The Supreme Court Decides Whether Taxpayers Can Sue to Challenge the Constitutionality of the Use of Funds for President Bush's Faith-Based Initiatives

Can taxpayers sue to challenge federal agencies' use of congressional funds to promote President Bush's faith-based and community initiatives to provide social services?

The taxpayers say that these efforts are merely "propaganda vehicles" for religion that therefore violate the Establishment Clause -- which prohibits government support for religion in general, as well as discrimination among different religious groups. The Administration responds, however, that not only are the taxpayers wrong on the merits of the issue, but they are also not the proper plaintiffs to raise this issue in court. In legal parlance, the Administration says, they lack "standing."

On February 28, in Hein vs. Freedom from Religion Foundation, the Supreme Court heard oral argument on the standing issue.

The case has received relatively little attention, except among true constitutional law aficionados - but it deserves more.

Granted, the standing issue is rather technical. President Bush's virtual lame-duck status, and low popularity, mean that Bush will have little chance to expand his faith-based initiatives. And in a few years, a new president will decide whether to adopt his or her own such initiatives.

Yet the Hein case still has the potential to be of key importance. Here's why, in a nutshell:

The case will provide the Roberts Court with its first opportunity to set out its views on taxpayer standing and, more importantly, it will give the chief justice an opportunity to press his goal of making the court a more minimalist institution - one that seeks to limit its involvement in public life.

In this column, I'll discuss the Hein litigation; make a prediction about the outcome in the Supreme Court; and explain why the case may provide a broader sense of the Roberts Court.

President Bush's Commitment to Faith-Based Social Services

Before the 2000 election, George W. Bush - a born-again Christian - campaigned as a "compassionate conservative" and promised to deliver faith-based social services to his evangelical constituents. As president, Bush did not disappoint. In January 2001, he issued an executive order creating the White House Office of Faith-Based and Community Initiatives. In the order, President Bush explained that his "paramount goal" was to ensure that "private and charitable community groups, including religious ones" have the "fullest opportunity permitted by law to compete on a level playing field." In separate orders, the president created centers in a number of federal agencies to coordinate faith-based community initiatives.

President Bush's support for faith-based providers of social services revived concerns - mostly dormant since Ronald Reagan's presidency - that the wall separating church and state would be weakened, if not dismantled, as the result of efforts taken by the federal government. Notwithstanding the neutral language in the executive orders, critics have complained that Bush's efforts have led to unconstitutional governmental support for religion, and, in particular, for the evangelical organizations receiving government funds to administer social service programs.

The Legal Challenge by the Freedom from Religion Foundation and Three Taxpayers

One response, by a public interest group known as the Freedom from Religion Foundation (FFRF), was litigation. In 2004, FFRF and three of its members - the taxpayers - sued a number of federal agency officials (including the directors of the White House Office of Faith-Based and Community Initiatives and the agency centers) in United States District Court in Wisconsin.

The plaintiffs asserted that the defendants violated the Establishment Clause by organizing conferences at which faith-based organizations were "singled out as being particularly worthy of federal funding because of their religious orientation" and by promoting - through speeches and public appearances - funding for faith-based organizations. They also alleged - to justify why, as taxpayers, they are the proper plaintiffs to bring this case -- that congressional appropriations are "used to support the activities of the defendants."

The government defendants moved to dismiss the complaint for lack of standing. Essentially, they cited the general rule that taxpayers may not sue over Congress' appropriations decisions. Moreover, they argued - successfully, in the district court - that the plaintiffs' case did not come within the Establishment Clause exception (or any other exceptions) to that rule.

In order to understand the district court's decision, and the subsequent appeals, a brief background discussion of standing doctrine is in order:

The Law of Taxpayer Standing

The doctrine of standing follows from the limits on the exercise of judicial power under Article III of the Constitution, which gives federal courts the power to decide (only) "Cases" or "Controversies." Generally, a plaintiff does not possess standing unless he claims he has suffered a specific tangible injury, caused by the defendant's violation of the law, and that his injury can be redressed by the relief he seeks in his lawsuit.

With respect to Congress' appropriations decisions, the general rule is that a taxpayer's disagreement with such a decision presents no more than a political dispute, about which the taxpayer ought to complain to her representative - not a legal case appropriate for the courts to decide. The taxpayer's remedy for his disagreement with government policy is to be found at the voting booth, not the federal courthouse.

The reasoning behind the rule is twofold: First, the taxpayer's claimed injury is not sufficiently specific - because it is no different from that of other taxpayers. Second, it is not redressable - because even if the taxpayer were to win his suit, Congress would simply allocate the funds for another project, meaning the taxpayer would gain no monetary benefit.

The exception to the general rule, developed in three Supreme Court cases, is when a taxpayer alleges that the Establishment Clause has been violated by Congress' exercise of its powers under the taxing and spending clauses of Article I, section 8, of the Constitution.

The exception is based upon the notion that the taxpayer suffers a legal injury by the government's financial support for religion in violation of the establishment clause. The Supreme Court established this exception in the 1968 case of Flast v. Cohen; emphasized the limits to this exception in 1982 in Valley Forge Christian College v. Americans United for Separation of Church and State, and reiterated its vitality in 1988 in Bowen v. Kendrick.

The Path to the Supreme Court

As noted above, the district court agreed with the defendants' argument that the taxpayers lacked standing. Essentially the district court reasoned that the alleged government agency acts at issue had been funded through general appropriations - and that the case law requires a more specific relationship between the taxpayer's claim and the injury resulting from Congress' power to tax and spend for standing to be proper.

The plaintiffs appealed to the U.S. Court of Appeals for the Seventh Circuit . In September 2005, a panel composed of Judges Richard Posner, Kenneth Ripple, and Diane Wood heard oral argument. In a 2-1 decision issued in January 2006, the panel disagreed with the district court, and reinstated several of the plaintiffs' claims.

Posner, joined by Wood, wrote for the majority. First, Posner analyzed how and why the modern law of standing has loosened the actual injury requirement. Then, canvassing the governing case law, Posner argued that this case could not turn on whether the congressional appropriations were specific or general. Rather, he concluded, what mattered was that, according to the plaintiffs' allegations, federal agencies funded by Congress were engaged in efforts to promote religion - and that these allegations, if true, would establish a violation of the Establishment Clause.

The defendants sought en banc rehearing (meaning, in this case, rehearing by the entire U.S. Court of Appeals). It was denied. They then sought Supreme Court review, which was granted.

A Prediction: The Supreme Court Will Reverse the Seventh Circuit's Ruling

It might seem foolhardy to bet against Judge Posner, who has been described as a "human Pentium Processor" by Dahlia Lithwick of Slate. Nevertheless, it seems likely that the panel's decision will be reversed -- for at least three reasons:

First, it seems likely that the reason Supreme Court granted review was to reverse - not affirm - the decision. That is not always the case, but here, with the issue of taxpayer standing clarified by three prior Court precedents, it seems unlikely that the Court would grant review to clarify - not correct - the law.

Second, although Judge Posner's approach is logical, in taxpayer standing jurisprudence, following precedent tends to be the main concern, even if precedent and logic collide. As now-Chief Judge Frank Easterbrook noted in the en banc rehearing decision, "[t]he principal difficulty with arguments pro and con about taxpayer standing is that the doctrine is arbitrary." He acknowledged that "that the doctrine of taxpayer standing will be more logical if it covers administrative as well as legislative earmarks," but noted that "comprehensiveness and rationality are not this doctrine's hallmarks."

The precedent here is contrary to Posner's approach. The controlling cases take a restrictive approach to allowing citizens to sue over the use of appropriated funds - an approach that seems antithetical to Posner's more expansive view of when taxpayer standing is appropriate.

Flast and Kendrick are the only Supreme Court cases approving taxpayer standing, and both require more specific congressional action than the mere general appropriation of funds. (In Flast, the Supreme Court permitted a taxpayer suit challenging Congress' specific appropriation of funds for grants of financial assistance to private and public schools, including parochial schools, based on their claim that the appropriation violated the Establishment Clause. In Kendrick, the Court permitted a taxpayer suit to proceed challenging grants made by a federal agency to religious institutions, pursuant to a specific statute authorizing those grants.)

Hein and the Minimalist Ambitions of Chief Justice John Roberts

Third, and finally, reversal of the Seventh Circuit's decision would be entirely consistent with Chief Justice Roberts's ambitions for a more modest Supreme Court. At his confirmation hearings, Roberts presented himself as a judicial minimalist - he promised to be no more than an "umpire calling balls and strikes," and pledged to decide cases narrowly, so as to promote consensus on the court.

A restrictive view of standing is entirely consistent with Roberts's vision for a minimalist court. One who envisions a minimal role for the Court will hardly welcome would-be plaintiffs with increasingly tenuous claims to standing.

Thus, Roberts is likely to seize upon the opportunity in Hein to direct would-be plaintiffs toward the political process, and away from the courthouse.