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Friday, January 23, 2009

More thoughts about Hein v. Freedom from Religion Foundation, crazy decision about taxpayer standing in establishment clause cases

Hein v. Freedom from Religion Foundation (2007) is discussed in this external article and in articles [1] [2] on this blog.

First, I want to say that I think that the whole idea of taxpayer standing in establishment clause cases (as well as some other cases) is a crock, partly because some violations of the establishment clause involve tax spending while others do not. For example, according to Hein, there is no standing to sue over a religious symbol on public property if that symbol is funded by the executive branch. However, ironically Hein would not be a barrier to standing to sue if the religious symbol is privately funded, because then taxpayer standing would not be an issue because tax spending is not involved. If anything, it should be the other way around -- a government-funded religious symbol appears to be a bigger violation of the establishment clause than a privately-funded religious symbol, hence standing to sue should be stronger in the government-funded case. There are other reasons why the taxpayer-standing issue is a crock, but this one reason is sufficient. The whole taxpayer-standing issue really sucks big-time.

The Supreme Court's Hein decision is here. Here is a summary of the decision (authors of the opinions are shown in bold):
.
"Judgment of the court" -- Alito, joined by Roberts and Kennedy
Opposed granting standing to sue. Held that in establishment clause cases, there should be taxpayer standing in challenges to Congressional authorization of spending but not in challenges to executive-branch authorization of spending (even where the funds originate from Congressional authorization). Called "judgment of the court" despite being a minority opinion, with even fewer justices than the "dissenting" opinion, 3 vs. 4.

Concurrence: Scalia, joined by Thomas
Opposed granting standing to sue. Held that there should be no taxpayer standing in establishment clause cases at all, i.e., that Flast v. Cohen should be overturned, or at least that the taxpayer-standing rules of Flast be applied to other kinds of challenges to government spending. However, opposed Alito's distinction between Congressional authorization and executive-branch authorization.

Dissent: Souter, joined by Stevens, Ginsburg, and Breyer
Favored granting standing to sue. Like Scalia and Thomas, opposed Alito's distinction between Congressional authorization and executive-branch organization.

Concurrence: Kennedy, in addition to joining Alito's opinion, wrote a separate concurring opinion which does not enter into my analysis here.

So, in summary --

The court voted 5-4 to deny standing. However, it is assumed that Alito's distinction between Congressional spending and executive-branch spending is a binding ruling of the court, even though the opinions show that the justices are opposed by 6-3 against making that distinction (furthermore, even the decision's syllabus does not expressly indicate that this distinction is a binding ruling)! How can that be? The answer is in the following statement:

In a Supreme Court decision that does not have a majority opinion, such as Hein, the rationale of the narrowest opinion supporting the result becomes the controlling law. Therefore, the controlling opinion in Hein is the opinion that, first, found no standing for the plaintiffs in Hein, and, second, will eliminate standing for the least number of potential plaintiffs in future cases.

However, there ought to be a court rule that when a majority of the Supreme Court justices expressly oppose a particular ruling, as is the case here (6 justices opposed the distinction between Congressional and executive-branch spending authorizations), that particular ruling cannot be binding. Theoretically, the way things are now, it is possible for a single justice to make a binding ruling that is expressly opposed by the opinions of all the other justices. What if Roberts and Kennedy had joined in Scalia's opinion instead of Alito's? Then Alito's lone opinion would have been controlling. That's ridiculous.

Scalia and/or Thomas might have used the following reasoning: "we would really like to see this court either overturn Flast v. Cohen or at least apply the reasoning of Flast to other cases involving government spending, but since this court is not going to do that, we are going to join Souter's opinion so that we will at least block Alito's distinction between Congressional and executive-branch authorizations of spending." Scalia and Thomas essentially threw away their votes, except for the Pyrrhic victory of denying standing in this particular case.

BTW, here is a statement of Souter's opposition to Alito's distinction between Congressional and executive-branch authorization of spending:

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. I see no basis for this distinction in either logic or precedent, and respectfully dissent.

Scalia's following statement agrees with Souter's preceding statement:

As the dissent correctly contends and I shall not belabor, see post, at 3–4 (opinion of Souter, J.), Flast is indistinguishable from this case for purposes of Article III. Whether the challenged government expenditure is expressly allocated by a specific congressional enactment has absolutely no relevance to the Article III criteria of injury in fact, traceability, and redressability . . . . (emphasis in original)

Actually, Alito's distinction between Congressional and executive-branch authorization of funding is implicit in the following ruling from Flast v. Cohen, 392 U.S. 83, 102 (1968):

. . . .a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, 8, of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute.

The district court decision in Caldwell v. Caldwell (the UC Berkeley website case -- link to post-label group is at bottom of this article, also listed in the sidebar of the homepage) used the above ruling in Flast to argue that the plaintiff lacked federal taxpayer standing (see page 8 of decision). The Caldwell v. Caldwell district-court decision preceded the Supreme Court's Hein decision, so the similar ruling in Hein was not available. But the appeals court opinion in Caldwell v. Caldwell says -- without explanation -- that the taxpayer-standing issue was not appealed:

The district court held that Caldwell failed to make out taxpayer standing with respect to both the federal and state parties, an issue that is not appealed (page 6 of opinion)

Also, the appeals court decision, unlike the district court decision, does not mention the distinction between Congressional and executive-branch authorization of funding (Flast apparently uses the phrase "an incidental expenditure of tax funds in the administration of an essentially regulatory statute" to describe executive-branch authorization). Anyway, federal taxpayer standing should probably not be an issue at all because I presume that the National Science Foundation -- which funded the website -- did not authorize webpages with religious messages. I will try to find out what happened to the taxpayer-standing issue in Caldwell v. Caldwell.
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22 Comments:

Anonymous MandD said...

(Enter Malcom, a wizard, and Draco, his familiar - a freshly hatched dragon)

First, I want to say that I think that the whole idea of taxpayer standing in establishment clause cases (as well as some other cases) is a crock, partly because some violations of the establishment clause involve tax spending while others do not. For example, according to Hein, there is no standing to sue over a religious symbol on public property if that symbol is funded by the executive branch. However, ironically Hein would not be a barrier to standing to sue if the religious symbol is privately funded, because then taxpayer standing would not be an issue because tax spending is not involved.

Draco: I'm confused. Why would a court prevent a case about a publicly-funded symbol from being heard when a case about a similar privately-funded symbol would go through?

Malcolm: The answer, my friend, is simple: it doesn't. You see, taxpayer-standing is one of several methods to establish standing. You only need one method to establish standing.

Draco: So if I can establish standing in a privately-funded situation, I can establish standing in an otherwise identical publicly-funded situation?

Malcolm: Exactly!

But the appeals court opinion in Caldwell v. Caldwell says -- without explanation -- that the taxpayer-standing issue was not appealed:

The district court held that Caldwell failed to make out taxpayer standing with respect to both the federal and state parties, an issue that is not appealed (page 6 of opinion)
Also, the appeals court decision, unlike the district court decision, does not mention the distinction between Congressional and executive-branch authorization of funding


Draco: Why didn't the court mention the distinction?

Malcolm: Because it didn't have to. When the appellee chose not to appeal the ruling of the district court on tax-payer standing, the court of appeals couldn't take up the issue.

Draco: Umm... then what was she appealing?

Malcolm: She was appealing the district court ruling on another standing issue, one that didn't rely on taxpayer status.

Draco: One last question. What explanation does the author think is lacking?

Malcolm: Good question.

Friday, January 23, 2009 11:12:00 AM  
Blogger Larry Fafarman said...

MandD said,
>>>>>Draco: I'm confused. Why would a court prevent a case about a publicly-funded symbol from being heard when a case about a similar privately-funded symbol would go through?

Malcolm: The answer, my friend, is simple: it doesn't. You see, taxpayer-standing is one of several methods to establish standing. You only need one method to establish standing.

Draco: So if I can establish standing in a privately-funded situation, I can establish standing in an otherwise identical publicly-funded situation?

Malcolm: Exactly!
<<<<<<<

You changed the subject in the middle of your argument. First you asked, "Why would a court prevent a case about a publicly-funded symbol from being heard when a case about a similar privately-funded symbol would go through," then you started talking about needing only one method to establish standing.

Also, the reasoning of the courts is more likely to be, "if you can't establish standing in a publicly-funded situation, then you can't establish standing in an otherwise identical privately-funded situation." The courts are going to argue that as a taxpayer you have more reason to complain in a publicly-funded situation than in a privately-funded situation.

>>>>>> Malcolm: Because it didn't have to. When the appellee chose not to appeal the ruling of the district court on tax-payer standing, the court of appeals couldn't take up the issue. <<<<<<

Why not? Why couldn't the appeals court say whether or not it agreed with the district court rulings on the taxpayer standing issue, particularly in regard to the question of Congressional authorization vs. executive-branch authorization? I thought that the courts were supposed to cover all the bases -- that is one of the big arguments in defense of Judge Jones' decision to rule on the scientific merits of Intelligent Design.

>>>>>Malcolm: She was appealing the district court ruling on another standing issue, one that didn't rely on taxpayer status.<<<<<

Yes -- the other issue of standing was that she was a victim of an establishment clause violation. The courts need to forget about this cockamamie "taxpayer standing" crap, which only leads to confusion and arbitrary & capricious court decisions.

>>>>> Draco: One last question. What explanation does the author think is lacking? <<<<<<

I haven't gotten any good explanations so far.

Ambrose Bierce's "Devil's Dictionary" has the following definition of "precedent":

In Law, a previous decision, rule or practice which, in the absence of a definite statute, has whatever force and authority a Judge may choose to give it, thereby greatly simplifying his task of doing as he pleases. As there are precedents for everything, he has only to ignore those that make against his interest and accentuate those in the line of his desire. Invention of the precedent elevates the trial-at-law from the low estate of a fortuitous ordeal to the noble attitude of a dirigible arbitrament.

Also, Justice Harlan said of taxpayer standing,

The taxpayer cannot ask the return of any portion of his previous tax payments, cannot prevent the collection of any existing tax debt, and cannot demand an adjudication of the propriety of any particular level of taxation. His tax payments are received for the general purposes of the United States, and are, upon proper receipt, lost in the general revenues. . (citation omitted) . . . The interests he represents, and the rights he espouses, are, as they are in all public actions, those held in common by all citizens. To describe those rights and interests as personal, and to intimate that they are in some unspecified fashion to be differentiated from those of the general public, reduces constitutional standing to a word game played by secret rules. -- Justice Harlan, dissenting opinion in Flast v. Cohen, 392 U.S. 83,128-129

Friday, January 23, 2009 12:26:00 PM  
Anonymous MandD said...

You changed the subject in the middle of your argument. First you asked, "Why would a court prevent a case about a publicly-funded symbol from being heard when a case about a similar privately-funded symbol would go through," then you started talking about needing only one method to establish standing.

Draco: I don't see the change in subject.

Malcolm: I was perhaps too brief in my explanation. The author misinterpreted Hein. Hein precludes taxpayer standing by executive branch spending, but it doesn't preclude other forms of standing. These other forms of standing are the same as are available in privately funded displays. Thus, his reasoning about how it should be ("a government-funded religious symbol appears to be a bigger violation of the establishment clause than a privately-funded religious symbol, hence standing to sue should be stronger in the government-funded case") is the way it actually is.

Why not? Why couldn't the appeals court say whether or not it agreed with the district court rulings on the taxpayer standing issue, particularly in regard to the question of Congressional authorization vs. executive-branch authorization? I thought that the courts were supposed to cover all the bases -- that is one of the big arguments in defense of Judge Jones' decision to rule on the scientific merits of Intelligent Design.

Draco: Can you explain?

Malcolm: To be glib, that's the rules. To be more informative, the courts are only supposed to resolve disputes. If a party does not wish to dispute part of a ruling, the court does not and should not have the power to force them to dispute it.

Draco: But what about the question about covering all the bases?

Malcolm: The courts are only supposed to deal with the questions fairly before them. But there is a major difference between courts of original jurisdiction and courts of appellate jurisdiction. Original courts (usually district) have the duty of finding all the facts in the case. Appellate courts are tasked with making sure the lower court made the right decision, as well as establishing precedence for future cases. Thus, the pressure on the original court is to be as persuasive as possible (cover all the bases), whereas appellate courts are wary of setting too broad a precedent.

I haven't gotten any good explanations so far.

Draco: What do you want explained?

Malcolm: Be a bit more specific.

Friday, January 23, 2009 2:47:00 PM  
Blogger Larry Fafarman said...

MandD,

Also, we are dealing here with two different kinds of cases -- publicly-funded establishment-clause violations and privately-funded establishment-clause violations. In the publicly-funded violations, the Congressional v. executive-branch funding issue could be used to deny standing, but in the privately-funded violations, this issue of Congressional v. executive-branch funding does not even arise at all. That was my point.

Friday, January 23, 2009 3:01:00 PM  
Blogger Jim Sherwood said...

The worst violation of the establishment clause is the preaching of such religions or ideologies as philosophical materialism and Darwinism, in public school science classes, in a manner which falsely suggests that they are verifiable science, or are demonstrable fact. Yet the materialists and the Darwin-fanatics have long been getting away with that violation of the rights of students and of their parents.

Friday, January 23, 2009 4:56:00 PM  
Blogger Larry Fafarman said...

MandD said (Friday, January 23, 2009 2:47:00 PM) --
>>>>>> The author misinterpreted Hein. <<<<<

The "author"? If you mean me, please say that you mean me.

No, I did not misinterpret Hein. My posts about Hein show that I have a much better understanding of it than a lot of people who think they understand it.

>>>>>> Hein precludes taxpayer standing by executive branch spending, but it doesn't preclude other forms of standing. <<<<<<

I never claimed otherwise.

>>>>>> These other forms of standing are the same as are available in privately funded displays. <<<<<<

And what are some examples of these other forms of standing? OK, suppose someone just sues on the basis that one is a offended by an alleged establishment-clause violation. If the alleged violation is funded by the executive branch, Hein then gives the courts an excuse or pretext to deny standing. However, if the alleged violation is privately funded or for some other reason does not involve tax funds (or is even funded by Congressional authorization, according to Hein), then the courts could obviously have no such excuse or pretext for denying standing, and the courts are then likely to grant standing solely on the basis that the plaintiff is offended by an alleged establishment-clause violation. The courts do this all the time -- one plaintiff was granted standing on the basis that he was offended by the new Los Angeles County seal because it was a reminder that a small cross in the old seal had been removed when the seal was redesigned -- see this post. Also, plaintiffs who refused to use San Diego public parks because of psychological injury from the thought of associating with the Boy Scouts who leased the parks were granted standing to sue -- see this post.

Here is another example. Suppose that the Dover school district's ID policy was entirely funded by the executive branch. Suppose that the ID books were purchased by the executive branch and that executive-branch employees were sent into the Dover classrooms to read the evolution disclaimer statements. According to Hein, the Kitzmiller plaintiffs would not have had standing to sue.

>>>>>>. . . the courts are only supposed to resolve disputes. If a party does not wish to dispute part of a ruling, the court does not and should not have the power to force them to dispute it. <<<<<<

You are putting words in my mouth. I never said anything about the courts forcing parties to dispute rulings -- I only said that a higher court has the power to review undisputed lower court rulings.

>>>>>> The courts are only supposed to deal with the questions fairly before them. <<<<<

Not necessarily -- judges can sometimes take -- and are sometimes required to take -- sua sponte actions, i.e., actions not requested by any party. For example, Rule 12 (h)(3) of the Federal Rules of Civil Procedure says,

If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.

>>>>>> Original courts (usually district) have the duty of finding all the facts in the case. <<<<<

Not necessarily -- an original court can stop before finding all the facts if it has enough facts to make a decision.

>>>>>> Appellate courts are tasked with making sure the lower court made the right decision, <<<<<<

Well, duh, I hope so.

>>>>> as well as establishing precedence for future cases. <<<<<<

Under new Rule 32.1 of the Federal Rules of Appellate Procedure, any federal court opinion, order, memorandum, etc. may be cited as precedent in any federal court, though generally only published appellate opinions (including Supreme Court opinions) are treated as binding precedents.

>>>>> Thus, the pressure on the original court is to be as persuasive as possible (cover all the bases), whereas appellate courts are wary of setting too broad a precedent. <<<<<<

Again, you are overgeneralizing. The original courts do not necessarily have to cover all the bases all the time, and appellate courts are not wary of setting a broad precedent if they think that it is a good precedent (and few appellate decisions become binding precedents because few are published).

Friday, January 23, 2009 5:20:00 PM  
Blogger Larry Fafarman said...

OK, I'm going to develop this idea further.

Suppose that someone sues on the grounds of being offended by a religious symbol on public property. If the symbol is publicly funded, the courts are going to define the suit as a taxpayer suit, even if the plaintiff has no interest in the taxation aspect at all but is only offended by seeing a religious symbol on public property. If the religious symbol is funded by the executive branch, Hein will then give the courts an excuse to dismiss the suit. However, if the symbol is privately funded or is virtually free, then the courts obviously could not have such an excuse to dismiss the suit, and though the only possible "injury" is then just "psychological" and courts are not supposed to grant standing for injuries that are just psychological but are supposed to grant standing only for "concrete" and "particularized" injuries, the courts are likely to grant standing to sue anyway because there is nothing the courts could do to change the fact that the injury is only psychological, and the only alternative is just to deny standing to all such suits. However, if the alleged violation is publicly-funded, then the courts have something "concrete" to work with -- taxes! The whole idea of "taxpayer standing" is a fiction that was created by the courts in an attempt to create a "concrete" or "particularized" injury in order to satisfy the supposed requirements of the "cases" and "controversies" provisions of the Constitution, i.e., the requirements of injury-in-fact, traceability, and redressability. But why should plaintiffs be interested in the taxation aspect? If they win their suits, they are not going to get tax refunds or reductions in their taxes.

The whole notion of taxpayer standing needs to be thrown out the window. And rules of standing should stop getting priority over the Constitution -- the Constitution is the supreme law of the land.

Friday, January 23, 2009 7:31:00 PM  
Anonymous MandD said...

Draco: This is getting complicated. Can we just look at the standing stuff?

Malcom: Of course. What would you like to know?

Draco: What's standing?

Malcolm: The US Constitution is a limited constitution - it limits the powers of the federal government to what is contained in the document. Article 3 gives the judicial branch the power to hear certain types of cases (both civil and criminal lawsuits) and controversies (civil lawsuits). But because the constitution is limited, the courts aren't allowed to hear other types of cases or controversies, or disputes that aren't properly classified as cases or controversies. A suit that is the right type of case or controversy has what is called standing. Standing is therefore required by the Constitution.

Draco: So that means the courts have to determine standing, right? How is this done?

Malcolm: The courts have devised a three part test. It is the responsibility of the plaintiff to demonstrate that the plaintiff has been injured in some way (injury-in-fact), that the defendant can be shown to have caused that injury if the allegation are true (causation), and that the courts are able to redress the injury in some manner (redressibility). Here is the Supreme Court's take on the matter from a case in 1992, with references ommitted.

First, the plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is concrete and particularized, and actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Draco: So I take it taxpayer standing involves the first step?

Malcolm: For the most part, though in reality it involves aspects of all three. It is the concrete and particularized portion that interests us.

Draco: How so?

Malcolm: The courts (for good or ill) have decided that standing requires that the injury is not one shared with all other citzens of the sovereign. Let's look at the examples offered by the author. A California resident who read about the LA County seal change would not have standing to sue - the injury, abstract knowledge that the county may be violating the Constitution, is shared with all other California residents. However, the county clerk is forced to confront this potential violation every day that he works. This is a concrete and particularized injury. Similarly, an Alabaman who heard about the Boy Scouts controlling the park would not have standing to sue, whereas a person who had to choose between not using the park or associating with a religious organization has a concrete and particularized interest to protect. A parent of a kid that couldn't go to a school in the Dover district does not have the concrete and particularized interest that a parent within the district has.

Draco: But I thought that the courts just automatically granted standing for those case.

Malcolm: No, that is clearly not the case. The courts in those cases went through lengthy standing analyses to determine whether the injuries were concrete and particularized. Because the author ignores this, his premise is incorrect.

Monday, February 02, 2009 1:40:00 PM  
Blogger Larry Fafarman said...

MandD said,
>>>>>> Article 3 gives the judicial branch the power to hear certain types of cases (both civil and criminal lawsuits) and controversies (civil lawsuits). But because the constitution is limited, the courts aren't allowed to hear other types of cases or controversies, or disputes that aren't properly classified as cases or controversies. <<<<<<<

Anything can be a controversy, including hypothetical and moot questions. A controversy is not necessarily a cause of action for a civil lawsuit. Some state courts give advisory opinions on hypothetical questions.

>>>>>> The courts have devised a three part test. <<<<<<

Yes, I know that, but I don't agree with it. BTW, this three part test applies only to the federal courts, unless a state or local court has similar rules.

>>>>>>
Draco: So I take it taxpayer standing involves the first step?

Malcolm: For the most part, though in reality it involves aspects of all three. <<<<<<

As I said, IMO the idea of taxpayer standing is a crock, and one of the reasons why I think so is that some establishment clause cases involve tax money while other otherwise identical cases do not. So, for example, if a religious symbol on public property is funded by the executive branch, then according to Hein there is no standing to sue, but if the religious symbol is privately funded, tax money is not involved and the courts are likely to grant standing to sue.

>>>>>> A California resident who read about the LA County seal change would not have standing to sue - the injury, abstract knowledge that the county may be violating the Constitution, is shared with all other California residents. However, the county clerk is forced to confront this potential violation every day that he works. <<<<<<<

The new LA County seal is just a reminder that a cross that was in the previous county seal was removed. IMO that is too abstract an injury to be the basis of a lawsuit.

>>>>>> Similarly, an Alabaman who heard about the Boy Scouts controlling the park would not have standing to sue, whereas a person who had to choose between not using the park or associating with a religious organization has a concrete and particularized interest to protect. <<<<<<<

There were no crosses or "god hates fags" signs, those kinds of things, in the parks -- the basis for the suit was that the plaintiffs disliked the Boy Scouts. IMO that is too abstract an injury to be the basis of a lawsuit, and in a vote for en banc rehearing, 6 of the 28 active 9th Circuit judges agreed with that assessment.

>>>>>> The courts in those cases went through lengthy standing analyses to determine whether the injuries were concrete and particularized. Because the author ignores this, his premise is incorrect. <<<<<

No, I did not ignore that.

Tuesday, February 03, 2009 1:45:00 AM  
Anonymous MandD said...

So, for example, if a religious symbol on public property is funded by the executive branch, then according to Hein there is no standing to sue, but if the religious symbol is privately funded, tax money is not involved and the courts are likely to grant standing to sue.

Malcolm: Again this is inaccurate. According to Hein and Flast there is no taxpayer standing to sue, but these decisions do not create a barrier to any other basis for standing. Therefore, executive branch funding of a religious symbol is just as likely to be granted standing as private funding of a religious symbol - the test for standing will be identical for both. However, legislative branch funding is more likely to be granted standing, because taxpayer standing is a basis for standing in addition to the normal standing test.

Draco: You and the author are saying two different things. How do I know who is telling the truth?

Malcolm: The best way is to look at the decision yourself. One place to find it is here. As it turns out, Justice Alito already has addressed the author's concerns:

The only asserted basis for standing was that the individual respondents are federal taxpayers who are “opposed to the use of Congressional taxpayer appropriations to advance and promote religion.” Id., ¶10, App. to Pet. for Cert. 69a; see also id., ¶¶7–9, App. to Pet. for Cert. 68a–69a. In their capacity as federal taxpayers, respondents sought to challenge Executive Branch expenditures for these conferences, which, they contended, violated the Establishment Clause.

...

Respondents set out a parade of horribles that they claim could occur if Flast is not extended to discretionary Executive Branch expenditures. For example, they say, a federal agency could use its discretionary funds to build a house of worship or to hire clergy of one denomination and send them out to spread their faith. Or an agency could use its funds to make bulk purchases of Stars of David, crucifixes, or depictions of the star and crescent for use in its offices or for distribution to the employees or the general public. Of course, none of these things has happened, even though Flast has not previously been expanded in the way that respondents urge. In the unlikely event that any of these executive actions did take place, Congress could quickly step in. And respondents make no effort to show that these improbable abuses could not be challenged in federal court by plaintiffs who would possess standing based on grounds other than taxpayer standing.


Just like the respondents, the author has failed to demonstrate that executive branch funded symbols won't qualify for the same standing as privately funded symbols.

Draco: Okay, looks like you're right. What's this about Flast, though? I thought Hein established no taxpayer status for executive branch funding.

Malcolm: Flast is the decision that allowed taxpayer status for certain types of public funding. However, it excluded executive branch funding if that funding was not made through a specific statute, but rather was administrative. All Hein did was affirm that that exclusion applied to what amounts to advertising for executively created initiatives.

Wednesday, February 04, 2009 10:08:00 AM  
Blogger Larry Fafarman said...

>>>>> According to Hein and Flast there is no taxpayer standing to sue, but these decisions do not create a barrier to any other basis for standing. <<<<<<

Wrong -- according to Hein and Flast, there is taxpayer standing in establishment clause cases involving Congressional authorization of tax funds.

>>>>>> Therefore, executive branch funding of a religious symbol is just as likely to be granted standing as private funding of a religious symbol - the test for standing will be identical for both. <<<<<<

Wrong. Hein explicitly -- and Flast implicitly -- bar taxpayer standing where there is executive-branch funding. And I explained that Hein can be used to deny standing where there is executive-branch funding, but the courts have no rule for denying standing where there is private funding.

>>>>>> As it turns out, Justice Alito already has addressed the author's concerns: <<<<<<

Alito was joined by only two other justices. The opinions of six justices opposed Alito's distinction between executive-branch funding and Congressional funding.

>>>>>>>
Draco: Okay, looks like you're right. What's this about Flast, though? I thought Hein established no taxpayer status for executive branch funding.

Malcolm: Flast is the decision that allowed taxpayer status for certain types of public funding. However, it excluded executive branch funding if that funding was not made through a specific statute, but rather was administrative. All Hein did was affirm that that exclusion applied to what amounts to advertising for executively created initiatives.
>>>>>>>

"Advertising for executive created initiatives" comes from executive branch funding, you stupid fathead -- so the exclusion for executive branch funding automatically applies to such advertising.

Your comment consists almost entirely of errors. I almost decided not to post it, as it took a lot of my time to correct those errors.

Wednesday, February 04, 2009 7:30:00 PM  
Anonymous MandD said...

Wrong -- according to Hein and Flast, there is taxpayer standing in establishment clause cases involving Congressional authorization of tax funds.

Draco: Isn't that basically what you just said? How can that be wrong?

Malcolm: Indeed, I mentioned that several times. The author is engaging in a technique known as quote-mining. By taking a quote out of the context of the surrounding text, it is often possible to make it seem as if the person being quoted was saying something other than what was actually meant. The charitable interpretation is that the author didn't understand what was written. The uncharitable interpretation is that the author is being dishonest. Either way, it is clear from the rest of my comment that I was correcting his assertion that no standing is available for executive branch funding by pointing out that it is only taxpayer standing that is barred under that circumstance.

Wrong. Hein explicitly -- and Flast implicitly -- bar taxpayer standing where there is executive-branch funding.

Draco: That's another point you made, right?

Malcolm: Yes. Although a minor quibble; Flast is quite explicit about barring taxpayer standing where executive-branch funding is concerned. But the point is, both decisions bar taxpayer standing when the funding is provided by executive funding not specifically authorized by congress.

And I explained that Hein can be used to deny standing where there is executive-branch funding, but the courts have no rule for denying standing where there is private funding.

Draco: What about that three-part test you mentioned?

Malcolm: Correct. All federal lawsuits, including privately funded Establishment Clause cases, must pass the three part standing test. However, Flast allows a very narrow exception by permitting taxpayer status in a very tightly defined set of circumstances. This Flast exception is optional; the plaintiffs can still gain standing by using the normal three-part test.

It is interesting that the author claims to be aware of the three-part test, devote paragraphs detailing why he thinks the test is not being applied properly, claim that he is not ignoring the detailed application of that test, and then turn around and claim that that test isn't applied to the very cases he complained about the way it was applied. This is a version of the is/ought fallacy. Disagreements on how the test ought to be applied does not mean the test is not applied.

Let me stress that it is perfectly reasonable for the author to present his opinion on how the test should be applied, and to support it in debate with facts and arguments. However, the claim that no test is available or applied is quite simply false, and the author not only has not provided any evidence to the contrary, the very cases he cites show that the test is applied.

Alito was joined by only two other justices. The opinions of six justices opposed Alito's distinction between executive-branch funding and Congressional funding.

Draco: How does this address the quote?

Malcolm: It doesn't. The author is trying to change the subject. The quote I provided demonstrated that executive funded religious displays would still be eligible for standing under the normal rules (meaning the three part test) even if taxpayer status were denied. None of the opinions disputed this, and the dissent even listed examples of how the injury-in-fact portion of normal standing could be applied.

"Advertising for executive created initiatives" comes from executive branch funding, you stupid fathead -- so the exclusion for executive branch funding automatically applies to such advertising.

Draco: Again, isn't that what you said?

Malcolm: Yes. I don't understand why the author sees fit to insult people or claim they are wrong when he is in fact agreeing with their points.

Your comment consists almost entirely of errors. I almost decided not to post it, as it took a lot of my time to correct those errors.

Draco: What errors?

Malcolm: The author agreed with me three times, made an irrelevant observation, and made a claim that contradicts previous statements he made. I see no errors on my part. Though it is telling that he would consider censoring me because he disagreed with (what he apparently thought was) my literal interpretation of Hein.

Thursday, February 05, 2009 11:01:00 AM  
Blogger Larry Fafarman said...

MandD barfed,
>>>>>>Wrong -- according to Hein and Flast, there is taxpayer standing in establishment clause cases involving Congressional authorization of tax funds.

Draco: Isn't that basically what you just said? How can that be wrong? <<<<<<<

No, that is not what he just said -- I was responding to the statement, "According to Hein and Flast there is no taxpayer standing to sue."

>>>>>> Flast is quite explicit about barring taxpayer standing where executive-branch funding is concerned. <<<<<<

Flast does not expressly use the term "executive-branch funding" -- Flast only speaks of “incidental expenditure of tax funds in the administration of an essentially regulatory statute,”

>>>>>>And I explained that Hein can be used to deny standing where there is executive-branch funding, but the courts have no rule for denying standing where there is private funding.

Draco: What about that three-part test you mentioned? <<<<<<<

I never denied the existence of the three-part test -- I just took that for granted.

>>>>>> Draco: What about that three-part test you mentioned?

Malcolm: Correct. All federal lawsuits, including privately funded Establishment Clause cases, must pass the three part standing test. <<<<<<

I am fed up with your repeated ignoring of my arguments, doofus. I will explain this just one more time:

In establishment clause cases involving tax spending, plaintiffs can claim taxpayer (wallet) injury or psychological injury. The courts can ignore the psychological-injury issue completely -- claiming that it is not a "concrete" or "particularized" injury or whatever -- and deny taxpayer on the basis of Hein if the tax spending is by executive branch authorization instead of Congressional authorization (this is in fact what the Supreme Court did in Hein). However, in establishment clause cases not involving tax spending, there can only be psychological injury and so the courts are likely to grant standing and have done so in many cases despite the claim that psychological injury is not "concrete" or "particularized" or whatever. In the case involving the San Diego Boy Scouts, standing was granted solely on the grounds that the plaintiffs dislike the Boy Scouts.

>>>>>>Alito was joined by only two other justices. The opinions of six justices opposed Alito's distinction between executive-branch funding and Congressional funding.

Draco: How does this address the quote?

Malcolm: It doesn't. The author is trying to change the subject. <<<<<<<<<

I did not change the subject, dunghill!

>>>>>> Though it is telling that he would consider censoring me because he disagreed with (what he apparently thought was) my literal interpretation of Hein. <<<<<<<<

You disgusting dunghill, Fatheaded Ed Brayton kicked me off his blog permanently before I could make a single reply to his disagreement with my interpretation of a federal court rule.

OK, you lousy dunghill, I will continue to post your comments here, but not necessarily directly. Where appropriate, your comments will be headed by the following statement, in bold: I HAVE ALREADY REFUTED THIS COMMENTER'S FOLLOWING ARGUMENTS SEVERAL TIMES OVER AND I AM JUST POSTING THIS COMMENT AS A COURTESY -- LARRY FAFARMAN. Enough is enough.

Thursday, February 05, 2009 8:17:00 PM  
Blogger Larry Fafarman said...

I HAVE ALREADY REFUTED THIS TROLL'S ARGUMENTS SEVERAL TIMES OVER AND I AM JUST POSTING THIS COMMENT AS A COURTESY. -- LARRY FAFARMAN

MandD drivels,

I am fed up with your repeated ignoring of my arguments, doofus. I will explain this just one more time:

Draco: You've explained why these arguments are wrong several times. How are you ignoring them?

Malcolm: The author seems to be using a non-standard definition of "ignoring." Ignoring means "failing to address" - he seems to be using it as "failing to agree." However, to make it absolutely clear I am not ignoring his arguments, I will go through line by line.

In establishment clause cases involving tax spending, plaintiffs can claim taxpayer (wallet) injury or psychological injury.

I'd rephrase that as "plaintiffs can claim taxpayer injury or injury-in-fact." Furthermore, I'd like to point out that the plaintiff can claim either or both, but is only obligated to prove one.

The courts can ignore the psychological-injury issue completely -- claiming that it is not a "concrete" or "particularized" injury or whatever -- and deny taxpayer on the basis of Hein if the tax spending is by executive branch authorization instead of Congressional authorization

That's not ignoring the issue, that's addressing the issue. If the plaintiff has made both taxpayer injury and injury-in-fact claims, the court must evaluate them separately. However, if the plaintiff only makes one type of claim, the court are supposed to evaluate just the one claim and "ignore" the other (see FRCP Rule 12, "failure to make a claim").

(this is in fact what the Supreme Court did in Hein).

If I'm reading this right (which I may not), I believe this is where the author is making his mistake. The plaintiffs in Hein (and Flast) were only asserting taxpayer injury. They were not claiming injury-in-fact. Therefore, the only analysis was in regards to the taxpayer injury. The Supreme Court "ignored" the injury-in-fact issue only because it wasn't an issue in the case.

However, in establishment clause cases not involving tax spending, there can only be psychological injury and so the courts are likely to grant standing and have done so in many cases despite the claim that psychological injury is not "concrete" or "particularized" or whatever.

In those cases, the courts have ruled that the injury was in fact, concrete and particularized. If a plaintiff has claimed injury-in-fact, it should not matter whether taxpayer status can be claimed, the court should reach the same conclusion if the facts are otherwise identical. The author has provided no evidence that this is not true. However, If a plaintiff does not allege injury-in-fact, only the taxpayer injury will be evaluated.

In the case involving the San Diego Boy Scouts, standing was granted solely on the grounds that the plaintiffs dislike the Boy Scouts.

That's a poor characterization of the case, but regardless of how you frame it, the circuit court ruled that the alleged injury was concrete and particularized. The court also denied taxpayer standing. The district court had granted both.

In the county seal case, the district court denied injury-in-fact standing and taxpayer standing. The circuit court granted injury-in-fact standing (again, because they ruled the alleged injury was concrete and particularized) and didn't evaluate taxpayer standing (because injury-in-fact standing had been granted).

In the UC Berkeley case, the district court denied injury-in-fact standing and taxpayer standing. The circuit court denied injury-in-fact standing and did not evaluate taxpayer standing (because it was not appealed).

The only case that the author presents that doesn't involve a taxpayer injury is the Dover case. Nothing he has presented shows any indication that Hein creates a barrier to standing to sue any greater than that which would be experienced by a privately funded symbol. If anything, his examples show that any such lawsuit would have the same chance of success.

Friday, February 06, 2009 4:26:00 PM  
Anonymous Skye said...

Like seriously dude, you need to chill out. Some of the stuff you say doesn't make sense. Take this:

>>The courts can ignore the psychological-injury issue completely -- claiming that it is not a "concrete" or "particularized" injury or whatever -- and deny taxpayer on the basis of Hein if the tax spending is by executive branch authorization instead of Congressional authorization (this is in fact what the Supreme Court did in Hein). However, in establishment clause cases not involving tax spending, there can only be psychological injury and so the courts are likely to grant standing and have done so in many cases despite the claim that psychological injury is not "concrete" or "particularized" or whatever.<<

If a court can claim that the pyscho-injury is not "concrete" or "particularized" or whatever in taxpayer case, why can't it claim the psycho-injury is not "concrete" or "particularized" or whatever in the private case? If the judge is likely to claim that it is "concrete" etc. for the private case, shouldn't the judge be just as likely to claim it is "concrete" etc. for the taxpayer case? What you're saying just doesn't make sense, man.

Friday, February 06, 2009 9:29:00 PM  
Blogger Larry Fafarman said...

>>>>>>> If a court can claim that the pyscho-injury is not "concrete" or "particularized" or whatever in taxpayer case, why can't it claim the psycho-injury is not "concrete" or "particularized" or whatever in the private case? If the judge is likely to claim that it is "concrete" etc. for the private case, shouldn't the judge be just as likely to claim it is "concrete" etc. for the taxpayer case? What you're saying just doesn't make sense, man. <<<<<<<

Whoever said that all court decisions make sense? I am not trying to make sense out of it -- I am just describing it the way it is.

What happened here is that the two kinds of establishment clause cases -- involving and not involving tax money -- have different histories, and so the rules for the two kinds of cases are inconsistent.

Friday, February 06, 2009 9:48:00 PM  
Anonymous Skye said...

Dude, I think you need to spell out where they're inconsistent, 'cause I'm not seeing it.

The way I see it is this:

Dudes in Hein file suit, claiming taxpayer status. For whatever reason they don't claim psycho-injury, so judges just look at the taxpayer issue. Cat that writes the opinion is all "no can has taxpayer standing, can has other standing if u can prove it"

Friday, February 06, 2009 10:14:00 PM  
Blogger Larry Fafarman said...

>>>>> Dudes in Hein file suit, claiming taxpayer status. For whatever reason they don't claim psycho-injury, so judges just look at the taxpayer issue. <<<<<<

So you are saying that the plaintiffs in Hein were denied standing because they failed to claim psycho-injury? That is an interesting interpretation.

Here is what Scalia's concurring opinion --joined by Thomas -- in Hein says:

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 . . . . .

. . . . There is a simple reason why our taxpayer-standing cases involving Establishment Clause challenges to government expenditures are notoriously inconsistent: We have inconsistently described the first element of the “irreducible constitutional minimum of standing,” which minimum consists of (1) a “concrete and particularized” “ ‘injury in fact’ ” that is (2) fairly traceable to the defendant’s alleged unlawful conduct and (3) likely to be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 560–561 (1992) . We have alternately relied on two entirely distinct conceptions of injury in fact, which for convenience I will call “Wallet Injury” and “Psychic Injury” . . . . . .

. . . . . As the following review of our cases demonstrates, we initially denied taxpayer standing based on Wallet Injury, but then found standing in some later cases based on the limited version of Psychic Injury described above. The basic logical flaw in our cases is thus twofold: We have never explained why Psychic Injury was insufficient in the cases in which standing was denied, and we have never explained why Psychic Injury, however limited, is cognizable under Article III.
(emphasis added)

And you are trying to tell me that the Hein decision makes sense? LOL

Friday, February 06, 2009 11:41:00 PM  
Anonymous Skye said...

>>So you are saying that the plaintiffs in Hein were denied standing because they failed to claim psycho-injury? That is an interesting interpretation.<<

No, dude. I'm saying they were denied standing because they couldn't meet taxpayer standing and didn't claim psycho-injury. If they had claimed psycho-injury, they still would have had to prove it was "concrete" and "particularized," and all those other cases (which were both taxpayer and psycho-injury claims) show that they test each psycho-injury claim to see if it's "concrete" and "particularized." They might have been granted standing if they had claimed psycho-injury, but it certainly isn't automatic.

It's not like all psycho-injury is "concrete" and "particularized," dude. If it's shared by everyone, it's "generalized" instead of "particularized." And somewhere there's a line between "abstract" and "concrete," though not all these cats agree where it should be drawn.

Now, this cat Scalia wrote:

>>As the following review of our cases demonstrates, we initially denied taxpayer standing based on Wallet Injury, but then found standing in some later cases based on the limited version of Psychic Injury described above.<<

He wasn't talking about all psycho-injury, just the "limited version" he "described above." Where's that description?

>>Restricted or not, this conceptualizing of injury in fact in purely mental terms conflicts squarely with the familiar proposition that a plaintiff lacks a concrete and particularized injury when his only complaint is the generalized grievance that the law is being violated. As we reaffirmed unanimously just this Term: “ ‘We have consistently held that a plaintiff raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy.’ ”<<

I just don't see where any of these cats are claiming that all psycho-injuries are "concrete" and "particularized" or that none are. And the other opinions point out that psycho-injuries have to be looked at for each case.

Saturday, February 07, 2009 11:59:00 AM  
Blogger Larry Fafarman said...

Skye, your big mistake is assuming that all court decisions are logical. Many of them are not, and Hein in particular is not, as my quotations of Scalia's opinion amply showed. I refuse to debate absurdities.

Saturday, February 07, 2009 6:25:00 PM  
Anonymous Skye said...

Well, if you don't want to debate absurdities, then maybe you shouldn't invent them out of whole cloth, man.

Saturday, February 07, 2009 7:47:00 PM  
Blogger Larry Fafarman said...

>>>>>> Well, if you don't want to debate absurdities, then maybe you shouldn't invent them out of whole cloth, man. <<<<<

I didn't invent them, bozo. The courts did.

Saturday, February 07, 2009 8:06:00 PM  

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