No Taxpayer Standing to Challenge Unconstitutional Executive Expenditures

Hein v. Freedom From Religion Foundation, Inc.

Plaintiffs claim that the President’s Faith-Based and Community Initiatives program violated the Establishment Clause of the First Amendment because they supported religion with money paid by the executive branch general appropriation. Plaintiffs contend that they meet Article III standing requirements because they pay federal taxes. Payment of taxes is generally not enough to meet the requirement that one must have a particularized harm before going to court to have it redressed since “in light of the size of the federal budget, it is a complete fiction to argue that an unconstitutional federal expenditure causes an individual federal taxpayer any measurable economic harm.” Flast v. Cohen recognized a narrow exception whereby a plaintiff had standing to challenge a law authorizing the use of federal funds in a way that violated the Establishment Clause. The question here is whether money paid by the executive branch falls under the same exception to the general rule against taxpayer standing.

The President created the Office of Faith-Based and Community Initiatives to ensure that “private and charitable community groups, including religious ones … have the fullest opportunity permitted by law to compete on a level playing field, so long as they achieve valid public purposes” and adhere to “the bedrock principles of pluralism, nondiscrimination, evenhandedness, and neutrality.” No congressional legislation specifically authorized this action or expenditure.

Under Article III a plaintiff “must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” In cases of taxpayer/citizen standing the individual taxpayer’s injury “is not distinct from that suffered in general by other taxpayers or citizens” (known as the Frothingham principle). This rule preserves the principle that U.S. courts do not pass on the constitutionality of an act unless required to do so when the question is raised by an interested party, and the general interest in seeing that tax money is spent constitutionally is not a “personal injury” for Article III purpose unless it causes a real and immediate economic injury to the taxpayer. Flast carved out an exception to this general rule where distribution of federal funds to religious schools under a two part test: (1) the taxpayer must establish a logical link between that status and the type of legislative enactment attacked (expenditures under Article I Section 8 ‘Spending Clause’ and not incidental regulatory expenditures), and (2) the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement (that it infringes a specific constitutional limitation and is not merely outside the powers delegated to Congress). This rule was limited to challenged directed at congressional power.

Here, the expenditures were made out of Executive Branch appropriations for day-to-day activities ($53.8 million). In Valley Forge similar standing was denied, even though the donation of property to a religious institution was arguably authorized by the Federal Property and Administrative Services Act of 1949 (also because it was an exercise under the Property Clause, and not the Spending Clause). In Schlesinger v. Reservists Commission the Court denied standing to prevent members of Congress from unconstitutionally receiving reservist pay, presumably funded through general appropriations for the support of the Armed Services. Also, in United States v. Richardson the Court denied standing to compel the CIA to publish more of its budget (as required by the Constitution) because there was no logical nexus between taxpayer status and failure of Congress to pass a law requiring the CIA to do so. In Bowen v. Kendrick the Court allowed standing where the Adolescent Family Life Act (AFLA) authorized federal grants to private community service groups, including religious organizations because this was a Congressional enactment.

Plaintiffs argue the line between congressional expenditures and Executive expenditures of congressional appropriations is arbitrary and in any case the injury is the same. But Flast drew that line and the Court “must decline this invitation to extend its holding to encompass discretionary Executive Branch expenditures.” “The Flast exception has largely been confined to its facts.” The extension plaintiffs seek would “effectively subject every federal action – be it a conference, proclamation, or speech – to Establishment Clause challenge by any taxpayer in federal court.” Flast itself gave too little weight to separation of powers concerns embodied in Article III standing “lowering the taxpayer standing bar to permit challenges of purely executive actions would significantly alter the allocation of power at the national level, with a shift away from democratic form of government.” “It would deputize federal courts as virtually continuing monitors of the wisdom and soundness of Executive action, and that is, most emphatically, not the role of the judiciary.

The lower court suggested drawing the line at actual harm, that is, spending as opposed to mere verbal support of religion, but this neglects the incidental costs of even giving a speech. Plaintiffs offer a test designed to “screen out challenges to the content of one particular speech” (I’m sorry, are you kidding me? We are interpreting the First Amendment, are we not?) by focusing on whether the injury is fairly traceable to the actions challenged.

Justice Kennedy, concurring, says that if Flast were extended as plaintiffs ask “the courts would soon assume the role of speech editors for communications issued by executive officials and event planners for meetings they hold.” “Government officials must make a conscious decision to obey the Constitution whether or not their actions can be challenged in a court of law and then must conform their actions to these principled determinations.”

Justice Scalia, dissenting, argues that the consistency in this case is purchased at the price of “utterly meaningless distinctions which separate the case at hand from the precedents that have come out differently, but which cannot possibly be (in any sane world) the reason it comes out differently.” “If this Court is to decide cases by rule of law rather than show of hands, we must surrender to the logic and choose sides:” either Flast should apply to all challenges to government expenditures of tax revenues in violation of the Constitution, or Flast should be repudiated. Justice Scalia describes two ‘alternative’ standards that he believes are employed by the Court in place of the particularized injury standard: “wallet injury” and “psychic injury’ (both of which are pretty self explanatory). Cases under the former fail for lack of traceability and redressability while cases under the second violate the rule that redressable injury must be concrete and particularized. He compares the Frothingham rule that wallet-injury is insufficient to the Doremus rule that psychic injury was insufficient (in that case standing was denied plaintiffs who wished to sue to enjoin a state law that required reading the bible at the opening of school sessions). The Flast rule was designed to disqualify one of these two groups. “Did the Court proffer any reason why a taxpayer’s psychic injury is less concrete and particularized, traceable, or redressable when the challenged expenditures are incidental to an essentially regulatory statute (whatever that means)? Not at all.

As for Frothingham, “it is impossible to maintain that the Establishment Clause is a more direct limitation on the taxing and spending power than the constitutional limitation invoked in Frothingham, which is contained within the very provision creating the power to tax and spend” (apparently referring to the limitation that Congress may spend only for the common defense and general welfare). Then in Bowen v. Kendrick the Court allowed a challenge to the Secretary of Health’s disbursement of congressional funds based on their psychic injury. Then in DaimlerChrystler Corp. v. Cuno the Court recognized that by the nature of expenditures in violation of the Establishment Clause the harm would be redressed even if the funds were still spent for a different purpose – expressly recognizing psychic injury. Therefore, Justice Scalia argues, at the first step the Court must decide whether psychic injury comports with Article III. If it does the branch of government which causes that injury is completely irrelevant. If not, Flast should be overruled. Nor can the majority fall back to just applying the law as it is, for better or worse, because the whole point of the as applied challenge in Kendrick was that the Secretary, not Congress, had chosen inappropriate grant recipients. Finally, the argument that the limiting principle in Flast was traceability is vacuous, as they argue that a taxpayer would have standing to challenge the hiring of a single secret service operative, but not a generalized duty on the part of the Secret Service. “If respondents are to prevail, they must endorse a future in which ideologically motivated taxpayers could Ïroam the country in search of governmental wrongdoing and . . . reveal their discoveries in federal court.” The horror!

In an attempt to demonstrate the absurdity of this conclusion, Justice Scalia suggests that Congress could insulate the President from all Flast-based suits by codifying the truism that no appropriation can be spent by the Executive Branch in a manner that violates the Establishment Clause.”

The problem with psychic injury standing, for Scalia, is that the result does not benefit petitioner any more or less than it does the public at large. He also objects to the idea that only the issues being presented, not standing per se, can raise a separation of powers issue, arguing that an expanded role for the courts creates the potential for abuse, distorts the balance of power, and paves the way for government by injunction. Generalized grievances have their remedy in the political process.

Justices Souter, Stevens, Ginsburg, and Breyer, dissenting, agree with Scalia that there is no principled distinction between this case and Flast. Citing Madison, and the historical importance of the Establishment Clause, that the government in a free society may not force a citizen to contribute three pence only of his property for the support of any one establishment of religion. As for separation of powers, there is no difference between judicial oversight of Exeutive and congressional actions. Justice Souter then packs into a single footnote my entire perspective on this case: “The plurality warns that a parade of horribles would result if there were standing to challenge executive action, because all federal actions are ‘ultimately funded by some congressional appropriation. But even if there is Article III standing in all of the cases posited by the plurality … that does not mean taxpayers will prevail in such suits. If these claims are frivolous on the merits, I fail to see the harm in dismissing them for failure to state a claim instead of for lack of jurisdiction. To the degree the claims are meritorious, fear that there will be many of them does not provide a compelling reason, much less a reason grounded in Article III, to keep them from being heard.”

“Minimalism is an admirable judicial trait, but not when it comes at the cost of meaningless and disingenuous distinctions that hold the sure promise of engendering further meaningless and disingenuous distinctions in the future.” – Justice Scalia, dissenting