Nitpicking, hairsplitting ruling on taxpayer standing to sue
Aimed originally at a series of White House-sponsored regional conferences on federal aid to religious groups, this lawsuit turns on whether taxpayers have the right to sue over a federal program that supports religion through actions of the President and Executive Branch, rather than with funds specifically earmarked by Congress.
There was no majority opinion, but the majority judgment was that taxpayers do not have standing to sue over a federal program that supports religion through an Executive Branch funding allocation instead of through a Congressional funding allocation. IMO that is a nitpicking and hairsplitting distinction.
The case syllabus says,
ALITO, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C.J., and KENNEDY, J., joined. KENNEDY, J., filed a concurring opinion. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined. SOUTER, J., filed a dissenting opinion, in which STEVENS, GINSBURG, and BREYER, JJ., joined. (page 5 of pdf file)
Alito's plurality opinion begins,
This is a lawsuit in which it was claimed that conferences held as part of the President's Faith-Based and Community Initiatives program violated the Establishment Clause of the First Amendment because, among other things, President Bush and former Secretary of Education Paige gave speeches that used "religious imagery" and praised the efficacy of faith-based programs in delivering social services. The plaintiffs contend that they meet the standing requirements of Article III of the Constitution because they pay federal taxes. (page 6 of pdf file)
IMO it seems frivolous to file a lawsuit over what Pres. Bush and a cabinet member said at conferences -- however, that is a side issue.
It has long been established, however, that the payment of taxes is generally not enough to establish standing to challenge an action taken by the Federal Government. In light of the size of the federal budget, it is complete fiction to argue that an unconstitutional federal expenditure causes an individual federal taxpayer any measurable economic harm. And if every federal taxpayer could sue to challenge any Government expenditure , the federal courts would cease to function as courts of law and would be cast in the role of general complaint bureaus.
In Flast v. Cohen, 392 U.S. 83 (1968), we recognized a narrow exception to the general rule against 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 presented here is whether this broad reading of Flast is correct. We hold that it is not. We therefore reverse the decision of the Court of Appeals. (pages 6-7 of pdf file)
As I said, IMO this distinction between Executive Branch funding allocation and Congressional funding allocation is nitpicking and hairsplitting. Scalia, in a concurring opinion joined by Thomas, said that the court should either poop or get off the can:
The Court's taxpayer standing cases involving Establishment Clause challenges to government expenditures are notoriously inconsistent because they have inconsistently described the relevant "injury in fact" that Article III requires. Some cases have focused on the financial effect on the taxpayer's wallet, whereas Flast and the cases that follow its teaching have emphasized the mental displeasure the taxpayer suffers when his funds are extracted and spent in aid of religion. There are only two logical routes available with respect to taxpayer standing. If the mental displeasure created by Establishment Clause violations is concrete and particularized enough to constitute an Article III "injury in fact," then Flast should be applied to (at a minimum) all challenges to government expenditures allegedly violating constitutional provisions that specifically limit the taxing and spending power; if not, Flast should be overturned. (pages 4-5 of syllabus)
This view echoes the dissenting opinion of Justice Harlan in Flast:
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)
Ironically, if an alleged establishment clause violation does not involve any tax money at all -- e.g., a government decision to allow a privately donated religious display on public property -- the standing of citizens to challenge that alleged violation is not questioned. IMO tax money should never be an issue of standing to sue in civil rights lawsuits.
BTW, IMO the idea that an aggrieved party might not have standing to sue is one of the ugliest concepts in jurisprudence. Because of a technicality, my car was exempt from the grossly unconstitutional $300 California "smog impact fee" on out-of-state cars and thus supposedly I had no standing to sue over the fee, but I felt that my mental suffering that resulted from the threat of this diabolical fee qualified me as an aggrieved party entitled to sue (anyway, I never told the courts that I hadn't paid the fee, so this issue never came up).
The courts often paint themselves into corners by means of bad and/or inconsistent precedents and it is sometimes best for the courts to forget about precedent and start with a clean slate.
Related articles about the Hein case:
"Establishment clause case illustrates arbitrariness of our courts"
"Taxpayers' standing to sue in establishment clause lawsuits "
Labels: Establishment clause