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Two critical areas of constitutional jurisprudence clashed again in a Feb. 28 oral argument before the Supreme Court. Questions posed by the justices in Hein v. Freedom From Religion Foundation indicate that they may be prepared to resolve the long-standing tension between the First Amendment’s establishment clause and Article III standing by radically rethinking one of the two areas. This would be a dramatic but justifiable step given the incoherent state of the law as it stands. Unfortunately, the Court seems poised to rethink the parameters of establishment-clause claims when it should be rethinking Article III standing. Appropriate limits on standing ensure that political issues, properly decided by the other branches, do not end up before the judiciary. But overly restrictive standing requirements keep Americans with what should be cognizable claims out of court. That’s threatening to happen in Hein, and that’s what the Supreme Court should fix � in a big way. NO STANDING HERE? The plaintiffs in Hein are federal taxpayers challenging the use of their tax dollars to fund several conferences sponsored by the president’s program on faith-based initiatives. They claim that the conferences served as propaganda vehicles for religion, a clear violation of the establishment clause. The defendants � including Jay Hein, director of the White House Office on Faith-Based and Community Initiatives � are members of the Bush administration. While they deny the establishment-clause claim, they are not defending the constitutionality of the conferences at this stage of the litigation. Instead, they are asking the Supreme Court to rule that taxpayers have no standing to challenge executive-branch spending in support of religion � or, for that matter, any federal spending that does not involve grants to outside religious groups. If this were all that was at stake, Hein would be a very big case. But the justices’ comments at oral argument suggest that even more is on the line. Twelve states and a number of religious organizations have filed amicus briefs encouraging the Court to eliminate taxpayer standing in all establishment-clause cases, not just those challenging executive spending. The comments of several justices suggest the Court may be willing to consider this radical suggestion. If it does, the establishment clause would be rendered effectively advisory with respect to the one evil it was most clearly intended to avoid: government spending in support of religion. The main obstacle standing in the way is Flast v. Cohen, the Court’s 1968 decision upholding taxpayer standing to challenge congressional spending in violation of the establishment clause. The ostensible rationale for Flast was that Americans as taxpayers have a special interest in Congress’ tax-and-spend power. The establishment clause is a “specific constitutional limitation” imposed on that power, intended above all to secure the right of taxpayers not “to contribute three pence” to the support of religion. Together, the Court said, these factors give taxpayers the kind of tangible, personal stake required for Article III standing. As professor Douglas Kmiec pointed out in last week’s Legal Times (“Standing to Sue? No,” Page 59), this reasoning is embarrassingly strained. Strictly speaking, it cannot even explain Flast itself, which involved a challenge to what was ultimately an executive expenditure, not a congressional appropriation. Moreover, since Flast, the Court has steadfastly refused to extend its finding of Article III standing to other constitutional provisions to which its reasoning should apply with equal force. That refusal suggests that Flast was more rationalization than genuine rationale. For example, in Valley Forge Christian College v. Americans United for Separation of Church and State (1982), the Court denied taxpayers standing to challenge the transfer of government land to a religious college on the ground that taxpayers have standing to challenge only Congress’ power to spend, not its power to dispose of federal property. This despite the obvious fact that virtually all such property has been purchased with tax dollars. PAST CONFUSION In Hein, the administration has attempted to exploit these inconsistencies to create a broad exemption from taxpayer standing for all executive-branch spending programs and all spending programs that do not disburse funds outside the government. Because the administration is constrained by its earlier litigation position crafted to appeal to the institutional caution of lower courts, it is not arguing for the complete rejection of Flast. The states and religious groups that filed amicus briefs in Hein are taking a different tack: They argue that Flast cannot be reconciled with the mainstream of Article III standing jurisprudence and should therefore be overruled outright. The states and religious groups were not directly represented at oral argument, but their position was an elephant in the room all morning. Solicitor General Paul Clement spoke first on behalf of the administration and was hammered from all sides. Some of the toughest questions came from Justice Antonin Scalia, who, going into the argument, seemed likely to be one of the administration’s staunchest allies. Referring to Clement’s mind-bending argument that only federal grants to outside religious organizations � but not federal spending on internal government operations � gives rise to taxpayer standing, Scalia demanded, “And you think there is a real difference whether the taxpayer is harmed between the Congress saying we’re going to give the money to a religious organization to build a church and Congress saying we’re going to build a church? You really think there’s a difference?” Scalia’s tough questions might seem to represent a ray of hope for the plaintiffs, the heavy underdogs in this case. But the appearance is deceiving. Scalia certainly scoffed at Clement’s Flast-driven argument that disbursements to religious organizations and spending on government operations are distinguishable for standing purposes. But, as his later questions made clear, this is in all likelihood because he thinks that neither type of spending gives rise to taxpayer standing. Justice Samuel Alito Jr. strongly hinted that he takes a similar view when he asked whether Clement really believed in the distinction he was advocating or was just trying to make sense of the Court’s incoherent precedents. The implication is that making sense of Flast is a futile enterprise, which the Court would do well to abandon. A very smart lawyer, Clement saw which way the wind was blowing and, in his rebuttal, urged the Court, “If something has to go in this area, if you have to choose between the logic of Flast and the irreducible minimum requirements of Article III, I think it’s an easy choice.” Clement was right that something has to go. He was even right that the choice is easy. But he was wrong about what that choice should be. A CONCRETE CHOICE The reason why something has to go is that Flast and the Court’s modern Article III standing cases are flatly inconsistent. Under the latter, a plaintiff must demonstrate � as an irreducible constitutional minimum � a “concrete” and “particularized” injury in fact. But there is nothing concrete or particularized, in the sense the Court has used these words, about the injuries of taxpayers like the plaintiffs in Hein or Flast. The reason why the choice is easy is that federal financial support of religion � including the conferences challenged in Hein � generally does not concretely injure anyone. So if ordinary taxpayers cannot sue to challenge such support, no one can. Yet we know a core purpose of the establishment clause is to secure the right of every taxpayer not to contribute even “three pence” to government support of religion. To eliminate all taxpayer standing in establishment-clause cases � by tossing out Flast � would render this right nugatory. To rethink standing doctrine, by contrast, would merely require the Court to fix a practically troubling, textually unsupported, and inconsistently applied interpretation of Article III that is of even more recent vintage than Flast. This is indeed an easy choice. The linchpin of the Court’s modern standing doctrine � the “concrete injury in fact” requirement � appears nowhere in the constitutional text. Indeed, the term “injury in fact” first showed up in a judicial opinion in Barlow v. Collins, a Supreme Court case decided in 1970. To be sure, Article III limits the Court’s jurisdiction to “cases” and “controversies.” But these terms are not self-defining, and they do not narrowly restrict the kind of harm that the plaintiff must claim to get into court. In fact, the best historical evidence suggests that all the case-or-controversy limitation means is that a plaintiff cannot sue without a cause of action conferred by the Constitution, a statute, or the common law. To put it another way, federal courts have jurisdiction if a plaintiff alleges the invasion of a legally protected right. It need not be concrete or particularized as long as it is recognized by law. Prominent federal-courts scholars, including now-9th Circuit Judge William Fletcher and University of Chicago law professor Cass Sunstein, have long urged the Supreme Court to restructure its standing doctrine accordingly. Hein presents a golden opportunity to do so. ALL CLEAR THEN Clement’s suggestion notwithstanding, this would hardly throw open the courthouse doors to every taxpayer’s petty complaints about government policy. Taxpayers very rarely possess a right under any law to challenge the legality of government expenditures. The establishment clause is the exception that proves the rule. This restructuring of standing doctrine would mark a large conceptual shift. Nevertheless, it would be remarkably consistent with the results in the Supreme Court’s key standing cases. In many of those cases, including Flast, a legally-protected-right standard would be a far more convincing basis for the result reached than is the concrete-injury requirement. For example, white students denied admission to college have standing to challenge affirmative-action programs even if it is exceedingly unlikely that they would have been admitted in the absence of racial preferences. So what concrete injury have such students actually suffered? The Court’s answer is that they have been denied the chance to compete for admission on equal footing. But this is just another way of saying that the equal protection clause confers a right to sue on anyone denied an equal opportunity on the basis of race even if they did not suffer a tangible injury as a result. And that doesn’t seem much different from the argument for the Hein plaintiffs. They had a right to have their tax money spent constitutionally even if they suffered no particularized harm when it wasn’t. Based on the Feb. 28 argument, it seems unlikely the Supreme Court will grant standing to the Hein plaintiffs, much less restructure the whole of standing doctrine in their favor. But Justice Anthony Kennedy, who should be the swing vote in this case, could always surprise. He held his cards fairly close to the vest at oral argument. And in other contexts he has expressed skepticism about overly rigid applications of the concrete-injury requirement. If the Court does buck expectations to rule for the plaintiffs, it should not perpetuate the fiction spun in Flast. The justices ought to make it simple and clear: Taxpayers may go to court to enforce their rights under the establishment clause because the Constitution gives them a legal right to do so.
Andrew B. Coan is the James C. Gaither fellow and lecturer in law at Stanford Law School. Coan clerked at the U.S. Court of Appeals for the 7th Circuit, but did not work on the Hein opinion.

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