Constitutional Law and Separation of Powers

AuthorWilliam Funk, Robert E. Jones
ProfessionProfessor of Law, Lewis & Clark Law School (Committee Vice Chair)
A. Standing
The case of Flast v. Cohen,1 which found taxpayer standing to challenge
congressional appropriations alleged to be in violation of the First Amendment’s
Establishment Clause, hangs on by a thread, but it has been increasingly
limited to its particular facts. First, there was Valley Forge Christian College
v. Americans United for Separation of Church and State, Inc.,2 finding no
standing for taxpayers to challenge the federal donation of land to a religious
institution on Establishment Clause grounds. Then there was Hein v. Freedom
From Religion Foundation, Inc.,3 finding no standing for taxpayers to bring
an Establishment Clause challenge against a federal agency’s use of federal
money to fund conferences to promote President’s “faith-based initiatives.
And now there is Arizona Christian School Tuition Organization v. Winn,4
finding no standing for state taxpayers to challenge state tax credits for tu-
ition paid to private, predominantly religious schools. The vote was 5–4,
with Justice Kennedy writing the majority opinion. Justice Scalia concurred,
joined by Justice Thomas, calling for the overruling of Flast. The dissenters
* By William Funk, Robert E. Jones Professor of Law, Lewis & Clark Law
School (Committee Vice Chair).
1. 392 U.S. 83 (1968).
2. 454 U.S. 464 (1982).
3. 551 U.S. 587 (2007).
4. 131 S. Ct. 1436 (2011). This case is also discussed herein in Judicial Re-
view (infra at 63–69).
Constitutional Law and Separation of Powers*
26 Developments in Administrative Law and Regulatory Practice
were the four “liberals.” They did not agree that tax expenditures were distin-
guishable for standing purposes from state fund expenditures.
The standing issue in Massachusetts v. EPA,5 the 2007 climate change
case, arose again in the 2010 term in another climate change case, American
Electric Power, Inc. v. Connecticut.6 In this case, states and others sued vari-
ous large coal-fired power plants for a violation of the federal common law
of interstate air pollution, alleging that their emissions of carbon dioxide into
the atmosphere fostered global warming, which in turn injured the plaintiffs.
In Massachusetts v. EPA, the Court by a 5–4 vote had found standing on
behalf of Massachusetts to challenge EPA’s failure to regulate greenhouse gas
emissions from new automobiles. In American Electric Power, while the merits
issue was different, the standing issue was essentially the same and nothing
had changed except that Justice Stevens, the author of Massachusetts v. EPA,
had been replaced by Justice Sotomayor and Justice Souter had been replaced
by Justice Kagan. Although she did not actually participate in the final deci-
sion, Justice Sotomayor had been on the panel that decided American Electric
Power below, so she took no part in the case in the Supreme Court. As a
result, the Court split 4–4 on standing, thereby affirming by an equally di-
vided vote the finding of standing made by the Second Circuit. The Court
then found that the federal common law of interstate air pollution had been
displaced by enactment of the Clean Air Act, resulting in dismissal of the
A case that was billed as standing turned out not to be. In Bond v. United
States,7 Ms. Bond, upset that her best friend had become pregnant by Ms.
Bond’s husband, first harassed and then placed caustic chemicals on objects
that her friend was likely to touch. Ms. Bond was convicted of violating 18
U.S.C. § 229, which prohibits the use of any chemical that “can cause death,
temporary incapacitation or permanent harm to humans or animals” where
not intended for a “peaceful purpose.”8 This statute was enacted as part of the
Chemical Weapons Convention Implementation Act of 1998.9 Ms. Bond chal-
lenged the constitutionality of the statute as applied to her as being beyond
Congress’s power under the Tenth Amendment. The Third Circuit held that
5. 549 U.S. 497 (2007).
6. 131 S. Ct. 2527 (2011). This case is also discussed herein in Judicial Re-
view (infra at 69).
7. 131 S. Ct. 2355 (2011). This case is also discussed herein in Judicial Re-
view (infra at 70–71).
8. 29 U.S.C. § 229 (2006).
9. Pub. L. No. 105-277, 112 Stat. 2681 (1998).

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