Should the Courts Save Taxpayer Standing? Interpreting Hein V. Freedom from Religion Foundation Narrowly through the Lens of Judicial-Branch Spending

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I. INTRODUCTION

Over the course of the 2006-01 Term, the Supreme Court's first full year with Chief Justice Roberts at the helm, the Court handed down a series of five-four decisions on a broad range of politically divisive issues. (1) One of the last of these decisions, Hein v. Freedom From Religion Foundation, Inc., (2) turned on a technical question of taxpayer standing. Justice Alito (writing for a plurality) interpreted Flast v. Cohen, the classic case that opened the door to taxpayer standing in cases of government spending in violation of the Establishment Clause, to have upheld taxpayer standing only because there was a "specific congressional enactment" that "expressly authorized or mandated" the challenged expenditure. (3) As the executive branch spending at issue in Hein was from general Congressional appropriations, and the decision to spend funds for arguably religious purposes was an act of executive discretion, the plurality concluded that Flast did not apply; having reached this conclusion, the plurality declined to "extend" Flast, and held that the respondents lacked standing. (4)

Despite the technical nature of the taxpayer-standing holding, the decision generated an outpouring of negative press, as the case implicated deep church-state concerns. The criticisms came in two distinct forms. First, critics objected to Hein on normative grounds, arguing that it effectively insulated large swaths of government spending from Establishment Clause challenge, and thereby threatened to undermine judicial enforcement of the Clause. (5) Second, legal commentators criticized--in the harshest of terms--the logic of the plurality opinion, which made a sharp distinction between Congressional spending that supported standing in Flast and Executive Branch spending of general Congressional appropriations that did not in Hein. (6) Noting that the injury--spending a taxpayer's money for religious purposes--was identical in both cases, these critics blasted the plurality for its "utterly meaningless" and "intellectually ... indefensible" distinction. (7)

But by explicitly refusing to discuss the applicability of the decision--and the viability of Flast--outside the specific Executive Branch spending setting of the case, (8) the plurality opinion left open many important questions with which the lower courts have already begun to grapple. First and foremost is whether and how Hein applies in taxpayer spending cases outside the federal Executive Branch. After Hein, does the simple collection and expenditure of funds in violation of the Establishment Clause by Congress or a state still give rise to taxpayer standing, as long as the spending is not limited to the federal Executive Branch? Or does the Hein pronouncement that taxpayer standing only lies where there is a "specific [legislative] enactment" that "expressly authorize[s] or mandate[s]" the challenged expenditure apply even in federal non-Executive cases and in cases implicating state and municipal taxpayer standing?

This article raises these questions, and suggests--through the lens of Judicial Branch spending--that the approach taken by many courts thus far is deeply problematic. (9) In a host of cases, the broader interpretation of Hein already seems to be taking hold, as many courts have applied the Alito plurality directly (or as directly as possible, at any rate) in a number of non-Executive Branch taxpayer spending cases, despite the executive-specific separation-of-powers and administrability concerns at the heart of the opinion. (10) Based on this developing trend, two leading scholars of the Religion Clauses--in the most thorough examination of the implications of Hein since the decision was handed down--see the threat of Hein's narrowing of taxpayer standing bleeding into standing for Establishment Clause violations generally, a development that would undermine citizens' access to the courts to contest Establishment Clause violations at every level and branch of government. …

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