Today’s Opinion in Hein v. Freedom From Religion

The following summary is by Megan Greer, a summer associate in Akin Gump’s DC office and a student at Harvard Law School.

Can a person sue the federal government, alleging an executive branch violation of the Establishment Clause, solely because that person is a taxpayer? In a splintered 5-4 decision, the Court today said no. In an opinion by Justice Alito, a plurality today held that taxpayer standing in Establishment Clause disputes is limited to cases involving specific congressional action.

Through a series of Executive Orders, President Bush in 2001 created the White House Office of Faith-Based and Community Initiatives. Under the Faith-Based Initiatives, the White House organized nationwide conferences to aid religious institutions in their applications for federal aid. In 2002, respondent Freedom From Religion Foundation and three of its members sued in their capacity as federal taxpayers, alleging that the White House’s actions ran afoul of the Establishment Clause.

The government sought to dismiss the suit on the ground that respondents lacked standing, and the district court agreed. Citing the Supreme Court’s 1968 decision in Flast v. Cohen, it explained that taxpayers may only bring Establishment Clause challenges to specific congressional earmarks, while the money for the conferences came from Congress’s general appropriation to the executive branch. On appeal, a divided Seventh Circuit panel reversed. In an opinion by Judge Posner, the majority held that taxpayer standing was not limited to challenges to specific earmarks, but instead also existed for cases – such as this one – challenging any executive branch actions funded through general appropriations for the White House’s discretionary use. In voting to deny en banc review, the Seventh Circuit’s chief judge noted that “the obvious tension” in the law “can only be resolved by the Supreme Court.”

Today, in reversing the Seventh Circuit, the Supreme Court sought to resolve that tension. The Court first noted the general proposition that a taxpayer’s interest in ensuring that federal funds are spent in accordance with the Constitution rarely constitutes the kind of redressable personal injury required for Article III standing. The Court in Flast recognized a narrow exception to this general rule, Justice Alito’s opinion explained, when the taxpayer can (1) show a logical link between her status as a taxpayer and the challenged legislative enactment (i.e., she is alleging that Congress’s exercise of its power under the taxing and spending clause is unconstitutional); and (2) establish a nexus between that status and the precise nature of the constitutional violation. Contrary to the holding of the Seventh Circuit (and the arguments of respondents), the Flast exception does not apply here because respondents do not challenge “an express congressional mandate” or a “specific congressional appropriation.” Justice Alito specifically rejected respondents’ argument that it would be “arbitrary” to decline to apply the Flast exception merely because the expenditures that they challenge were discretionary actions by the executive branch rather than a discrete congressional earmark. Although respondents had posited that the injury in both scenarios was the same, Justice Alito emphasized that “Flast focused on congressional action,” and he “decline[d] this invitation to extend its holding to encompass discretionary Executive Branch expenditures.”

Justice Alito rested the plurality’s holding not only on stare decisis but also on both practical and separation of powers concerns. As a practical matter, Justice Alito was concerned that granting taxpayer standing in a case involving executive expenditures would open the judicial floodgates to challenges from any taxpayer unhappy with government spending. Such a rise in litigation would also effectively require the courts to micromanage congressional and executive spending programs at the behest of any taxpayer, which would then threaten the separation of powers.

Justice Kennedy wrote separately to emphasize Flast’s “narrow exception” to the taxpayer standing prohibition. Central to his concurrence is the notion that the Executive Branch should generally be free to creatively solve problems and to respond to pressing public demands. An expansion of taxpayer standing, he emphasized, would encourage judicial management of executive branch actions. This in turn “would risk altering the free exchange of ideas and information,” such as the public speeches at issue in Hein. Nonetheless, Justice Kennedy cautioned, even when taxpayers lack standing to sue, government officials of all branches must be careful to act in accordance with the Constitution.

In a characteristically fiery opinion, Justice Scalia (joined by Justice Thomas) concurred in the judgment but called for a whole cloth rejection of Flast. According to Justice Scalia, the Court’s taxpayer standing doctrine is a mess. Justice Scalia identifies two categories of injury alleged by taxpayers in Establishment Clause cases: (1) Wallet Injuries, which are “concrete and particularized” financial injuries; and (2) Psychic Injuries, which stem from the “mental displeasure” that taxes are being spent unlawfully. The doctrine’s confusion, to Justice Scalia, stems from the Court’s inconsistent treatment and conflation of the two injuries.

Justice Scalia posits two solutions: either hold that Psychic Injury satisfies Article III standing requirements and should be applied to all challenges to government spending that violates constitutional limitations on the taxing and spending power or overturn Flast. To Justice Scalia, the second solution is the clear winner. While Psychic Injury amounts to a generalized grievance which should be remedied in the political process, Flast is “damaged goods,” which failed to consider the threat to the separation of powers created by taxpayer standing. Moreover, Justice Scalia considers Flast to be an opinion grounded not in logic, but rather devised to satisfy the outcome-driven court under which it was decided. Although Justice Scalia reiterates that, as a general rule, he considers overruling precedent to be a serious undertaking, he “can think of few cases less warranting of stare decisis respect” than Flast.

Justice Souter issued a dissenting opinion, joined by Justices Stevens, Ginsburg, and Breyer. For these justices, the individual harm that results from Establishment Clause violations is key. It matters little to the individual whether the injury originated from the Executive Branch or instead stems from an act of Congress. In either instance, government spending which violates the Establishment Clause injures the individual’s right of conscience. Once this injury is established under Article III, “there can be no serious question about the other elements of the standing enquiry.”

Nor was the dissent persuaded by the Court’s separation of powers concerns. Instead, Justice Souter found no difference between a court’s review of an Executive Branch decision and a congressional one. Further, the dissent argued, the plurality’s reliance on the executive/congressional distinction was both “arbitrary and hard to manage.” Instead, Justice Souter would consider case by case whether an alleged injury is “too abstract, or otherwise not appropriate, to be considered judicially cognizable.” This, Justice Souter said, is consistent with Flast, which – broadly read – supports the proposition that government spending for religious purposes can cause taxpayers injury serious and concrete enough to be judicially cognizable. Under this view, Justice Souter would affirm the Seventh Circuit’s ruling that respondents have taxpayer standing.

Of course, the Court considered only the standing issue in today’s decision. But given the fierce debate over such a narrow issue in Hein – one of the first religion cases of the Roberts Court – one can only imagine the fireworks that might have accompanied a challenge to the merits of President Bush’s Faith-Based Initiatives.