Dispatches from the Creation Wars

The 7th circuit court of appeals has overturned a lower court ruling in Winkler v Gates, a case challenging the Pentagon’s funding of the annual Boy Court Jamboree, sponsorship that spends millions of dollars in tax revenues every year. The lower court ruled agianst the government but the appeals court overturned, ruling that the plaintiffs lack standing. Here’s the ruling itself.

I continue to believe that the courts have completely screwed up their doctrine on standing, invented it pretty much out of whole cloth (it certainly doesn’t come from the text of the Constitution anywhere, and the 7th circuit panel itself notes that the doctrine of prudential standing is comprised of “judicially self-imposed limits”) and built an illogical artifice that makes arbitrary distinctions between which government spending programs can be challenged by taxpayers and which can’t. The Supreme Court itself, in Flast, argued that the rejection of taxpayer standing in Frothingham “rest[s] on something less than a constitutional foundation.”

In this case, the court engages in the sort of judicial hair-splitting that the Supreme Court is currently considering in the Hein case, attempting to distinguish between an “exercise[ ] of congressional power under the taxing and spending clause of Art. I, ยง 8 or an “incidental expenditure of tax funds in the administration of an essentially regulatory
statute.” This is the judicial equivalent of asking how many angels can dance on the head of a pin. We can only hope that the Supreme Court, when it rules in Hein will erase this arbitrary distinction and reject Frothingham. The odds of that? I’d put it at about 1000-1.

Comments

  1. #1 Dan
    April 6, 2007

    We can only hope that the Supreme Court, when it rules in Hein will erase this arbitrary distinction and reject Frothingham. The odds of that? I’d put it at about 1000-1.

    Those odds seem a bit low.

  2. #2 RickD
    April 6, 2007

    Hiding behind “lack of standing” is a pretty pathetic approach for the right-wing to be hiding behind.

  3. #3 Gerard Harbison
    April 6, 2007

    Hiding behind “lack of standing” is a pretty pathetic approach for the right-wing to be hiding behind.

    It’s not so much ‘hiding behind’, as saying the primary way to deal with abusive spending by the executive is to vote the bums out. The use of public funds for religious purposes by the Republicans has cost them my vote. I suspect I’m not the only one. The only Republican I would contemplate voting for in 2008 is one who makes it clear he unequivocally supports the separation of church and state. So far, only Giuliani is even close to that.

  4. #4 Reed A. Cartwright
    April 6, 2007

    I’d imagine that a boy scout who attended such a jamboree would be given standing.

  5. #5 Doc Bill
    April 7, 2007

    I’m curious as to why any group, right wing or left wing, wants to attack the Boy Scouts.

    Really, it’s the Boy Scouts! The oath says “On my honor I will do my best” not I swear. And it doesn’t require a worship of God, rather to do a duty which may be religious or secular. It’s the Scout’s personal responsibility, not a responsibility of the organization. And finally, the twelfth point of the Scout Law is a Scout is reverent. Not religious. Reverent means respectful of the beliefs of others.

    Scouting is about team building and building character and it’s been delivering that program to youth for 100 years. Also, the BSA, I think it’s accurate, is the only national youth organization chartered by the US Congress.

    The BSA is slow to change, but it does change. I believe it will adapt to the social challenges that not only the BSA but other established organizations face.

  6. #6 Ed Brayton
    April 7, 2007

    Many Boy Scout troops do throw out anyone who is avowedly gay or atheist and refuse to allow anyone gay or atheist (openly, at least) to be scoutmasters, and the national organization supports them in that. I personally think it’s absurdly contradictory to talk about “building character” while teaching that such discrimination is a good thing (never mind the legalities; yes, they have every legal right to do so, but it does reveal a lack of character). That does not mean, of course, that the Boy Scouts can’t help an individual person build character and I have readers and friends who loved their experiences. But I do think there’s something wrong with having the government spend millions of dollars to subsidize a private group that refuses to allow a sizable portion of Americans to participate. If they want to claim to be a private organization with a right to discriminate, I think they also forfeit any claim on government funding.

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