ACSBlog: The Blog of the American Constitution Society

Hein v. Freedom From Religion Foundation, No. 06-157

Raising challenges to government spending programs that benefit religion has always taken on a unique quality.  As all first year law students (should) know, the Supreme Court has for eighty five years maintained a rule that prohibits average taxpayers from challenging spending and taxing policies in federal courts.  As the Court held in Frothingham v. Mellon (1921), a taxpayer’s interest in the moneys of the federal treasury are “too indeterminable, remote, uncertain, and indirect” to support the personal and cognizable injury necessary to confer standing to sue in federal court.  The exception to that bar has been for claims that a government tax or expenditure violates the prohibitions of the Establishment Clause.  In Flast v. Cohen (1968), the high court held that the “specific evils feared” by the drafters of the First Amendment “was that the taxing and spending power would be used to favor one religion over another or to support religion in general.”  Therefore, a taxpayer could bring a challenge to an alleged unconstitutional expenditure, even though her injury took on a generalized quality.

The Flast rule was later narrowed (or clarified) in Valley Forge Christian College v. Americans United for Separation of Church and State (1982), which held that taxpayer standing under the Establishment Clause was limited to expenditures arising under the Article I, § 8, Tax and Spend Clause but did not extend to expenditures authorized under other sections of the Constitution (there, the Property Clause, Article IV, § 3).  But language in Valley Forge by then-Justice Rehnquist suggested that Flast taxpayer standing was allowed only for challenges to “exercises of congressional power,” and not to “the action of the Executive Branch.”

One does not have to be an avid follower of the “Unitary Presidency” phenomenon of late to appreciate conundrum presented by the disconnect between Flast and Valley Forge.  To one degree or another, every federal tax and spend program is administered by the Executive Branch.  Some congressionally authorized expenditures involve direct appropriations or earmarks while others provide greater discretion to executive agencies on how the moneys are spent. 

Enter Hein v. Freedom From Religion Foundation, an Establishment Clause challenge by a public interest organization to aspects of President Bush’s Faith-Based Initiative.  Freedom From Religion Foundation (FFRF) alleges, among other things, that the White House Office of Faith-Based and Community Initiatives made discretionary grants to churches and religious organizations and conducted conferences to promote the Initiative that were akin to religious revivals.  The government acknowledged that FFRF has standing to challenge specific grants to religious organizations but denies that it could challenge the conferences or statements by administration officials touting the “power of faith to change lives.”

The Seventh Circuit, in a decision by Judge Richard Posner, held that FFRF has standing to challenge the conferences (but not the statements of officials), noting that the line proposed by the government is “artificial” because “there is so much that executive officials could do to promote religion in ways forbidden by the establishment clause . . . without making outright grants to religious organizations.”  The fact that the conferences were funded out of “general rather than earmarked appropriations – that it was an executive rather than a congressional program – does not deprive taxpayers of standing to challenge it,” Posner wrote.

The fact that the Court has agreed to hear Hein portends a potential cutback in the ability of litigants to challenge actions of the government that favor religion but lack the provenance of an express congressional authorization.  Likely millions of public dollars have been spent to promote the President’s belief in the transforming power of faith, moneys that came out of the general White House budget.  Are these expenditures non-reviewable?  The Solicitor General’s Petition invites the Court’s conservatives to narrow the standing exception, noting that the FFRF “challenges Executive – not congressional – action in this case.”  FFRF’s suit “challenges only the use of such general appropriations to fund internal Executive Branch activities, as opposed to specific spending decisions made pursuant to a challenged ‘statutory mandate.’”  The former, the government asserts, should be immune from taxpayer challenges. 

If this distinction is accepted by the Court, then Executive expenditures that advance religion – or even favor one religion over others – would be potentially immune from challenge if they involved a discretionary funding source rather than a clear “statutory mandate.”  As Judge Posner hypothesized in his opinion, there would be nothing to stop the Secretary of Homeland Security from using unearmarked funds from his budget to build and fund an Islamic mosque that would support U.S. foreign policy on the assumption it would reduce Islamist terrorism in the country.  As Justice Brennan observed in his Valley Forge dissent, it is likely that the Framers were more concerned about government expenditures on behalf of religion and less concerned about the funding mechanism.  Hein, unfortunately, invites the Court to engage in such artificial line-drawing.