A Call for Judicial Restraint: Federal Taxpayer Grievances Challenging Executive Action

• Publication year: 2007

SEATTLE UNIVERSITY LAW REVIEWVolume 30, No. 3SPRING 2007

A Call for Judicial Restraint: Federal Taxpayer Grievances Challenging Executive Action

Debra L. Lowman(fn*)

I. Introduction

Article III of the Constitution describes the judicial power of the United States as extending to "cases" and "controversies."(fn1) The plain meaning of these words, however, offers little insight into what the Framers intended should be the proper scope of the federal judicial power.(fn2) To discern the Framers' intent, the Supreme Court has looked to common understandings about what activities are appropriately resolved through the judicial process.(fn3) Based upon those understandings, the Court has developed a set of rules-standing, mootness, and ripeness, among others-through which it defines the limits of the Judiciary's power in relation to the powers of the coordinate branches of government.(fn4)

It is important to limit the Judiciary because its power is uniquely susceptible to abuse: the Judiciary is the only branch of government that is not elected and the only branch that can define the limits of its own power.(fn5) Therefore, it is critical that the Judiciary applies its own rules of limitation fairly and consistently. Otherwise, if the Judiciary inconsistently interprets its own rules or capriciously expands its power, it imperils not only its own integrity, but one of the Constitutional foundations of our government: separation of powers.

The law of standing, which is one dimension of the case-and-controversy requirement, addresses the important question of whether a party who brings a claim in federal court is a proper party to invoke federal court jurisdiction.(fn6) To have standing to litigate a cause of action under modern standing doctrine, a party must allege that he or she has actually suffered or will imminently suffer a concrete and particular injury caused by the defendant.(fn7) Nothing less will satisfy the Constitution.(fn8) The alleged injury must be actual or imminent, not conjectural or hypothetical.(fn9)

Requiring plaintiffs to allege an injury serves two primary concerns. First, it frames the legal question sought to be adjudicated in a factual context within which a court is capable of making decisions.(fn10) Unlike the Legislative Branch, the Judiciary does not have the ability to call hearings, make reports, conduct investigations, or otherwise make an exploratory record.(fn11) Rather, the courts completely depend on the parties in each case to present the relevant facts and the claims sought to be adjudicated.(fn12) Second, the concrete injury requirement insures the framing of relief no broader than required by the precise facts, which is especially important when adjudication would produce a confrontation with one of the coordinate branches of government.(fn13) Thus, the concrete injury requirement serves to prevent the Judiciary from invading the province of the other branches of government unless necessary under the particular circumstances of a case.(fn14) These dual concerns, i.e., the limited competency of the Judiciary and the idea of separation of powers, provide strong justifications for the concrete injury requirement in standing law.

The two Constitutional concerns just outlined-the limited competency of the Judiciary and separation of powers-strongly justify requiring all parties to allege a concrete injury in order to invoke the jurisdiction of the federal courts. Despite this strong Constitutional justification, the courts have carved out an exception to the concrete injury requirement when the plaintiff is a taxpayer challenging congressional spending. The resulting doctrine of taxpayer standing is at odds with the demands made and Constitutional protections otherwise afforded by standing doctrine.(fn15)

Generally speaking, taxpayers have no standing because a taxpayer's grievance about the government's allocation of its largesse is generally abstract and ideological in nature.(fn16) In such a case, the taxpayer does not suffer from the actual or imminent concrete injury that is so essential to the Judiciary's ability to render legal decisions.

It makes sense, therefore, that for most of the twentieth century, taxpayers had no special standing.(fn17) The Supreme Court considered but rejected a special taxpayer standing doctrine in the famous 1923 case of Frothingham v. Mellon.(fn18) In that case, the Court held that the federal Judiciary is not a proper forum for taxpayers to air their general grievances concerning the government's allocation of federal tax dollars.(fn19) As that holding implies, the representative branches of government are better suited to respond to taxpayer grievances.(fn20)

However, in Flast v. Cohen, decided in 1968, the Court reversed over four decades of standing jurisprudence and for the first time back-pedaled from its original position and created a separate standing doctrine for certain taxpayer suits.(fn21) In Flast, the Supreme Court held that the federal Judiciary is a proper forum for taxpayers challenging congressional spending alleged to violate the Establishment Clause of the First Amendment. The Court based its decision on a standing paradigm that depends on the substantive issues in a case, rather than the injury to the particular complainant.(fn22) By adopting this paradigm, the Court ignored not only the carefully circumscribed role of the Judiciary in our federal system of government, but also the Judiciary's core competency within that system.(fn23) Moreover, because the Constitution absolutely requires that plaintiffs allege a concrete injury, and because the Flast Court held that taxpayers who could not meet that requirement nonetheless had standing, that decision cast a shadow on the legitimacy of the Judiciary.(fn24)

To be sure, the Supreme Court has since applied the Flast standing model only in a narrow class of cases.(fn25) Specifically, the Court has said that the federal courts are proper forums for taxpayer grievances only when the taxpayer demonstrates a "nexus between the taxpayer's standing as a taxpayer and the congressional exercise of taxing and spending power."(fn26) However, this nexus requirement, even when stringently applied, does not provide any sort of sensible measurement of the extent, if any, of a taxpayer's concrete injury.(fn27)

Recently, the Court of Appeals for the Seventh Circuit again propelled the issue of taxpayer standing into the forefront of federal jurisprudence, paving a doctrinal crossroads of sorts for the Supreme Court.(fn28) In Freedom from Religion Foundation, Inc. v. Chao (hereinafter Freedom), the Seventh Circuit held that the plaintiff taxpayers had standing to challenge the constitutionality of the Executive Branch's dedication of federal funds to the Faith Based and Community Initiatives program.(fn29) The plaintiffs claimed that this use of federal monies to the program violated the Establishment Clause.(fn30)

In holding that the plaintiffs had standing, the Freedom court broadened the Flast standing model to encompass a new class of taxpayer cases. Previously, taxpayers had standing only when they challenged a particular appropriation statute on the grounds that Congress's taxing and spending power was restricted in that case by a specific Constitutional provision.(fn31) The Freedom standing model, however, recognizes the standing of taxpayers who allege that virtually any executive program violates the Establishment Clause.(fn32)

Authored by Judge Posner, the watershed majority opinion in Freedom spawned a strong dissenting opinion from Judge Ripple.(fn33) As characterized by Judge Ripple, the majority opinion reflects an overconfident view about the nature of Article III judicial power.(fn34) Judge Ripple's dissent was joined by three more judges when the defendants' petition for rehearing was denied.(fn35) In addition, Chief Judge Flaum and Judge Easterbrook concurred in the denial of rehearing, but only because they thought the matter should be resolved by the Supreme Court.(fn36) Apparently the Court agreed with this assessment because on December 1, 2006, the Court granted certiorari review, and the case is presently pending.(fn37)

This Article calls upon the Supreme Court to stay the Judiciary's hand in taxpayer grievances concerning purely executive action. Parts II and III of the Article provide the relevant background material for an understanding of the subject matter. Specifically, Part II recounts the evolution of taxpayer standing, taking the reader from the Supreme Court's decision in Frothingham to its counterpoint decision in Flast. Part III summarizes the Seventh Circuit's unprecedented decision in Freedom(fn38) Part IV demonstrates that taxpayer standing as conceived by the Freedom court does not conform to the standing paradigm formulated in Flast, and moreover, directly conflicts with the holdings of seminal post-Flast Supreme Court cases.

Parts V and VI posit that even assuming arguendo that Freedom does not directly conflict with Supreme Court precedent, the decision should not be affirmed for two other reasons. First, as discussed in Part V, the Freedom court's conception of taxpayer standing should not be sustained because there is no logical nexus between taxpayer status and a claim challenging executive action that violates the Establishment Clause. Second, as discussed in Part VI, the Free...