What Establishment Clause?
Published by BG on Monday, June 25, 2007 at 2:54 PM.The Supreme Court today ruled on Hein v. Freedom From Religion Foundation, a case in which the President's "Faith-Based Initiatives" came under challenge from a group who believes that spending tax dollars with religious organizations is tantamount to a federal endorsement of religion. Quoting from the decision (PDF), the judges had to decide which of the following is correct:
(A) a taxpayer has standing to challenge anything done by a federal agency so long as the marginal or incremental cost to the public of the alleged Establishment Clause violation is greater than zero.
or
(F)ederal taxpayer standing is limited to Establishment Clause challenges to the constitutionality of exercises of congressional power under the taxing and spending clause of Art. I, §8. Because petitioners acted on the Presidents behalf and were not charged with administering a congressional program, the court held that the challenged activities did not authorize taxpayer standing...
I wouldn't be mentioning this if they sided with the former instead of the latter. In a nutshell, the court ruled that the FFRF did not have proper standing to bring this lawsuit, as it appears individual taxpayers with an ideological constitutional opposition to the outlay of taxpayer funds can only challenge the spending of those funds if they are an act of Congress. Because this office is an extension of the Executive Branch (despite the Executive Branch having its dollars appropriated by Congress), the FRFF cannot challenge the way the money is spent.
The court chose to acknowledge a previous case (Flast) in which taxpayer standing was decided, and chose to read it narrowly for the reason stated above. The gist of the argument made is, if the people can challenge how the Executive Branch spends their money, where does it stop?
Scalia and Thomas backed up Alito's opinion (quoted above), but took it a step further. Their concurring opinion? If you don't like the way your government is spending your money, suck it:
I'm not a Constitutional Attorney, but I'm wondering where this would be able to be challenged in the courts. The decision by SCOTUS today doesn't actually address whether or not the execution of the faith-based program funding is constitutional, but instead seems to rely on the idea that challenging this idea is a legal Pandora's Box we should know better than to try and open.
What exactly would a President have to do to be in violation of the Establishment Clause at this point?
(A) a taxpayer has standing to challenge anything done by a federal agency so long as the marginal or incremental cost to the public of the alleged Establishment Clause violation is greater than zero.
or
(F)ederal taxpayer standing is limited to Establishment Clause challenges to the constitutionality of exercises of congressional power under the taxing and spending clause of Art. I, §8. Because petitioners acted on the Presidents behalf and were not charged with administering a congressional program, the court held that the challenged activities did not authorize taxpayer standing...
I wouldn't be mentioning this if they sided with the former instead of the latter. In a nutshell, the court ruled that the FFRF did not have proper standing to bring this lawsuit, as it appears individual taxpayers with an ideological constitutional opposition to the outlay of taxpayer funds can only challenge the spending of those funds if they are an act of Congress. Because this office is an extension of the Executive Branch (despite the Executive Branch having its dollars appropriated by Congress), the FRFF cannot challenge the way the money is spent.
Also rejected is respondents argument that Executive Branch expenditures in support of religion are no different from legislative extractions. Flast itself rejected this equivalence. 392 U. S., at 102. Because almost all Executive Branch activity is ultimately funded by some congressional appropriation, extending the Flast exception to purely executive expenditures would effectively subject every federal action be it a conference, proclamation, or speech to Establishment Clause challenge by any taxpayer in federal court. Respondents proposed rule would also raise serious separation-of-powers concerns, enlisting the federal courts to superintend, at the behest of any federal taxpayer, the speeches, statements, and myriad daily activities of the President, his staff, and other Executive Branch officials.
The court chose to acknowledge a previous case (Flast) in which taxpayer standing was decided, and chose to read it narrowly for the reason stated above. The gist of the argument made is, if the people can challenge how the Executive Branch spends their money, where does it stop?
Scalia and Thomas backed up Alito's opinion (quoted above), but took it a step further. Their concurring opinion? If you don't like the way your government is spending your money, suck it:
A taxpayers purely psychological disapproval that his funds are being spent in an allegedly unlawful manner is never sufficiently concrete and particularized to support Article III standing. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 573574. Although overruling precedents is a serious undertaking, stare decisis should not prevent the Court from doing so here. Flast was inconsistent with the cases that came before it and undervalued the separation-of-powers function of standing. Its lack of a logical theoretical underpinning has rendered the Courts taxpayer-standing doctrine so incomprehensible that appellate judges do not know what to make of it. The case has engendered no reliance interests. Few cases less warrant stare decisis effect. It is past time to overturn Flast.
I'm not a Constitutional Attorney, but I'm wondering where this would be able to be challenged in the courts. The decision by SCOTUS today doesn't actually address whether or not the execution of the faith-based program funding is constitutional, but instead seems to rely on the idea that challenging this idea is a legal Pandora's Box we should know better than to try and open.
What exactly would a President have to do to be in violation of the Establishment Clause at this point?
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