One cheer for Hein

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Jun 25, 2007 No Comments ›› Greg Jones

One cheer for Hein

Today the U.S. Supreme Court decided, in Hein v. Freedom From Religion Foundation (http://www NULL.supremecourtus NULL.pdf), that taxpayers do not have standing under the Establishment Clause to challenge presidential actions that are made through general congressional appropriations to the executive branch.  The Foundation filed an amicus brief (http://morallaw NULL.pdf) in this important case; you can read the necessary background to the case as well as a summary of the argument presented in the brief here (http://morallaw 

Justice Alito wrote in a plurality opinion joined in by Chief Justice Roberts and Justice Kennedy that allowing Freedom From Religion Foundation’s general challenge would expand the “narrow” Flast v. Cohen (http://caselaw NULL.lp NULL.findlaw (1968) exception to ordinary standing doctrine beyond its intended purpose and “would effectively subject every federal action—be it a conference, proclamation or speech—to Establishment Clause challenge by any taxpayer in federal court.”  According to Justice Alito, if Freedom From Religion Foundation had challenged a specific congressional appropriation to the executive it would have had standing to sue, but instead it challenged actions made possible by discretionary funding.  In short, the Court chose not to extend Flast to all Establishment Clause challenges to government expenditures of tax revenues, but it also elected not to overrule the Flast exception as many, including the Foundation, had asked it to do. 

Justice Scalia wrote a separate opinion—which Justice Thomas joined—that concurred in the result reached by Justice Alito, but staunchly advocated for overturning Flast and thus eliminating taxpayer standing for Establishment Clause cases.  As usual, Justice Scalia’s logic and language are unmatched, so it is best to let him make the point:

Today’s opinion [by Justice Alito] 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 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.

Justice Alito is certainly correct that if the Court had sided with Freedom From Religion Foundation virtually every government action would be open to an Establishment Clause challenge.  However, Justice Scalia also properly points out that Justice Alito’s line between a specific and federal congressional appropriation is a distinction without meaningful difference that is solely designed to keep Flast alive.  The nature of a congressional appropriation (general or specific) does not address the issue of what is the difference in the harm sustained by a taxpayer plaintiff who challenges a specific congressional appropriation of taxpayer money versus a plaintiff (like Freedom From Religion Foundation in this case) who challenges a general congressional appropriation of taxpayer money.  There is no difference in injury, which means either both should have standing or neither. 

To argue that general appropriations cannot give standing because such a rule would cause the courts to becoming overseers of almost any executive action is an argument based on outcomes, not logic.  While it may not be particularly efficient for the federal courts to police general appropriations for Establishment Clause violations, if that is what the Constitution really required then it would be a burden the courts must bear.  But the fact is that the Constitution does not require it, not because the Court does not wish it to be so, but because having a cognizable claim in court requires a real, substantial injury, something that general taxpayer status simply cannot confer. 

Today’s Hein decision has the virtue of not making the convoluted taxpayer standing doctrine even worse, and to that degree the judgment merits some applause.  But it also holds the vice of hubris because some of the justices did not want to own up to a past mistake.  Justice Alito trotted out a meaningless distinction in Hein in order to avoid having to admit that the Court was simply wrong in Flast to grant taxpayer standing for Establishment Clause challenges in the first place.  While admitting error is difficult, it is not nearly so hard as trying to justify and maintain fabricated irrationalities in the law.  In all likelihood now the Court—and what’s worse, the country—will have to live with this error for many more years to come.  As Justice Scalia concluded, “Minimalism is an admirable judicial trait, but not when it comes at the cost of meaningless and disingenuous distinctions that hold the sure promise of engendering further meaningless and disingenuous distinctions in the future.  The rule of law is ill served by forcing lawyers and judges to make arguments that deaden the soul of law, which is logic and reason.”  That soul died just a little bit more today. 

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