Supreme Court Decides Hein

[marty.lederman at comcast.net]

I jotted down these points, among others on Hein and Morse (in which Justice Alito's controlling concurrence is obviously written with an eye to protecting student religious and political expression), over at SCOTUSblog (http://www.scotusblog.com/movabletype/archives/2007/06/quick_prelimina.html):

4. The majority opinion in Hein states at one point that "the expenditures at issue here were not made pursuant to any Act of Congress." That is of course, not true -- indeed, if it were true, the expendistures would be unconstitutional for that reason (a violation of the Appropriations Clause). What Justice Alito obviously means is that, in his terminology, there was no "specific," "direct" or, especially "express" provision of a statute directing the religious use of the appropriations -- the expenditure was instead pursuant to a broad grant of discretion to the Executive to spend as he sees fit. I agree with Justice Scalia and the dissent (i.e., with six of the Justices) that it's hard to see why that should make any constitutional difference for purposes of Article III -- but be that as it may, that's now the test.
5. Importantly, the case is limited to taxpayer standing. As the plurality stresses ("respondents make no effort to show that [other executive-initiated] abuses could not be challenged in federal court by plaintiffs who would possess standing based on grounds other than taxpayer standing"), in many cases involving executive expenditures for religious purposes, there may be plaintiffs with other grounds for standing, as in the countless cases challenging state government displays of creches, Ten Commandments, etc., and all of the school prayer cases.
6. Moreover, as Justice Kennedy (the controlling vote) emphasizes, just because something is nonjusticianble does not mean that the President can do it -- at least, not in an Administration that takes seriously the President's obligation to faithfully execute the law: "It must be remembered that, even where parties have no standing to sue, members of the Legislative and Executive Branches are not excused from making constitutional determinations in the regular course of their duties. Government officials must make a conscious decision to obey the Constitution whether or not their acts can be challenged in a court of law and then must conform their actions to these principled determinations."
7. Kennedy's controlling concurrence emphasizes that the case, in his view, involved a challenge to executive branch speechmaking -- something he is loathe to allow the courts to superintend: 

The public events and public speeches respondents seek to call in question are part of the open discussion essential to democratic self-government. The Executive Branch should be free, as a general matter, to discover new ideas, to understand pressing public demands, and to find creative responses to address governmental concerns. The exchange of ideas between and among the State and Federal Governments and their manifold, diverse constituencies sustains a free society. Permitting any and all taxpayers to challenge the content of these prototypical executive operations and dialogues would lead to judicial intervention so far exceeding traditional boundaries on the Judiciary that there would arise a real danger of judicial oversight of executive duties. The burden of discovery to ascertain if relief is justified in these potentially innumerable cases would risk altering the free exchange of ideas and information. And were this constant supervision to take place the courts wou!
 ld soon
 assume the role of speech editors for communications issued by executive officials and event planners for meetings they hold.

-------------- Original message -------------- 
From: "Friedman, Howard M." <HFriedm at utnet.utoledo.edu> 

The Supreme Court this morning decided the Hein case, holding 5-4 that taxpayers lack standing to challenge expenditures and activities of Pres. Bush's Office of Faith Based and Community Initiatives.  The majority did not overrule Flast-- though 2 justices wanted to.  Details and excerpts are on Religion Clause blog

http://religionclause.blogspot.com/2007/06/us-supreme-court-holds-taxpayers-lack.html

Howard Friedman
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Subject: Supreme Court Decides Hein
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