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, § 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.