Got standing?

Our esteemed Supreme Court recently heard oral argument in Hein v. Freedom from Religion Foundation. The plaintiff foundation claims that the Bush administration violated the Establishment Clause of the First Amendment ("Congress shall make no law respecting an establishment of religion") by hosting a series of regional conferences on the White House's "Faith-Based and Community Initiatives."

Nonlawyers might think the matter is pretty simple. The Establishment Clause (more or less) prohibits the government from spending money to promote religion. If that's what the White House is doing, a court should hold it unconstitutional and put a stop to it. End of story.

Well, not quite. You might think that it's the federal courts' job to interpret and enforce the Constitution and to make sure that the government behaves lawfully. But you would be wrong. According to the conventional view, the courts' job is to decide cases. In the course of doing so, the courts often have occasion to interpret and enforce the Constitution and to make sure that the government behaves lawfully. But their doing so is only an incident of their actual role, which is to decide cases.

So before a federal court can do anything, it has to be presented with a case. And what exactly constitutes a case? If we had about a month, I could explain most of the answer (and I'm not kidding here, that's how long it takes to cover the issue in class). But for now, the key point is that an essential element of a case is that it be presented by a plaintiff who claims to have been injured by what the defendant is doing. And not just anything constitutes an injury. It has to be something that hurts the plaintiff in a distinctive and individualized way. Just being upset that the government is doing something illegal, even unconstitutional, doesn't count, if the government isn't hurting you with its illegal activity.

A special, somewhat different rule applies, however, in the unique context of Establishment Clause claims. Thanks to a case from the 1960s (Flast v. Cohen), taxpayers are allowed to challenge government expenditures as violative of the Establishment Clause specifically.

But boy, it's complicated. In a later case, the Court held that taxpayers lacked standing to challenge the government's donation of property to a religious organization. The Court distinguished between government spending (in which taxpayers apparently have a legitimate interest) and government disposition of property (not a taxpayer's business). And this week's case is about whether taxpayers have standing to challenge religious spending that comes out of general appropriations, as opposed to a specific appropriation.

Hmm. So taxpayers have an interest if the government just gives money to a religious group, but not if it spends the money on property and then gives the property? And they have an interest in specific appropriations but perhaps not general ones? Someone unfamiliar with the fine distinctions of the legal mind might have to be forgiven for thinking this is crazy.

The problem is that the original rule of Flast just doesn't fit with modern standing doctrine. Let's face it, if a court orders the government to cease illegal expenditures, the impact on any individual taxpayer's taxes is zero. And I don't just mean it's small, because any of us contribute only a tiny amount to any particular government expenditure, I mean it's zero. Taxes are not determined by figuring out the appropriate share each of us must bear of the government's expenditures. Taxes are determined by the tax code. The tax code just imposes a certain percentage tax on income. Government expenditures can go up, down, or stay the same and none of it has any impact on taxes.

I suppose taxpayer plaintiffs might say that if government expenditures go down, by enough, for long enough, the government won't need as much money and Congress will lower taxes. But standing doctrine doesn't allow standing based on such speculation, particularly not speculation that maybe, someday, Congress will pass a statute.

And besides, the speculation isn't even correct. Just look at what Congress actually does. Does it raise taxes when the government needs more money and lower taxes when the government has plenty of money? Ha ha. It lowers taxes when it feels like it and raises taxes when it feels like it. The Republicans always want lower taxes, even when the budget is hundreds of billions in the red.

So trying to fit different taxpayer Establishment Clause claims into modern standing doctrine is hopeless. We either need to overrule Flast or just accept that we've established a special Establishment Clause rule.

The better answer is to accept the special rule. The Establishment Clause was specifically adopted to prevent the government from spending our tax money on religion. Madison famously said that the government can't be allowed to spend even threepence of taxpayer money on religion. Any taxpayer should be allowed to make sure that the Establishment Clause is serving its purpose.

And better still would be to relax standing doctrine altogether in public law cases. The result might be that the Constitution and the laws would be enforced. Could someone tell me what's so terrible about that?