Blog from the Capital

From the Hein decision, written by Justice Alito:

The link between congressional action and constitutional violation that supported taxpayer standing in Flast is missing here. Respondents do not challenge any specific congressional action or appropriation; nor do they ask the Court to invalidate any congressional enactment or legislatively created program as unconstitutional.--p.9

It cannot be that every legal challenge to a discretionary Executive Branch action implicates the Constitutionality of the underlying congressional appropriation. When a criminal defendant charges that a federal agent carried out an unreasonable search or seizure, we do not view that claim as an as-applied challenge to the constitutionality of the statute appropriating funds for the Federal Bureau of Investigation. Respondents have not established why the discretionary Executive Branch expenditures here, which are similarly funded by no-strings, lump-sum appropriations, should be viewed any differently. --p.10

Because almost all Executive Branch activity is ultimately funded by some congressional appropriation, extending the Flast exception to purely executive expenditures would effectively subject every federal action-be it a conference, proclamation or speech-to Establishment Clause challenge by any taxpayer in federal court. To see the wide swathe of activity that respondents’ proposed rule would cover, one need look no further than the amended complaint in this action, which focuses largely on speeches and presentations made by Executive Branch officials. --p. 11

Respondents set out a parade of horribles that they claim could occur if Flast is not extended to discretionary Executive Branch expenditures. For example, they say, a federal agency could use its discretionary funds to build a house of worship or to hire clergy of one denomination and send them out to spread their faith. Or an agency could use its funds to make bulk purchases of Stars of David, crucifixes, or depictions of the star and crescent for use in its offices or for distribution to the employees or the general public. Of course, none of these things has happened, even though Flast has not previously been expanded in the way that respondents urge. In the unlikely event that any of these executive actions did take place, Congress could quickly step in. And respondents make no effort to show that these improbable abuses could not be challenged in federal court by plaintiffs who would possess standing based on grounds other than taxpayer standing. --pp.12-13

Over the years, Flast has been defended by some and criticized by others. But the present case does not require us to reconsider that precedent. The Court of Appeals did not apply Flast; it extended Flast. It is a
necessary concomitant of the doctrine of stare decisis that a precedent is not always expanded to the limit of its logic. That was the approach that then-Justice Rehnquist took in his opinion for the Court in Valley Forge, and it is the approach we take here. We do not extend Flast, but we also do not overrule it. We leave Flast as we found it. --p.13

From Justice Kennedy's concurrence:

To find standing in the circumstances of this case would make the narrow exception boundless. The public events and public speeches respondents seek to call in question are part of the open discussion essential to democratic self-government. The Executive Branch should be free, as a general matter, to discover new ideas, to understand pressing public demands, and to find creative responses to address governmental concerns. The exchange of ideas between and among the State and Federal Governments and their manifold, diverse constituencies sustains a free society. Permitting any and all taxpayers to challenge the content of these prototypical executive operations and dialogues would lead to judicial intervention so far exceeding traditional boundaries on the Judiciary that there would arise a real danger of judicial oversight of executive duties.--p.15

It must be remembered that, even where parties have no standing to sue, members of the Legislative and Executive Branches are not excused from making constitutional determinations in the regular course of
their duties. Government officials must make a conscious decision to obey the Constitution whether or
not their acts can be challenged in a court of law and then must conform their actions to these principled
determinations. --pp.15-16

From Justice Scalia's concurrence (joined by Justice Thomas), in which he argues for the reversal of Flast:

If this Court is to decide cases by rule of law rather than show of hands, we must surrender to logic and choose sides: Either Flast v. Cohen, 392 U. S. 83 (1968), should be applied to (at a minimum) all challenges to the governmental expenditure of general tax revenues in a manner alleged to violate a constitutional provision specifically limiting the taxing and spending power, or Flast should be repudiated. For me, the choice is easy. 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. --p. 16

Because the express-allocation line has no mooring to our tripartite test for Article III standing, it invites
demonstrably absurd results. For example, the plurality would deny standing to a taxpayer challenging the President’s disbursement to a religious organization of a discrete appropriation that Congress had not explicitly allocated to that purpose, even if everyone knew that Congress and the President had informally negotiated that the entire sum would be spent in that precise manner.
...
Indeed, taking the plurality at its word, 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 injury there was not fairly traceable to the unconstitutional conduct.--pp. 20-21

[L]aying just claim to be honoring stare decisis requires more than beating Flast to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet
somehow technically alive. Even before the addition of the new meaningless distinction devised by
today’s plurality, taxpayer standing in Establishment Clause cases has been a game of chance. In the proceedings below, well-respected federal judges declined to hear this case en banc, not because they
thought the issue unimportant or the panel decision correct, but simply because they found our cases so
lawless that there was no point in, quite literally, second-guessing the panel.--p.23

From Justice Souter's dissent:

Here, the controlling, plurality opinion declares that Flast does not apply, but a search of that opinion for a suggestion that these taxpayers have any less stake in the outcome than the taxpayers in Flast will come up empty: the plurality makes no such finding, nor could it. Instead, the controlling opinion closes the door on these taxpayers because the Executive Branch, and not the Legislative Branch, caused their injury. I see no basis for this distinction in either logic or precedent, and respectfully dissent. --pp.24-25

[T]he injury from Government expenditures on religion is not accurately classified with the “Psychic Injury” that results whenever a congressional appropriation or executive expenditure raises hackles of disagreement with the policy supported... --p. 25

Here, there is no dispute that taxpayer money in identifiable amounts is funding conferences, and these are alleged to have the purpose of promoting religion. The taxpayers therefore seek not to “extend” Flast, but merely to apply it. When executive agencies spend identifiable sums of tax money for religious purposes, no less than when Congress authorizes the same thing, taxpayers suffer injury. --p.25

Flast speaks for this Court’s recognition (shared by a majority of the Court today) that when the Government spends money for religious purposes a taxpayer’s injury is serious and concrete enough to
be “judicially cognizable." The judgment of sufficient injury takes account of the Madisonian relationship of tax money and conscience, but it equally reflects the Founders’ pragmatic “conviction that individual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions,” and the realization continuing to the modern day that favoritism for religion “ ‘sends the ... message to ... nonadherents “that they are outsiders, not full members of the political community,” ’ " --pp.26-27