Taxpayer standing

The Supreme court heard arguments yesterday in Hein v. Freedom from Religion Foundation, a case involving a challenge to the President's faith-based initiatives program as being violative of the First Amendment's Establishment clause. This lawsuit was filed by the Freedom of Religion Foundation on behalf of three taxpayers, who claimed that their tax dollars were being impermissibly used to fund religious activities. A threshold question before the plaintiffs can get into court, however, is whether they have "standing" to sue, or put differently, whether they have a right to seek redress for the harm they allege is occuring. To understand the standing doctrine, consider the following example: If A were to assault B, A would be doing two kinds of injury. First, he would be injuring B's physical and emotional well-being, and B would have a right to sue him for that harm. That suit would go forward in civil court, and B would be the plaintiff, and A the defendant. But there would also be an additional injury, to the generalized public, namely the violation of the criminal prohibition on assault. It is fairly clear that B is the appropriate party to seek relief of the injury done to him by virtue of A's assualt. But this raises the question as to who the appropriate party is to seek relief from A for the injury he has caused to the public at large. Through the structure of representative government we have established, the "state" is the designated agent (the legislature usually passes a law authorizing the executive to carry out the prosecution for crimes.) Having established this basic principle, let's move to something a bit less intuitive. Suppose that C is a polluter who pollutes the Atlantic Ocean. Suppose further that no significant commercial fishery takes place in that part of the ocean, and so no particular party has a commercial interest in that part of the ocean. Now, who can go after C in court for this injury? Can I sue C because I think it is inherently wrong for C to violate the law? If we analogize back to the assault case, the answer appears to be no. If an an injury is done to the public at large, it doesn't appear to make sense for a particular individual to be able to go to court to redress it. So, it seems that the federal government would be the appropriate agent to seek redress for this injury. But now suppose that this particular part of the Atlantic Ocean has beautiful coral reefs which you go visit every year, and now you can't visit them anymore because the area has become toxic? It seems now that you do have an injury. But what if the site that is injured is the Statue of Liberty, and you visit it every year? Should everyone who visits this tourist attraction be able to sue? As you may be able to see, this gets courts into difficult questions of just what kind of injury is good enough to get you into court, and just how particularized it has to be to a particular plaintiff to support access to a court. One final hypothetical: Suppose that the Constitution prohibits people who serve the Executive Branch to also serve as members of Congress (which it in fact does). If Congress disregards this prohibition, and seats an officer of the military as a member anyway, who is injured? The public at large. But who can sue? Can the President sue? Not unless Congress authorizes it, and it seems unlikely that Congress would in this circumstance. So, the truth is that this constitutional violation has no redress other than the most obvious, namely that voters can boot out the congressmen.

Now, against this background, let's consider Hein v. Freedom of Religion Foundation.

The basic injury is that the federal government has allegedly violated the US Constitution by "establishing" religion by doling out federal money to religious charities. Who suffers? Well, the public interest suffers to be sure, but if we are supposed to rely on the federal government to vindicate the public interest, it is easy to see how a potential conflict of interest can arise. If the executive branch is supposed to be in charge of vindicating the public interest, as in the examples above, it can't reasonably be relied upon to protect the public interest, if one's understanding of hte public interest is that there is an Establishment clause violation here. So, who else in the federal government can vindicate the interest? Congress, of course, which could prohibit that money be spent in this way. But if Congress fails to act, maybe because it happens to agree with the President that what he is doing is perfectly fine, is there any other way for us to stop this constitutional violation, or are we stuck in the same position as in the last case, with the only redress being the ballot box?

This is where the plaintiffs are trying a slightly different tack. Their argument goes something as follows: The money being spent is being taken out of the general funds of the government. The funds of the general government contain a really large proportion of taxes collected from taxpayers. Thus, taxpayers have an interest in how their taxes are being spent. So the taxpayers say that they are injured by having their money spent in an unconstitutional manner. As you can see, this is a bit of a stretch, and raises problems. There is surely no way of knowing that the government was spending the money of a particular taxpayer, because that's just not how the government works. But more importantly, in order to get into court, the taxpayer has to be able to prove that if he/she wins, he will receive some redress. Note here that the end of the government program is not redress. If it is the impermissible taking of taxpayer money that is the problem, then the taxpayer should be getting some money back. But we all know that is not going to happen; the government is going to end up spending that money on the war in Iraq instead. So, it looks like the underlying interest, thinly disguised, is just the interest in having the constitution complied with. As we have already established, that is a public interest, and can only be vindicated by the government. Nevertheless, in the case of Flast v. Cohen (1968), the Supreme Court made an exception, narrowly defined, in the Establishment clause contex, and I don't plan to bore you with the legalese. The bottomline is that the Court felt that there were certain individual rights that were so fundamental that something had to be done. Now, it looks like the Court is going to backtrack on this rathttp://www2.blogger.com/img/gl.link.gifher unprincipled carve-out.

I think the most important thing is to ask the political (non-legal) question. What do we think should happen in circumstances like this? Should we let Establishment clause violations by the Executive branch with approval from Congress that don't cause any particularized injury go unpoliced? This seems troubling in a situation where there are stable majorities willing to overlook important violations. I am not sure what the answer is, but don't think that the "technical" problems that the Court is deciding are not important.

Update: Dahlia Lihtwick has this piece at Slate on the oral arguments.