Last Taxpayer Standing
U.S. Supreme Court Prevents Taxpayers from Suing Government for Unconstitutional Spending
Print This Post
• Email This Post
• 0 comments • 
Add to favorites 
You’d think that if the people are the masters and government is the servant, taxpayers could sue when their money was spent in ways that violate their rights. But that’s not how the courts see the matter.
Last summer the U.S. Supreme Court ruled, once again, that mere taxpayer status confers no standing to sue the government when it allegedly spends money unconstitutionally. The decision in Hein v. Freedom From Religion Foundation left intact the Bush administration’s power to administer its Faith-Based Organization and Communities Initiative. The Freedom From Religion Foundation (FFRF) filed suit after officials of the Bush administration held conferences and gave speeches to encourage the participation of religious groups in the Faith-Based Initiative. The purpose of this program is to permit religious social-service organizations to compete with secular organizations for taxpayer money to carry out various government purposes, such as drug counseling. FFRF argued that using tax money for such a religious purpose violates the First Amendment’s Establishment Clause, which states, “Congress shall make no law respecting establishment of religion. . . .”
The Court did not say the plaintiff’s constitutional argument had no merit. Rather, it said that simply being a taxpayer does not qualify a person to make that argument in court. Why not? Because no mere taxpayer can claim he specifically has been damaged by government spending.
Had FFRF raised any grounds but religion the suit would have been laughed at from the start. But the Supreme Court has allowed one narrow exception to the general prohibition on taxpayer suits for unconstitutional spending. The exception is embodied in the 1968 case known as Flast v. Cohen. The Flast ruling says a taxpayer does have standing when he alleges that a specific congressional appropriation violates the Establishment Clause’s restriction on Congress’s power to tax and spend.
Despite that ray of hope, FFRF lost in federal district court, but then won on appeal. That set the stage for the Supreme Court reversal. While five of the nine justices ruled against FFRF, the majority had serious differences among themselves and thus did not all sign on to the same opinion. The plurality opinion said Flast doesn’t apply to the FFRF case because the disputed spending was a presidential initiative using general appropriations, not a specific congressional appropriation. It’s hard to see why that distinction matters.
Why shouldn’t taxpayers have standing? As the Supreme Court said in the controlling Frothingham case, “[I]nterest in the moneys of the Treasury . . . is shared with millions of others; is comparatively minute and indeterminable; and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity.” Justice Antonin Scalia has pointed out that “psychic injury” from unconstitutional spending, apart from any “wallet injury,” has also sometimes been alleged, but he dismissed it. “Is a taxpayer’s purely psychological displeasure that his funds are being spent in an allegedly unlawful manner ever sufficiently concrete and particularized to support . . . standing? The answer is plainly no.”
The exception for Establishment Clause grievances was permitted only because the courts thought serious violations of conscience could be involved. But why should religious offense be the only exception? Surely the government is capable of violating freedom of conscience in ways that do not involve the Establishment Clause.
Another rationale for not permitting such suits is that they would prompt a violation of the separation-of-powers doctrine by making the courts the judge of what the executive branch may do and say. As Justice Anthony Kennedy wrote, “Permitting any and all taxpayers to challenge the content of . . . 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.“
Justice Samuel Alito added a similar reason: “[I]f every federal taxpayer could sue to challenge any Government expenditure, the federal courts would cease to function as courts of law and would be cast in the role of general complaint bureaus.”
An earlier court said a mere taxpayer suit, if successful, would provide “relief that no more directly and tangibly benefits [the plaintiff] than it does the public at large.”
To all of which one may ask, so what? Does the government exist for the convenience of the governed or do the governed exist for the convenience of the government? Barring taxpayers from suing for misuse of their money is far more consistent with a view of the state in which the citizen is the servant.
Taxpayer standing is not some arcane legal issue. It’s critical to keeping the government on a short leash.
* * *
If global warming is manmade and something to be concerned about, must we resign ourselves to government control of our lives? Or would solutions outside the political sphere be possible? Gene Callahan addresses these critical questions.
Nothing is more demonized today than the internal-combustion engine. But as Dwight Lee shows, anyone who values a clean environment should be giving thanks for that engine every day.
Oil is a dominant resource in today’s market economy. However, the oil industry is anything but a free-market institution. Andrew Morriss presents a history lesson.
Jeffrey Sachs, economic adviser to governments, has declared F. A. Hayek wrong. The welfare state lives and thrives. Not so fast, says Sudha Shenoy.>
David Hume is one of the most influential philosophers of the modern era, and many advocates of individual freedom harbor a fondness for him along with Adam Smith and other representatives of the Scottish Enlightenment. But can Hume’s moral skepticism support the case for liberty? Frank van Dun is skeptical about that.
This issue’s columnists present viewpoints on an array of topical issues. Richard Ebeling explores the American spirit of enterprise. Lawrence Reed honors the memory of Hans Sennholz. Thomas Szasz warns against the medicalization of everyday life. Burton Folsom ponders how subsidies hurt recipients. John Stossel—a new addition—shows the connection between freedom and benevolence. Walter Williams offers the moral case for freedom. And Arthur Foulkes, reading the claim that Milton Friedman is to blame for contaminated food, responds, “It Just Ain’t So!”
Books coming under scrutiny focus on a Siberian gulag, government in the marketplace, Theodore Roosevelt, and philanthropic blunders.
