Taxpayers' standing to sue in establishment clause lawsuits

Attorney Jay Sekulow wrote in a Townhall.com article,

They’re called “offended observers.” These are people who, on the mere sight of a monument of the Ten Commandments or a nativity scene in the town square, decide to file suits because they are taxpayers. In no other area of the law does the Court allow this kind of legal standing to bring challenges.

However, there have been many establishment clause lawsuits where tax expenditures and the plaintiffs' taxpayer status have not been issues at all -- e.g., school prayer cases and oral evolution-disclaimer cases. Also, most citizens did not directly pay taxes to the federal government until after the ratification of the income-tax amendment in 1913 -- does that mean that citizens did not have standing to file establishment clause lawsuits before then?

As I have said many times in this blog, IMO the solution to this establishment clause lawsuit problem is to pass a federal law capping the plaintiffs' attorney fee awards in both establishment clause lawsuits and free-exercise clause lawsuits. In the last Congress, the House passed a bill (HR 2679) to eliminate these fee awards in establishment clause cases but a companion Senate bill (S 3696) was not voted on by the judicial committee.

Ed "It's my way or the highway" Brayton responded to the Townhall.com article with his typical double-talk:

There is much history behind the taxpayer standing doctrine, which was initially based upon a 1923 case called Frothingham v. Mellon. This case involved questions of federalism and whether a given appropriation was properly considered Federal spending or state spending. The law was challenged as being beyond the spending authority of Congress, but it was not alleged that the spending violating an explicit limitation on the powers of Congress. The court ruled that being a Federal taxpayer was not sufficient standing for bringing such a suit . . . . .

. . . . this case stood for decades as an absolute bar to taxpayers bringing suit for unconstitutional expenditures by the government. 45 years later, however, in Flast v Cohen, the court ruled that this ruling did not limit taxpayer standing to bring a suit when it is alleged that spending violates a specific provision in the Bill of Rights.

. . . . . .It is important to note that Flast did not overturn Frothingham. The Court noted that taxpayers still lacked standing to bring a suit if the only allegation is that Congress had exceeded its "exceeded the general powers delegated to it by Art. I, 8", but that when a taxpayer alleges that a given appropriation violates a specific limitation upon government authority, such as the establishment clause, then the taxpayer has established the necessary standing to bring a suit. It's also important to note that this was not a close call for the Court; the ruling was 8-1. (emphasis added)

Tell me, Ed, what is the big difference between Congress "exceed[ing] the general powers delegated to it by Art 1, 8" and Congress "violat[ing] a specific limitation upon government authority"? Isn't that kind of an arbitrary distinction?

Furthermore, it is very misleading to say that "Flast did not overturn Frothingham" -- Flast certainly modified Frothingham. Anyway, as I stated above, tax expenditures and taxpayer status are often not issues at all in establishment clause suits.

In his dissenting opinion in Flast, Justice Harlan said,

I am quite unable to understand how, if a taxpayer believes that a given public expenditure is unconstitutional, and if he seeks to vindicate that belief in a federal court, his interest in the suit can be said necessarily to vary according to the constitutional provision under which he states his claim.

. . . .Apparently the Court, having successfully circumnavigated the issue, has merely returned to the proposition from which it began. A litigant, it seems, will have standing if he is "deemed" to have the requisite interest, and "if you . . . have standing, then you can be confident you are" suitably interested. (citation omitted)

LOL