The Supreme Court continued its quest to strike at Article III taxpayer standing today in its opinion in Summers v. Earth Island Institute (here).

In 1968, the Court ruled 8-1 in Flast v. Cohen (here) that Florence Flast and others could file suit against the Secretary of Health, Education, and Welfare for violating the First Amendment for the funding of religious schools. The Court acknowledged that “a taxpayer will have standing consistent with Article III to invoke federal judicial power when he alleges that congressional action under the taxing and spending clause is in derogation of those constitutional provisions which operate to restrict the exercise of the taxing and spending power.”

Since then, however, the reading in Flast has never been taken any farther and the Court has chipped away at the ruling with increasing frequency. In cases like DaimlerChrysler Corp. v. Cuno and Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., the Court held the Flast exception to almost the exact fact-scenarios that arose in the original case.

In Hein v. Freedom From Religion, the Roberts Court had its first full-swing at the Flast exception. Justice Alito, joined by the Chief Justice and Justice Kennedy, refused to extend Flast to executive expenditures but also refused to strike the precedent entirely.

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.

The distinction drawn in Hein is hard to understand. Justice Alito attempted to draw a distinction between an expenditure of Congress and an appropriation granted to the executive branch via Congress. Justices Scalia criticized that weak distinction in his concurring opinion and the dissenting Justices harped on the same issue. Justice Scalia wrote in an opinion joined by Justice Thomas that “Flast‘s lack of a logical theoretical underpinning has rendered our taxpayer-standing doctrine such a jurisprudential disaster that our appellate judges do not know what to make of it.”

It wasn’t hard to predict that this court would react so violently to assertions of Taxpayer standing. Justice Scalia has been a critic of Flast for some time now and published a controversial journal article in 1983 titled “The Doctrine of Standing as an Essential Element of the Separation of Powers” in the Suffolk Law Review. In 1993, a young ex-Deputy Solicitor General named John Roberts published an article in the Duke Law Journal defending an opinion by Justice Scalia lashing out at Flast.

Today, in Earth Island Institute, the Court took a more sober look at the principles underlined in Flast. Justice Scalia authored a majority opinion that did not cite Flast or Frothingham once. Instead, the Court simply held that the Earth Island Institute could not prove a “concrete” and “imminent” harm and therefore did not have standing per Article III.

I’m curious to see what direction the Court will take moving forward. In Hein, only Justices Scalia and Thomas signed on to the idea that Flast should be completely overruled. At the same time, however, Chief Justice Roberts and both Justices Kennedy and Alito have been highly critical of Flast and have done everything short of striking it down. As it stands, a plurality of the Court seems perfectly content chipping away at Flast until there is nothing of substance left. The problem thus far seems to be that the Court hasn’t had an opportunity to see the precedent directly. That would require a very specific set of facts that are hard to recreate in the real world. An individual would have to file suit against a program directly authorized by Congress that allegedly violates the Establishment Clause. I’m not currently aware of any cases that look like that, but I wouldn’t be surprised to see one come up through the courts in the next few years.

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