Saturday, December 02, 2006

Taxpayer Standing and Faith-Based Initiatives

It was a big week at the Supreme Court for standing doctrine. First, on Wednesday the justices debated whether the states and environmental groups have standing to challenge the EPA's refusal to regulate carbon dioxide emissions. Then yesterday the Court agreed to decide whether taxpayers have standing to challenge the Bush Administration's support for faith-based initiatives. Mike has already pointed out the weakness of the government's position in the EPA case, so let me explain why I think its argument in the religion case is equally unpersuasive.

The Court's cases on taxpayer standing are not wholly coherent, but they have resulted in the following rule. Taxpayers generally do not have standing to challenge government spending because the harm they suffer is too minor and indistinct from the harm suffered by all taxpayers. But they do have standing to challenge congressional appropriations to religious groups under the Establishment Clause. The reasoning behind this rule is that the Establishment Clause was intended as a specific limit on Congress' power to tax and spend. Therefore, it makes sense to permit taxpayers to sue to enforce this limit even if their injury is slight and generalized.

In the case accepted by the Court yesterday, the government argues that this rule does not support the plaintiffs' standing. The plaintiffs in the case -- Hein v. Freedom From Religion Foundation -- argue that the White House has violated the Establishment Clause by funding a series of conferences designed to teach religious groups how to compete for federal grants. The money used for these conferences, however, was not appropriated by Congress specifically for that purpose. It comes from general funds provided by Congress to the White House for its discretionary use. Thus, the government argues, the plaintiffs lack standing because they are not challenging an exercise of Congress' power to tax and spend. They are merely challenging the White House's discretionary use of funds appropriated by Congress for general purposes.

The government's argument is formalistic in the extreme (which is not to say that it won't appeal to the Court; it has previously denied taxpayers standing to challenge the grant of government land to a Christian college on the theory that the action was taken pursuant to Congress' power under the property clause, not the spending clause). Under the government's theory, the president could use discretionary funds to build a national church, and no taxpayer would have standing to challenge that action as long as Congress did not specifically appropriate the money for that purpose. This makes no sense. If Congress is prohibited from earmarking money to support religion, the president is prohibited from using discretionary money for the same purpose. And if taxpayers have standing to challenge the former, they should also have standing to challenge the latter. Judge Posner recognized this logic in his opinion for the 7th Circuit upholding the plaintiffs' standing, and it is unsettling that the Court has decided to review that decision. If it accepts the government's position, it will effectively bring an end to taxpayer suits under the Establishment Clause. What Congress would be dumb enough to earmark money for religious purposes when it could simply give the president discretionary funds with a wink and let him violate the Constitution instead?

10 comments:

David Crowley said...

I agree that it would be troubling to deny standing here. As I understand it, the rationale behind the bar on taxpayer standing is that such undifferentiated, general harms are better left to the political process, which should be responsive to an entire "injured" electorate.

But in Establishment Clause cases, the injury is not uniformly felt. Secularists and minority religions that have neither the resources nor political acceptance to compete for federal funds are the real losers. I'm guessing that the political branches will not be receptive these groups, and instead of relying on formalities about constiutional sources of powers, the court should take seriously its political process rationale in this instance.

Michael C. Dorf said...

Is there any real doubt that the Roberts Court, were it writing on a clean slate, would recognize no taxpayer standing doctrine at all, not even for Establishment Clause cases? I expect that the doctrine of taxpayer standing for Establishment Clause challenges will come to resemble the Fourth Amendment exclusionary rule--a doctrine that remains on the books and gets enforced in core cases but is increasingly circumscribed.

For what it's worth, my FindLaw column this coming week will advocate cutting back on standing limits, an argument that I think is right in principle but which the Court is unlikely to endorse.

Thomas Healy said...

One point I didn't make in my original post is that while the Court has cut back on taxpayer standing in establishment clause cases it has liberally allowed standing to challenge religious displays even where no tax dollars have been spent. In County of Allegheny v. ACLU, for instance, plaintiffs challenged the county's display of a creche and menorah that had been donated by local religious groups. The county paid no money for the displays and provided only minimal assitance in storing and erecting them. Yet neither the appeals court nor the Supreme Court questioned the plaintiffs' standing.

What's the injury in these cases? Some lower courts have suggested that plaintiffs are injured if they have to alter their routine to avoid seeing an offensive display. But the Court hasn't expressly embraced this theory, so some writers have suggested that the Court's theory of standing can be found in Justice O'Connor's endorsement test. O'Connor argues that governmental endorsement of religion is impermissible because it "sends a message to nonadherents that they are outsiders, not full members of the political community." Although directed to the merits, not the issue of standing, the endorsement test sheds light on O'Connor's view of the injury in religious display cases. Plaintiffs in these cases are harmed, she implies, because government’s endorsement of religion casts them as outsiders, as second-class citizens not deserving of the same consideration given to adherents. In other words, standing in these cases is based on stigmatic harm, in spite of Allen v. Wright's holding that such harm is generally not sufficient for standing.

Howard Wasserman said...

First, Judge Posner's majority opinion discusses the "having to alter their route" theory of standing, linking that relaxed theory to the special, relaxed rules of taxpayer standing for Establishment Clause cases.

Second, to the extent stigmatic harm is uniquely recognized under the Establishment Clause (but not the Equal Protection Clause), that is consistent with the Flast Court's recognition of the structural nature of the Establishmnt Clause as permitting broader standing rules.

Third, to the extent the stigmatic harm is directed to the merits, as Thomas suggests, that underscores the problem with standing--asking whether the plaintiff was harmed IS directed to the merits and squeezing it into Article III has just created problems.

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