countervailing considerations [that] may outweigh the concerns underlying the usual reluctance to exert judicial power.’”) (quoting Warth v. Seldin, 422 U.S. 490, 500–01 (1975)). ↩
  31. Id. at 754. ↩
  32. Id. at 761. ↩
  33. See 140 S. Ct. 2183, 2196–97 (2020). ↩
  34. See id. at 2194. ↩
  35. See id. at 2191 (“Congress provided that the CFPB would be led by a single Director, who serves for a longer term than the President and cannot be removed by the President except for inefficiency, neglect, or malfeasance. . . . The question before us is whether this arrangement violates the Constitution’s separation of powers.”); id. at 2194 (describing the law firm’s argument “that the demand was invalid and must be set aside because the CFPB’s structure violated the Constitution”). ↩
  36. See id. at 2195 (“[T]he Government agrees with petitioner on the merits of the constitutional question.”). See also id. (noting that the Director of the CFPB “agree[d] with the Solicitor General’s position . . . that her for-cause removal protection [wa]s unconstitutional”). ↩
  37. Id. An “amicus curiae” is “[s]omeone who is not a party to a lawsuit but who petitions the court or is requested by the court to file a brief in the action.” AMICUS CURIAE, BLACK’S LAW DICTIONARY (11th ed. 2019). ↩
  38. See 140 S. Ct. at 2196. ↩
  39. See id. (quoting United States v. Windsor, 570 U.S. 744, 758 (2013)). ↩
  40. See id. at 2196–97 (“Here, petitioner and the Government disagree about whether petitioner must comply with the civil investigative demand. The lower courts sided with the Government, and the Government has not volunteered to relinquish that victory and withdraw the demand. To the contrary, while the Government agrees that the agency is unconstitutionally structured, it believes it may nevertheless enforce the demand on remand. Accordingly, our ‘decision will have real meaning’ for the parties.”) (quoting INS v. Chadha, 462 U.S. 919, 939 (1983)) (internal citation omitted). ↩
  41. See id. at 2195–97. ↩
  42. See id. at 2197 (“[A]s in Windsor, any prudential concerns with deciding an important legal question in this posture can be addressed by ‘the practice of entertaining arguments made an amicus when the Solicitor General confesses error with respect to a judgment below,’ which we have done.”) (quoting Windsor, 570 U.S. at 760). ↩