Standing and Separation of Powers in Massachusetts and Hein:

The Supreme Court decided two important standing cases during OT2006: Massachusetts v. EPA and Hein v. Freedom from Religion Foundation. Both cases are significant, but for quite different reasons -- one for what it did, the other for what it did not do. Massachusetts is important for how it departed from, and modified, existing standing doctrine in holding that the Commonwealth of Massachusetts had standing to sue the EPA for failing to regulate greenhouse gases under the Clean Air Act. Hein, on the other hand, is important because the Court stubbornly refused to depart from existing, and arguably quite unworkable, precedent regarding taxpayer standing to sue the federal government under the Establishment Clause.

Late last year I delivered the keynote address at a standing symposium, "Justiciability After Hein and Massachusetts: Where is the Court Standing?" sponsored by the Regent Law Review, in which I addressed the two cases. In addition to noting the cases' handling of prior precedent, I argued that the Court's holdings embody contrasting -- and arguably quite conflicting -- conceptions of the role of the judiciary in the separation of powers.

In both cases, the Court confronted the question of when to allow suits challenging executive conduct that caused rather generalized harms to the public -- the misuse of taxpayer dollars in Hein, the failure to regulate vehicular contributions to glboal climate change in Massachusetts. Given the lack of a traditional concrete and particularized injury in these cases, one underlying question is whether standing is necessary or desirable so as to facilitate judicial oversight of potential executive branch misconduct. Such judicial oversight may be desirable insofar as the legislature cannot be relied upon to police executive behavior. But if this is the rationale for allowing standing despite the lack of a traditionally recognized injury, the Court gets the two cases wrong.

It seems to me the risk of executive misconduct is greater in the Establishment Clause context, where the executive must comply with a constitutional rule designed to protect minority interests from majoritarian religious preferences, than in the environmental context where the executive is tasked with implementing a federal statute. Congress is fully capable of policing executive compliance with statutory mandates (if it chooses to do so), but Congress is very unlikely to police Executive compliance with the Establishment Clause, particularly where the executive acts to "establish" majoritarian religious preferences. Thus the Court has a greater "countermajoritarian" role to play in Establishment Clause cases. Yet Hein effectively forecloses taxpayer suits against executive actions that allegedly violate the Establishment Clause, and Massachusetts opens the door to greater litigation against executive actions that allegedly violate federal environmental laws. If the Court was only to find standing in one of the two cases (and I would not have found standing in either), I think Hein was a better candidate than Massachusetts.

I've turned my symposium remarks into a short paper, "God, Gaia, the Taxpayer, and the Lorax: Standing, Justiciability, and Separation of Powers after Massachusetts and Hein." It's a quick read that fleshes out the argument in a little more detail. A copy of the paper on SSRN here.