No taxation without separation: the Supreme Court passes on an opportunity to end establishment clause exceptionalism: Hein v. Freedom from Religion Foundation, Inc.

• Author: Fifield, Joel

The Supreme Court generally denies plaintiffs standing to challenge the constitutionality of government expenditures if their only basis for standing is that they pay taxes. (1) The Court, however, has created one exception: for taxpayers challenging alleged Establishment Clause violations. (2) This Establishment Clause exception has been criticized, challenged, and narrowed by subsequent cases but never overruled. (3) Last Term, the Court passed on yet another opportunity to overturn the maligned taxpayer standing exception. In Hein v. Freedom From Religion Foundation, Inc., (4) a plurality of the Supreme Court held that federal taxpayers lacked standing to challenge conferences and speeches that promoted the Faith-Based and Community Initiatives, a program created by executive order and funded through general executive branch appropriations. (5) Although Hein denied the plaintiffs standing, the plurality implicitly accepted and perpetuated the premise of the misguided precedents recognizing taxpayer standing: that the nature of the claim can compensate for a plaintiff's otherwise inadequate standing position.

In 2001, President Bush issued executive orders creating the White House Office of Faith-Based and Community Initiatives and Executive Department Centers for Faith-Based and Community Initiatives within several federal agencies and departments. (6) The White House Office and Executive Department Centers were "'created entirely within the executive branch ... by Presidential executive order.'" (7) No congressional legislation authorized their creation, and no law specifically appropriated any money for their activities; the White House Office and Executive Department Centers were "funded [entirely] through general Executive Branch appropriations." (8)

Freedom From Religion Foundation, Inc., a corporation "opposed to government endorsement of religion," (9) and three of its members brought a lawsuit against the directors of the White House Office and Executive Department Centers. (10) They argued that the directors "violated the Establishment Clause by organizing conferences at which faith-based organizations allegedly "are singled out as being particularly worthy of federal funding'" and are favored over secular groups. (11) "The only asserted basis for standing was that the individual [plaintiffs were] federal taxpayers ... 'opposed to the use of Congressional taxpayer appropriations to advance and promote religion.'" (12)

As a general rule, plaintiffs do not have standing to sue the government when the only harm alleged is that their federal taxes are being spent in an unconstitutional manner. (13) The plaintiffs in Hein claimed standing under an exception to the taxpayer standing prohibition that the Supreme Court created in Flast v. Cohen. (14) In Flast, the Supreme Court held that federal taxpayers had standing to challenge exercises of congressional power under the Taxing and Spending Clause of Article I, Section 8 that allegedly violate the Establishment Clause of the First Amendment. (15)

The United States District Court for the Western District of Wisconsin held that the taxpayer-plaintiffs in Hein did not meet the Flast exception for standing and dismissed their claims. (16) The taxpayers, the court reasoned, were not challenging an exercise of congressional power, because the government directors acted "at the President's request and on the President's behalf" and were not "charged with the administration of a congressional program." (17) Insofar as the defendants' "actions did not represent congressional power," the Flast exception did not apply. (18)

The Seventh Circuit reversed. (19) Judge Posner authored the majority opinion, which held that the plaintiffs did have standing under the Flast exception because the challenged activities were "financed by a congressional appropriation." (20) Judge Posner reasoned that the Flast exception applied in all cases in which the allegedly unconstitutional government actions resulted in a net marginal cost to the taxpayer greater than zero. (21) Judge Ripple, in dissent, called the majority's position "a dramatic expansion of current standing doctrine." (22) The Court of Appeals denied en banc review, with Chief Judge Flaum noting that "the obvious tension which has evolved in this area of jurisprudence ... can only be resolved by the Supreme Court." (23) The Supreme Court granted certiorari to consider the standing question. (24)

In a 5-4 decision, the Supreme Court reversed the Seventh Circuit, holding that the taxpayer-plaintiffs lacked standing. (25) Justice Alito wrote for a plurality of the Court, joined by Chief Justice Roberts and Justice Kennedy. (26) Justices Scalia and Thomas concurred only in the judgment. (27)

Justice Alito first described why taxpayer status is generally an insufficient basis for standing. To have standing, he explained, "[a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." (28) It is not enough for a plaintiff to allege a constitutional violation; the plaintiff must also have suffered some direct injury. (29) A federal taxpayer's interest in the expenditure of Treasury funds is "too generalized and attenuated to support Article III standing." (30) The injury is not particularized because "the interests of the taxpayer [in the allegedly unlawful expenditure] are, in essence, the interests of the public at large." (31) Accordingly, a taxpayer-plaintiff's claims are not justiciable because relief, if granted, would not be relief particular to the plaintiff. (32)

Justice Alito next examined whether the plaintiffs might still qualify for standing under the Flast exception to the "general constitutional prohibition against taxpayer standing." (33) Flast set out a two-part test for determining whether taxpayers have standing to challenge allegedly unconstitutional expenditures: "First, the taxpayer must establish a logical link between that [taxpayer] status and the type of legislative enactment attacked.... Secondly, the taxpayer must establish a nexus between that [taxpayer] status and the precise nature of the constitutional infringement alleged." (34) In Flast, the Court held that the taxpayer-plaintiffs had standing to challenge the expenditure of federal funds to religious schools under the Elementary and Secondary Education Act of 1965 that allegedly violated the Establishment Clause. (35) The Flast Court found the first part of the test was met because the plaintiffs challenged "an exercise by Congress of its power under Article I, Section 8, to spend for the general welfare, and the challenged program involve[d] a substantial expenditure of federal tax funds." (36) The Court found the second part of the test was also met because the Establishment Clause "operates as a specific constitutional limitation upon the exercise by Congress of the taxing and spending power conferred by Art. I, [section] 8." (37) To reach this conclusion, Chief Justice Warren cited James Madison's writings as evidence that the Founders adopted the Establishment Clause for fear that "the taxing and spending power would be used to favor one religion over another or to support religion in general." (38)

Justice Alito's analysis focused on the first part of the Flast test. The conferences complained of were funded through "general appropriations to the Executive Branch to fund its day-to-day activities." (39) Thus, the taxpayers in Hein were not challenging any "specific congressional action or appropriation," but, rather, general appropriations that Congress provided to the executive branch. (40) Because the allegedly unconstitutional expenditures were the result of "executive discretion, not congressional action," Justice Alito concluded that the Flast exception did not apply. (41) Having distinguished Flast, Justice Alito declined Justice Scalia's invitation to reconsider that decision: "We do not extend Flast, but we also do not overrule it. We leave Flast as we found it." (42)

Justice Kennedy concurred, noting that he "join[ed] [Justice Alito's] opinion in full." (43) Justice Kennedy focused on separation of powers concerns that he believed would be raised by extending Flast. Granting taxpayers standing to challenge public events and speeches...