Advisory Opinion in the United States

A response by a judge or court to a legal question posed outside a bona fide case or controversy. Advisory opinions are typically requested by a legislative body or other governmental official. An advisory opinion is a reply to an abstract or hypothetical question. It indicates how the court would respond to the issue should actual litigation take place. It has no binding effect unless it is legally accepted by the requesting body.

Government Advisory Opinions

An “advisory opinions” is a type of guidance issued by various government agencies. For more information, see entries for individual agencies in this American legal Encyclopedia.

Analysis and Relevance

An advisory opinion may not be rendered by a federal constitutional court (one created under provisions of Article III) because of the constitutional mandate limiting jurisdiction of federal courts to actual cases or controversies. The limitation is designed to preserve separation of powers and keep the Judiciary (U.S.) from certain political entanglements that might adversely affect the judicial branch. The Supreme Court spoke to the issue of advisory opinions in Muskrat v. United States (219 U.S. 346: 1911). This case involved a congressional act that altered distribution of Indian property. Because the law diminished the lands and monies to which certain tribes were entitled, its validity was in doubt. Congress included a specific provision in the law authorizing Muskrat and others to file a test case. The law even went so far as to provide for reimbursement of all costs associated with the litigation.

The Court ruled that because the parties were not truly adverse in this situation, the test case really presented an advisory or hypothetical question. Accordingly, the Court ruled that the federal courts did not have jurisdiction to rule on the matter. Legislative courts, those created under authority granted by Article I, may render advisory opinions. A number of states also allow the rendering of advisory opinions in order to clarify state legislation without the necessity of burdensome litigation. Advisory opinions differ from declaratory judgments in that the latter involves an actual controversy.

Practical Information

A formal legal opinion, usually issued by a judge or law officer, upon a question of law, and requested by a government official or legislative body. It does not have the force of law, but is an advisory opinion only. For example, state attorneys are frequently asked to issue an opinion on the state of the law in regard to some issue. (Revised by Ann De Vries).

Advisory Opinion in the Constitutional History

According to the Encyclopedia of the American Constitution, about its article titled ADVISORY OPINION, the Article III of the Constitution extends the judicial power of the united states only to the decision of cases or controversies. Since 1793, when the Supreme Court declined, in the absence of a concrete dispute, to give legal advice to President George Washington.

Resources

Notes and References

Definition of Advisory Opinion from the American Law Dictionary, 1991, California

Some Constitutional Law Popular Entries

Advisory Opinion (AO) in the context of the Political Party Committees

In this context, Advisory Opinion (AO) may be defined as follows: A formal Commission response regarding the legality of a specific activity proposed in an advisory opinion request (AOR). 11 CFR Part 112. For information on requesting an AO, see page iii.

Advisory Opinion