Strengthening Constitutional Self-Government

No Left Turns

Standing still on standing

Yesterday, the Supreme Court issued its decision in Hein v. Freedom From Religion Foundation, a case in which the latter organization was comprehensively challenging the Bush Administration’s promotion of the faith-based initiative. At issue here was FFRF’s standing to sue, which grew out of the exemption for taxpayer challenges carved out in Flast v. Cohen.

I haven’t read all the opinions yet (summer school gets in the way!), but you can read articles about the decision here, here, and here, and competent early commentary by scrolling down here, as well as by going here and here.

A couple of very preliminary notes: first, it’s a 5-4 decision, with three justices (Alito, Roberts, and Kennedy supporting a narrow reading of the Flast precedent that extends taxpayer standing only in cases where legislative (not executive, as in this instance) action is involved and two (Scalia and Thomas) calling for overturning the precedent. Draw your own conclusions about the differences between Roberts and Alito, on the one side, and Scalia and Thomas, on the other, but don’t forget that Kennedy is the crucial fifth vote.

Second, in his opinion for the plurality, Alito makes the point that permitting taxpayer challenges in this case would radically extend judicial supervision of the executive branch. If the FFRF had its way, one can imagine circumstances in which presidential proclamations of Thanksgiving would be subject to legal challenge by anyone who pays taxes. Is this what Justice Souter and his colleagues have in mind?

Update: Let me add two more very general considerations. First, whatever its other vices, the Flast exception has at least this virtue: it honors the language of the First Amendment, which says that "Congress shall make no law...." By requiring there to be a law to which the taxpayer can object, it provides a bit of discipline to our litigious fellow citizens. Second, those who object to this ruling often put out a parade of horribles that the executive can accomplish on its own steam without legal authorization, as if the only barrier between us and theocracy is the FFRF (and the judges who agree with it). This is surely foreign to the original understanding of the Bill of Rights (see, for example, here, as well as my contribution to this out-of-print volume). The principal defense of our rights was to come from our vigilance (expressed above all through our voting) and from the decency and ambition of our representatives, who would resist the unreasonable and unconstitutional encroachments of their colleagues in government. There is absolutely no evidence that such a mechanism would work to deal with substantial First Amendment abuses coming out of the executive branch. And the alternative proposed by FFRF (and at least implicitly by the dissenters in this case) is to make the judiciary the comprehensive censor of all executive action, which surely upsets the constitutional order.

Update #2: Walter Dellinger and Dahlia Litwick disagree about the decision, Dellinger channeling John Marshall and Litwick, James Madison. Litwick’s Madison is the "not three pence" JM, not the BoR as mere parchment barriers JM.

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