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Article III, Section 2, Clause 1 — Ripeness

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.

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ArtIII.S2.C1.7 Ripeness

ArtIII.S2.C1.7.1 Overview of Ripeness Doctrine

Like the other justiciability doctrines, the ripeness doctrine defines the limits of a federal court’s jurisdiction to adjudicate certain disputes.1 Ripeness concerns “the timing of judicial intervention,” and prevents federal courts “from entangling themselves in abstract disagreements” by adjudicating disputes too early.2 Any party to the litigation—as well as the judge—may challenge a case as unripe at any stage in the litigation, including for the first time on appeal.3 To determine whether a particular dispute is ripe for judicial resolution, courts employ the Abbott Laboratories test, named after the Supreme Court’s decision in Abbott Laboratories v. Gardner.4 The Abbott Laboratories standard requires courts to evaluate two factors to determine whether a dispute is ripe: “(1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration” until a later time.5 A claim may be unripe if it is based upon future events that may not occur as predicted or at all.6 If waiting to decide a case would put the court in a better position to resolve the dispute, such as when further factual development would help the court adjudicate the case, the case may be unripe and therefore nonjusticiable.7 As discussed below, ripeness issues arise in a wide variety of contexts, including challenges to administrative agencies’ actions or policies and pre-enforcement challenges to criminal statutes.8

The ripeness doctrine stems partly from Article III’s constitutional command that the federal courts only hear “Cases” and “Controversies.”9 To the extent that ripeness derives from Article III of the Constitution, it overlaps with other justiciability doctrines that are also derived from the “Case” or “Controversy” requirement, especially the standing doctrine.10 Thus, in recent years, the Supreme Court has increasingly recognized that because standing and ripeness are based on the same constitutional limitations on the federal courts’ jurisdiction, they frequently “boil down to the same question.”11 In particular, the Supreme Court has observed that the standing doctrine’s temporal inquiry into whether the plaintiff has suffered an imminent injury overlaps substantially with the ripeness doctrine’s inquiry into whether withholding judicial consideration of a dispute would cause “the parties a sufficient ‘hardship.’”12

In addition to its constitutional dimension, the ripeness doctrine is also partly based on prudential considerations that do not directly derive from the Constitution.13 The Supreme Court has recognized that, even when Article III of the U.S. Constitution does not forbid a court from deciding an issue, it may nonetheless be appropriate for courts to postpone adjudicating that issue because subsequent events may make it easier or unnecessary to resolve that dispute.14 Thus, to determine whether a case is ripe for adjudication, the court must assess not only whether the case is presently justiciable within the meaning of Article III’s case or controversy requirement, but also whether it would be prudent to decide the case at the present time.15 The Supreme Court, however, has not squarely articulated which aspects of the ripeness doctrine are mandated by the Constitution and which are instead based solely on prudential concerns.16 Moreover, as explained in greater detail below, the Supreme Court has recently questioned the continuing vitality of the ripeness doctrine’s prudential dimension.17 As a result, presently it is unclear whether—and, if so, when—federal courts should dismiss a case as prudentially unripe.

Notes
  1. See, e.g., Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 670 n.2 (2010) (“Ripeness reflects constitutional considerations that implicate ‘Article III limitations on judicial power,’ as well as ‘prudential reasons for refusing to exercise jurisdiction.’”) (quoting Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n.18 (1993)). ↩
  2. Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580 (1985) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977)). See also Renne v. Geary, 501 U.S. 312, 320 (1991) (“Justiciability concerns not only the standing of litigants to assert particular claims, but also the appropriate timing of judicial intervention.”); Anderson v. Green, 513 U.S. 557, 559 (1995) (per curiam) (“[R]ipeness is peculiarly a question of timing.”) (quoting Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 140 (1974)); Buckley v. Valeo, 424 U.S. 1, 114 (1976) (per curiam) (same). Statutory and other non-constitutional restrictions may limit the appropriate timing of judicial intervention as well. See, e.g., Woodford v. Ngo, 548 U.S. 81, 88–89 (2006) (“[N]o one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.”) (quoting McKart v. United States, 395 U.S. 185, 193 (1969)); Dalton v. Specter, 511 U.S. 462, 469 (1994) (holding that, as a general matter, only “final agency action[s]” are subject to judicial review under the Administrative Procedure Act) (quoting 5 U.S.C. § 704). ↩
  3. E.g., DBSI/TRI IV Ltd. P’ship v. United States, 465 F.3d 1031, 1038 (9th Cir. 2006) (“[R]ipeness [is a] jurisdictional issue[ ] that may be raised at any time, even for the first time on appeal.”); Utah v. U.S. Dep’t of Interior, 210 F.3d 1193, 1196 n.1 (10th Cir. 2000) (similar). See also Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003) (“[T]he question of ripeness may be considered on a court’s own motion.”). ↩
  4. 387 U.S. 136. ↩
  5. Nat’l Park Hosp. Ass’n, 538 U.S. at 808. See also, e.g., Stolt-Nielsen S.A., 559 U.S. at 670 n.2 (same); Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998) (same); Texas v. United States, 523 U.S. 296, 300–01 (1998); Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 201 (1983) (same). ↩
  6. See Texas, 523 U.S. at 300 (“A claim is not ripe for adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’”) (quoting Thomas, 473 U.S. at 580–81). See also Trump v. New York, No. 20-366, slip op. at 4 (U.S. Dec. 18, 2020) (applying this rule). ↩
  7. See, e.g., Nat’l Park Hosp. Ass’n, 538 U.S. at 812 (“[F]urther factual development would ‘significantly advance our ability to deal with the legal issues presented.’”) (quoting Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 82 (1978)); Ohio Forestry Ass’n, 523 U.S. at 737 (same); Webster v. Reprod. Health Servs., 492 U.S. 490, 506 (1989) (“It will be time enough for federal courts to address the meaning of the preamble [to the challenged statute] should it be applied to restrict the activities of appellees in some concrete way.”). ↩
  8. See ArtIII.S2.C1.7.1 Overview of Ripeness Doctrine through ArtIII.S2.C1.7.10 Continuing Vitality of Ripeness Doctrine. ↩
  9. See U.S. CONST. art. III, § 2, cl. 1. See also, e.g., Trump, No. 20-366, slip op. at 3–4 (explaining that the ripeness doctrine “originat[es] in the case-or-controversy requirement of Article III”); Stolt-Nielsen S.A., 559 U.S. at 670 n.2 (“Ripeness reflects constitutional considerations that implicate ‘Article III limitations on judicial power.’”) (quoting Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n.18 (1993)); Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 138 (1974) (“Issues of ripeness involve, at least in part, the existence of a live ‘Case or Controversy.’”). ↩
  10. See Warth v. Seldin, 422 U.S. 490, 499 n.10 (1975) (“The standing question thus bears close affinity to questions of ripeness—whether the harm asserted has matured sufficiently to warrant judicial intervention.”); Trump, No. 20-366, slip op. at 3–4 (describing standing and ripeness as “related doctrines”); DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006) (“The doctrines of mootness, ripeness, and political question all originate in Article III’s ‘case’ or ‘controversy’ language, no less than standing does.”). See generally ArtIII.S2.C1.6.1 Overview of Standing through ArtIII.S2.C1.11.6 Supplemental Jurisdiction (analyzing the various justiciability doctrines). ↩
  11. MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128 n.8 (2007) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)); Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 n.5 (2014) (similar); Trump, No. 20-366, slip op. at 7 (dismissing case on both standing and ripeness grounds). ↩
  12. MedImmune, 549 U.S. at 128 n.8 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977)).See ArtIII.S2.C1.6.1 Overview of Standing (discussing the standing doctrine’s imminent injury requirement); Lujan, 504 U.S. at 560 (applying that requirement). ↩
  13. Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 82 (1978). See also, e.g., Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003) (“The ripeness doctrine is ‘drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.’”) (quoting Reno, 509 U.S. at 57 n.18). ↩
  14. See, e.g., Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 733 n.7 (1997) (“The agency does not question that Suitum properly presents a genuine ‘case or controversy’ sufficient to satisfy Article III, but maintains only that Suitum’s action fails to satisfy our prudential ripeness requirements.”); Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 735 (1998) (“The ripeness doctrine reflects a judgment that the disadvantages of premature review that may prove too abstract or unnecessary ordinarily outweigh the additional costs of . . . postimplementation litigation.”). ↩
  15. See, e.g., Duke Power, 438 U.S. at 81 (concluding that the case presented a ripe “Case or Controversy” as a constitutional matter, and that “[t]he prudential considerations embodied in the ripeness doctrine also argue[d] strongly for a prompt resolution of the claims presented”). ↩
  16. See, e.g., Armstrong World Indus., Inc. ex rel. Wolfson v. Adams, 961 F.2d 405, 411 n.12 (3d Cir. 1992) (observing that “[t]he Supreme Court itself has not been consistent” with respect to the constitutional and prudential aspects of ripeness). ↩
  17. ArtIII.S2.C1.6.1 Overview of Standing through ArtIII.S2.C1.11.6 Supplemental Jurisdiction. ↩

ArtIII.S2.C1.7.2 United Public Workers and Ripeness

The Supreme Court’s decision in United Public Workers of America (C.I.O.) v. Mitchell, is the starting point for discussing the ripeness doctrine.1 The plaintiffs in United Public Workers attempted to challenge the constitutionality of a statute that prohibited certain Executive Branch employees from engaging in specified political activities.2 The Court declined to resolve the claims of several challengers who had not yet taken part in such political acts, and who merely sought a judicial declaration that the statute was unconstitutional.3 Because the Court could “only speculate” about the political activities those challengers wanted to conduct, the Court ruled that they failed to present a justiciable case or controversy under Article III.4 The Court reasoned that the Judiciary may only review a statute’s constitutionality when litigants face actual—rather than legal—violations of their constitutional rights.5

Notes
  1. 330 U.S. 75 (1947). ↩
  2. Id. at 81–82. ↩
  3. Id. at 82–84. One of the challengers had in fact engaged in political activity and consequently faced “removal from his position.” Id. at 91–92. The Supreme Court concluded that although that single employee’s challenge to the statute was “appropriate for [immediate] judicial determination,” the other employees’ challenges were not. Id. at 91. ↩
  4. Id. at 89–90. The Court also based its reasoning on Article III’s prohibition against advisory opinions. See id. For further discussion of the rule against advisory opinions, see ArtIII.S2.C1.4.1 Overview of Advisory Opinions. ↩
  5. 330 U.S. at 89–90 (“The power of courts, and ultimately of this Court to pass upon the constitutionality of acts of Congress arises only when the interests of litigants require the use of this judicial authority for their protection against actual interference. A hypothetical threat is not enough.”). ↩

ArtIII.S2.C1.7.3 Abbott Laboratories Trilogy and Ripeness

The Supreme Court refined the ripeness doctrine in three opinions known as the “Abbott Laboratories trilogy.”1 Each of these three cases involved pre-enforcement challenges to regulations promulgated by the Commissioner of Food and Drugs.2 The Supreme Court concluded that some of those pre-enforcement challenges were ripe for adjudication, but others were not.3

The Court first explained that the ripeness doctrine serves two purposes.4 First, the doctrine mitigates the risk that courts will “entangl[e] themselves in abstract disagreements over administrative policies” by adjudicating claims prematurely.5 Second, the doctrine shields administrative agencies from judicial interference until they finalize their decision.6

The Court then articulated a two-factor test for determining whether a particular controversy is ripe: the court must evaluate both (1) “the fitness of the issues for judicial decision” and (2) “the hardship to the parties of withholding court consideration.”7 Under the first factor, cases that present purely legal issues are particularly likely to be fit for judicial resolution.8 By contrast, where it would be easier to resolve a challenge to an administrative action in the context of a specific attempt to enforce the agency’s regulations than in the context of a pre-enforcement challenge, the challenge is less likely to be ripe.9 As to the “hardship” factor, the Court explained that, where an administrative regulation threatens noncompliant parties with “an immediate and substantial impact”10—such as the “seizure of goods, heavy fines, adverse publicity, [or] possible criminal liability”11—a pre-enforcement challenge to that regulation is especially likely to be ripe. The Court, opined that courts ordinarily must entertain challenges to regulations that threaten regulated entities with serious penalties if they fail to modify their behavior.12

Notes
  1. See Abbott Labs. v. Gardner, 387 U.S. 136 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977); Gardner v. Toilet Goods Ass’n, 387 U.S. 167 (1967); Toilet Goods Ass’n, Inc. v. Gardner, 387 U.S. 158 (1967). ↩
  2. Abbott Labs., 387 U.S. at 138, 153–54; Gardner, 387 U.S. at 168; Toilet Goods Ass’n, 387 U.S. at 159–60. ↩
  3. Compare Gardner, 387 U.S. at 170 (“[R]espondents’ challenge to these regulations is ripe for judicial review.”), with Toilet Goods Ass’n, 387 U.S. at 161 (“[T]he controversy is not presently ripe for adjudication.”). ↩
  4. Abbott Labs., 387 U.S. at 148. ↩
  5. Id. ↩
  6. Id. at 148–49 (explaining that the ripeness doctrine “protect[s] the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties”). ↩
  7. Id. at 149. ↩
  8. Id. ↩
  9. See Gardner v. Toilet Goods Ass’n, 387 U.S. 167, 171 (1967) (assessing whether “consideration of the underlying legal issues would necessarily be facilitated if they were raised in the context of a specific attempt to enforce the regulations”). ↩
  10. Id. See also Abbott Labs., 387 U.S. at 152 (“This is also a case in which the impact of the regulations upon the petitioners is sufficiently direct and immediate as to render the issue appropriate for judicial review at this stage.”). ↩
  11. Toilet Goods Ass’n, Inc. v. Gardner, , 387 U.S. 158, 165 (1967). ↩
  12. Abbott Labs., 387 U.S. at 153 (“[W]here a regulation requires an immediate and significant change in the plaintiffs’ conduct of their affairs with serious penalties attached to noncompliance, access to the courts . . . must be permitted, absent a statutory bar or some other unusual circumstance . . . .”). ↩

ArtIII.S2.C1.7.4 Modern Ripeness Doctrine Generally

The Supreme Court has invoked Abbott Laboratories’ two-part “fitness” and “hardship” test on numerous occasions since 1967,1 deeming a variety of controversies unripe under that standard.2 A discussion of post-1967 Supreme Court cases that have refined and developed the Abbott Laboratories standard follows.

Notes
  1. See, e.g., Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 670 n.2 (2010); Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003); Texas v. United States, 523 U.S. 296, 300–01 (1998); Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998); Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 201 (1983). ↩
  2. See Nat’l Park Hosp. Ass’n, 538 U.S. at 808; Texas, 523 U.S. at 301–02; Ohio Forestry Ass’n, Inc., 523 U.S. at 732–33. ↩

ArtIII.S2.C1.7.5 Fitness and Ripeness

The Supreme Court has considered several factors when determining whether an issue is “fit” for judicial review under Abbott Laboratories v. Gardner. First, the Court has inquired whether further factual development would make it easier to resolve the parties’ dispute.1 For instance, in National Park Hospitality Ass’n v. Department of Interior, a nonprofit trade association challenged a National Park Service regulation that purported to render the Contract Disputes Act of 1978 (CDA) inapplicable to certain government contracts.2 Noting that the CDA’s applicability could vary from contract to contract, the Court determined that awaiting further factual development in the form of a dispute over a particular contract would facilitate the Court’s review of the regulation.3 The Court therefore deemed the challenge unripe.4

By contrast, cases presenting purely legal rather than factual questions are more likely to be fit for immediate adjudication.5 For example, in Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, the Supreme Court held that whether federal law preempted a state statute was primarily a legal question and therefore ripe for judicial review.6

A claim may not be fit for adjudication if it is based on “contingent future events that may not occur as anticipated, or indeed may not occur at all.”7 For instance, in Texas v. United States, the State of Texas asked a federal district court to determine the validity of certain provisions of the Texas Education Code that permitted the state to sanction local school districts if they failed to meet state-mandated educational achievement levels.8 Because the Supreme Court did not know whether or when the State would ever issue such a sanction, the Court unanimously concluded that the validity of the Texas statute was not yet ripe for adjudication.9

Similarly, when a party challenges the constitutionality of a state law, but that state’s courts have not yet had an opportunity to delimit the scope and applicability of that law, the claim may be unfit for adjudication.10 As the Supreme Court has noted, waiting until state courts have had a chance to interpret a challenged law may sharpen the issues for judicial review.11

Notes
  1. See, e.g., Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 812; Ohio Forestry Ass’n, Inc., 523 U.S. at 737; Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 82 (1978). ↩
  2. 538 U.S. at 804–05. ↩
  3. See id. (“[F]urther factual development would ‘significantly advance our ability to deal with the legal issues presented’ . . . [J]udicial resolution of the question presented here should await a concrete dispute about a particular concession contract.”) (quoting Duke Power, 438 U.S. at 82). ↩
  4. Id. at 805. ↩
  5. See Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 479 (2001); Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 581 (1985). ↩
  6. See 461 U.S. 190, 201 (1983). ↩
  7. Texas v. United States, 523 U.S. 296, 300 (1998) (quoting Thomas, 473 U.S. at 580–81). See also Trump v. New York, No. 20-366, slip op. at 4 (U.S. Dec. 18, 2020) (applying this rule); Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 736 (1998) (“[D]epending upon the agency’s future actions to revise the Plan or modify the expected methods of implementation, review now may turn out to have been unnecessary.”). ↩
  8. 523 U.S. at 297, 299. ↩
  9. Id. at 300 (quoting Toilet Goods Ass’n, Inc. v. Gardner, 387 U.S. 158, 163 (1967)). ↩
  10. See id. at 301; Renne v. Geary, 501 U.S. 312, 323 (1991). ↩
  11. Renne, 501 U.S. at 323. (“Postponing consideration of the questions presented, until a more concrete controversy arises, also has the advantage of permitting the state courts further opportunity to construe [the challenged law], and perhaps in the process to ‘materially alter the question to be decided.’”) (quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 306 (1979)); Texas, 523 U.S. at 301. In this respect, ripeness dovetails with the various abstention doctrines that federal courts utilize to avoid interfering with the states. For an overview of those doctrines, see generally ArtIII.S1.6.7 Federal Non-Interference with State Jurisdiction and Abstention. ↩

ArtIII.S2.C1.7.6 Hardship and Ripeness

When considering Abbott Laboratories v. Gardner’s “hardship” prong, the Supreme Court has often considered whether one or more of the parties face adverse legal consequences as a result of the challenged action.1 For instance, in Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., the Ohio Civil Rights Commission initiated administrative proceedings against a nonprofit religious education provider, alleging that the nonprofit had discriminated against one of its teachers on the basis of sex.2 The nonprofit asserted that it terminated the teacher based on its religious views that mothers should stay home with school-aged children and that the Commission’s actions consequently violated the First Amendment’s Religion Clauses.3 The nonprofit thus filed a federal lawsuit to enjoin the administrative proceedings. The Supreme Court ruled that the Commission’s administrative action threatened the nonprofit with sanctions for allegedly constitutionally protected conduct and thus that the nonprofit’s challenge to those proceedings was ripe.4

Notes
  1. AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 386 (1999) (“When . . . there is no immediate effect on the plaintiff ’s primary conduct, federal courts normally do not entertain pre-enforcement challenges to agency rules and policy statements.”); Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 58 (1993) (holding that a challenge to a regulation that “impose[d] no penalties for violating any newly imposed restriction” would “not be ripe before the regulation’s application to the plaintiffs in some more acute fashion”); Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 809 (2003) (explaining that “a hardship showing” requires “adverse effects of a strictly legal kind”) (quoting Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998)). ↩
  2. 477 U.S. 619, 623–24 (1986). ↩
  3. Id. at 623–25. See also Amdt1.2.1 Overview of the Religion Clauses (Establishment and Free Expression Clauses) through Amdt1.2.3.4 Church Leadership and the Ministerial Exception (analyzing the First Amendment’s Religion Clauses). ↩
  4. Id. at 625 n.1. However, the Court ultimately ruled that the district court should have abstained from deciding the case on other grounds. See id. at 625. ↩

ArtIII.S2.C1.7.7 Administrative Law and Ripeness

Challenges to federal administrative agencies’ actions, decisions, and policies often implicate the ripeness doctrine.1 In such cases, courts consider “whether judicial intervention would inappropriately interfere with further administrative action.”2 The ripeness doctrine thereby not only “protect[s] the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties,” but also “prevent[s] the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies.”3 For example, in Ohio Forestry Association, Inc. v. Sierra Club, an environmental organization challenged the United States Forest Service’s interim federal land and resource management plan on the ground that it permitted too much logging and clearcutting of trees.4 The Supreme Court concluded that the organization’s challenge was unripe,5 in part because reviewing the plan immediately could obstruct the Forest Service from refining its policies by either revising the plan or applying it to specific sites.6

Notes
  1. See, e.g., Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003) (“Absent a statutory provision providing for immediate judicial review, a regulation is not ordinarily considered the type of agency action ‘ripe’ for judicial review . . . until the scope of the controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action applying the regulation to the claimant’s situation in a fashion that harms or threatens to harm him.”) (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 891 (1990)) (brackets omitted). See also E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 128 n.19 (1977) (concluding that “consideration of whether EPA’s variance provision has the proper scope would be premature”). Several non-constitutional doctrines, including the “exhaustion” doctrine and the “final agency action” doctrine, may also influence the appropriate timing of challenges to administrative actions. See, e.g., Woodford v. Ngo, 548 U.S. 81, 88–89 (2006) (“[N]o one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.”) (quoting McKart v. United States, 395 U.S. 185, 193 (1969)); Dalton v. Specter, 511 U.S. 462, 469 (1994) (holding that, as a general matter, only “final agency action[s]” are subject to judicial review under the Administrative Procedure Act) (quoting 5 U.S.C. § 704). ↩
  2. Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 733; Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 479 (2001). See also Lujan, 497 U.S. at 894 (“[W]e intervene in the administration of the laws only when, and to the extent that, a specific ‘final agency action’ has an actual or immediately threatened effect. . . . Until confided to us, however, more sweeping actions are for the other branches [of the federal government].”). ↩
  3. Ohio Forestry Ass’n, Inc., 523 U.S. at 732–33 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148–49 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977)). See also Nat’l Park Hosp. Ass’n, 538 U.S. at 807–08 (same); Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 200 (1983) (same). ↩
  4. Ohio Forestry Ass’n, Inc., 523 U.S. at 728. ↩
  5. Id. at 732. ↩
  6. Id. at 735 (“[F]rom the agency’s perspective, immediate judicial review directed at the lawfulness of logging and clearcutting could hinder agency efforts to refine its policies: (a) through revision of the Plan, e.g., in response to an appropriate proposed site-specific action that is inconsistent with the Plan, or (b) through application of the Plan in practice, e.g., in the form of site-specific proposals, which are subject to review by a court applying purely legal criteria.”). ↩

ArtIII.S2.C1.7.8 Criminal Statutes and Ripeness

The Supreme Court has frequently scrutinized the ripeness of pre-enforcement challenges to criminal statutes.1 The Court has explained that, when challenging a criminal statute, the plaintiff need not “first expose himself to actual arrest or prosecution.”2 Rather, it is sufficient for the plaintiff to allege that he (1) intends to engage in constitutionally protected activity prohibited by the statute and (2) faces a “credible threat of prosecution.”3 For example, an abortion provider who faces “a sufficiently direct threat” that a state will prosecute him for violating a statute that criminalizes abortion need not necessarily await prosecution before challenging that statute’s constitutionality.4

Conversely, a challenger who cannot claim that he has “ever been threatened with prosecution, that a prosecution is likely, or even that a prosecution is remotely possible” cannot “allege a dispute susceptible to resolution by a federal court.”5 For example, in Poe v. Ullman, the plaintiffs challenged the constitutionality of a state statute that criminalized the use of contraceptive devices.6 Even though the statute had been on the books for more than eight decades, the state had only attempted to enforce it on a single occasion, and drugstores in the state commonly and openly sold such devices without any apparent fear of prosecution.7 Thus, the plaintiffs faced no reasonable fear of prosecution, and the Court accordingly held that the constitutionality of the statute was not ripe for decision.8

One might argue, however, that the Court has not always applied these principles consistently. In Epperson v. Arkansas, for example, the plaintiff challenged the constitutionality of an Arkansas statute that made it a misdemeanor to teach the theory of evolution in public schools and universities.9 No teacher had ever been prosecuted under the challenged statute.10 Even though the plaintiff did not appear to face a reasonable threat of prosecution, the Court concluded—with minimal discussion—that the plaintiff had nonetheless presented a justiciable controversy.11 Epperson is therefore arguably inconsistent with the Court’s other ripeness cases. The Court has attempted to reconcile Epperson by focusing on the age of the statute being challenged; a challenge to a criminal statute that has been on the books for decades yet has almost never been enforced will likely not be ripe for immediate review, whereas a pre-enforcement challenge to a statute that is “recent and not moribund” may be justiciable.12 That distinction, however, may not be altogether satisfying; the anti-evolution statute in Epperson had been on the books for four decades, yet the Supreme Court nonetheless deemed the plaintiff ’s challenge ripe for immediate adjudication.13 Thus, as the Court itself has intimated, it is not always easy to predict whether any given pre-enforcement challenge to a criminal statute will be justiciable.14

Notes
  1. See, e.g., Susan B. Anthony List v. Driehaus, 573 U.S. 149, 167–68 (2014); Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 297–302 (1979); Doe v. Bolton, 410 U.S. 179, 188–89 (1973); Epperson v. Arkansas, 393 U.S. 97, 101–02 (1968); Poe v. Ullman, 367 U.S. 497, 498–509 (1961). ↩
  2. Babbitt, 442 U.S. at 298 (quoting Steffel v. Thompson, 415 U.S. 452, 459 (1974)) (brackets omitted). ↩
  3. Id. (quoting Doe v. Bolton, 410 U.S. 179, 188 (1973)). ↩
  4. See Doe, 410 U.S. at 188. ↩
  5. Babbitt, 442 U.S. at 298–99 (quoting Younger v. Harris, 401 U.S. 37, 42 (1971)). ↩
  6. 367 U.S. at 498. ↩
  7. See id. at 501–02. ↩
  8. See id. at 508. Cf. Griswold v. Connecticut, 381 U.S. 479, 480–81 (1965) (deeming a challenge to an anti-contraceptive statute justiciable where appellants had been arrested for violating the statute, found guilty, and fined). ↩
  9. See 393 U.S. 97, 98–99 (1968). ↩
  10. Id. at 101–02. ↩
  11. See id. at 102. ↩
  12. See Doe v. Bolton, 410 U.S. 179, 188–89 (1973). ↩
  13. See Epperson, 393 U.S. at 98, 101–02. ↩
  14. See Poe v. Ullman, 367 U.S. 497, 508 (1961) (remarking, in the course of dismissing as unripe a pre-enforcement challenge to a criminal statute, that “[j]usticiability is . . . not a legal concept with fixed content or susceptible of scientific verification”). ↩

ArtIII.S2.C1.7.9 Takings and Ripeness

Until very recently, the Supreme Court applied special ripeness rules in regulatory takings cases in which a litigant alleges that a governmental entity has “taken” his property without paying “just compensation” as the Fifth Amendment requires.1 Under the doctrine established in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City,2 a plaintiff could not pursue a takings claim against a state entity in federal court until the plaintiff had (1) received a final decision from the state government regarding the challenged regulation’s application to his property; and (2) sought compensation through state-provided procedures.3 Williamson County’s context-specific ripeness rule created potentially significant obstacles for takings plaintiffs. As the Court later held in San Remo Hotel, L.P. v. City & County of San Francisco, when a plaintiff first litigates a takings claim in state court as mandated by Williamson County, the federal full faith and credit statute bars the plaintiff from relitigating the Takings Clause issues in a subsequent federal lawsuit.4 Thus, under Williamson County and San Remo, a plaintiff could not file a takings lawsuit in federal court before pursuing his claim in state court, yet if he lost in state court, his subsequent federal lawsuit would fail as well.5 The Court ultimately concluded that this special ripeness rule imposed “an unjustifiable burden on takings plaintiffs” and conflicted with the Court’s Takings Clause jurisprudence.6 The Court therefore overruled Williamson County in Knick v. Township of Scott.7 After Knick, a property owner may bring a takings claim in a federal court without first seeking compensation in state court.8

Notes
  1. U.S. CONST. amend. V (“[N]or shall private property be taken for public use, without just compensation.”). See Horne v. Dep’t of Agric., 569 U.S. 513, 524–28 (2013); Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 560 U.S. 702, 729 & n.10 (2010); Palazzolo v. Rhode Island, 533 U.S. 606, 618, 620–22 (2001); Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 733–34 (1997); Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1010–14 (1992); Yee v. City of Escondido, 503 U.S. 519, 533–34 (1992); Preseault v. ICC, 494 U.S. 1, 11–17 (1990); First English Evangelical Lutheran Church of Glendale v. Cty. of Los Angeles, 482 U.S. 304, 312 n.6 (1987); MacDonald, Sommer & Frates v. Yolo Cty., 477 U.S. 340, 348–53 (1986); Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186, 190–91, 195, 200 (1985), overruled by Knick v. Twp. of Scott, No. 17-647 (U.S. June 21, 2019). See also, e.g., Knick, No. 17-647, slip op. at 22 (characterizing the aforementioned cases as articulating “a ‘prudential’ ripeness rule”); Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 339 (2002) (“[I]t is the interest in informed decisionmaking that underlies our decisions imposing a strict ripeness requirement on landowners asserting regulatory takings claims.”); Pennell v. City of San Jose, 485 U.S. 1, 8–10 (1988) (holding that “it would be premature” to consider challenger’s claim that local ordinance violated the Takings Clause). See generally Amdt5.9.6 Regulatory Takings and Penn Central Framework (defining and discussing regulatory takings). ↩
  2. 473 U.S. at 186, 190–91, 195, 200. ↩
  3. Suitum, 520 U.S. at 734 (quoting Williamson Cty., 473 U.S. at 186, 194) (brackets omitted). See also, e.g., Palazzolo, 533 U.S. at 618, 620–22. ↩
  4. 545 U.S. 323, 326–48 (2005). See also 28 U.S.C. § 1738 (Full Faith and Credit Act); ArtIV.S1.1 Overview of Full Faith and Credit Clause through ArtIV.S1.5.2 Specifically Applicable Federal Law on Full Faith and Credit Clause (analyzing the Full Faith and Credit Act). ↩
  5. Knick, No. 17-647, slip op. at 1–2 (“The takings plaintiff thus finds himself in a Catch-22: He cannot go to federal court without going to state court first; but if he goes to state court and loses, his claim will be barred in federal court. The federal claim dies aborning.”). ↩
  6. Id. at 2. ↩
  7. Id. at 23. ↩
  8. Id. at 2, 23. ↩

ArtIII.S2.C1.7.10 Continuing Vitality of Ripeness Doctrine

Even though the Supreme Court has applied the Abbott Laboratories standard on numerous occasions since 1967,1 the Court has signaled that it may be willing to modify the standard, or perhaps even abrogate the ripeness doctrine entirely.

For example, recent Supreme Court decisions have questioned the ripeness doctrine’s prudential underpinnings. Before 2014, the Court had held repeatedly that the ripeness doctrine had both constitutional and prudential dimensions.2 However, in Susan B. Anthony List v. Driehaus, the Court, quoting its earlier holding that “‘a federal court’s obligation to hear and decide’ cases within its jurisdiction ‘is virtually unflagging,’” questioned whether it is proper to deem a claim “nonjusticiable on grounds that are prudential, rather than constitutional.”3 And in its 2020 ripeness opinion, the Court deemed a case unripe without mentioning the doctrine’s prudential component or discussing Abbott Laboratories’ fitness and hardship factors.4 It is therefore possible that the Supreme Court may someday unmoor the ripeness doctrine from its prudential foundations and replace the two-pronged Abbott Laboratories test with a new legal standard predicated solely on Article III’s Case or Controversy requirement.

The ripeness doctrine has also arguably diminished in importance as the Supreme Court has developed and refined other justiciability doctrines, especially the doctrine of Article III standing. In MedImmune, Inc. v. Genentech, Inc. and Susan B. Anthony List, the Court observed that because standing and ripeness both derive from the provisions of Article III limiting the federal courts’ jurisdiction to “Cases” and “Controversies,” the two doctrines often “ boil down to the same question.”5 Thus, the Court ruled in Trump v. New York that a challenge to an Executive Branch policy was premature under the standing and ripeness doctrines alike.6 Consequently, under MedImmune, Susan B. Anthony List, and Trump, the degree to which the ripeness doctrine imposes any limitation on the justiciability of disputes that the Article III standing doctrine does not already impose is uncertain. Future Supreme Court decisions may clarify the extent to which the ripeness doctrine continues to play a role in the application of Article III’s case or controversy requirement.

Notes
  1. See, e.g., Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 670 n.2 (2010); Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003); Texas v. United States, 523 U.S. 296, 300–01 (1998); Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998); Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 201 (1983). ↩
  2. Nat’l Park Hosp. Ass’n, 538 U.S. at 808 (quoting Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n.18 (1993)). See also Stolt-Nielsen, 559 U.S. at 670 n.2; Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 733 n.7 (1997). ↩
  3. 573 U.S. 149, 167 (2014) (quoting Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 125–26 (2014)) (internal quotation marks omitted). But see id. (“[W]e need not resolve the continuing vitality of the prudential ripeness doctrine in this case because the ‘fitness’ and ‘hardship’ factors are easily satisfied here.”). ↩
  4. Trump v. New York, No. 20-366, slip op. at 1–7 (Dec. 18, 2020). ↩
  5. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 n.5 (2014). See also MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128 n.8 (2007) (“The justiciability problem . . . can be described in terms of standing (whether plaintiff is threatened with ‘imminent’ injury in fact ‘fairly . . . trace[able] to the challenged action of the defendant,’) or in terms of ripeness (whether there is sufficient ‘hardship to the parties [in] withholding court consideration’ until there is enforcement action).”) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992); Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977)). ↩
  6. See No. 20-366, slip op. at 6–7 (“[T]he standing and ripeness inquiries both lead to the conclusion that judicial resolution of this dispute is premature.”). ↩