Supreme Court Decides Hein

[Ira (Chip) Lupu]

Marty says that Kennedy's opinion is the controlling one in Hein.  But Kennedy says that he joins the Alito opinion in full, so it appears that he's not trying to narrow it in any way -- he's trying to explain it further in the context of this case.  Do others think that the Alito plurality opinion is "controlling" in this case?  Or do you think Marty is correct that Kennedy's opinion is in some way "narrower" than the plurality, and therefore becomes the controlling opinion?

Chip

---- Original message ----
>Date: Mon, 25 Jun 2007 15:45:30 +0000
>From: marty.lederman at comcast.net  
>Subject: Re: Supreme Court Decides Hein  
>To: Law & Religion issues for Law Academics <religionlaw at lists.ucla.edu>,<religionlaw at lists.ucla.edu>
>Cc: "Friedman, Howard M." <HFriedm at utnet.utoledo.edu>
>
>   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 th! e court s
>     would 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
>      
>      
>      
>      
>________________
>Date: Mon, 25 Jun 2007 15:32:01 +0000
>From: "Friedman, Howard M." <HFriedm at utnet.utoledo.edu>  
>Subject: Supreme Court Decides Hein  
>To: <religionlaw at lists.ucla.edu>
>
>_______________________________________________
>To post, send message to Religionlaw at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
>Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
>________________
>_______________________________________________
>To post, send message to Religionlaw at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
>Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University School of Law 
2000 H St., NW 
Washington, DC 20052
(202)994-7053