More thoughts about hokey taxpayer standing issue in Caldwell v. Caldwell

Review: I previously expressed surprise that (1) the Caldwell v. Caldwell plaintiffs did not appeal the district court's rulings that they lacked taxpayer standing to sue and that (2) the 9th circuit appeals court made no review of those rulings. Then I started thinking about a commenter's observation: " . . .taxpayer-standing is one of several methods to establish standing. You only need one method to establish standing." So I decided to take a closer look at the district court opinion to see if the taxpayer standing issue can really be avoided.

The district court opinion divides the "Standing" rulings (pages 7-13) into three sections: Sec. a., "federal taxpayer standing;" Sec. b., "state taxpayer standing;" and Sec. c., "cognizable injury in fact." The separate listing of "cognizable injury in fact" is surprising because taxpayer standing falls into the category of such injury. The taxpayer-standing theme appears even in Sec. c:

In determining that no standing existed where plaintiffs alleged "the deprivation of the fair and constitutional use of their tax dollar," the Valley Forge [Valley Forge Christian College v. Americans United for Separation of Church and State] court reiterated its prohibition on standing claims that are predicated on "the right, possessed by every citizen, to require that the government be administered according to the law" . . . See 454 U.S. at 482-83.

So maybe the taxpayer standing issue will come back to haunt the plaintiffs in the Supreme Court. Maybe the defendants raised the taxpayer standing issue again in their brief opposing the petition for certiorari -- I don't know. I am having a really hard time getting a hold of a copy of the opposition brief. Update: I have received a copy of the opposition brief and it does not mention taxpayer standing.

To summarize my position about taxpayer standing:

(1) If the website had been privately-funded instead of government-funded, the issue of taxpayer standing would have never arisen. Taxpayer injury is not a fair criterion for determining standing to sue, because this criterion cannot be uniformly applied to all establishment clause lawsuits. The taxpayer standing issue gives the courts an excuse to deny standing.

(2) There was no majority opinion in the Supreme Court's Hein v. Freedom from Religion Foundation decision, but the opinions expressly show that the justices were 6-3 against making a distinction between Congressional funding and executive-branch funding, yet because of the "Marks rule" it is assumed that the court ruled in favor of such a distinction! [1] If Roberts and Kennedy had joined Scalia's opinion instead of Alito's, then the vote would have been 8-1 against the distinction and under the Marks rule the court's ruling would still be in favor of the distinction!

(3) The taxpayer standing issue was well summed up by Justice Harlan's dissenting opinion in Flast v. Cohen, 392 U.S. 83 [2] --

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.

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