The standard answer on taxpayer standing in Mitchell is that the criteria
differ for state taxpayer standing and federal taxpayer standing. The
distinction goes back a long way, although I doubt that it has ever been
rationalized well.
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Now is a good time to ask a question that has bothered me for awhile: Why _=
was_ there taxpayer standing in Mitchell v. Helms? I'm not talking about t=
he executive/congressional distinction. I just don't know why this didn't =
fall under Valley Forge rather than Flast -- the case was about property af=
ter all, not funds. And, even worse for claims of taxpayer standing, the s=
chools didn't even get to hold on to the property -- the state retained tit=
le at all times. It may just be that I'm missing something obvious, but I =
just don't see how this gets out from under Valley Forge. =20
From: [EMAIL PROTECTED]: [EMAIL PROTECTED]: Thu, 4 =
May 2006 08:14:13 -0400Subject: Taxpayer Standing
As many of you know, the Seventh Circuit denied the petition for rehearing =
en banc in FFRF v. Chao yesterday: http://www.ca7.uscourts.gov/tmp/SM0EVXT=
9.pdf.
=20
Many of the judges expressly urge the Supreme Court to hear the case in ord=
er to bring some sense to its taxpayer standing jurisprudence, which Easter=
brook calls "arbitrary": "comprehensiveness and rationality are not this d=
octrine=92s hallmarks."
=20
I'd advise anyone who cares about Establishment Clause doctrine -- from any=
perspective -- to start boning up on standing doctrine, and to begin prepa=
ring arguments to make to the SCOTUS if it should grant cert. in this case.=
If the Court were, for example, to limit Flast significantly, I think tha=
t could have a dramatic impact on the Executive branch's willingness to pus=
h the envelope (witness the BOP prison case that I posted about last week: =
In any challenge to it, the U.S. is much more likely to win on standing th=
an on the merits.).
=20
I have very little knowledge of the intracacies of Flast and Valley Forge, =
etc. But one thing about yesterday's opinions did stand out: The dissente=
rs argue that whereas there is taxpayer standing to challenge congressional=
expenditures, there is no standing to challenge religion-based funding dec=
isions made by the Executive branch. That can't be right, can it? If it w=
ere, then the "as applied" challenges in cases such as Bowen v. Kendrick (o=
n remand) and Mitchell v. Helms should have been dismissed on standing grou=
nds. But the Court indicated that those sorts of challenges were permissib=
le.
=20
One other note: A reminder that the Posner distinctions in his opinion for=
the panel in the FFRF v. Chao case make little sense substantively, in my =
view. This is what I posted back in January:
=20
A divided panel of the U.S. Court of Appeals for the Seventh Circuit issued=
a somewhat interesting opinion today affirming taxpayer standing for a FFR=
F suit challenging conferences organized by the Administration's Centers fo=
r Community and Faith-Based Initiatives:
=20
http://www.ca7.uscourts.gov/tmp/PJ17J3CP.pdf
=20
I must confess that the intracacies of the taxpayer standing doctrine make =
my eyes glaze over, and my head hurt; but for those of you who are interest=
ed in such things, the opinions appear to be a treasure trove . . .=20
=20
I have a question, however, about an incidental discussion in Posner's majo=
rity opinion about the merits of the EC claim:
=20
FFRF alleges that CFBI Conferences "are designed to promote religious commu=
nity organizations over secular ones." In other words, the complaint appar=
ently is not about CFBI social-service funding decisions, but about the con=
ferences themselves, and the allegation that at such conferences the CFBI C=
enters "promote" religious organizations over nonreligious organizations. =
Here's the curious passage in the Posner opinion:
The complaint=97all we have to go on at this stage=97is wordy, vague, and i=
n places frivolous, as where it insinuates that the President is violating =
the establishment clause by =93tout[ing] the allegedly unique capacity of f=
aith-based organizations to provide effective social services=94=97 as if t=
he President were not entitled to express his opinion about such organizati=
ons. But the complaint is not entirely frivolous, for it portrays the confe=
rences organized by the various Centers as propaganda vehicles for religion=
, and should this be proved one could not dismiss the possibility that the =
defendants are violating the establishment clause, because it has been inte=
rpreted to require that the government be neutral between religion and irre=
ligion as well as between sects.
What distinction is Posner trying to draw here? If a presidentially create=
d program holds conferences at which government officials claim that faith-=
based social services are preferable (or more effective) than non-faith-bas=
ed services, that's an Establishment Clause violation -- but if the Preside=
nt of the United States, in his official capacity, says exactly the same th=
ing, it's not an EC violation?
=20
Why?
=20
For a couple of reasons, the distinction can't be that one form of religiou=
s "propaganda" requires an additional expenditure of funds whereas the othe=
r doesn't. First, whereas such a distinction might make a difference for s=
tanding purposes, the substantive requirement of neutrality that Posner ide=
ntifies is not dependent on expenditures. Second, and perhaps more to the =
point, in each of the two cases the religious "propaganda" itself does not =
entail any additional expenditure of funds: Presumably, the President's sp=
eech would proceed, at the same cost, even if he did not include the statem=
ent about the unique capacity of faith-based organizations; but similarly, =
the CFBI conference presumably would be run at the same cost even if it tre=
ated faith-based and non-fait-based organizations equally, touting the valu=
e of all social-service organizations without regard to religion.
=20
So what's the distinction on which Posner is relying? I imagine there are =
many on this list who think that both cases are EC violations; and many oth=
ers who may think that neither is. But does anyone agree that a pro-religi=
on conference would violate the EC but that a pro-religion official preside=
ntial speech would not (or, I suppose, vice versa)?
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<body><P >Now is a good time to ask a question that has bothered me for awh=
ile: <FONT class=3D"" >Why _was_</FONT> there taxpayer standing in <EM >Mit=
chell <FONT class=3D"" >v</FONT>. Helms</EM>? I'm not talking about t=
he executive/congressional distinction. I just don't know why this&nb=
sp;didn't fall under <EM >Valley Forge </EM>rather than <EM ><FONT class=3D=
"" >Flast</FONT></EM> -- the case was about property after all, not funds.&=
nbsp; And, even worse for claims of taxpayer standing, the schools didn't e=
ven get to hold on to the property -- the state retained title at all times=
. It may just be that I'm missing something obvious, but I =
just don't see how this gets out from under <EM >Valley Forge. </EM><=
/P>
<BLOCKQUOTE style=3D"PADDING-LEFT: 5px; MARGIN-LEFT: 5px; BORDER-LEFT: #008=
080 2px solid; MARGIN-RIGHT: 0px">
<HR id=3DstopSpelling>
From: [EMAIL PROTECTED]<BR>To: religionlaw@lists.ucla.edu<BR>Date:=
Thu, 4 May 2006 08:14:13 -0400<BR>Subject: Taxpayer Standing<BR><BR>
<META content=3D"Microsoft SafeHTML" name=3DGenerator>
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:0px;padding-top:0px;} .ExternalClass {font-size:10pt;font-family:Tahoma;} =
</STYLE>
<DIV><FONT face=3DArial>As many of you know, the Seventh Circuit denied the=
petition for rehearing en banc in <EM>FFRF v. Chao</EM> yesterday:&nb=
sp; <A href=3D"http://www.ca7.uscourts.gov/tmp/SM0EVXT9.pdf"; target=3D_blan=
k>http://www.ca7.uscourts.gov/tmp/SM0EVXT9.pdf</A>.</FONT></DIV>
<DIV><FONT face=3DArial></FONT> </DIV>
<DIV><FONT face=3DArial>Many of the judges expressly urge the Supreme Court=
to hear the case in order to bring some sense to its taxpayer standing jur=
isprudence, which Easterbrook calls "arbitrary": <FONT face=3DPalatin=
o size=3D3>"<FONT size=3D2>comprehensiveness and rationality are not </FONT=
><FONT size=3D2>this doctrine=92s hallmarks."</FONT></FONT></FONT></DIV>
<DIV><FONT face=3DArial></FONT> </DIV>
<DIV><FONT face=3DArial>I'd advise anyone who cares about Establishment Cla=
use doctrine -- from any perspective -- to start boning up on standing doct=
rine, and to begin preparing arguments to make to the SCOTUS if it should g=
rant cert. in this case. If the Court were, for example, to limit <EM=
>Flast</EM> significantly, I think that could have a dramatic impact on the=
Executive branch's willingness to push the envelope (witness the BOP priso=
n case that I posted about last week: In any challenge to it, the U.S=
. is much more likely to win on standing than on the merits.).</FONT></DIV>
<DIV><FONT face=3DArial></FONT> </DIV>
<DIV><FONT face=3DArial>I have very little knowledge of the intracacies of =
<EM>Flast</EM> and <EM>Valley Forge</EM>, etc. But one thing about ye=
sterday's opinions did stand out: The dissenters argue that whereas t=
here is taxpayer standing to challenge <STRONG>congressional </STRONG>expen=
ditures, there is no standing to challenge religion-based funding decisions=
made <STRONG>by the Executive branch</STRONG>. That can't be right, =
can it? If it were, then the "as applied" challenges in cases such as=
<EM>Bowen v. Kendrick</EM> (on remand) and <EM>Mitchell</EM> <EM>v. Helms =
</EM>should have been dismissed on standing grounds. But the Court in=
dicated that those sorts of challenges were permissible.</FONT></DIV>
<DIV><FONT face=3DArial></FONT> </DIV>
<DIV><FONT face=3DArial>One other note: A reminder that the Posner di=
stinctions in his opinion for the panel in the <EM>FFRF v. Chao</EM> case m=
ake little sense substantively, in my view. This is what I posted bac=
k in January:</FONT></DIV>
<DIV><FONT face=3DArial></FONT> </DIV>
<DIV>
<DIV>A divided panel of the U.S. Court of Appeals for the Seventh Circuit i=
ssued a somewhat interesting opinion today affirming taxpayer standing for =
a FFRF suit challenging conferences organized by the Administration's Cente=
rs for Community and Faith-Based Initiatives:</DIV>
<DIV> </DIV>
<DIV><A href=3D"http:///"; target=3D_blank>http://www.ca7.uscourts.gov/tmp/P=
J17J3CP.pdf</A></DIV>
<DIV> </DIV>
<DIV>I must confess that the intracacies of the taxpayer standing doctrine =
make my eyes glaze over, and my head hurt; but for those of you who are int=
erested in such things, the opinions appear to be a treasure trove . . . </=
DIV>
<DIV> </DIV>
<DIV>I have a question, however, about an incidental discussion in Posner's=
majority opinion about the <EM>merits</EM> of the EC claim:</DIV>
<DIV> </DIV>
<DIV>FFRF alleges that CFBI Conferences "<FONT face=3DArial>are designed to=
promote religious community organizations over secular ones." In oth=
er words, the complaint apparently is not about CFBI social-service<EM> fun=
ding</EM> decisions, but about the conferences themselves, and the allegati=
on that at such conferences the CFBI Centers "promote" religious organizati=
ons over nonreligious organizations. Here's the curious passage in th=
e Posner opinion:</FONT><FONT face=3DArial size=3D3><FONT size=3D2></FONT><=
/FONT></DIV>
<BLOCKQUOTE dir=3Dltr style=3D"MARGIN-RIGHT: 0px">
<DIV><FONT face=3DArial size=3D3><FONT size=3D2>The complaint=97all we have=
to go on at this stage=97is </FONT><FONT size=3D2>wordy, vague, and in pla=
ces frivolous, as where it insinuates </FONT><FONT size=3D2>that the Presid=
ent is violating the establishment clause by </FONT><FONT size=3D2>=93tout[=
ing] the allegedly unique capacity of faith-based </FONT><FONT size=3D2>org=
anizations to provide effective social services=94=97 as if the </FONT><FON=
T size=3D2>President were not entitled to express his opinion about </FONT>=
<FONT size=3D2>such organizations. But the complaint is not entirely </FONT=
><FONT size=3D2>frivolous, for it portrays the conferences organized by the=
</FONT><FONT size=3D2>various Centers as propaganda vehicles for religion,=
and </FONT><FONT size=3D2>should this be proved one could not dismiss the =
possibility </FONT><FONT size=3D2>that the defendants are violating the est=
ablishment clause, </FONT><FONT size=3D2>because it has been interpreted to=
require that the government </FONT><FONT size=3D2>be neutral between relig=
ion and irreligion as well as </FONT><FONT size=3D2>between sects.</FONT></=
FONT></DIV></BLOCKQUOTE>
<DIV dir=3Dltr><FONT face=3DArial size=3D3><FONT size=3D2>What distinction =
is Posner trying to draw here? If a presidentially created program ho=
lds conferences at which government officials claim that faith-based social=
services are preferable (or more effective) than non-faith-based services,=
that's an Establishment Clause violation -- but if the President of the Un=
ited States, in his official capacity, says exactly the same thing, it's <E=
M>not</EM> an EC violation?</FONT></FONT></DIV>
<DIV dir=3Dltr> </DIV>
<DIV dir=3Dltr>Why?</DIV>
<DIV dir=3Dltr><FONT face=3DArial size=3D3><FONT size=3D2></FONT></FONT>&nb=
sp;</DIV>
<DIV dir=3Dltr>For a couple of reasons, the distinction can't be that one f=
orm of religious "propaganda" requires an additional expenditure of funds w=
hereas the other doesn't. First, whereas such a distinction might mak=
e a difference for <EM>standing</EM> purposes, the <EM>substantive</EM>&nbs=
p;requirement of neutrality that Posner identifies is not dependent on expe=
nditures. Second, and perhaps more to the point, in each of the two c=
ases the religious "propaganda" itself does not entail any additional expen=
diture of funds: Presumably, the President's speech would proceed, at=
the same cost, even if he did not include the statement about the unique c=
apacity of faith-based organizations; but similarly, the CFBI conference pr=
esumably would be run at the same cost even if it treated faith-based and n=
on-fait-based organizations equally, touting the value of <EM>all </EM>soci=
al-service organizations without regard to religion.</DIV>
<DIV dir=3Dltr> </DIV>
<DIV dir=3Dltr>So what's the distinction on which Posner is relying? =
I imagine there are many on this list who think that both cases are EC viol=
ations; and many others who may think that neither is. But does anyon=
e agree that a pro-religion conference would violate the EC but that a pro-=
religion official presidential speech would <EM>not </EM>(or, I suppose, vi=
ce versa)?</DIV></DIV></BLOCKQUOTE><br /><hr />Join the next generation of =
Hotmail and you could win a trip to Africa <a href=3D'http://www.imagine-ms=
n.com/minisites/sweepstakes/mail/register.aspx' target=3D'_new'>Upgrade tod=
ay</a></body>=0A=
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