Alongside Morse, the court handed down another highly controversial ruling along the standard partisan line. In Hein v. Freedom From Religion (discussed at length here), the Court ruled that taxpayer standing does not extend to establishment clause cases arising from appropriations made by the executive branch that were never explicitly authorized by Congress.

To understand Hein, it is imperative to first understand Flast v. Cohen. The court held in Flast (again, I discussed this a great length here) that Taxpayers have standing in certain establishment clause cases that arise from congressional appropriations. This is how Chief Justice Warren described the central conflict in his majority opinion:

As we understand it, the Government’s position is that the constitutional scheme of separation of powers, and the deference owed by the federal judiciary to the other two branches of government within that scheme, present an absolute bar to taxpayer suits challenging the validity of federal spending programs. The Government views such suits as involving no more than the mere disagreement by the taxpayer “with the uses to which tax money is put.” According to the Government, the resolution of such disagreements is committed to other branches of the Federal Government and not to the judiciary.

Standing is an aspect of justiciability and, as such, the problem of standing is surrounded by the same complexities and vagaries that inhere in justiciability. Standing has been called one of “the most amorphous [concepts] in the entire domain of public law.” Some of the complexities peculiar to standing problems result because standing “serves, on occasion, as a shorthand expression for all the various elements of justiciability.” In addition, there are at work in the standing doctrine the many subtle pressures which tend to cause policy considerations to blend into constitutional limitations.

The court went on to establish two rules to help define when this type of Article III standing is appropriate.

(a) Taxpayers must establish a logical link between that status and the type of legislative enactment attacked, as it will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute.

(b) Taxpayers must also establish a nexus between that status and the precise nature of the constitutional infringement alleged. They must show that the statute exceeds specific constitutional limitations on the exercise of the taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, 8.

As you can see, the Court’s ruling in Flast provides taxpayer standing for individuals against establishment clauses that arise from “legislative enactment” alone. The fact that Flast only provided for standing in legislative appropriations is central to Hein.

The majority (Roberts, Scalia, Kennedy, Thomas, Alito) came out swinging in Hein. Junior Justice Alito wrote the plurality opinion and he expressed unusual candor. There was no majority opinion, with Justice Alito penning an opinion that was signed by the Chief Justice and Justice Kennedy and Justice Scalia writing an opinion that was signed by Justice Thomas. He writes in section 4 of the summary:

A taxpayer’s purely psychological disapproval that his funds are being spent in an allegedly unlawful manner is never sufficiently concrete and particularized to support Article III standing. Although overruling precedents is a serious undertaking, stare decisis should not prevent the Court from doing so here. Flast was inconsistent with the cases that came before it and undervalued the separation-of-powers function of standing. Its lack of a logical theoretical underpinning has rendered the Court’s taxpayer-standing doctrine so incomprehensible that appellate judges do not know what to make of it. The case has engendered no reliance interests. Few cases less warrant stare decisis effect. It is past time to overturn Flast.

They address standing again later:

As a general matter, the interest of a federal taxpayer in seeing that Treasury funds are spent in accordance with the Constitution does not give rise to the kind of redressable “personal injury” required for Article III standing. Of course, a taxpayer has standing to challenge the collection of a specific tax assessment as unconstitutional; being forced to pay such a tax causes a real and immediate economic injury to the individual taxpayer.

Here is really the best thing Alito said:

Over the years, Flast has been defended by some and criticized by others. But the present case does not require us to reconsider that precedent. The Court of Appeals did not apply Flast; it extended Flast. It is a necessary concomitant of the doctrine of stare decisis that a precedent is not always expanded to the limit of its logic. That was the approach that then-Justice Rehnquist took in his opinion for the Court in Valley Forge, and it is the approach we take here. We do not extend Flast, but we also do not overrule it. We leave Flast as we found it.

At first I really liked the way Justice Alito handled this case. I’m afraid that he makes one major mistake: he has now weakened the Flast precedent to the point where a considerable number of lower-court judges are sure to take it into their own hands to overrule the Flast precedent. This only means that in a matter of years the court will be asked to rule on the issue again. Leaving a precedent like this in limbo is the most sure-fire way of getting conflicting circuit court rulings. Justice Scalia, in his concurring opinion that was signed by Justice Thomas, argues that the court needs to either extend Flast to “all challenges to the 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.” He ultimately suggests that the second option is the appropriate one, but concedes that the Court needs to pick a side (we’re at war!). Bravo Justice Scalia, Bravo.

I stand squarely with Justice Scalia in this case. I can find no reason why taxpayers should have a legitimate standing in a case in which they are not being directly harmed. Sure, Faith-Based Initiatives are unconstitutional to some, but that doesn’t mean that we all have standing. The purpose of the court system is to allow individuals to find solution to harms that are inflicted upon them by others. In this case, there is nothing that can be given to FFR that would alleviate their ‘pain’ because they were never directly harmed. The question of Faith-Based Initiatives is a purely political question and FFR would have been wise to spend money on lobbying instead of court costs. Justice Souter writes an almost incomprehensibly short 7-page opinion that feebly argues that we allow other people who are directly harmed by the legislature to have standing. He lists a number of examples but they all have more direct harm than the Freedom From Religion organization so his argument is really moot.


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