Dispatches from the Creation Wars

SCOTUS Hears Taxpayer Standing Suit

Today the Supreme Court will hear oral arguments in Hein v Freedom From Religion Foundation, a case that revolves around the question of the taxpayer standing doctrine and whether citizens can sue for establishment clause violations based upon the use of their tax dollars. The case deals with whether government expenditures under Bush’s faith based initiative program violate the establishment clause. Chip Lupu and Robert Tuttle have a good background article on the legal issues in the case here.

The government is arguing that taxpayers lack standing to sue and the district court agreed with them and dismissed the suit. The 7th Circuit Court of Appeals overturned that decision and granted standing. Now the Supreme Court will decide which is correct. I’ll post a fairly long excerpt from Lupu and Tuttle that explains the legal history of this issue:

Many years ago, the Supreme Court ruled that federal taxpayers do not have standing to challenge the constitutionality of federal expenditure programs, because the connection between the allegedly wrongful expenditure and their status as taxpayers is too remote.[2] Even if they win the suit, the Court then reasoned, taxpayers will not get a refund of the amount of the taxes that have been wrongfully spent. In 1968, however, the Court carved out an exception to the doctrine excluding taxpayers from standing in Flast v. Cohen,[3] which authorized taxpayer standing to challenge congressional action alleged to be in violation of the specific limitations in the First Amendment, including the Establishment Clause. The reasoning in Flast turned on the special history of the Establishment Clause, which protects taxpayers from being compelled to support any religious faith. Although the Court in Flast focused on the congressional role in appropriating money that might be spent in aid of religious institutions, the Court twenty years later in Bowen v. Kendrick[4] explicitly applied the Flast principle to Executive Branch decisions about spending legislative appropriations for programs under the Adolescent Family Life Act.

The only significant decision in the Supreme Court in the past 40 years in which the Court has rejected taxpayer status as sufficient to confer standing in Establishment Clause cases is Valley Forge Christian College v. Americans United for Separation of Church & State, Inc.[5] The Valley Forge case involved a transfer of government-owned land and buildings from the Executive Branch to a religious college. The Supreme Court ruled that the Executive’s authority to transfer the property arose under Article IV, section 3, which authorizes Congress to dispose of property of the United States, rather than Art. I, section 8, clause 1, which authorizes the Congress to tax and spend. On that basis, the Court concluded that current taxpayers are not directly injured by transfers of property acquired earlier, with tax dollars contributed by prior taxpayers.

Narrowly framed, the question in Hein v. FFRF is whether the taxpayer plaintiffs in this case are more like those in Flast and Bowen, in which the Court recognized taxpayer standing as an exception to the general rule against such standing, or are closer to those in the Valley Forge case, in which the exclusive role of the Executive Branch in deciding to transfer the property led the Court to deny taxpayer standing.

Viewed more broadly, the Justices may see Hein v. FFRF as a case in which to reaffirm the concept that standing to sue under the Establishment Clause should be construed generously, as the Court did in Flast, or to reject that concept, as the Court did in Valley Forge. The principal reason to view standing broadly in Establishment Clause cases is not simply the historical connection with taxpayers concerned about being compelled to support state-favored religions. Rather, the key concern in today’s world is whether any party will be able to bring Establishment Clause cases to the courts. Because most alleged violations of the Clause involve actions that favor religion, and coerce no one into religious experience, a narrow doctrine of standing to sue would make many government actions effectively unchallengeable. Constitutional examination of government expenditures that support religious entities, and of government expression of religious sentiments (like displays of the Ten Commandments), can only occur if the courts construe the concept of standing in a broad way, because no one would have a personal and specific injury in such matters if injury were narrowly defined.

That last paragraph is the key to why the religious right so badly wants the court to deny taxpayer standing in establishment clause cases. It’s just another example of what I call the Tonya Harding Strategy – they have a hard time winning in court, so instead they want to prevent their opponents from reaching the courtroom.

Comments

  1. #1 Dan
    February 28, 2007

    Of course, the Court does not have to abandon Flast to hand the Bush Administration a victory here. It can simply decline to extend the rule past the Bowen boundary, find no standing in this case, and move on.

    This could prove to be one of those cases that is more significant for the voting coalitions it reveals than for the rule it hands down. I’m looking forward to reading the oral argument transcript later today or tomorrow.

  2. #2 daenku32
    February 28, 2007

    Heh. I read about this little bit ago on First Amendment Center website. They have a link to the transcript too:
    http://www.supremecourtus.gov/oral_arguments/argument_transcripts/06-157.pdf
    http://www.firstamendmentcenter.com/news.aspx?id=18218

    Constitutional law is a tricky one. I didn’t read exactly all of it yet, but the FRFF lawyers beginning arguments were countered by questions whether the amount of money involved makes a difference, and what amount would be the limit. I’d hate to put a dollar amount on it, even though I wouldn’t mind if all of government expenditure on anything related to religion was limited, even if that ment omitting “God save the United States and this Honorable Court”. I do understand that arguing that would be practically impossible considering the prior decisions.

  3. #3 Greg
    February 28, 2007

    The “conservatives” have become very clever at bleeding us to death one drop at a time. We even pay, eagerly it seems, for the operating team and equipment set up anew for each drop.

  4. #4 FishyFred
    February 28, 2007

    It’s just another example of what I call the Tonya Harding Strategy – they have a hard time winning in court, so instead they want to prevent their opponents from reaching the courtroom.

    Speaking of this, do you recall what happened to the bill that would have handicapped people who bring establishment clause cases?

  5. #5 Ebonmuse
    February 28, 2007

    You mean the “Public Expression of Religion Act“, FishyFred. It passed the House, but died in committee in the Senate and never came up for a floor vote. Happily, the bill’s sponsor in the House, John Hostettler, lost his seat in the 2006 midterms, so it seems unlikely this bill will come up again any time soon.

  6. #6 Dan
    February 28, 2007

    Just read the transcript. Clement, as always, did a great job with his argument. I think he’s got the easy side of the case. Pincus performed admirably, but he had the unenviable task of trying to convince this Court to adopt a new standard — a direction the Court clearly does not want to go. The middle third of his argument was basically a discussion between the Justices as to whether such a standard could ever be workable. A majority of them were not convinced.

    I know better than to make predictions about what SCOTUS will do, but I can’t resist: Flast survives, as does (I suspect) Bowen. But FFRF loses here on standing; the Court refuses to extend the rule. 5 (Roberts, Scalia, Kennedy, Thomas, Alito) to 4 (Stevens, Souter, Breyer, Ginsberg). Souter was pretty quiet — as he often is — he might go the other way, too. I’m sure I’ll be proven wildly wrong in a few months.

  7. #7 Ed Brayton
    February 28, 2007

    See, I thought Clement didn’t do all that well. I thought Scalia really rattled him and he didn’t do well on distinguishing between Congressional and Executive action. But I won’t make any predictions at all, not least because I haven’t read Pincus’ part yet.

  8. #8 Dan
    February 28, 2007

    Ed wrote:

    See, I thought Clement didn’t do all that well. I thought Scalia really rattled him and he didn’t do well on distinguishing between Congressional and Executive action.

    Scalia did hit him pretty hard here (surprisingly so, but sometimes I think Scalia just likes the verbal joust) and Clement stumbled a bit. But I think he recovered well (not saying I like his argument — just that he did a good job articulating it) and he did a nice job of cleaning up in rebuttal.

    I felt sorry for Pincus. At one point, he just sort of stopped and admitted he hadn’t done a good job in explaining his theory. Breyer and Ginsberg both tried to give him a hand, but he still had a steep uphill climb.

  9. #9 James
    February 28, 2007

    lets try some logic here:
    - The purpose of the Constitution is to set out the powers and form of the government.
    - In carrying out its functions and duties, the government is accountable to the citizens (officially at least).
    - By failing to abide by the Constitution the government has failed in its duties.

    Therefore: Any citizen should have standing in any case involving constitutional compliance.

    Comments, questions, counter-arguments?

  10. #10 Don
    February 28, 2007

    Ok, I admit I’m a newbie to SCOTUS watching but I find it fascinating. However, Dan, you lost me in your prediction. You said Flast and Bowen will survive but FRFF will lose on standing. I thought Flast and Bowen were all about standing. How can FRFF lose on standing while Flast and Bowen still survive?

    I hope that is not too ignorant of a question.

  11. #11 Tom
    March 1, 2007

    James: Ordinarily you have to have personally been injured before you can sue someone. The trouble with suing the govt for failing to follow a Constitutional requirement is that you can’t always find a plaintiff who can actually show that they personally were injured. Like when a state government puts a Ten Commandments monument on the state house lawn or whatever. It’s just sitting there, not exactly harming anyone, but affronting everyone who believes in separation of church and state and doesn’t want their taxes getting spent on government support of religion.

  12. #12 James
    March 1, 2007

    Understood Tom, but my point is that breaching the Constiution is an injury to every citizen of your country. Yes this is a dodge, but I don’t see how you can handle constitutional standing any other way.

    Example: The Constitution mandates a census does it not? If the government decided not to do a census who is harmed?

    This would make any part of the Constiution that deals with impersonal institutions, rather than individuals, unenforceable and thus essentially worthless.

    The Constitution describes how your government is formed and how it is accountable to the people. Surely those same people have a right to redress if your government breaks the rules?

  13. #13 W. Kevin Vicklund
    March 1, 2007

    You mean the “Public Expression of Religion Act”, FishyFred. It passed the House, but died in committee in the Senate and never came up for a floor vote. Happily, the bill’s sponsor in the House, John Hostettler, lost his seat in the 2006 midterms, so it seems unlikely this bill will come up again any time soon.

    It looks like Brownback just reintroduced it to the Senate as S.B. 415. I’ll see if I can find a link.

  14. #14 W. Kevin Vicklund
    March 1, 2007

    S. 415 was introduced by Sam Brownback (R-Kansas) on January 29, and has 16 co-sponsors.

    May it die the same ignoble death it has the previous ten times it was introduced.

  15. #15 Dan
    March 1, 2007

    Don wrote:

    However, Dan, you lost me in your prediction. You said Flast and Bowen will survive but FRFF will lose on standing. I thought Flast and Bowen were all about standing. How can FRFF lose on standing while Flast and Bowen still survive?

    I hope that is not too ignorant of a question.

    Not an ignorant question at all. In this case, FFRF is asking that the basic Flast standing rule be extended to cover a different factual situation. The Court can decline to do that while leaving Flast and Bowen intact.

    James: Your argument presumes that there is a legal remedy for every breach of a constitutional duty. Clearly not so, and we don’t have to look very far to come up with some compelling pragmatic reasons. 10 million people believe that the President has breached some constitutional duty in taking us to war in Iraq. Does that mean that all 10 million people have Art. III standing to file suit? We’re going to need a lot more courts and judges.

    Now, to say that there is no legal remedy is NOT to say that there is no remedy at all. The Constitution does contemplate remedies for the 10 million who believe that the President breached some constitutional duty: in general terms, the political process.

  16. #16 Ed Brayton
    March 1, 2007

    I tend to agree with James and believe that the whole doctrine of standing is artificial. It certainly does not find direct support in the Constitution; the innocuous phrase “cases and controversies” neither contains nor implies the sort of highly restrictive criteria the courts have applied. I don’t really see the difference between saying that 10 million people think Bush acted unconstitutionally in invading Iraq and saying that 50 million people think he acted unconstitutionally with the warrantless wiretapping program or his misuse of presidential signing statements; the only real difference is that in the latter two cases, they’re correct (they are unconstitutional) and in the previous case, they’re not (there is nothing in the Constitution violated by the invasion of Iraq; it may have been a bad idea, but he is the commander in chief and the Congress did authorize him to use military force). The administration has argued that not only does no one have standing to challenge either of those last two things (because without the government telling them, they have no way of knowing they were victimized – and the government won’t tell them) but also because all of the details are privileged and they don’t have to reveal what they’re doing to the courts even if someone could prove standing. I simply don’t buy the argument that the government can act in a clearly unconstitutional manner but the courts, the branch of government designed explicitly to enforce constitutional limitations on the other two branches, can’t even consider the question. I know that it flows logically from the artificial premises of our standing doctrine jurisprudence, but it certainly does not flow logically from the text or structure of the Constitution.

  17. #17 raj
    March 1, 2007

    Does that mean that all 10 million people have Art. III standing to file suit? We’re going to need a lot more courts and judges.

    I’d say file it as a class action, but the notification requirements would be horrendous.

    Let’s understand something. There has to be some mechanism by which citizens–not just taxpayers, but citizens–can challenge actions by government that they believe violate the constitution. All violations. If there isn’t, the constitution isn’t worth the parchment it’s written on. And I’m being generous.

    Quite frankly, any citizen should have the standing to challenge any government action as a violation of the constitution. When the government violates the constitution, it is a “stab in the back” of the citizen.

  18. #18 slavdude
    March 1, 2007

    I hate to point this tired old meme out, but if the Court rules in favor of taxpayer standing, how long do you think it will be before the right-wing noise machine will start ranting about the “activist court”?

  19. #19 Physioprof
    March 1, 2007

    Since this is a religion clause thread, I’ll post this here. I just finished reading a new book, “Religious Freedom and the Constitution”, by Christopher L. Eisgruber and Lawrence G. Sager. Eisgruber is provost of Princeton University and Sager is dean of UT Austin law school.

    They make a very interesting argument that the “wall of separation” paradigm has worked really poorly in adjudicating religion cases. In particular, their well-supported argument is that this paradigm has led to the paradoxical situation where religion gets undue special treatment under the free-exercise clause and undue restriction from benefit under the esablishment clause.

    They then develop an interesting alternative theory for adjudicating religion-clause cases called “Equal Liberty”. The basic idea is that religious activities should be given no more and no less privilege under the free-exercise clause than comparable non-religious activities, but this is tempered by the recognition that religious activities have certain unique sensitivities to hindrance that should be to some extent accommodated.

    In relation to the establishment clause, the basic idea is that the government can provide financial and other benefits to religious activities, so long as it provides similar benefits to analogous non-religious activities and so long as it does not discriminate among different religions or sects.

    It is a very interesting and well-written book.

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