Dispatches from the Creation Wars

Generally, the interest of a taxpayer seeking to ensure that Treasury funds are spent in accordance with the Constitution does not give rise to the type of redressable injury required for Article III standing. There is a narrow exception, however, to this general prohibition against taxpayer standing. The exception provides that a taxpayer will have standing to invoke federal judicial power when that taxpayer "alleges that congressional action under the taking and spending clause is in derogation of the Establishment Clause." To establish taxpayer standing under Flast, a taxpayer must establish a "logical nexus between the status asserted and the claim sought to be adjudicated." In particular, Flast set forth a two-part test. First, "the taxpayer must establish a logical link between that status and the type of legislative enactment attacked." Second, "the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged."

The distinction turns on whether the action being challenged is taken by the executive branch (the governor or the agencies under his control) or the legislature. If it's the legislature, then there is taxpayer standing to sue; if the executive, there is not. But in reality such decisions are often mixed, and that is true here where the state legislature authorizes the spending and an executive agency determines how it is to be spent.

The defendants argued that the Hein decision precludes standing because the spending of taxpayer money was controlled by the executive branch once the money was appropriated. In Hein, the Freedom from Religion Foundation challenged spending by the White House on a series of conferences involving the President's Faith-Based and Community Initiatives program. The Supreme Court ruled that FFRF did not have taxpayer standing in that case.

But the judge in this case ruled that Hein did not apply here because in that case, Congress had not explicitly authorized the spending at all. The Faith-Based and Community Initiatives program was created by executive order, not by legislation, and it used funds appropriated to the executive branch for general operations. Thus, the court said, the use of funds in Hein were not "expressly authorized or mandated by any
specific congressional enactment."

By contrast, this case involves money explicitly appropriated for charter schools and the power given to the executive agency to approve the creation of specific charter schools was power created by legislative action. "The fact that the Commissioner has the responsibility to choose or authorize charter schools (which then in turn receive funding)," the judge said, "does not mean that Plaintiff here is challenging an executive
action."

The court then went on to underscore the importance of taxpayer standing because in many cases, that is the only way that allegedly unconstitutional conduct can be challenged. That is particularly true in this case, where the chances of finding a student at the school to challenge the school's actions are almost non-existent.

The Court's decision today underscores the importance of taxpayer standing, particularly when there is no other party to sue...Here, TIZA students or their parents could challenge the operation and funding of TIZA as being a violation of the Establishment Clause...(but)...It seems unlikely that a parent or student of TIZA, who presumably attends the school because of its particularized program, would challenge the program of choice.

I'll be curious to see if the school appeals this procedural ruling or allows the case to go forward. If it is appealed, I hope it is upheld.