The Supreme Court finds that Freedom From Religion lacks standing

Justice Alito writes for the majority plurality in Hein v. Freedom From Religion, which was decided 5-4. I'm waiting to get access to the opinion and will write in more detail very soon, but here is my analysis of the case, written back when cert was granted:

This case raises the question of who may sue to enforce the Establishment Clause. The plaintiff (which filed the case in Madison, Wisconsin) relied on the status of its members as taxpayers to challenge the practice of holding conferences the White House to assist religious groups in applying for federal grants -- part of President Bush's Faith-Based and Community Initiative. Judge Shabaz dismissed the case on the ground that Congress hadn't earmarked the money to go to religion and therefore that the plaintiffs could not use the special doctrine -- articulated in Flast v. Cohen, 392 U.S. 83, (1968) -- that allows taxpayers to enforce the Establishment Clause. The Seventh Circuit reversed, with Judge Posner writing the opinion.

Here's Posner's opinion....

The Court decided in Flast that they should not stand in the way of challenges to "exercises of congressional power under the taxing and spending clauses of Art. I, § 8, of the Constitution," provided that the expenditure complained of is not just "an incidental expenditure of tax funds in the administration of an essentially regulatory statute" and that "the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8." 392 U.S. at 102-03. The Court found that this two-part test was satisfied by a challenge to the use of "the taxing and spending power . . . to favor one religion over another or to support religion in general." Id. at 103....

At argument the plaintiffs' counsel was unable to identify the appropriations that fund the conferences. The complaint does, however, allege that the conferences are funded by money derived from appropriations, which means from exercises of Congress's spending power rather than from, say, voluntary donations by private citizens. There is no suggestion that these are appropriations earmarked for these conferences, or for any other activities of the various Faith-Based and Community Initiatives programs, or for a statute pursuant to which the programs were created. The money must come from appropriations for the general administrative expenses, over which the President and other executive branch officials have a degree of discretionary power, of the departments that sponsor the conferences. Consolidated Appropriations Act, 2005, Pub. L. No. 108-447, 118 Stat. 2809, 2853, 3115-16, 3136, 3150, 3311-12; Department of Homeland Security Appropriations Act, 2005, Pub. L. No. 108-334, 118 Stat. 1298-99.

The difference, then, between this case on the one hand and Flast and Kendrick on the other is that the expenditures in those cases were pursuant to specific congressional grant programs, while in this case there is no statutory program, just the general "program" of appropriating some money to executive-branch departments without strings attached. The difference cannot be controlling. Suppose the Secretary of Homeland Security, who has unearmarked funds in his budget, decided to build a mosque and pay an Imam a salary to preach in it because the Secretary believed that federal financial assistance to Islam would reduce the likelihood of Islamist terrorism in the United States. No doubt so elaborate, so public, a subvention of religion would give rise to standing to sue on other grounds, just as in the St. Charles cross case; taxpayer standing in the hypothetical mosque case would not be essential to enabling a suit to be brought in federal court to challenge the violation of the establishment clause. But it would be too much of a paradox to recognize taxpayer standing only in cases in which the violation of the establishment clause was so slight or furtive that no other basis of standing could be found, and to deny it in the more serious cases.

Citing precedent, Posner identified the standing problem here as involving only the "prudential" limitations on federal court jurisdiction -- as opposed to the Article III constitutional limitations. Since "the prudential principles of standing, like other common law principles, are protean and mutable," Posner thereby freed himself to speak in practical terms and to avoid the Article III doctrine -- which has tightened up in the years since Flast and which has long made Flast seem like an anomalous safe harbor for Establishment Clause litigants.

Since the constitutionalized standing doctrine of the Burger and Rehnquist Courts presents a problem for those who want to argue that Flast was correctly decided, I should think it would be quite hard to argue nowadays that Flast ought to be broadened. Yet Flast is stare decisis, and Posner's practical reasoning is impressive. What if the Secretary of Homeland Security used general funds to build a mosque and pay an Imam?

The Court today has reversed the Seventh Circuit, but it did not overrule Flast, though -- according to SCOTUSblog, linked above -- two Justices wrote that it should be overruled.

ADDED: Here's the opinion. Justice Alito, joined only by Roberts and Kennedy, distinguishes Flast because the spending in that case was "a direct and unambiguous congressional mandate" which led the Court to find a "logical link" between the taxpayer status and "the type of legislative enactment attacked." In today's case, all Congress did was appropriate general funds to run the Executive Branch. The decision that the taxpayers challenged was entirely made within the Executive Branch:

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.

In the end of his opinion, Alito gives the reasons for declining to expand Flast. It has been confined over the years, and it is out of keeping with the values the Court has found important in its more recent standing cases. He considers the hypotheticals that Judge Posner had worried about, such as an Executive Branch decision to build a "house of worship." (Unlike Posner, he doesn't specify "mosque" or the building of any other particular religion.) His answer is that it hasn't happened, it's unlikely to happen, and, if it did happen, Congress could act. But I'd like to know what if Congress liked what the Executive Branch did and chose not to act? How would anyone have standing to sue about Congress's inaction? Alito only says is that the respondents "make no effort to show" to show that no one would have standing. (I note that if there were, say, a government mosque, you wouldn't need to be able to sue as a taxpayer. You could sue because you are in a position to see the building.)

Justice Kennedy concurs, expressing his concern about "the constant intrusion upon the executive realm that would result from granting taxpayer standing" here.

Justice Scalia, joined by Justice Thomas, says that the Court ought to overrule Flast. They do not join Alito's opinion, which, Scalia writes, is irrational, both in preserving Flast and in trying to distinguish it. In his view, the Court, in deciding whether a plaintiff has a good-enough injury to meet the requirements of Article III, needs to observe the difference between "Wallet Injury" and "Psychic Injury":

Psychic Injury... has nothing to do with the plaintiff’s tax liability. Instead, the injury consists of the taxpayer’s mental displeasure that money extracted from him is being spent in an unlawful manner. This shift in focus eliminates traceability and redressability problems. Psychic Injury is directly traceable to the improper use of taxpayer funds, and it is redressed when the improper use is enjoined, regardless of whether that injunction affects the taxpayer’s purse. Flast and the cases following its teaching have invoked a peculiarly restricted version of Psychic Injury, permitting taxpayer displeasure over unconstitutional spending to support standing only if the constitutional provision allegedly violated is a specific limitation on the taxing and spending power. Restricted or not, this conceptualizing of injury in fact in purely mental terms conflicts squarely with the familiar proposition that a plaintiff lacks a concrete and particularized injury when his only complaint is the generalized grievance that the law is being violated.

Flast treats what is really a Psychic Injury -- I'll follow Scalia's approach to capitalization -- as if it were a Wallet Injury. The plaintiffs aren't suing to get their money back, but because they feel wounded by what the government has done with it. If feeling bad about what the government has done is ever enough, why isn't it always enough?

MORE: Scalia takes a shot at Chief Justice Roberts in the end -- not by name, but by using one of his favorite words: "minimalism." Insisting that the question of overruling Flast must be faced, Scalia writes:

Minimalism is an admirable judicial trait, but not when it comes at the cost of meaningless and disingenuous distinctions that hold the sure promise of engendering further meaningless and disingenuous distinctions in the future. The rule of law is ill served by forcing lawyers and judges to make arguments that deaden the soul of the law, which is logic and reason.

And he has this to say about stare decisis:

Overruling prior precedents, even precedents as disreputable as Flast, is nevertheless a serious undertaking, and I understand the impulse to take a minimalist approach. But laying 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.

He ends with the acknowledgment that there are plenty of people who don't care very much if legal doctrine doesn't fit together logically:

My call for the imposition of logic and order upon this chaotic set of precedents will perhaps be met with the snappy epigram that “[t]he life of the law has not been logic: it has been experience.” O. Holmes, The Common Law 1 (1881).

"Snappy epigram." So much for the great Justice's grandest insight!

But what experience has shown is that Flast’s lack of a logical theoretical underpinning has rendered our taxpayer-standing doctrine such a jurisprudential disaster that our appellate judges do not know what to make of it.

Translation: Logic is practical.

And of course the case has engendered no reliance interests, not only because one does not arrange his affairs with an eye to standing, but also because there is no relying on the random and irrational. I can think of few cases less warranting of stare decisis respect.

So: Once the doctrine is sufficiently incoherent, the reliance ground for stare decisis is lost. Note to those who have a precedent they'd like overruled: Soften it up with exceptions and distinctions first. But judging from this case, that's only a technique that will work on Scalia and Thomas. The Roberts-Kennedy-Alito group will proceed by minimalism.

AND: Justice Souter, joined by Justices Stevens, Ginsburg, and Breyer, is like Scalia in that he can't see the reason for the distinction Alito is making. For him, however, this is a reason to extend Flast and find standing. Souter stresses the importance of denying tax money to religion. He quotes James Madison's Memorial and Remonstrance Against Religious Assessments: "the government in a free society may not 'force a citizen to contribute three pence only of his property for the support of any one establishment' of religion." Even a pittance matters:

The three pence implicates the conscience, and the 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.

He's looking at you, Scalia.

YET MORE: So the key to the outcome is the failure of Souter's argument to appeal to Justice Kennedy. You could say Souter (like Scalia) invokes general principle and logical coherence, and Kennedy is looking at the practical consequences. But Souter offers to draw the line at Establishment Clause challenges, and Kennedy seems to think he must reject taxpayer standing here in order to avoid judicial intrusion into all sorts of Executive Branch decisions, which might be challenged on various grounds. And look at this praise for executive independence (and confidentiality):

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.... The burden of discovery to ascertain if relief is justified in these potentially innumerable cases would risk altering the free exchange of ideas and information.