Hein v. Freedom From Religion Foundation

It's been a busy day at the Supreme Court; Pat has coverage of Morse v. Fredrick here and WRTL here. Being our resident threshold doctrine geek, the decision in Hein v. Freedom from Religion Foundation is, ahem, all mine.

After making a horrendous mistake in standing doctrine earlier this term, the Supreme Court today declines to screw up in the same doctrinal area twice in one term, this time in relation to the Flast exception to taxpayer standing.

From taking office onward, the Bush administration initiated various faith-based initiatives and outreaches. Those at issue here were created by executive order and paid for out of general-purpose executive-branch appropriations. The plaintiffs in this case are "a nonstock corporation 'opposed to government endorsement of religion,'" who argued that conferences held under the auspices of these programs "violated the Establishment Clause of the First Amendment because, among other things, President Bush and former Secretary of Education Paige gave speeches that used 'religious imagery' and praised the efficacy of faith-based programs in delivering social services" and "contend that they meet the standing requirements of Article III of the Constitution because they pay federal taxes."1

"Much of the Constitution is concerned with setting forth the form of our government,"2 and its primary protections of liberty are structural - as Benjamin Franklin put it when emerging from the Constitutional Convention, the drafters gave us a republic, if you can keep it. We keep it by respecting the Constitution's structures."3 First among these structural protections are the separation of powers, served vertically by federalism4, and horizontally, as relevant here, by standing, the doctrine that ensures that the "[j]udicial power c[an] come into play only in matters that [a]re the traditional concern of the courts," and thus cannot be used to "meddle with matters that require no subtlety to be identified as political issues."5 Thus, "the standing requirements of Article III's case-or-controversy limitation on federal judicial power[] [are] a fundamental feature in the Constitution's separation of powers,"6 and to posses standing, a "plaintiff must show that the conduct of which he complains has caused him to suffer an injury in fact that a favorable judgment will redress."7 Taxpayers qua taxpayers do not have standing to challenge government programs 8; they must be personally injured by the program in some other, more concrete and particularized manner to challenge it in court. "Because the interests of the taxpayer are, in essence, the interests of the public-at-large, deciding a constitutional claim based solely on taxpayer standing 'would be[,] not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and co-equal department, an authority which plainly we do not possess'"9; therefore, "a plaintiff raising only a generally available grievance about government - claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large - does not state an Article III case or controversy."10

The exception to this principle is a lamentable case decided by the Warren Court, Flast v. Cohen,11 which carves out an exception for purposes of challenging alleged establishment clause violations. The Supreme Court "h[eld] in Flast that 'a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, § 8 of the Constitution,' and only when the taxpayer can 'show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8.'"12

Today, a plurality opinion by Justice Alito maintains the court's trajectory of "strictly limit[ing] the reach of Flast, confining it to Establishment Clause claims and actions to enjoin a direct disbursement of public funds pursuant to a specific congressional appropriation...."13 Flast, says the plurality, "focused on congressional action, and we must decline this invitation to extend its holding to encompass discretionary Executive Branch expenditures."14 That is, because the actions plaintiffs challenge here is not "expressly authorized or mandated by any specific congressional enactment, ... [this] lawsuit is not directed at an exercise of congressional power,"15, and thus lies beyond Flast's ambit, regardless of whether Flast is or should still be good law.16

Even if one must accept Flast on stare decisis grounds (which, I tend to agree with Justice Scalia, we ought not), "[i]t is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used,"17 which in this case invites us to ponder what was at issue in Flast: there, "[t]he expenditures at issue ... were made pursuant to an express congressional mandate and a specific congressional appropriation."18 But in the instant case, "Congress [has not] enacted any law specifically appropriating money for these entities' activities. Instead, their activities are funded through general Executive Branch appropriations."19

Thus, as the plurality today sees it, "[t]he Flast exception to the Frothingham rule ... addresses constitutional standing requirements in the context of Establishment Clause challenges to exercises of the congressional taxing and spending power."20 In this case, the plaintiffs "d[id] not challenge any specific congressional action or appropriation; nor d[id] they ask the Court to invalidate any congressional enactment or legislatively created program as unconstitutional," and nor could they have, because "because the expenditures at issue here were not made pursuant to any Act of Congress ... [but rather] resulted from executive discretion, not congressional action ... [and] [w]e have never found taxpayer standing under such circumstances."21Ultimately, as the plurality sees it, Flast only ever permitted challenges only to Congressional action (cf. U.S. Const. Amdt 1 ("Congress shall make no law respecting an establishment of religion" (emphases added)), and plaintiffs here lack standing "for the simple reason that they can cite no statute whose application they challenge."22

Six Justices in this case maintain that the distinction between Congressional action and executive action is specious, and that either Flast should be overruled or applied to any government spending. Dissenting, Justice Souter And The Usual Suspects - Justices Stevens (drums), Ginsburg (guitar) and Breyer (bass) - urge the latter course. Concurring in the judgment, Our Hero and Justice Thomas would prefer to overrule Flast. But as the majority points out, the distinction, specious or otherwise, springs from "Flast itself[,] [which] spoke in terms of 'legislative enactment[s]' and 'exercises of congressional power,'" and has never been extended further. "[N]eed[ing] go no further to decide this case," the plurality "leave[s] Flast as [they] found it.23

Finally, one must note that it's getting harder and harder for the court's critics to maintain that there is a solid, cohesive voting bloc on the court composed of Our Fearless Leader, Our Hero, Justice Thomas and Justice Alito. Today finds that putative bloc split down the middle in this case, and fractious (at best) in the two free speech cases (WRTL, as Pat discussed below, and Morse).24 This is hardly the first time, either - consider Carhart where JGR and SAA declined to join CT's concurrence, or the Phillip Morris punitive damages case earlier this term, where Justices Scalia and Thomas joined Justices Stevens and Ginsburg in dissenting from an opinion by Justice Breyer joined by JGR and SAA.

Post facto:
Some more thoughts on Hein and WRTL (6/26/07)
Standing Symposium (6/27-28/07): Simon | Marghlar | Pat
Still Meditating on Massachusetts v. EPA (1/28/08)
What do I have against the Seventeenth Amendment? (6/16/08)
Laskowski v. Spellings II (10/15/08)

1. 1. Hein, slip op. at 1-2.
2. 2. New York v. United States, 505 U.S. 144, 187 (1992)
3. 3. Easterbrook, Alternatives to Originalism? 19 Harv. J.L. & P.P. 479, 479-80 (internal quotation marks and footnote omitted) (1996)
4. 4. See Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) ("Just as the separation and independence of the coordinate Branches of the Federal Government serve to prevent the accumulation of excessive power in any one Branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front"); Althouse, Variations on a Theory of Normative Federalism: a Supreme Court Dialogue, 42 Duke L.J. 979, 1008-18 (1993).
5. 5. Coleman v. Miller, 307 U.S. 433, 460 (1939) (opinion of Frankfurter, J.).
6. 6. Winkler v. Gates, 481 F. 3d 977, 988 (7th Cir. 2007) (Slip op. at 19-20) (Sykes, J., concurring).
7. 7. Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 12 (2004) (internal quotation marks omitted).
8. 8. Frothingham v. Mellon, 262 U.S. 447 (1923).
9. 9. Hein, slip op. at 9 (quoting Frothingham, supra, at 489).
10. 10. Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-4 (1992).
11. 11. Flast, 392 U.S. 83 (1968).
12. 12. Laskowski v. Spellings, 443 F.3d 930, __ (7th Cir. 2006) (Sykes, J., dissenting).
13. 13. Winkler, supra, at __ (Sykes, J., concurring) (emphasis added and citations omitted).
14. 14. Hein, slip op. at 18.
15. 15. Id. at 18.
16. 16. See id. at 24-5; cf. the concurrences of Justice Kennedy ("[i]n my view the result reached in Flast is correct and should not be called into question") and Scalia ("Flast is wholly irreconcilable with the Article III restrictions on federal-court jurisdiction that this Court has repeatedly confirmed are embodied in the doctrine of standing"). Even if one assumes that in an appropriate challenge, the Chief and Justice Alito would overrule Flast, it's absolutely plain from Kennedy's concurrence that Flast will in any circumstances continue to be good law until at least the next retirement from the liberal bloc, and quite likely beyond.
17. 17. Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 399 (1821).
18. 18. Hein, slip op. at 12.
19. 19. Id. at 4.
20. 20. Winkler, supra, at __ (Sykes, J., concurring) (emphasis changed).
21. 21. Hein, slip op. at 14 (footnote omitted).
22. 22. Id. at 17.
23. 23. I certainly agree with Justice Scalia that Flast is an untenable and almost incoherent exception from the court's standing doctrine. And perhaps, all things considered, it would be better in this case to overrule Flast, which would certainly dispose of the case no less effectively, instead of saying that this case simply lies beyond that case's threshold. Likewise, perhaps Carhart would have done better to overrule Roe v. Wade and its progeny, a course of action which would no less certainly have disposed of that case, rather than concluding that the case at bar could be decided without reaching that question. But deciding the case on narrower grounds, and avoiding reaching out to overrule prior precedents did not seem to trouble Justice Scalia enough to refuse to join Kennedy's Carhart opinion.
24. 24. You have to give Scalia credit for consistency: he goes after opinions by Justices he agrees with as readily as opinions by those he does not. Today, not for the first time, Justice Alito is on the receiving end in WRTL:

    Our normal practice is to assess ex ante the risk that a standard will have an impermissible chilling effect on First Amendment protected speech. JUSTICE ALITO seemed to recognize that as recently as, well, today. In another opinion released this morning, he finds that a proposed test for censoring student speech "can easily be manipulated in dangerous ways," wherefore he "would reject it before such abuse occurs." Morse v. Frederick ... at 2 (concurring opinion) (emphasis added). I would accord the core First Amendment speech at issue here at least the same respect he accords speech in the classroom.

    So much for "Scalito" - but of course, anyone paying attention knew that within a few short weeks of Alito's arrival, see Zedner v. United States, 126 S.Ct. 1976 (2006).