Analysis: “Flast” lives, but in what form?
on Feb 28, 2007 at 3:27 pm
Federal taxpayers who contend that the government is using their money to promote religion probably can still gather outside the federal courts, and go in with lawsuits to challenge that spending. But it may well be harder for them to win once they get inside the courthouse, or so it seemed after the Supreme Court on Wednesday went through an hour of oral argument in Hein v. Freedom from Religion Foundation (06-157).
Only at the very end of the argument, with Solicitor General Paul D. Clement at the podium, was it even intimated that the Court should consider throwing out entirely the four-decades-old precedent in Flast v. Cohen, the key ruling that authorized taxpayer lawsuits to curb federal spending that promotes religion despite a general ban on taxpayer claims of improper government spending. Clement said that, if it came down to sticking with Flast’s “logic” or sticking with constitutional limits on access to the couorts, “I think it’s an easy choice. You don’t abandon the basic requirements of Article III that distinguish the Judiciary from the political branches of government.”
No Justice, however, appeared to have thought that was the only choice the Court would have in deciding the Hein case — a case testing whether taxpayers, in their role only as taxpayers, should be allowed to sue the White House for setting up regional “faith-based” conferences that allegedly give religious organizations the idea that they will be more favored than secular groups in getting federal funds for their social programs.
But the tenor of the argument perhaps did justify some worry for Clement about where the Court might be heading, assuming Flast stays on the books. There appeared to be no clearcut support on the bench for leaving the Executive Branch entirely free from taxpayer lawsuits claiming misuse of public funds to aid religion (although Chief Justice John G. Roberts, Jr., at times seemed tempted by such a total exemption, since there might be other ways to bring a lawsuit than through a taxpayer’s challenge).
It is most difficult, however, to say just where the Court might now draw the line on taxpayer lawsuits claiming Establishment Clause violations. One reason to be hesitant about predictions is that Justice Antonin Scalia, who usually lines up on one side of an argument and stays there, this time was almost equally aggressive toward Clement’s core argument and toward the basic argument made by the defender of this taxpayer lawsuit, Washington attorney Andrew J. Pincus.
Scalia left little doubt that he thought Clement was going too far to insist that a taxpayer lawsuit under the Establishment Clause could only go forward if it challenged a specific spending law passed by Congress, and one that mandated that federal money be handed over to outside religious groups. Under the Executive immunity plea that the Solicitor General was makiing, Scalia indicated, the government might simply take general funds and use it to build a church, and no taxpayer could complain.
But Scalia said repeatedly that Pincus was “making no sense” with an argument that taxpayers could sue only if they were able to show that the religious aspect of the spending was more than incidental, that that spending had to be “central” to the Establishment Clause violation. Pincus had an everyday example that he appeared to believe would aid his cause — no taxpayer, he suggested, could challenge a prayer breakfast attended by the President or other Executive Branch officials if the only federal spending was for the bagels.
But Scalia countered with an example of his own: he suggested that, under Pincus’ theory, a taxpayer could sue because the government pays the salaries of Secret Service agents, and they protect the President when he goes on a religion-promoting trip. Though Pincus denied that he was saying that. Scalia would not let his example go. (Scalia also fretted that Pincus’ argument would leave the courts bogged down in multitudes of taxpayer cases, trying to figure out what kind of spending toward religion was “incidental.”)
The Chief Justice also had an example that appeared to trouble him about Pincus’ claim: Roberts opined that the Court could be challenged by a taxpayer lawsuit because public money is used to pay the salary of the Court’s marshal who begins the Court’s day by intoning, “God save this Honorable Court.”
Although it was not evident than the Court would be lining up into ideological blocs on the taxpayer right to sue issue, it did seem at times that Roberts, Scalia and Justice Samuel A. Alito, Jr., would be in favor of cutting back taxpayer Establishment Clause litigation, while Justices Stephen G. Breyer, Jr., Ruth Bader Ginsburg, David H. Souter and John Paul Stevens might go the other way. (Justice Clarence Thomas said nothing.)
But if there is such an ideological voting pattern, that would leave it — as is often true — to Justice Anthony M. Kennedy to break the tie. While Kennedy seemed mildly skeptical of Clement’s argument that there has to be a specific offending congressional enactment, the Justice did move into the argument at a key point when Pincus was at the podium to express reservations about too much court oversight of the President.
Here is the way Kennedy put it: “It seems to me unduly intrusive for the courts to tell the President that [he] cannot talk to specific groups to see if they have certain talents that the Government may use to make sure that all of their energies are used properly by the Federal Government.” There is, he said, a “concern that we would be supervising the White House and what it can say,…who it can talk to.”
That, of course, is precisely what Clement was arguing about keeping the boundaries clear between the courts and the political branches.
The Court is expected to decide the case before recessing for the summer.
