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?