SCOTUS Denies Taxpayer Standing To Challenge Bush Administration Faith Based Initiatives
The Supreme Court has handed down its decision in Hein v. Freedom From Religion Foundation, ruling that Flast taxpayer standing for Establishment Clause violations does not extend beyond a challenge to specific Congressional appropriations to discretionary Executive expenditures.
The opinions are very interesting at first blush. Justice Alito, joined by Chief Justice Roberts and Justice Kennedy, opine that Flast was directed very specifcally at Congressional action and that allowing challenges to discretionary Executive expenditures was too attenuated to provide standing. Justice Scalia and Thomas, in concurrence, argue that Flast is bad law and should be overruled. Interestingly, they argue that there is no basis for distinguishing taxpayer challenges to Executive expenditures from taxpayer challenges to Congressional appropriations as the harm is the same to the taxpayer. Nonetheless, even though Flast remains good law after Hein, the result in the case is the same.
The dissenters, Stevens, Souter, Ginsburg and Breyer, believe Flast is good law, and like Scalia and Thomas, believe that Hein can not be distinguished from Flast. They also point to Bowen v. Kendrick, as the case controlling the result in Hein. I'll add to this post later as I get a chance to read the opinions more closely.
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