Dispatches from the Creation Wars

Hein and Taxpayer Standing

As I’ve already noted, the Supreme Court has ruled in Hein v Freedom From Religion Coalition (full text here), a case involving the question of taxpayer standing: does a taxpayer have legal standing to challenge expenditures that they believe exceed the Federal government’s constitutional authority? It also cuts to the much deeper question of the coherency of standing doctrine itself, which is an absolute mess and makes very little sense.

The decision was a plurality. Alito and Roberts on the controlling opinion with Scalia and Thomas filing their own concurrence and Kennedy filing another. Souter, Breyer, Ginsburg and Stevens were in dissent. Yes, that lineup should begin to look very familiar to you soon; it’s going to be a very common breakdown of rulings with the court as currently configured. I gave a background on the issues of the case here and you may want to review that first in order to understand the rest of this post.

A quick bit of background from an article by Chip Lupu and Robert Tuttle:

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.

The ruling demonstrates, I think, something that I predicted when Roberts and Alito were being confirmed by the Senate, that they are both more in the Rehnquist mold than the Scalia/Thomas mold. That is to say that while they may reach similar conclusions most of the time they will do so for much more narrow and pragmatic grounds, while Scalia and Thomas are both more likely to make grand, sweeping pronouncements. That is exactly what happened in this case.

Alito argues very closely to precedent, declaring Flast to be applicable only in a very narrow way; Scalia and Thomas argue for throwing Flast out entirely and doing away with all exceptions to the rejection of taxpayer standing. Here is a brief quote that shows how Alito and Roberts came down (this is the controlling opinion):

In Flast v. Cohen, 392 U. S. 83 (1968), we recognized a narrow exception to the general rule against federal taxpayer standing. Under Flast, a plaintiff asserting an Establishment Clause claim has standing to challenge a law authorizing the use of federal funds in a way that allegedly violates the Establishment Clause. In the present
case, Congress did not specifically authorize the use of federal funds to pay for the conferences or speeches that
the plaintiffs challenged. Instead, the conferences and speeches were paid for out of general Executive Branch
appropriations. The Court of Appeals, however, held that the plaintiffs have standing as taxpayers because the
conferences were paid for with money appropriated by Congress.

The question that is presented here is whether this broad reading of Flast is correct. We hold that it is not.

So in essence they are arguing that a taxpayer has standing to bring an establishment clause suit against any spending mandated by Congressional legislation, but not to challenge any spending that is laundered through the executive branch first. As long as Congress gives that money to the executive branch as part of a general appropriation and the executive branch spends it unconstitutionally, no one has standing to challenge the expenditure. Seem silly? That’s because it is.

But that brings us to Scalia and Thomas and their concurrence, in which they agree with the outcome but want taxpayer standing even for congressional appropriations done away with entirely. They begin by pointing out the incoherency of taxpayer standing doctrine:

Today’s opinion is, in one significant respect, entirely consistent with our previous cases addressing taxpayer standing to raise Establishment Clause challenges to government expenditures. Unfortunately, the consistency lies in the creation of utterly meaningless distinctions which separate the case at hand from the precedents that have come out differently, but which cannot possibly be (in any sane world) the reason it comes out differently. If this Court is to decide cases by rule of law rather than show of hands, we must surrender to logic and choose sides: Either Flast v. Cohen, 392 U. S. 83 (1968), should be applied to (at a minimum) all challenges to the governmental expenditure of general tax revenues in a manner alleged to violate a constitutional provision specifically limiting the taxing and spending power, or Flast should be repudiated. For me, the choice is easy. Flast is wholly irreconcilable with the Article III restrictions on federal-court jurisdiction that this Court has repeatedly confirmed are embodied in the doctrine of standing.

So far so good, and so far very standard Scalia reasoning. Scalia likes bright line rules rather than subjective and inconsistent case-by-case analysis. He is very good at pointing out the inconsistencies and vagueries that inevitably result from a long line of precedents with different factual contexts. He likes to push the Court to make their jurisprudence more coherent and to apply clear standards. Unfortunately, he often pushes them to do so in the wrong direction, as he does here.

This is quite similar to his establishment clause views in general, where he rightly points out that the Court’s rulings in the area are a confused mishmash of different legal standards, all of them applied only some of the time and none of them applied all of the time. That was the point of his infamous “late night movie ghoul” dissent in Lamb’s Chapel and it’s an entirely reasonable point. The problem is that the bright line rule he favors is the coercion standard, just as the rule he favors on standing is “none at all.”

The problem with Scalia’s dissent is that he thinks that the only reason a taxpayer would bring suit is over what he calls “psychic harm” – that is, the only injury he can claim from the expenditure of funds is a psychological one, that he is bothered psychologically by the fact that his tax dollars are going to support someone else’s religious views. Let’s compare this to James Madison’s famous statement in his Memorial and Remonstrance, written to oppose the use of tax dollars to support a variety of Christian teachers in Virginia:

Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?

It appears that Scalia would scoff at Madison himself and dismiss his admonition as addressing mere “psychic injury” and do away with all legal redress in cases of unconstitutional expenditures in establishment clause cases. This, again, is typical Scalia – a brilliant job of diagnosing the problem followed by a prescription that would kill the patient.

The dissenting opinion, written by Justice Souter, is dead on from the first paragraph:

Flast v. Cohen, 392 U. S. 83, 102 (1968), held that plaintiffs with an Establishment Clause claim could “demonstrate the necessary stake as taxpayers in the outcome of the litigation to satisfy Article III requirements.” Here, the controlling, plurality opinion declares that Flast does not apply, but a search of that opinion for a suggestion that these taxpayers have any less stake in the outcome than the taxpayers in Flast will come up empty: the plurality makes no such finding, nor could it. Instead, the controlling opinion closes the door on these taxpayers
because the Executive Branch, and not the Legislative Branch, caused their injury…

As the Court said in Flast, the importance of that type of injury has deep historical roots going back to the ideal of religious liberty in James Madison’s Memorial and Remonstrance Against Religious Assessments, that the government in a free society may not “force a citizen to contribute three pence only of his property for the support of any one establishment of religion…The right of conscience and the expenditure of an identifiable three pence raised by taxes for the support of a religious cause are therefore not to be split off from one another. The three pence implicates the conscience, and the injury from Government expenditures on religion is not accurately classified with the “Psychic Injury” that results whenever a congressional appropriation or executive expenditure raises hackles of disagreement with the policy supported…

All in all, a very bad ruling that essentially leaves the executive branch free to violate the establishment clause at will without anyone having standing to challenge it in court.


  1. #1 Ahcuah
    June 26, 2007

    If there was an atheist group that tried to get funding from the executive branch (the “laundered” funding) but failed to get any because it all went to religious groups, might they not be able to claim standing? It seems to me that this is a much more specific injury than mere taxpayer status.

  2. #2 valhar2000
    June 26, 2007

    Ed, do you think this is evidence of the success that some groups of the Religious Right have had in infiltrating the judiciary, which has for a long time been the single best bulwark against such ideology, or is a different conclusion warranted?

    I am very disappointed, and even scared, by this turn of events.

  3. #3 Ed Brayton
    June 26, 2007


    It’s certainly evidence of the fact that Republican presidents have appointed most of the bench. They’re naturally going to tend to vote more conservatively than would justices picked by Democrats (as a whole, of course; there are some who don’t fit the mold).

  4. #4 Josh Rosenau
    June 26, 2007

    Under Scalia’s scheme, how would anyone sue over an establishment clause violation? Or is that his point, to transform the 1st amendment into a purely aspirational and unenforceable bit of legal fluff, sort of how he views the 9th amendment.

  5. #5 kehrsam
    June 26, 2007

    This was the one case from yesterday where I was on the fence; I think Alito wanted to stay on the fence, too, and didn’t fall too far off. Almost all litigation brought under Flast to this point has been challenging programs at the appropriations level, and that was not changed.

    My problem is two-fold. First, Flast is a terrible opinion, perhaps the worst of the Warren Court. Scalia is right on this point, and, hence, in his conclusion. I assume he would answer Ed’s objection by pointing out that Madison lost that particular debate when the Constitution was forged.

    Second, however, allowing taxpayer standing is desperately important for the working of our government as it currently exists. If it does not exist in law (and I would argue that it does not) then it needs to be created.

    Congress has the authority to grant standing and jurisdiction under Article III, and it should waste no time in doing so.

    This is in many ways similar to the situation with Kelo. That decision was also correct — From the standpoint of law, not fairness. The answer lies more in the political realm than the judicial, however.

  6. #6 Ed Brayton
    June 26, 2007


    I agree. Two things Congress should do immediately in one bill – grant legal standing for taxpayers to sue over any unconstitutional spending and give themselves standing to sue the executive branch for failure to faithfully execute the laws of the United States. But I’m not holding my breath.

  7. #7 BobApril
    June 26, 2007

    Ed said:
    Two things Congress should do immediately…and give themselves standing to sue the executive branch for failure to faithfully execute the laws of the United States.
    Don’t they already have standing to impeach “The President, Vice President and all civil Officers of the United States”? That would probably be good enough – though a definition of “high Crimes and Misdemeanors” might be useful.

  8. #8 Ed Brayton
    June 26, 2007

    Yes, but impeachment is entirely different from going to court to have the court order the President to comply with the law.

  9. #9 BobApril
    June 26, 2007

    True – I guess it would be nice to have something smaller than a cannon to swat flies from time to time.

  10. #10 scott pilutik
    June 27, 2007

    Just to address the point that Kehrsam made–structurally, executive branch spending does seem like it should be a political question rather than a judicial question. The problem with that approach is that constitutional violations arising under the establishment clause will often be unsolvable through the political process, especially as here, where executive branch largesse is bestowed upon a religious majority, who are unlikely to rise up and vote out their bestowers.

    Where a substantive constitutional admonition such as the establishment clause is in such conflict with the Article III standing requirement, the standing requirement should be the one to budge so that the substantive prohibition not remain so vulnerable and free to violate without remedy.

    I agree that Flast is a bad opinion. Its ‘exception’ seems arbitrarily drawn from the facts before it, rather than stating a broad principle, as the concurring Douglas would have done, and who prophetically warned against a growing legislative and executive branch majoritarian-controlled bureaucracy directing “mounting federal aid to sectarian schools,” and correctly noting that the “subterfuges [were] numerous.”

    Unless the court left its doors open to individuals lacking powerful sponsors, such as churches or unions, Douglas noted, he/she was certain to be ‘plowed under.’

    Hein was a chance to rectify an inherent blind spot in the constitution that simply permits, by the plurality’s reading, establishment clause violations to flourish unabated. And so, just like in school vouchers, a new subterfuge and administrative work-around has been legitimized, just as Douglas warned.

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