Monday, June 25, 2007

Standing Down

Almost done with the Supreme Court Term! Many exciting decisions today. My favorite, of course, is Hein v. Freedom from Religion Foundation, the standing decision.

My, what hath the Court wrought. The rule has long been that if Congress directs federal money to be spent on religion, any taxpayer may challenge the expenditure as violative of the Establishment Clause of the Constitution (Flast v. Cohen). This rule has existed uncomfortably with the rule that if Congress directs property to be given to a religion, taxpayers lack standing to challenge the transfer (Valley Forge v. Americans United) -- not much of a distinction, you might say -- that is, if you were rational.

Today, the Court adds the following stunningly logical conclusion: if the Executive Branch directs funds toward religion, without congressional authorization, taxpayers cannot challenge the action. So if Congress tells the President to spend money on religion, and the President does it, the action is more vulnerable to challenge than if the President just does it without congressional instruction.

Fortunately, it is hardly necessary to explain how silly this all is. Justice Scalia has done so for us. Concurring in the dismissal of today's case, he explains that "there is simply no material difference" that explains the different results of the cases the Court has decided in this area, and that Valley Forge "achieved the seemingly impossible: It surpassed the high bar for irrationality set by Flast's" distinction of prior cases. Ah, Justice Scalia always knows how to nail bad arguments. He concludes that the whole area is a "jurisprudential disaster."

Justice Scalia is right that the jurisprudence in this area has become impossible. Half the decisions need to go. I would choose the opposite half from him -- taxpayers should have standing to challenge government action that allegedly violates the Establishment Clause. The result might be that the Clause would be enforced. And what would be so terrible about that?

Somewhat amusingly, the dissenters just explain why Flast should lead to standing for today's plaintiffs -- they don't take on Justice Scalia's arguments that Flast should go.


Anonymous said...

Is the inevitable next step that the Court will ulimately undo any taxpayer standing to challenge legislation that, through funding, violates the Establishment Clause?

Jon Siegel said...

It depends whether the Justices believe in intellectual consistency. Justices Scalia and Thomas would take that step, but they appear to be the only two. The official plurality opinion claims to be leaving the rule of Flast alone.