chapter  4
42 Pages

Establishment Clause Standing and Challenges to School Aid

As an integral part of the basic structure of separation of powers among the legislative, executive, and judicial branches of government, Article III of the U.S. Constitution limits the jurisdiction of federal courts to “Cases” or “Controversies.” The Constitution, however, does not define these terms, leaving it to the Supreme Court over time to interpret the appropriate limits of federal judicial power.2 As early as President George Washington’s administration, the Court declined Secretary of State Thomas Jefferson’s request for its advice on matters regarding the country’s neutrality in the war between England and France.3 Thus, unlike some state high courts, federal courts do not issue advisory opinions in the absence of a true case or controversy. Another of the Court’s nonjusticiability principles is the political question doctrine through which the Court declines to adjudicate a matter it believes is textually or prudentially left to another branch of government to resolve-matters involving foreign relations, for example. Similarly, issues of ripeness and mootness fall within these principles of judicial restraint.4 But the question of standing-which parties are entitled to litigate the merits of a substantive or procedural challenge to laws, constitutional provisions, or executive, legislative, or administrative actions-is the most significant way in which the Court may avoid ruling on the merits of a claim. This

1 Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 490 (1982) (Brennan, J., dissenting).