Dispatches from the Culture Wars

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.