106 Iowa L. Rev. 1443 (2021)

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Abstract

The mootness doctrine is a constitutional justiciability principle which restricts the Court from ruling on issues that, due to the passage of time, do not have a present, live debate. However, since the mootness doctrine’s inception, the Court has repeatedly alluded to its flexible prudential origins (as opposed to its rigid Article III origins) in carving out certain exceptions, such as the voluntary cessation exception. As its name implies, the voluntary cessation exception applies when a defendant ceases its challenged conduct but would be free to return to the conduct after the Court ruled the case as moot. In this instance, the Court will refuse to find the case moot, unless the defendant can prove that it cannot return to the challenged conduct—a high burden. However, district courts, circuit courts, and recently the Supreme Court, have ignored or lowered this burden when a government enactment is constitutionally challenged and the government repeals the enactment prior to a court ruling. This Note argues that governmental defendants should not receive a lowered burden due to Supreme Court precedent and the structural and historical benefits enjoyed by governments regarding constitutional litigation. Lastly, the Note proposes voluntary cessation approaches the Court could and should adopt to correct this jurisprudential error.