Summary of Opinions in Hein v. Freedom From Religion Foundation

The following summary of the Supreme Court's opinions in Hein v. Freedom From Religion Foundation was prepared by Pamela McElroy, a Blackstone intern spending her summer here at CLRF:

Hein v. Freedom From Religion Foundation, No. 06-157, slip op. (U.S. June 25, 2007), asked whether federal taxpayer status confers standing to challenge an executive action as a violation of the Establishment Clause. The Supreme Court, in a 5-4 decision, reversed the Seventh Circuit and answered no. Justice Alito, writing for a plurality of the Court comprised of himself, Chief Justice Roberts, and Justice Kennedy, rejected what he described as the Seventh Circuit’s broad reading of Flast v. Cohen. According to Alito’s opinion, Flast confers standing to federal taxpayers to raise challenges under the Establishment Clause only if the challenged activities are funded by specific congressional action or appropriation. Alito purports to “leave Flast as [he] found it,” but the logic of the holding fractured the Court, provoking sharp criticism from the four dissenters and from Justice Scalia, who, joined by Justice Thomas, concurred in the judgment only. Id. at 24.

The taxpayers in Hein alleged that national conferences held as part of President Bush’s Faith-Based and Community Initiatives program violated the Establishment Clause of the First Amendment. The District Court dismissed the claim for lack of standing. The Seventh Circuit then reversed, reading Flast as granting standing to challenge any program on Establishment Clause grounds so long as the activities were financed by any congressional appropriation, even where no statutory program existed. In overturning the Seventh Circuit decision, Justice Alito emphasizes the importance of “the kind of redressable ‘personal injury’ required for Article III standing,” and characterizes Flast as a carved-out, narrow exception to the personal injury requirement. Id. at 8, 11.

Alito then proceeds to hold that the challenge presented did not satisfy the two-part standing test articulated in Flast. Flast stated that in order to show standing derived simply from federal taxpayer status, a taxpayer must first “establish a logical link between that status and the type of legislative enactment attacked.” Id. at 11 (quoting Flast v. Cohen, 392 U.S. 83, 102-103 (1968)). Essentially, this means that federal taxpayers can only challenge the constitutionality of exercises of congressional power under the taxing and spending clause of Article I, Section 8. Secondly, the taxpayer must show that the challenged legislation “exceeds specific constitutional limitations” imposed on Congress’ taxing and spending power, “not simply that the enactment is generally beyond the powers delegated to Congress by Article I, Section 8.” Id. at 11. Alito never reaches the second prong, finding that this particular challenge does not satisfy the first prong of the Flast test, because the challenged program is not funded by the correct “type of legislative enactment.” Id. at 13. “The expenditures at issue,” he writes, “were not made pursuant to any Act of Congress,” nor were they expressly authorized by Congress. Id. at 14. The programs were funded by general appropriations to the Executive Branch, and thus they could not be challenged by federal taxpayers.

Alito goes on to express concern that a reading of Flast that conferred standing to taxpayers in this case would “raise serious separation-of-powers concerns.” Id. at 20. He notes that “Flast itself gave too little weight to these concerns,” and seeks to avoid a situation in which federal courts would be enlisted to “superintend” the Executive Branch “at the behest of federal taxpayers.” Id. at 20, 21. Alito dismisses fears of federal agencies using general appropriations to “build houses of worship, or to hire clergy,…or… to make bulk purchases of Stars of David” noting that none of these things has yet happened, and that Congress could interfere if they did. Id. at 24.

In a concurring opinion, Justice Kennedy appears to share greatly in these separation-of-powers concerns. Though Kennedy emphatically states that “the result reached in Flast is correct and should not be called into question,” he fears the ramifications of “mak[ing] a narrow exception boundless.” Hein v. Freedom From Religion Foundation, No. 06-157, slip op. 1, 2 (U.S. June 25, 2007) (Kennedy, J., concurring). For whatever it is worth, Kennedy goes on to urge government officials to make a “conscious decision to obey the Constitution” even if their actions cannot be legally challenged. Id. at 3, (Kennedy, J. concurring). Given Kennedy’s position, the plurality seems joined around a compromise decision not to disturb Flast, but to prevent its extension.

Scalia makes it clear in his concurrence in the judgment that he, unlike Kennedy, would have been much happier with a decision that overruled Flast. Like the plurality opinion, Scalia’s opinion begins with a discussion of Article III restrictions on standing, specifically the requirement of a “concrete and particularized” “injury in fact.” Hein v. Freedom From Religion Foundation, No. 06-157, slip op. 2 (U.S. June 25, 2007) (Scalia, J., concurring in judgment). Scalia argues that financial injury to a taxpayer cannot satisfy the traceability and redressability requirements for standing due to the speculative nature of any inquiry into the effects of congressional spending on any particular person’s tax bill.

Scalia then moves on to what he labels “psychic injury,” which is exactly the type of injury at issue in Hein and in Flast— the mental displeasure of seeing tax money spent in an unlawful manner. Id. at 2 (Scalia, J., concurring in judgment). Scalia would find that psychic injury does not confer standing because it is exactly the generalized grievance that the standing requirement was created to avoid. He argues however, that if psychic injury is accepted at all, there is no principled way to limit in the way that the plurality opinion has done. There is no reason to limit the acceptability of psychic injury for standing purposes, as the first prong of the Flast test does, to cases arising under Congress’s taxing and spending power. Neither is there any reason to limit standing in such cases to violations of specific constitutional limitations, as though generally exceeding the taxing and spending power were somehow less unconstitutional than violating the Establishment Clause.

Finally, Scalia argues that the plurality’s new requirement that the government expenditure be expressly allocated by Congress has “absolutely no relevance to Article III criteria of injury in fact, traceability, and redressability.” Id. at 12 (Scalia, J., concurring in judgment). He ends with a flourish, characterizing the plurality position as essentially “beating Flast to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive.” Id. at 20 (Scalia, J., concurring in judgment).

The dissent, authored by Justice Souter, rejects Alito’s separation-of-powers argument, stating that, on the spending question, “there is no difference between a Judicial Branch review of an executive decision and a judicial evaluation of a congressional one.” Hein v. Freedom From Religion Foundation, No. 06-157, slip op. 3 (U.S. June 25, 2007) (Souter, J., dissenting). Souter also argues that though “injury in fact” may be straightforward in cases of economic and physical injury, “subtle” enquiry may be required in cases alleging intangible harms. Id. at 6, (Souter, J., dissenting). Souter advocates a case by case evaluation of intangible harms. He and Justices Stevens, Ginsburg, and Breyer would have found standing in this case under Flast.

Because of Kennedy’s position in Hein, taxpayers will continue to have standing to challenge alleged Establishment Clause violations in fact situations that closely resemble Flast—federal taxpayers alleging that a specific congressional act appropriates funds for a program that violates the Establishment Clause. Incidentally, just three days after it decided Hein, the Supreme Court reversed and remanded Laskowski v. Spellings to the Seventh Circuit for consideration in light of Hein. Laskowski may ultimately give the Court cause to clarify its ruling in Hein, as it will likely require further consideration of what constitutes a “specific congressional appropriation.”