ADVISORY OPINION
An opinion by a court as to the legality of proposed
legislation or conduct, given in response to a
request by the government, legislature, or some
other interested party.
Advisory opinions are issued in the absence
of a case or controversy. Although they are not
binding and carry no precedential value, they
are sometimes offered as persuasive evidence in
cases where no precedent exists.
Federal courts will not issue advisory opin-
ions. This rule, based on the constitutional guar-
antee of SEPARATION OF POWERS, was
established in 1793 when JOHN JAY, the first
chief justice of the Supreme Court, refused to
provide legal advice in response to requests by
President GEORGE WASHINGTON and Treasury
Secretary ALEXANDER HAMILTON. Washington
asked the Court for advice relating to his Neu-
trality Proclamation in regard to the French
Revolution. Hamilton asked Jay for an opinion
on the constitutionality of a resolution passed
by the Virginia House of Representatives. In
both instances, the Court diplomatically but
firmly refused to supply an opinion.
The Supreme Court has steadfastly resisted
subsequent efforts to elicit advisory opinions,
even when these efforts appear under the guise
of an actual lawsuit. Thus, in Muskrat v. United
States, 219 U.S. 346, 31 S. Ct. 250, 55 L. Ed. 246
(1911), the Court struck down an act of Con-
gress that authorized the plaintiffs to sue the
United States to determine the validity of certain
laws. The Court found the lawsuits authorized
by the act to be thinly veiled attempts to obtain
advisory opinions, since the constitutional
requirements of justiciability and an actual case
or controversy were not satisfied. Justice
WILLIAM R. DAY, writing for the Court, pre-
dicted that if the justices rendered a judgment in
the case, 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, as the Constitution
intended it should, will be required to give opinions in the nature of advice concerning
legislative action, a function never
conferred upon it by the Constitution.
Echoing the convictions expressed in
Muskrat, Supreme Court Justice FELIX FRANKFURTER,
writing on advisory opinions, stated,
“Every tendency to deal with constitutional
questions abstractly, to formulate them in terms
of barren legal questions, leads to . . . sterile conclusions
unrelated to actualities.”
Unlike their federal counterpart, a number
of state constitutions authorize their courts to
issue advisory opinions. However, even in those
states, courts usually restrict advisory opinions
to pending legislation and refuse requests for
opinions on abstract or theoretical QUESTIONS
OF LAW. In any event, the opinions are not binding
authority in future cases.
While courts are typically limited in issuing
advisory opinions, the attorney general of the
United States and state attorneys general frequently
issue opinions that are advisory in
nature. By statute, the president or head of an
executive department may require from the U.S.
attorney general an opinion on questions of law
arising from the administration of that office or
department (28 U.S.C.A. §§ 511-512 [1993]).
Most states charge attorneys general with similar
responsibilities. Although advisory opinions
issued by attorneys general are not typically
binding in nature, in some circumstances the
opinions may bind the authorities that request
them.
Advisory opinions have their greatest effect
as guides to policy making for the executive and
legislative branches of state government. They
are most often sought in the areas of intergovernmental
relations, taxation, and finance.
Advisory opinions contrast with declaratory
judgments, which determine the rights of litigants
in an actual controversy and involve specific
individuals who are at least nominally
adverse to each other. Declaratory judgments
are allowed by courts at both the federal and
state levels. Although the line between advisory
opinions and declaratory judgments is a fine
one, the Supreme Court has consistently reiterated
the necessity of keeping it intact. In Ashwander
v. Tennessee Valley Authority, 297 U.S.
288, 56 S. Ct. 466, 80 L. Ed. 688 (1936), the justices
insisted that the Federal Declaratory Judgment
Act, which gives federal courts the power
to issue declaratory judgments, “does not
attempt to change the essential requisites for the
exercise of judicial power.” An actual, not theoretical,
case or controversy between specific parties
must still be shown. In another case, the
Court stated specifically that the Declaratory
Judgment Act cannot be invoked to “obtain an
advisory decree upon a hypothetical state of
facts” (Electric Bond & Share Co. v. Securities &
Exchange Commission, 303 U.S. 419, 58 S. Ct.
678, 82 L. Ed. 936 [1938]).
FURTHER READINGS
Bonsignore, John J., et al. 1998. Before the Law: An Introduction
to the Legal Process. 6th ed. Boston: Houghton Mifflin.
Schaper, Todd. 1998. “The Advisory Opinion Process: True
Safe Harbors or More Rocky Coastlines?” New Jersey
Law Journal 154 (December 14).
CROSS-REFERENCES
Attorney General; Declaratory Judgment; Evidence; Hamilton,
Alexander; Justiciable; Precedent; Separation of Powers;
Washington, George.
