Academic journal article Harvard Law Review

Establishment Clause - Standing - Seventh Circuit Holds That Taxpayers Have Standing to Challenge Activities of Federal Centers for Faith-Based and Community Initiatives

Academic journal article Harvard Law Review

Establishment Clause - Standing - Seventh Circuit Holds That Taxpayers Have Standing to Challenge Activities of Federal Centers for Faith-Based and Community Initiatives

Article excerpt

ESTABLISHMENT CLAUSE--STANDING--SEVENTH CIRCUIT HOLDS THAT TAXPAYERS HAVE STANDING TO CHALLENGE ACTIVITIES OF FEDERAL CENTERS FOR FAITH-BASED AND COMMUNITY INITIATIVES.--Freedom from Religion Foundation, Inc. v. Chao, 433 F.3d 989 (7th Cir. 2006).

Since 1968, when the Supreme Court first opened the courthouse door to a federal taxpayer challenging the constitutionality of a federal expenditure, judges have faced the question of how often and under what circumstances they should reopen the door. Recently, in Freedom from Religion Foundation, Inc. v. Chao, (1) the Seventh Circuit held that taxpayers have standing to allege that an executive branch expenditure of a general administrative congressional appropriation violates the Establishment Clause. To reach this result, the Seventh Circuit correctly reasoned that the expenditure of funds--not the administration of a congressional program--should be the key factor in a taxpayer standing inquiry. While the conflicting Supreme Court precedents on taxpayer standing did not demand this result, the reasoning does accord with the motivation behind the limited grant of standing to taxpayers challenging Establishment Clause violations.

In January 2001, President Bush quickly began fulfilling his campaign promise (2) to promote government partnership with religious organizations providing social services. (3) He issued a series of executive orders establishing a White House Office of Faith-Based and Community Initiatives (the White House Office) and creating Centers for Faith-Based and Community Initiatives (the Centers) within several executive agencies. (4) As part of this effort, the White House Office and the Centers sponsored workshops around the country to educate faith-based and community organizations about the availability of federal funds and to offer grant-writing assistance. (5)

In September 2004, the Freedom from Religion Foundation (6) (the Foundation) and several of its officers filed suit in a Wisconsin federal district court against fourteen government officials including the Director of the White House Office and the directors of the Centers. (7) The Foundation alleged that the defendants had violated the Establishment Clause by using congressional appropriations to support activities, including the grant-writing workshops, that "endorse religion and give faith-based organizations preferred positions as political insiders." (8) The government moved for dismissal of these claims on the ground that the plaintiffs lacked standing to challenge executive branch expenditures. The district court granted the motion, holding that because the defendants were not "charged with the administration of a congressional program," (9) the claims did not satisfy the test for taxpayer standing established by the Supreme Court in Flast v. Cohen. (10)

On appeal, a divided panel of the Seventh Circuit reversed and remanded for determination on the merits. (11) Writing for the majority, Judge Posner (12) held that "[t]axpayers have standing to challenge an executive-branch program, alleged to promote religion, that is financed by a congressional appropriation, even if the program was created entirely within the executive branch." (13) Judge Posner found that the case fell within the Flast exception to the Frothingham v. Mellon (14) ban on taxpayer standing. (15) The Flast test allows a plaintiff to assert standing as a taxpayer when two "nexuses" exist: first, the exercise of congressional power under the Taxing and Spending Clause creates a nexus with the plaintiff's status as a taxpayer; and second, there is a nexus between the challenged use of the taxing and spending power and a specific constitutional limitation on that power. (16) Because the plaintiffs alleged that the money for the workshops came not from voluntary donations but, ultimately, from congressional appropriations, the plaintiffs satisfied the first prong. (17) Because the plaintiffs were alleging a violation of the Establishment Clause--Flast's paradigmatic "specific" limitation on Congress's taxing and spending power (18)--they satisfied the second prong. …

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