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I've heard it said that it is very difficult for some terrorism-related laws like the Patriot Act or laws that allow warrantless dragnet surveillance of citizens to be fully challenged in the courts because it is difficult to prove that an individual has been specifically "wronged" by it.

However, if I understand correctly, the SCOTUS has the power of judicial review, which allows them to proactively audit the constitutionality of legislation passed by Congress. It seems like this could be the perfect antidote to the above scenario.

Why does the SCOTUS not do this when so many citizens question the constitutionality of these laws? Is there a petition process that an ordinary citizen could follow to request that SCOTUS perform such a review?

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  • Because the law isn't Constitutionally questionable.
    – user9790
    Jan 11, 2017 at 16:46
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    " if I understand correctly, the SCOTUS has the power of judicial review, which allows them to proactively audit the constitutionality of legislation passed by Congress." You understand wrong. The U.S. Supreme Court's judicial review jurisdiction is limited to actual cases and controversies and is mostly appellate in nature. It is not the equivalent of a European "Constitutional Court".
    – ohwilleke
    Nov 2, 2018 at 17:20

2 Answers 2

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To the best of my recollection, the Supreme Court has never just "nullified" or even reviewed a law, without an actual case before it. Indeed, in order for the Supreme Court to have jurisdiction, there must be a case that has been heard at the circuit court level, and in most cases also at the appellate level. Technically, SCOTUS has no explicit power to "review" laws (check out Article III!) - rather it has the ability to decide on cases brought before it and the rest of the judiciary. If there is no case, there is no grounds for a ruling.

Indeed, the Supreme Court's power rests primarily on a finding of fact that it didn't have grounds to decide. In the famous Marbury v. Madison ruling back in 1803, SCOTUS specifically said the court did not have jurisdiction over the verdict that Jefferson opposed. In doing so, Jefferson was forced to agree with the Court on the areas over which it did have jurisdiction (much to his dismay), thus giving the Court power over judicial and not executive acts. More recently, Obamacare passed Constitutional muster only because the Court said that the plantiffs had no standing to challenge it, and thus that SCOTUS could not strike it down.

Legislative acts are creationary ones. They say "This is how we will do things." They only cease to have effect when they repeal their laws, when the Executive refuses to run them (e.g. DOMA), or when the Court says that they will not allow the Executive to enforce them. They cannot and will not pre-emptively say "This is unconsititutional." There has to be actual harm, an actual case, and only then can there be a "cease and desist" on this.

When someone with standing can show actual harm, then SCOTUS can get involved. Until then, they have to wait.

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    I think you got your rulings mixed up, Obamacare was upheld due to the commerce clause and right to tax, a ruling on the California gay marriage ban case was thrown out (in a poor decision imo) that only the state officials had standing to challenge the previous ruling not individual citizens.
    – Ryathal
    Aug 30, 2013 at 12:56
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    Standing is just one of the many hurdles for judicial review
    – user9790
    Jan 11, 2017 at 18:59
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    The Supreme Court has original jurisdiction over all matters between two or more states and all cases affecting Ambassadors, other public ministers and Consuls. Though they have traditionally let district courts handle the latter, and changes to federal law gave the district courts concurrent original jurisdiction therein. So in practice the only cases that go directly to the Supreme Court are those involving disputes between two or more states. So, technically, a case does not need to go before a prior court to be heard by the Supreme Court; but they're rare (1-2 a term, maybe). Sep 29, 2017 at 5:20
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Cases or Controversies Clause

Article III, Section 2, Clause 1 of the Constitution states (emphasis mine):

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.

This clause ultimately constrains the exercise of the power of judicial review, by restricting it entirely to "cases" or "controversies", depending on the nature of the issue. SCOTUS has held that this, in particular, prevents them (or any other federal court) from issuing advisory opinions, or from taking cases where the appellant only stands to gain in a generalized sense (much the same as for anyone else), in most cases from taking hypothetical cases ("if they use this law for X, I would suffer Y"; but fear of such application may rise to the level of injury suffered, and allow the case to proceed, depending), and, as in your proposal, from independently pursuing the legality/constitutionality of any matter.

So any case before the (federal) Judiciary in the United States requires:

  1. Some legal entity who has (likely) suffered demonstrable harm from actions or laws of the defendant;
  2. That such a legal entity has filed suit (you can't do it on behalf of someone else unless they actually accept you as their legal representative);
  3. That the harm can be resolved/redressed by the court.

One might also argue for a fourth condition: the claimant has a reasonable chance at success.

The third one causes courts to throw out cases that are moot—where reasonable restitution has already been achieved without the court's ruling and action—as well as cases that the court has neither power nor authority to provide resolution. So even if the court thinks that the appellant has, in fact, suffered some injury, the court will toss it out if it decides it has no ability to actually help them.

The first one already excludes your type of preemptory review: there is no specific legal entity involved, as "the people of the United States" as an abstract is not a legal entity in this sense. And even if you thought they were, the second requirement then kicks it out as well: no one has authority to bring a suit on behalf of the citizenry/populace at large. Which is not to be confused with States and the federal government being part of suits: these are not legal entities representing a whole populace, but are simply representing the relevant government themselves, as a "state" or "government" is considered a legal entity in its own right, capable of suffering harms (violations of its laws, namely).

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