concurring in part and dissenting in part:
After concluding that this court, sitting en banc, has the power to overrule the decision of a three-judge panel — a proposition with which I agree — the majority undertakes-in Part II, sua sponte and without request or briefing by the parties, to determine as a supplement to our rule that one three-judge panel may not overrule another, see Booth v. Maryland, 327 F.3d 377, 383 (4th Cir.2003), that a three-judge panel confronted with two prior conflicting opinions must follow the earlier and “ignore” the later because the later opinion failed to follow the earlier opinion, ante at 333.
It is astounding to me that the majority finds itself free to decide issues neither raised by the case nor presented by the parties simply because it believes them important. And it is yet more astounding to me that the majority has announced in this advisory portion of its opinion the rule that panels of this court must follow the earliest of any prior conflicting opinions, when the majority itself acknowledges that “application of this rule does require a panel to effectively ignore certain opinions duly decided by a properly constituted panel of the court.” Ante at 333. In announcing this rule the majority purports— illegitimately, I submit — to strip three-judge panels of judicial power and to abrogate longstanding aspects of the doctrine of stare decisis. One must ask now what the status is of a “duly decided” case that must yet be “ignored” under the majority’s principle., Is the relief granted or the mandate issued to be ignored? Does a plaintiff have to return the money awarded it in, the illegitimate case? Would a district court act ultra vires in following or in ignoring the mandate? Most importantly, where do we derive the authority to determine as a matter of rule that the duly decided opinions of a properly constituted panel of this court must be ignored by subsequent panels? It would seem to me that we could apply this principle only after amending 28 U.S.C. § 46 and rechar-acterizing Article III of the U.S. Constitution.
As respectfully as I can say it, this sua sponte advisory decision amounts to an unfortunate example of judicial hubris. .
I
Carrie McMellon and her colleagues, who were injured when they rode Jet Skis over the Robert C. Byrd dam on the Ohio River, commenced this action against the United States under the Suits in Admiralty Act, alleging that the United States was negligent in failing adequately to warn them of the dam. The district court rejected the United States’ claim of sovereign immunity but concluded that the United States had “no duty to erect warning signs to ensure safe navigation.” Ae-*354cordingly, it entered summary judgment in favor of the United States.
It is only this judgment, entered by the district court, that we, sitting en banc, have been called upon to review on appeal. 4th Cir. Local Rule 35(c). In response, we have appropriately concluded that the United States has sovereign immunity under separation-of-powers principles, even though the Suits in Admiralty Act does not explicitly recognize the immunity, and that we need not reach the question of whether the United States owed the plaintiffs a duty to warn. In reaching this conclusion, we have overruled our earlier decision in Lane v. United States, 529 F.2d 175 (4th Cir.1975).
In their briefs, the parties have raised no question concerning our authority to overrule an earlier panel opinion. Nor have they raised the question of whether one panel of this court may overrule another. Even had they done so, our review would not require us to resolve the issue. Whether one panel of this court constituted under 28 U.S.C. § 46 can overrule another so constituted is irrelevant to this en banc review of the district court’s judgment. Accordingly, the majority acts as a volunteer in expositing on this subject, and its exposition is at best an advisory opinion on which the majority received no counsel or briefing from the parties.
Early in its history, this Court held that it had no power to issue advisory opinions ... and it has frequently repeated that federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them.
North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971) (citing Haybum’s Case, 2 U.S. (2 Dall.) 409 (1792); Muskrat v. United States, 219 U.S. 346, 351-53, 31 S.Ct. 250, 55 L.Ed. 246 (1911)). One can only conclude therefore that to reach this question, the majority has exceeded its judicial power.*
Even were the majority to consider its decision to fall within some inherent rule-making authority — a decision no less fraught with the question of judicial power — such a rule would be totally ill-advised and unnecessary. When we recognize that we render opinions on a case-by-case basis, bringing to bear all applicable and available judicial decisions previously decided, and that we can always resolve intra-cir-cuit splits by en banc rehearings, there simply can be no crisis requiring the issuance of such a rule.
Thus, not only is there no crisis in this case, as the parties have not even raised the issue, there is also no crisis in the way our court functions generally to require the announcement of so dramatic a rule. Yet the majority rationalizes the issuance of an advisory opinion that limits constitutionally conferred judicial power as being “of utmost importance to the operation of this court and the development of the law in this circuit.” Ante at 332. The mere *355issuance of such an opinion, I regretfully observe, defies our limited charge for exercising the judicial power.
II
Setting aside the fundamental propositions that courts must decide only actual cases and controversies, not issues in the abstract, and that courts deciding cases must themselves apply the governing principles relating to their own jurisdiction and to stare decisis, I also submit that the substance of the rule announced is as flawed as the basis for issuing it. The majority holds that “application of the basic rule that one panel cannot overrule another requires a panel to follow the earlier of the conflicting opinions,” ante at 333, and requires the panel “to effectively ignore certain opinions duly decided by a properly constituted panel of the court,” ante at 333. As a matter of judicial power, however, such a rule cannot be required. In addition, such a rule, properly considered as a discretionary rule, is not even desirable, in that it forces courts to apply stare decisis in a narrow and mechanical way, without all of the doctrine’s permutations and well-established exceptions.
The authority to decide cases falls within the judicial power articulated in Article III and implemented by the Judiciary Act. Thus, for example, when judicial power is conferred on the Supreme Court to decide a case or controversy, it may do so even if it overrules one of its earlier opinions. The limitation of that power is not mandated by Article III, nor by the Judiciary Act, but by self-imposed principles of stare de-cisis and tradition. “Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters re-banee on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). But while stare decisis is a preferred course — a “principle of policy”— a court is not required to follow its precedent “when governing decisions are unworkable or are badly reasoned.” Id. at 827-28, 111 S.Ct. 2597. And the Supreme Court in Payne noted that during the previous 20 terms, it had overruled 33 cases. Id. at 828, 111 S.Ct. 2597. Thus,'a court has the judicial power to overrule its earlier rulings, but it constrains itself in order to create stabibty and integrity in the law. Analogous notions of judicial restraint are recognized also in the doctrine of the law of the case. See Columbus-Am. Discovery Group v. Atl. Mut. Ins. Co., 203 F.3d 291, 304 (4th Cir.2000) (recognizing the law of the case as “a rule of discretion, not a jurisdictional requirement,”, which carries various exceptions and limitations).
In 28 U.S.C. § 46, implementing Article III, Congress has conferred judicial power on courts of appeals. Subsection (c) authorizes the courts of appeals to function through panels of “not more than three judges” or “the court in "banc;” and subject-matter jurisdiction is conferred by 28 U.S.C. §§ 1291 and 1292. Thus, three-judge panels are authorized to exercise the judicial power conferred on courts of appeals, and that power includes the general power of the court to overrule its own earlier decisions. Distinct three-judge panels are not distinct courts. Rather, each panel operates with the full authority to issue opinions for the court of appeals of which it is a constituent part.
This is not to say, however, that in applying that power prudential rules should not be recognized to coordinate the decisions of the various panels. Indeed, the Fourth Circuit has adopted the prudential rule that a three-judge panel may not be overruled by a later panel, but rather only by the court sitting en banc. *356Booth, 327 F.3d at 383. Not only do I agree fully with these prudential rules of stare decisis, I find them particularly helpful in promoting not only stability and integrity in the law, but also a unity of jurisprudence for a court authorized to act in distinct panels. But the rule that one panel may not overrule another is a court-adopted rule of prudence, not a limitation on constitutionally conferred judicial power.
The majority, falsely perceiving such a limitation, enforces this rule of prudence with the directive that a panel confronted with earlier conflicting decisions must follow the earliest precedent and ignore the later precedents that conflict with it, in effect declaring the later ones to be illegitimate. Such a rule denies the later court the power conferred on it by § 46 and strips the doctrine of stare decisis of all its subtleties. Because § 46 authorizes a court of appeals to act fully through the decisions of three-judge panels, every three-judge panel has full judicial authority to decide a case, to rule on its jurisdiction, and to apply stare decisis in the most nuanced manner that it deems appropriate. If a panel exceeds its jurisdiction or violates established principles of stare de-cisis or even resolves a prior conflict in a manner unacceptable to the court as a whole, the court remains free to rehear the case en banc as authorized by § 46, thereby obtaining the judgment of every judge on the court. The majority does not indicate why this mechanism, currently in place, is insufficient to ensure the stability and integrity of our circuit jurisprudence. Instead, it takes the radical step of directing a panel to “ignore certain opinions duly decided by a[n] [earlier] properly constituted panel.” Ante at 333. Its decision is thus both illegitimate and ill-advised.
Further, because two conflicting panel decisions are both constitutionally legitimate, the majority’s rule not only inappropriately restricts judicial authority, it also fails to fix the problem. Indeed, by requiring a panel to discard the more recent of conflicting decisions, the majority requires a panel to violate the rule that one panel cannot overrule the other. Moreover, in the face of this necessary evil, the majority does not even allow the latest panel to minimize the damage created by the conflict by choosing the best rule. Instead, it must mechanically follow the earliest decision, however incorrect and ill-considered it might be.
Perhaps the majority characterizes its proposed policy as “required” because it provides the only enforcement mechanism the majority can conceive for the rule that a panel cannot overrule a prior panel. (It is an enforcement mechanism in the sense that, under the majority’s rule, a panel that ignores a prior panel will itself be ignored by future panels.) However, no rule requires an enforcement mechanism; without one, it is still a rule. See H.L.A. Hart, The Concept of Law 10-11, 18-25 (2d ed.1997). Rules merit adherence by virtue of their legitimacy, and their legitimacy is determined by their mode of enactment, not enforcement. A panel’s obligation to follow decisions of prior panels, derived from the doctrine of stare decisis, would not disappear if there were no punishment for breaking this rule. The majority’s holding is not, therefore, a corollary to the rule that panels cannot overrule prior panels. Rather, it is an effort to strip subsequent panels of the judicial authority conferred by the Constitution and the Judiciary Act and to deny them the authority to decide what is best when conflicts among earlier precedents appear.
Indeed, simply as a matter of policy, it would seem to me to be far better for a panel faced with conflicting and equally *357valid authority to be able to choose between them. See, e.g., Under Seal v. Under Seal, 326 F.3d 479, 484 (4th Cir.2003). First, as mentioned above, the earliest panel decision may be simply wrong; it may plainly misinterpret a statute, for instance, or plainly conflict with other rules. Even if the earlier decision seemed correct at the time it was rendered, its soundness could be disturbed by other developments in the law. Second, allowing a panel to choose between conflicting authority would encourage the panel to more fully consider both prior opinions, perhaps finding a way to distinguish and thus reconcile them after all. Third, without a directive to follow the earliest opinion, the panel would apprehend more readily the need to call for a rehearing en banc, rather than allowing a flawed or incorrect rule to continue indefinitely, simply because it came earliest in time. When two separate panels of our circuit have come to opposite conclusions, the issue over which they have split is likely an important and difficult one, and it is best resolved with a rehearing en banc, not an uncritical reversion to the earliest panel’s conclusion.
In vigorously disagreeing with the majority, I do not wish to be understood as disagreeing with our court’s rule that in furtherance of the doctrine of stare decisis one panel should not overrule another panel and that panel opinions may be overruled only by an en banc court. It is important, however, to understand the distinction between a limitation on the judicial power of a panel and the prudential constraint exerted by the doctrine of stare decisis. If we do not understand and recognize such distinctions, we risk rewriting Article III and the Judiciary Act to include all our common-law doctrines of judicial prudence.
Ill
For the reasons given, I dissent from Part II of the majority opinion. I concur in the remainder.
The majority argues in footnote 1 that this issue is “in this case” because it came before the three-judge panel that considered this case earlier in its procedural history. That this issue actually arose before a three-judge panel confronted with conflicting precedents does not, however, make it a live issue for this court en banc. The opinion of the three-judge panel has been vacated, and this court en banc reviews the judgment of the district court, not the three-judge panel. See 4th Cir. Local Rule 35(c). The question of how a three-judge panel applies the doctrine of stare decisis when confronted by earlier conflicting decisions of other three-judge panels is not a controversy now before us, and our advisory ruling on that issue does not “affect the rights of [the] litigants in the case before [us].” Rice, 404 U.S. at 246, 92 S.Ct. 402. Obviously, the majority cannot mean by its phrase "in this case” that this is a live issue presently before this court.