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What To Do With Flast v. Cohen?
In today's decision in Hein v. Freedom from Religion Foundation, a decision on taxpayer standing to challenge potential violations of the Establishment Clause, the Justices come up with three answers to this question: 1) Read it narrowly (Alito, Roberts, Kennedy), 2) Overrule it (Scalia, Thomas), 3) Read it broadly (Souter, Stevens, Ginsburg, Breyer). Interesting opinions.
Jon Rowe (mail) (www):
Plurality opinions always confused me. So I guess this means #1, even if it didn't get a majority of votes, is the new constitutional standard because it qualifies as a lowest-common-denominator of what the Court, at the very least, holds.
6.25.2007 3:56pm
Antares79:
So you basically have 6 of 9 Justices saying that the result is contrary to precedent.
6.25.2007 3:58pm
Dave N (mail):
I read it as 3 justices decided that there was no "tax-payer standing;" 2 justices think there should be no such thing as "taxpayer standing;" and 4 justices thought the anti-religious group had standing.

I tend to agree with Scalia. The problem with "taxpayer standing" is that it invites judicial review by people who have no real case in controversy other than their general disagreement with government policy.

As Scalia notes, if someone has a genuine grievance with a genuine harm, then they have standing, even without Flast.
6.25.2007 4:31pm
Thorley Winston (mail) (www):
I read it as 3 justices decided that there was no "tax-payer standing;" 2 justices think there should be no such thing as "taxpayer standing;" and 4 justices thought the anti-religious group had standing.


I was a little curious myself how a tax-exempt organization would try to claim standing as a tax-payer.
6.25.2007 4:34pm
William Eric Wolff (mail):
I was a little curious myself how a tax-exempt organization would try to claim standing as a tax-payer.

Even tax-exempt organizations represent tax-paying people.
6.25.2007 4:56pm
MDJD2B (mail):

I was a little curious myself how a tax-exempt organization would try to claim standing as a tax-payer.


The taxpayer claims standing to sue to block government funds being given to the private organization. Logically, anyone could then sue to block any government expenditure. But taxpayers generally do not have standing to file such suits. Flast allows taxpayers standing to sue for certain religiously-directed government expenditures.

So it is not the tax-exempt organization that is claiming standing to sue. Rather, it is the taxpayer who feels aggrieved that his taxes are going to support this organization.
6.25.2007 5:04pm
M. Gross (mail):
I guess it's a sign of the times that the ruling against giving essentially everyone standing on any government act was defeated by the slender margin of 5 to 4.
6.25.2007 5:23pm
Smiley (mail):
Why not call a spade a spade, and overturn it, or at least limit it to its facts? Thats its practical effect anyway, and doing so would only recognize the obvious.
6.25.2007 5:30pm
Jay:
"So it is not the tax-exempt organization that is claiming standing to sue. Rather, it is the taxpayer who feels aggrieved that his taxes are going to support this organization."

I think the commenter was referring to the organization that brought this suit, not the organizations that would recieve faith-based funds.
6.25.2007 5:34pm
wt (www):

So you basically have 6 of 9 Justices saying that the result is contrary to precedent.


No. Scalia's concurrence says that Alito is absolutely applying the existing precedents properly; just that they are a mess, and that they have no grounding in the Constitution or the rule of law.

Alito's opinion is the controlling one, as it's the narrowest holding of the Court.
6.25.2007 5:38pm
plunge (mail):
"I tend to agree with Scalia. The problem with "taxpayer standing" is that it invites judicial review by people who have no real case in controversy other than their general disagreement with government policy."

In other words, Scalia's reasoning is that he should be able to walk into my house, take my money, give it to NABMLA, and at that point only NABMLA has standing to sue if they don't like it.
6.25.2007 5:47pm
Antares79:

No. Scalia's concurrence says that Alito is absolutely applying the existing precedents properly



Oh? From Scalia's concurrence:


As the dissent correctly contends and I shall not belabor, see post, at 3–4 (opinion of SOUTER, J.), Flast is indistinguishable from this case for purposes of Article III.
6.25.2007 6:02pm
wt (www):
Antares79:

You quote the wrong part of the opinion. Scalia is saying that Alito is making a distinction (which he shouldn't) that is consistent with Flast but which has no real meaning to it (executive v. congressional action, who cares?). The regrettable part, for Scalia, is that the Alito plurality see this distinction as important and outcome-determinative. That the distinction could be consistent with Flast and yet so senseless indicates how silly Flast is.

Here's Scalia:

Today’s opinion is, in one significant respect, entirely
consistent with our previous cases addressing taxpayer
standing to raise Establishment Clause challenges to
government expenditures. Unfortunately, the consistency
lies in the creation of utterly meaningless distinctions
which separate the case at hand from the precedents that
have come out differently, but which cannot possibly be (in
any sane world) the reason it comes out differently.
6.25.2007 6:25pm
Antares79:
wt, I must continue to disagree with you. If Scalia truely believed that Flast was so distinguishable, he would have signed on to the plurality. Instead he states:


Either Flast was correct, and must be accorded the wide application that it logically dictates, or it was not, and must be abandoned in its entirety.


There is no third way for Scalia. For him, if Flast was honestly followed, the case would have an opposite outcome, as pointed out by the dissent.
6.25.2007 6:39pm
wt (www):
the only way i see us resolving this disagreement is with a surfing competition.
6.25.2007 6:58pm
Steve2:
You know, I saw an analysis back right after the case was argued that basically said instead of going with the over-rule Flast route, the court should be going the route of granting all taxpayers standing.

Got to say, I was pretty disturbed the first time I read Allen v. Wright. "Petitioners have no standing to complain simply that their government is violating the law" sticks out in my mind as the sentence in there that sums up the no-taxpayer standing doctrine, and that's a troubling thought to me.
6.25.2007 7:27pm
BruceM (mail) (www):
Can anyone cite me to ANY writing by ANY founder that says or implies that a 'standing' requirement should trump an unconstitutional law or application of law? I can't imagine that the founders would have envisioned our government being able to establish a national church (albeit with voluntary attendance) without the First Amendment giving citizens not in the majority faction the right to do something about it. What's the point of a constitution, limits on government, and protections from government if you need to show an obectively reasonable and particularized harm before being allowed to stop it? Whether it's standing to assert a 4th Amendment Violation (it's a violation but you can't do anything about it -- enjoy prison) or standing to assert a 1st Amendment violation (it's a violation but you can't do anything about it--enjoy the National Church of Christ), I just can't imagine this is how the founders intended it to work. Maybe I'm wrong. I certainly could be. But it doesn't seem to me that they wrote these documents with the intent that they be treated as hollow, irremedial guidelines.
6.25.2007 8:40pm
Smokey:
Steve2:

"Petitioners have no standing to complain simply that their government is violating the law"

That attitude bothers me, too. I recall something about 'petition for redress of grievances,' but I forget where I read it.

But to get back to "petitioners have no standing to complain simply that their government is violating the law" for a moment:

Last Tuesday I went to a city council meeting in Santa Clara, California, because an out of town developer wants to build low-income, high density housing in my neighborhood.

I had never attended a city council meeting before, and I looked forward to seeing how the council worked. The council was scheduled to vote on the development at that meeting.

There were a couple of hundred people in attendance, almost all of them opposed to the low income, high density proposal.

At one point a speaker said something anti-developer, and some people in the crowd clapped. The mayor shouted down the residents, telling them they were 'intimidating others' by clapping. By 'others,' she presumably meant the developer's agents].

The developer must have been concerned, because right in the middle of the meeting, his representative spoke on her cell phone, then suddenly announced to the city council that the developer was offering an additional $200,000 cash to 'mitigate' some vaguely worded 'traffic' concerns.

Neither the mayor nor anyone on the city council said a thing about the developer's bribe. And it was a bribe, wasn't it? A quid pro quo. Tit for tat. You scratch my back, and I'll scratch yours. Nobody offers $200,000 cash to relative strangers for no reason; the city council's imminent vote was the reason.

The bribe was offered in such a way that the council would get the $200,000 to spend on almost anything or anyone, and the offer was framed in such a way that the money would flow into the hands of the city council if, and only if, the council voted for the development.

So a $200,000 cash bribe trumped the desires of the more than 5,000 citizens who had signed a petition opposing the development. The bribery was astonishingly blatant. And the mayor, who had just reprimanded the audience for clapping, never said a thing when the bribe was offered. In the event, the city council voted for the development.

Sorry to be so long winded. My point is this: the 1st Amendment says very explicitly that Congress can not pass a law restricting free speech. Yet limits on campaign speech do just exactly that, and the citizens be damned. If you aren't part of a special-interest group, your job as a taxpayer is to get fleeced. So shut up and quit complaining, we live in the greatest country on earth.

Don't we?
6.25.2007 8:40pm
BruceM (mail) (www):
Smokey: no, we don't. Not anymore.
6.25.2007 9:05pm
John (mail):
Non-profit tax exempt organizations pay lots of taxes. They pay taxes on "unrelated business income" (e.g., all that revenue from selling T-shirts and coffee mugs), and excise taxes on parts of their investment assets.
6.25.2007 9:06pm
ReaderY:
This line-up, with Kennedy, Roberts, and Alito keeping a liberal precedent on the books but reading it narrowly, Scalia and Thomas voting to overrule it, and Stephens, Ginsberg, Breyer, and Souter voting to read it broadly, seems to be one we'll be seeing a lot of in the future.

It was the line-up for the partial-birth abortion case. The factual distinctions involved may enable the public to essentially leapfrog over precedents by lawyering their way around them, doing essentially the thing the precedent was originally thought to forbid while avoiding the precise fact situation the precedent, narrowly construed, is left to cover.
6.25.2007 9:27pm
ReaderY:
Note that the uphold-the-precedent-but-read-it-narrowly opinion becomes the narrowest opinion supporting the court's judgement and hence the controlling opinion and the law of the land for lower courts. The approach puts Roberts in the driver's seat despite only plurality support.
6.25.2007 9:29pm
martinned (mail) (www):
L.S.,

Just to settle the "why can a tax-exempt organisation bring a taxpayer suit"-issue, a quote from the syllabus:

"Respondents, an organization opposed to Government
endorsement of religion and three of its members, brought this suit alleging" etc.

Secondly, I'm wondering whether a plurality opinion really carries the kind of weight that is here suggested. I always thought that plurality opinions settled the case at hand, and nothing more. Apart from that, lower courts can look at which opinion was supported by a majority of the court, as some of the commenters above have done, but AFAIK such a headcount would not be controlling under stare decisis.
6.27.2007 11:05am
Larry Fafarman (mail) (www):
Ironically, where the alleged establishment clause violation does not involve any tax money at all -- e.g., a decision by the government to allow a privately donated religious display on public property -- the plaintiffs' standing to sue is not questioned.

Also, Congress and the courts are not consistent about the "injured in fact" requirement -- the "citizen suit" provisions of environmental laws give all citizens standing to sue without alleging personal injury or the threat of personal injury.
6.28.2007 12:15am
Larry Fafarman (mail) (www):
BruceM said ( 6.25.2007 7:40pm ) --
Can anyone cite me to ANY writing by ANY founder that says or implies that a 'standing' requirement should trump an unconstitutional law or application of law?

Excellent point. The Constitution is supposed to be the supreme law of the land. To follow a "standing" requirement at the expense of the Constitution is like straining at a gnat and swallowing a camel.

Sometimes we can't see the forest for the trees.
6.28.2007 12:36am