Amicus Curiae Brief — Hein v. Freedom From Religion Foundation, Inc.

Supreme Court brief2007

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JAN AMM?

No. 06-157 OFFICE SE THE CLenye

IN THE

Supreme Court of the GQnited States

JAY HEIN, Director of the White

House Office of Faith-Based and

Community Initiatives, ef a/.,

Petitioners,

FREEDOM FROM RELIG'ON FOUNDATION, INC.. ef al.

Respondents.

On a Writ of Certiorari to

the United States Court of Appeals

for the Seventh Circuit

BRIEF OF THE STATES OF INDIANA, ALABAMA,

COLORODO, FLORIDA, MICHIGAN, NEVADA, NORTH

DAKOTA, OKLAHOMA, SOUTH CAROLINA, TENAS,

VIRGINIA AND WASHINGTON AS AMICI CURIAE

IN SUPPORT OF THE PETITIONERS

Office of the Indiana STEVE CARTER

Attorney General Attorney General

It. ° Fitth Floor THOMAS M. FISHER*

302 Wes, Nashington Street Solicitor General

Indianapolis, IN 46204 JULIE A. HOFFMAN

(317) 232-6255 Deputy Attorney General

*Counsel of Record Counsel for the Amici States

(Additional counsel listed inside cover)

ADDITIONAL COUNSEL

Troy King

Attorney General

State of Alabama

Bill McCollum

Attomey General

State of Florida

George J. Chanos

Attorney General

State of Nevada

W.A. Drew Edmondson

Attorney General

John Suthers

Attorney General

State of Colorado

Michael A. Cox

Attorney General

State of Michigan

Wayne Stenehjem

Attomey General

State of North Dakota

Henry McMaster

Attorney General

State of Oklahoma State of South Carolina

Greg Abbott Robert F. McDonnell

Attorney General Attorney General

State of Texas Commonwealth of Virginia

Rob McKenna

Attorney General

State of Washington

QUESTION PRESENTED

Whether taxpayers have standing under Article III of the

Constitution to challenge on Establishment Clause grounds

the actions of Executive Branch officials pursuant to an

Executive Order, where the plaintiffs challenge no Act of

Congress, the Executive Branch actions at issue are financed

only indirectly through general appropriations, and no funds

are disbursed to any entities or individuals outside the

government.

TABLE OF CONTENTS

QUESTION PRESENTED... cece ccceseseeeseeeeseeeeneeee i

TABLE OF AUTHORITIES . 0.0.0... ceeceeseeeeeeeeeeeeees ill

INTEREST OF AMICI CURIAE .00.......cccccccesceessesseneees l

SUMMARY OF THE ARGUMENT .............c.ccceceeeees I

OTE Hite ciiidibeievinieelasiicimvintineniialicanndcactcdaiianilian 4

I. | Under the Rule Announced Below, a

Growing Number of State Programs Will

Be Newly Vulnerable to Establishment

ID iccisicuiniipsntatevianepavibumcenmiotscnioes 4

II]. Federalism Principles Preclude the Level

of Federal-Court Supervision Over State

Affairs Permitted by the Decision Below ........ x

Ill. Flast 1s an Unsustainable Departure from

the General Rule Against Taxpayer

Standing and Should Be Overruled................. 14

A. Flast Cannot Be Reconciled wiih the

Separation-of-Powers Principles that

Otherwise Govern Federal-Court-

NE II caicicccncciemnpicvassasinnienastastionotion 15

B. Overruling Flast Would Be Consistent

with the Court’s Stare Decisis

EDT jek noscensansissrnsintininntonenvecsveiicniieamesiigniibeate 29

TABLE OF AUTHORITIES

CASES

ACLU-Ky v. Wilkinson, 701 F. Supp. 1296

ee a Ie chccchidsinveciiibieoeniniccianititintilesaniesidiniscivbniedaiiahie 12, 13

Agostini v. Felton, 521 U.S. 203 (1997) .......ccccccceeeceeeeeeees 28

Aguilar v. Felton, 473 U.S. 402 (1985) .........ccccceceeseeeeseeeeees 29

Allen v. Wright, 468 U.S. 737 (1984)...........:ccccceeceeeeeeees 10, 24

Am. Jewish Congress v. Vance, 575 F.2d 939

gis MAPA TI wistinsihsicciiieniniccetpbiinitsccsolinstceeeicuietdinslinteiintis 26, 27

ASARCO Inc. v. Kadish, 490 U.S. 605 (1989)... 24

Bailey v. Drexel Furniture, 259 U.S. 20 (1922)..............0000- 20

Baker v. Carr, 369 U.S. 186 (1962)......c.cccccccsccssseeeseeeees 16, 17

Bd. of Educ. of Cent. Sch. Dist. No. 1 v. Allen,

a ne PED saiersinicinimsrhtnsicntiiisiehaaminispseibecbiadsiaiariaatieisapiaila 18

Blatchford v. Native Vill. of Noatak, 501 U.S. 775

TIT sti shtsicsidcnincsdeiksei iitandebiiaibiteslinbiiaadiniieeinabananiieaiaa 8

Bowen v. Kendrick, 487 U.S. 589 (1988)..........c.ccc0000000 23, 24

Cammack v. Waihee, 932 F.2d 765 (9"" Cir. 1991).........-0++- 12

Carter v. Carter Coal Co., 298 U.S. 238 (1936) .............06:. 20

Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793)... 8

City of Boerne v. Flores, 521 U.S. 507 (1997) ...........222.0000 20

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ........... 3, 10

Coal. to End the Permanent Congress v. Runyon,

796 F. Supp. 549 (D. D.C.), overruled by,

ee FO cs Re WED Kicececncsnsecesnsstnsevosncenenni 26, 27

Colo. Taxpavers Union, Inc. v. Romer,

963 F.2d 1394 (10th Cir. 1992).................cssscceceseees 11,12

Crawford v. Washington, 541 U.S. 36 (2004) ...17, 18, 28, 29

DaimlerChrysler Corp. y. Cuno, _U.S. _,

5 2s BS EeeerODeIO meee passim

Doremus v. Bd. of Educ., 342 U.S. 429 (1952)....6, 11, 16, 20

Ex parte Levitt, 302 U.S. 633 (1937) ........ccscesseesseeeeeeeseeees 16

Ex parte Young, 209 U.S. 123 (1908)... cee cceeeeeeeeeeees 8

Flast v. Cohen, 392 U.S. 83 (1968)...........cccccceececeeeeees passim

_ Freedom from Religion Found., Inc. v. Thompson,

920 F. Supp. 969 (W.D. Wis. 1996)... eeeeeeeeeeeee 12

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

(TOC), Ieee. S2B UWS. 1ST CQBBG) ~..0cccccercrccccisisececicccesessss 24

Frothingham v. Mellon, 262 U.S. 447 (1923)..............-. 14, 16

Hammer v. Dagenhart, 247 U.S. 251 (1918),

overruled by, 312 U.S. 657 (1941)........ccccccecceseeeseeseceeees 20

Hans v. Louisiana, 134 U.S. 1 (1890)...0...... ccc eceeeeeeeee 8,9

Hinrichs v. Bosma, 400 F. Supp. 2d 1103

CAA. TE Be cite ncntihdin ticiisdibiitaditiipsenninitihsitedbidabuieion 7, 12, 27

Hinrichs v. Bosma, 2005 WL 3544300

CT CR, ee bcecihcnhadas asesiscdascetvistinuiideis deg gaara 13

Hinrichs v. Bosma, 440 F.3d 393 (7th Cir. 2006) ......0000...... 27

Hoohuli v. Ariyoshi, 741 F.2d 1169 (9th Cir. 1984)............ 10

In re U.S. Catholic Conference, 885 F.2d 1020

CGD. Ce vinsndesniiccactiitcbcsiticsnteptecanioveniiliidbaiiadat iniestiteees 26

Korioth v. Briscoe, 523 F.2d 1271 (Sth Cir. 1975) ......00...... 23

RAS, TORMM, GT Glas 0 COOTER cantcictcscssntriustintctibeicintesieat 24

Laskowski v. Spellings, 443 F.3d 930 (7th Cir. 2006) ......... 27

Lewis v. Casey, 518 U.S. 343 (1996).............:cceseereeeeeeed4, 25

L.S.S. Leasing Corp. v. U. S. Gen. Servs.

Admin., 579 F. Supp. 1565 (S.D.N.Y. 1984) ............. 26, 27

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)........... 24

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)............ 15

McGowan v. Maryland, 366 U.S. 420 (1961 )......0....0000000- 18

Metz! v. Leininger, 57 F. 3d 618 (7 Cir. 1995) oooccccccccceeoce: 12

Milliken v. Bradley, 433 U.S. 267 (1977) ......c.cccccccceesceeeseees 13

Minn Fed'n of Teachers v. Nelson, 740 F. Supp. 694

I a cestenmesanbedl 12

Missouri v. Jenkins, 495 U.S. 33 (1990) .00000 ccc 13

O'Shea v. Littleton, 414 U.S. 488 (1974)... 10, 13

Ohio v. Roberts, 448 U.S. 56 (1980)... 17, 18, 28, 29

Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989) ...... 17, 29

Planned Parenthood v. Casey,

is cacacsibensnsenesvnnte 25, 28, 29

Poe v. Uliman, 367 U.S. 497 (1961) oo... ..cc.ccccccccceeeeceeeceeeeee 16

Printz v. United States, $21 U.S. 898 (1997)... 20

Pub. Citizen, Inc. v. Simon, 539 F.2d 211

ES SES EEE 26, 27

Ring v. Arizona, 536 U.S. 584 (2002) .............0cccccccecceeeeeeeee 28

Rizzo v. Goode, 423 U.S. 362 (1976).............ccccccseeeesseceeeees 10

Sch. Dist. of Philadelphia v. Pa. Milk Mktg. Bd.,

Se eG IIE PU, WOIIID cncenceccccecrcecesscsssocssonsssess 27

Schlesinger v. Reservists Comm. to Stop the War,

ee . Sp

Seminole Tribe v. Florida, 517 U.S. 44 (1996).............. 17, 28

Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26

Ta ciiiietiehcasicaiiephstatansstienapitietindiptineemstbibanemaiiicandebiiinnpennevabeiitia 24

Stark v.St. Cloud State Univ., 604 F. Supp. 1555

EERSTE RSE Save rm elteaeo e e 13

Steel Co. v. Citizens for a Better Env't, 523 U.S. 83

Si isisdihachsitsinthctdaadiienechlnciaiasdiigdaapeinaniqnsedsicnindiéiodninnssesatineéd 24

Tarsney v. O'Keefe, 225 F.3d 929 (8th Cir. 2000)............... 27

Taub v. Kentucky, 842 F.2d 912 (6th Cir. 1988).................. 11

United States v. Lopez, 514 U.S. 549 (1995) .....ccccccceceeceee 20

United States v. Richardson, 418 U.S. 166 (1974)........ 23, 26

United States v. Students Challenging Regulatory

Agency Procedures (SCRAP), 412 U.S. 669 (1973)........ 24

Van Zandt v. Thompson, 839 F.2d 1915 (7" Cir. 1988) ......12

Valley Forge Christian Coll. v. Ams. United for

Separation of Church & State, Inc..

ae Ge ctcnnetiiiscinesitibtineninsionsmnconintaiiicmmcaents passim

Vieth v. Jubelirer, 541 U.S. 267 (2004) oo... ccccccccceeceeeees 28

Walton v. Arizona, 497 U.S. 639 (1990) .oo...ccccccecccccseeceeeeeeee 28

Wamble v. Bell, 538 F. Supp. 868 (W.D. Mo. 1982)........... 27

Warth v. Seldin, 422 U.S. 490 (1975) ...........cccceeseccsseceseeres 24

Winkler v. Chicago Sch. Reform Bd. of Trs.,

2000 WL 44126 (N.D. Hl. 2000) 20.00... eee eens 12, 13

Younger v. Harris, 401 U.S. 37 1971) ccc ceceeeees 8, 13

CONSTITUTIONAL PROVISIONS

SL | Sena eee ae 19, 20, 21

OF Rc FG re a eee l

RSL Ri in INSERT ON ts SLE l

IC I I cenidiadineinanaiel 8

tend )

STATE EXECUTIVE ORDERS

Ala. Exec. Order No. 21 (June 22, 2004),

available at http://www.governorpress.state.al.us/

pr/ex-2 1-2004-06-22.asp (last visited Jan. 4, 2007)....... 4-5

Ind. Exec. Order No. 05-16, 28 Ind. Reg. 1907

KR RES ERT HO ee ES eee 5

N.J. Exec. Order No. 02-31, 34 N.J. Reg. 341 1(a)

ee ee: 5S ene: eee ee 5

SCHOLARSHIP

Akhil Reed Amar, The Bill of Rights (1998)...................00+- 25

Antonin Scalia, The Doctrine of Standing as an

Essential Element of the Separation of Powers,

17 Suffolk U. L. Rev. 881 (1963) ...........cccccossecccocceses 17, 23

C. Douglas Floyd, The Justiciability Decisions of

the Burger Court, 60 Notre Dame L. Rev. 862 (1985)......9

Earnest J. Brown, Quis Custodiet Ipsos Custodes?

—The School Prayer Cases, 1963 Sup. Ct. Rev. 1 ........... 2

James Wm. Moore, et a/., Moore’s Federal Practice

Ss SEITE sinesenithctniieccsinsieeiniisttinmssiabicinehiatinmananeinitiminiiines 23

Kenneth E. Scott, Standing in the Supreme Court-—A

Functional Analysis, 86 Harv. L. Rev. 645 (1973).......... 19

Louis Lusky, By What Right (1975)............0.ccccccceeeeeeees 22, 23

Vill

Marc Rohr, Tilting at Crosses: Nontaxpayer Standing

to Sue under the Establishment Clause,

11 Ga. St. U. L. Rev. 495 (1995) .............cecssccsesessesereeees 19

Max Farrand, The Records of the Federal Convention

ee aiscetacdeineninsciicabitiitiiaiscisinineiaaiitinhdaiiiitatininieaniiil l

Nancy C. Staudt, Taxpayers in Court: A Systematic

Study of a (Misunderstood) Standing Doctrine,

ee eee 25, 26

Papers of John Marshall (Charles T. Cullen ed.1984).......... 8

Writings of James Madison (Gaillard Hunt ed. 1901)......... 21

WEBSITES

2d Annual Governor’s Faith & Community Based

Resource Symposium, Building Communities

through Faith & Community Partnerships, available at

http://www. michigan.gov/documents/OCFBI2006

Faithbased-Symposium_163870_7.pdf

I Or i cidieimsldiaian 5

State of California, Office of Governor,

Gov. Schwarzenegger Begins Festival of Lights

Chanukah Celebration at the State Capitol, available

at http://gov.ca.gov/index.php?/press-release/49 1 9/

a ES BE G, IGP cecrticintincrsenseccintatecsseviccenentinesninnans 5-6

Office of Faith-Based & Community Initiatives, About Us,

available at http://www.in.gov/ofbci/about/index.html

SD ne Se A, SO cteieettrttsiienstinidessisbeabiteitintantaduntimneten 4

White House Office of Faith-Based & Community

Initiatives, Contact Information—State Liaisons,

available at http://www.whitehouse.gov/government

/fbci/contactstates.html (last visited Jan. 4, 2007) ......... 4,6

INTEREST OF AMICI CURIAE

State officials are frequently sued in federal court by

State taxpayers seeking to enjoin various government actions

and/or programs on Establishment Clause grounds. From the

States’ perspective, vigilance concerning Article III standing

is required to avoid turning federal courts into fora “in which

to air . . . generalized grievances about the conduct of

government or the allocation of power in the Federal

System.” Flast v. Cohen, 392 U.S. 83, 106 (1968). Even

more to the point, maintaining proper limits on federal-court

standing is also necessary to prevent federal courts from

becoming state fiscal monitors. See DaimlerChrysler Corp.

v. Cuno, US. _, 1268S. Ct. 1854, 1863-64 (2006). And,

as the Court confirmed in DaimlerChrysler, state-taxpayer

plaintiffs have no better federal-court standing than federal-

taxpayer plaintiffs. See id. at 1863-64.

For these reasons, the amici states, like the federal

government, have a strong interest in ensuring that federal

courts are limited to their proper judicial role, as justified by

the text, history, and structure of Article III and the First

Amendment, in adjudicating Establishment Clause cases.

SUMMARY OF THE ARGUMENT

A well-known episode of constitutional history is James

Madison’s failure to persuade the delegates in Philadelphia

to vest power in a Council of Revision that would have had

the specific duty of determining the constitutional validity of

congressional acts. See | Max Farrand, The Records of the

Federal Convention of 1787 21, 97-98, 108-10, 138-40

(1911); 2 Max Farrand, The Records of the Federal

Convention of 1787 73-80 (1911). Instead, the Framers

enabled federal courts to hear only “cases” and

“controversies.” See U.S. Const. art. Ill, § 2, cl. 1. With

every expansion of those terms, however, “[t]here is every

reason to fear that unrestricted public actions might well alter

the allocation of authority among the three branches of the

Federal Government” and “go far toward the final

transformation of this Court into the Council of Revision

which, despite Madison’s support, was rejected by the

Constitutional Convention.” Filast v. Cohen, 392 U.S. 83,

130 (1968) (Harlan, J., dissenting).

The rule announced by the Seventh Circuit in this case,

which would permit taxpayers to challenge executive-

spending decisions in addition to legislative decisions. It

would then would move the Court incrementally closer to

becoming a Council of Revision, but, in light of subsequent

Establishment Clause incorporation, “one with even more

power than in the rejected version, for it would thereby have

a mechanism for a ready check on state as well as federal

legislation.” Earnest J. Brown, Quis Custodiet Ipsos

Custodes?—The School Prayer Cases, 1963 Sup. Ct. Rev. 1,

16 (1963) (emphasis added).

When a federal-court plaintiff identifies no direct injury,

general complaints about state-government fiscal decisions

should be handled through political, rather than judicial,

processes. See Valley Forge Christian Coll. v. Ams. United

for Separation of Church & State, Inc., 454 U.S. 464, 479

(1982). Undertaking judicial review based merely on a

plaintiffs general interest in appropriate government

expenditures improperly exalts judicial power over state

governments as well as the other branches of the federal

government.

The amici states urge the Court to consider how the

decision in this case might affect state programs and other

State activities. Many states, like the federal government,

spend money from general appropriations on conferences—

similar to the White House Office of Faith-Based and

Community Initiatives conference at issue here—to educate

religious (and other) groups about applying for and

administering government grants. In addition, state officials

frequently participate in religious celebrations as part of their

ceremonial duties. If taxpayers are permitted to challenge

discretionary executive-branch expenditures on Establish-

ment Clause grounds, any expenses that states incur when

conducting these activities might become the subject of a

federal-court lawsuit.

Expanding federal judicial power to supervise these

State-government programs and activities would transgress

important federalism principles. The Court has repeatedly

relied on federalism concerns to resist invitations to expand

federal-court authority over the states. The Court has

invoked federalism when rejecting taxpayer standing to sue

state officials, see DaimlerChrysler Corp. v. Cuno, _ U.S.

__, 126 S. Ct. 1854, 1863-64 (2006), when rejecting specific

equitable remedies against state officials, see City of Los

Angeles v. Lyons, 461 U.S. 95, 111-12 (1983), and when

discussing standing more generally. See Valley Forge, 454

U.S. at 476. So too, in this case, the Court should resist an

invitation to expand federal-court standing in light of the

impact the decision will have on co-sovereign state

governments.

Finally, the time has come to overrule Fiast, particularly

if the Court cannot draw a distinction between that case and

this one. Fi/ast is starkly inconsistent with standing doctrine

in other contexts, where the Court principally asks whether a

claim invokes the traditional judicial function of remedying

direct, genuine injuries of plaintiffs. In Flast, the Court

ignored that question and asked only whether the plaintiff

would make a good litigant (and offered no explanation why

its two-part nexus test was suitable for even that inquiry).

See Flast, 392 U.S. at 101-02. What is more, the Court in

Flast found a “nexus” between the Establishment Clause and

the Spending Clause only by way of a deeply flawed

characterization of the original purposes underlying the

Establishment Clause. See id. at 103-04. In short, Flast has

proven unworkable, and the Court’s subsequent decisions

have isolated it doctrinally. As a procedural ruling, Fl/ast has

not generated the sort of public reliance that can justify

preserving it solely on grounds of stare decisis, so the Court

should lay Flast to rest once and for all.

ARGUMENT

I. Under the Rule Announced Below, a Growing

Number of State Programs Will Be Newly

Vulnerable to Establishment Clause Challenges

Like the federal government, state legislatures routinely

grant both specific and general appropriations to allow their

executive officials to manage the day-to-day activities of the

state and to execute various state-policy initiatives. State

executives use both general and specific legislative

appropriations to create, admimister, and participate in

programs and activities whereby religious institutions—

along with wholly secular groups-—benefit from taxpayer

funds for purposes of carrying out secular functions.

At least 33 states, including Indiana, have faith-based

liaisons or a state office for faith-based and community

initiatives. See White House Office of Faith-Based &

Community Initiatives, Contact Information—State Liaisons,

available at http://www.whitehouse.gov/government/fbci/co

ntactstates.html (last visited Jan. 4, 2007). Indiana’s Office

of Faith-Based and Community Initiatives, created to ensure

that faith-based institutions have equal access to state and

federal funding, provides training, technical assistance, and

grants to community-based and faith-based organizations.

See Office of Faith-Based & Community Initiatives, About

Us, available at hittp://www.in.gov/ofbci/about/index.html

(last visited Jan. 4, 2007). Many states have created similar

offices by executive order. See Ala. Exec. Order No. 21

(June 22, 2004), available at http://www.governorpress.

state.al.us/pr/ex-21-2004-06-22.asp (last visited Jan. 4,

2007); Ind. Exec. Order No. 05-16, 28 Ind. Reg. 1907 (Mar.

6, 2005); N.J. Exec. Order No. 02-31, 34 N.J. Reg. 341 1(a)

(Oct. 7, 2002).

To further the aims of these departments and other faith-

based social programs, executive officials at all levels of

state governments routinely give speeches and participate in

public events in order to foster relationships with religiously

affiliated groups. For example, in Michigan, Governor

Granholm hosted the Second Annual Governor’s Faith and

Community Based Resource Symposium in August 2006 in

order to cultivate relations between government offices and

religious organizations in furtherance of various social

programs. Sce 2d Annual Governor’s Faith & Community

Based Resource Symposium, Building Communities through

Faith & Community Partnerships, available at http://www.

michigan.gov/documents/OCFBI2006F aithbased-Symposiu

m_ 163870 7.pdf (last visited Jan. 4, 2007). As shown in the

addendum to this brief at Table A, similar examples arise in

many other states.

State executives cannot organize, promote, and conduct

events of this nature without spending state funds. Under the

Seventh Circuit’s expansion of the Flast doctrine, any

expenditure of general appropriations on these initiatives

would enable taxpayers to sue on Establishment Clause

grounds. See Pet. App. | 6a.

State executives also frequently find themselves

participating in other types of taxpayer-funded events that

have religious themes. State officials annually participate in

religious holiday ceremonies and celebrations, such as

lighting Christmas trees or Chanukah menorahs, along with

other religiously affiliated events that likely involve

expenditures of taxpayer dollars. For example, Governor

Schwarzenegger recently participated in the thirteenth annual

Chanukah celebration at the California state capitol. See

State of California Office of the Governor, Gov.

Schwarzenegger Begins Festival of Lights Chanukah

Celebration at the State Capitol, available at http://gov.

ca.gov/index.php?/press-release/4919/ (last visited Jan. 4,

2007). The Governor joined Rabbis and leaders of Chabah,

the Jewish organization that sponsored the event, to help

illuminate the capitol menorah. See id. The Governor even

spoke about the meaning of the holiday at a podium bearing

his office’s seal. See id. State executives across the country

regularly participate in similar activities. See Addendum, at

Table B.

Attendance by public officials at religious events has. not

generally been subjected to judicial scrutiny. At least in part,

this is likely because such events are not funded by specific

legislative appropriations. However, the fact that these

events are often held on state property and involve the

participation of state officials very likely means that some

expenditure of taxpayer dollars occurs, at least insofar as the

state provides the site, logistical support, or security. Indeed,

it is reasonable to assume that officials are compensated by

their states for time spent at such events. Incidental

expenditures of this nature have previously been insufficient

to warrant taxpayer standing. See Flast v. Cohen, 392 US.

83, 102 (1968) (citing Doremus v. Bd. of Educ., 342 U.S.

429 (1952). Under the rule provided below, however,

minimal, routine expenditures by state executives from

general legislative appropriations may now be subject to

federal judicial oversight.

To be sure, the Seventh Circuit attempted to assuage

concerns about such lawsuits by distinguishing “incidental”

expenditures from those purposely directed to support

religion. See Pet. App. 12a-15a. For cxample, the court

distinguished the expenses in this case from government

support of a State of the Union address where a President

makes favorable references to religion. See Pet. App. 12a.

That official speech, the court observed, would not give rise

to taxpayer standing because “the cost to the government of

the preparations, security arrangements, etc., involved in a

State of the Union address . . . would be no greater merely

because the President had mentioned Moses rather than John

Stuart Mill,” and “the marginal or incremental cost to the

taxpaying public of the alleged violation of the establishment

clause would be zero.” Pet. App. 12a.

Yet a Governor’s Chanukah celebration—or Christmas

tree lighting—might not qualify for the Seventh Circuit’s

“incidental-expenditures” exception because in those cases

the official is participating in activities that consist solely of

the religious activity alleged to violate the Establishment

Clause. So, while this exception would shelter the

government’s expenditure on an armored limousine to

transport the President to the Capitol to deliver the State of

the Union address, it arguably would not account for an

armored limousine taking Governor Schwarzenegger to a

Chanukah celebration—where the marginal cost of the

alleged violation would self-evidently not be zero. See Pet.

App. 14a. Thus, many state-government expenditures that

are seemingly incidental to routine public appearances by

elected officials may potentially be subject to federal judicial

inquiry—if not outright control, cf Hinrichs v. Bosma, 400

F. Supp. 2d 1103, 1109-14 (S.D. Ind. 2005)—if the rule

announced by the Seventh Circuit prevails.

Il. Federalism Principles Preclude the Level of

Federal-Court Supervision Over State Affairs

Permitted by the Decision Below

The potential impact that permitting taxpayer standing in

this case could have on state-government functions raises

troubling federalism issues. As the Court acknowledged just

last term, “[djetermining that a matter before the federal

courts is a proper case or controversy under Article Ill . . .

assumes particular importance in ensuring that the Federal

Judiciary respects the proper—and properly limited—role of

the courts in a democratic society.” DaimlerChrysler Corp.

v. Cuno, US. _, 126 S. Ct. 1854, 1860 (2006) (internal

quotations omitted). Like principles of separation of powers,

principles of federalism shape the limits of that role.

1. Just as federal courts scrutinize federal-taxpayer-

standing claims in order to avoid creating a system whereby

““the other departments would be swallowed up by the

judiciary,” id. at 1861 (quoting 4 Papers of John Marshall

95 (Charles T. Cullen ed. 1984)), so too, federal courts must

police state-taxpayer-standing claims to avoid swallowing

state-government autonomy. The Framers and the citizens of

the Founding Era took very seriously the idea that federal

courts should not assume a supervisory role over state

governments. When, shortly after ratification, the Court

overstepped well understood Article II] boundaries and

permitted a private citizen of South Carolina to sue Georgia

for damages in federal court, see Chisholm v. Georgia, 2

U.S. (2 Dall.) 419, 440 (1793), Congress and the country

responded quickly and decisively with the Eleventh

Amendment. See Hans v. Louisiana, 134 U.S. 1, 10-11

(1890).

The Eleventh Amendment, however, is not the only

significant constitutional text for purposes of limiting

federal-court oversight of state-government operations. The

Court’s observation that “we have understood the Eleventh

Amendment to stand not so much for what it says, but for the

presupposition . . . which it confirms,” Blatchford v. Native

Vill. of Noatak, 501 U.S. 775, 779 (1991), is particularly

significant here. What the Eleventh Amendment presupposes

is that states are sovereign and may not be sued—1in federal

court as elsewhere—without their consent. See id. State

officials, of course, may be sued as proxies, see Ex parte

Young, 209 U.S. 123, 159-60 (1908), but that does not

silence the call for federal courts to exercise restraint when

adjudicating state interests. See, e.g., Younger v. Harris, 40i

U.S. 37, 40-41 (1971) (announcing the rule requiring federal-

court abstention from interference with ongoing state-court

law-enforcement proceedings). When Ex parte Young

applies, the most important protection states have against

unjustified federal-court interference with state functions is

Article IIl—the very provision whose silence on the matter

was originally thought to preclude federal courts from

adjudicating disputes brought by citizens against

unconsenting states. See Hans, 134 U.S. at 10-21. Article

Ill’s general restriction of federal courts to adjudication of

“cases” or “controversies” remains a critical component of

the Constitution’s preservation of state sovereignty.

Accordingly, “under our system of reserved state powers

and delegated national powers . . . there [is no] persuasive

reason to conclude that the role of the federal judiciary in

relation to the representative branches of state government

should be greater than with respect to those of the national

government.” C. Douglas Floyd, The Justiciability Deci-

sions of the Burger Court, 60 Notre Dame L. Rev. 862, 867

(1985). In fact, “[t}here is no principled or historical basis

for concluding that the original Constitution, augmented by a

Bill of Rights directed literally only to the national

government, intended to confer a broader power of judicial

review with respect to the actions of state officers than those

of federal officers.” /d. at 867 n.26.

Not even the history of the Fourteenth Amendment,

which enabled Establishment Clause incorporation, supports

subjecting states to more permissive standing rules. “[T]he

history of the Civil War Amendments and _ the

Reconstruction civil rights legislation provides no support

for the conclusion that in subjecting the actions of state

officers in violation of federal law to broadened federal

judicia! review and control, there was” also an intent “to alter

the understood meaning o* a justiciable case.” /d.

In tune with these principles, the Court has consistently

equated federalism concerns with separation-of-powers

concerns when faced with a decision whether to expand

federal-court standing. See, e.g., Allen v. Wright, 468 U S.

737, 759-60 (1984) (drawing a direct analogy between

federalism and separation-of-powers principles); Valley

Forge Christian Coll. v. Ams. United for Separation of

Church & State, Inc., 454 U.S. 464, 476 (1982) (stressing

that Article III “is a part of the basic charter... which...

provided for the interaction between that government and the

governments of the several States, and was later amended so

as to either enhance or limit its authority with respect to both

States and individuals”). The Court has also relied on

federalism principles when rejecting the justiciability of

citizen lawsuits for injunctive relief against state officials

based only on past conduct. See, e.g., City of Los Angeles v.

Lyons, 461 U.S. 95, 111-13 (1983); Rizzo v. Goode, 423 U.S.

362, 380 (1976); O'Shea v. Littleton, 414 U.S. 488, 499

(1974).

Most recently, the Court in DaimlerChrysler acted on the

notion that the vertical division of power represented by

federalism, like the horizontal division of power among the

branches of government at the national level, imposes limits

on federal-court standing. See DaimlerChrysler, 126 S. Ct.

at 1863 (observing that the “rationale for rejecting federal

taxpayer standing applics with undiminished force to state

taxpayers”). Conferring standing on state taxpayers who

cannot show a direct injury would “interpose the federal

courts as ‘virtually continuing monitors of the wisdom and

soundness’ of state fiscal administration, contrary to the

more modest role Article II] envisions for the federal

courts.” /d. at 1864 (quoting A//en, 468 U.S. at 760-61).

Nor does Doremus v. Bd. of Educ., 342 U.S. 429 (1952),

represent any sort of departure from principles of federalism

for purposes of state-taxpayer [Establishment Clause

challenges. While some lower federal courts have treated

Doremus as in invitation to accord standing to all state

taxpayers, see, e.g., Hoohuli v. Ariyoshi, 741 F.2d 1169,

1180 (9th Cir. 1984), Doremus actually forecloses state-

taxpayer standing in federal court absent a current or

imminent “good-faith pocketbook” injury. See Doremus,

342 U.S. at 434. In other words, a state taxpayer must have a

claim for disgorgement of paid taxes from a state official—

or a claim that a state official is about to deprive the taxpayer

of money unlawfully through taxation—in order to sue that

official in federal court as a taxpayer. See DaimlerChrysler,

126 S. Ct. at 1863-64. Of most significance for the present

discussion, the Court in Doremus relied extensively on the

relationship between the states and the federal government

and noted that while state courts may entertain public-

interest lawsuits brought by taxpayers, federal courts may

not. See Doremus, 342 U.S. at 434.

2. Unfortunately, lower federal courts have been uneven

in their respect for federal/state comity when considering

standing arguments. Among those cases _ respecting

federalism, Taub v. Kentucky, 842 F.2d 912, 919 (6th Cir.

1988), held that a state taxpayer did not have standing to

challenge a state statute authorizing the state to acquire and

to finance land on behalf of a private corporation. The court

observed that the separation-of-powers concerns that

underlie limits on federal-taxpayer standing have “a

counterpoint which should be considered when a state

taxpayer seeks to have a federal court enjoin the

appropriation and spending of a state government.

Considerations of federalism should signal the same caution

in these circumstances as concern for preservation of the

proper separation of powers in an ‘all federal’ action.” /d.

Likewise, the Tenth Circuit held that state taxpayers did

not have standing to challenge the Governor’s alleged use of

taxpayer funds to oppose a voter initiative. See Colo.

Taxpayers Union, Inc. v. Romer, 963 F.2d 1394, 1402-03

(10th Cir. 1992). The court observed that “when state

taxpayers attack state spending in federal court,” courts must

carefully scrutinize whether the taxpayer has suffered the

requisite injury because “the integrity of our government's

federalist structure” is at stake. /d. at 1403. “Unnecessary or

abstract decisions by federal courts in cases where there is no

case or controversy could unduly constrict experimental state

welfare legislation and undermine local self-determination.”

Id.

Other federal courts, however, have seemingly shown

less concern with federalism implications and have

undertaken review of even pedestrian state-government

activities that are not principally spending programs based

only on the thinnest of taxpayer-standing rationales. By way

of taxpayer standing, federal courts are now involved in

reviewing state holidays, legislative practices, agency Boy

Scout sponsorships, capitol grounds nativity scenes and

monuments, and student-teacher arrangements, among other

activities.’ In one of these cases, a federal court actually

' See, e.g., Metzl v. Leininger, 57 F.3d 618, 618 (7th Cir.

1995) (state taxpayer had standing to challenge Good Friday

state holiday); Cammack v. Waihee, 932 F.2d 765, 769-72

(9th Cir. 1991) (permitting taxpayers te challenge Good

Friday as a state holiday); Van Zandt v. Thompson, 839 F.2d

1215, 1217 (7th Cir. 1988) (permitting taxpayers to

challenge a _ resolution of the Illinois House of

Representatives to convert space in the state capitol to a

prayer room); Hinrichs v. Bosma, 400 F. Supp. 2d 1103,

1110 (S.D. Ind. 2005) (taxpayers had standing to challenge

Indiana House of Representatives’ legislative praver);

Winkler v. Chicago Sch. Reform Bd. of Trs., 2000 WL

44126, at *8 (N.D. Ill. 2000) (allowing Illinois taxpayers to

challenge state-agency expenditures to sponsor Boy Scouts);

Freedom from Religion Found., Inc. v. Thompson, 920 F.

Supp. 969, 970-71 (W.D. Wis. 1996) (allowing state

taxpayers to challenge Good Friday state holiday); Minn.

Fed'n of Teachers v. Nelson, 740 F. Supp. 694, 696 (D.

Minn. 1990) (allowing state-taxpayer challenge to statute.

allowing public-school students to take coursework at

religious post-secondary institutions); ACLU-Ky. v.

permitted plaintiffs to proceed as state taxpayers under

Doremus but not as federal taxpayers under Filast, even

though both state and federal expenditures were at issue. See

Winkler, 2000 WL 44126, at *8.

Such permissive treatment of state-taxpayer lawsuits

undermines our federalist structure by involving federal

courts in the daily functioning of state bureaucracies. The

Court has repeatedly emphasized that federal courts must

respect principles of federalism when cases portend judicial

regulation of state programs. In Missouri v. Jenkins, 495

U.S. 33, 51 (1990), for example, the Court refused to impose

a tax levy for purposes of desegregation, stressing that “[o]}ne

of the most important considerations governing the exercise

of equitable power is a proper respect for the integrity and

function of local government institutions.” See also id. at

58-59 (Kennedy, J., concurring) (categorically rejecting, on

federalism grounds, the power of federal courts to mandate

state-tax levies); Milliken v. Bradley, 433 U.S. 267, 280-81

(1977) (“[F]ederal courts in devising a remedy must take into

account the interests of state and local authorities in

managing their own affairs, consistent with the

Constitution.”); O'Shea, 414 U.S. at 500 (holding that the

need for proper balance in the federalist system counsels

restraint against granting injunctions against state officers

administering state laws) (citing Younger, 401 U.S. at 46).

These same concerns apply in Establishment Clause

cases, which increasingly threaten to put state-government

bodies under federal-court supervision. See, e.g., Hinrichs v.

Bosma, 2005 WL 3544300, at *2-7 (S.D. Ind. 2005)

Wilkinson, 701 F. Supp. 1296, 1298, 1302-03 (E.D. Ky.

1988) (holding state taxpayers had standing to challenge

nativity scene at state capitol); Stark v. St. Cloud State Univ.,

604 F. Supp. 1555, 1557 n.2 (D. Minn. 1985) (finding state-

taxpayer standing to challenge state university's student-

teacher program).

(holding, in an entry on a post-judgment motion, that

remedies available to state taxpayers are not limited to

rectifying their injuries as taxpayers and that, therefore, the

court had continuing jurisdiction to regulate how legislative

prayers are conducted). Accordingly, the Court should reject

the expansion of taxpayer standing invited in this case and

continue to articulate how the special respect that federal

courts owe to state governments as co-sovereigns limits

federal-court jurisdiction.

Ill. Flast is an Unsustainable Departure from the

General Rule Against Taxpayer Standing and

Should Be Overruled

The Court could decide this case in favor of the

government by recognizing that Flast v. Cohen, 392 U.S. 83

(1968), cannot be applied to cases challenging the

discretionary use of general appropriations without

abandoning the rationale that underlies it. As an exception to

the general rule against taxpayer standing, F/ast rests entirely

on the notion that /egislative decisions—not executive

decisions—concerning spending for religious purposes are at

the heart of Establishment Clause history. See id. at 102-03.

This history does not support the rule announced by the

Seventh Circuit in this case. See Pet. App. | 6a.

On the other hand, if the Court is concerned about

fidelity to the philosophical underpinnings of its Article LII

standing precedents, it should recognize that Fias/ itself

departs from the principle that federal courts cxist to redress

injuries and not simply to enforce the Constitution by

abstract decree. See Frothingham v. Mellon, 262 U.S. 447,

488-89 (1923). As Justice Harlan explained in his dissent in

Flast, broad recognition of taxpayer standing allows

plaintiffs to sue not really as injured taxpayers, “but as

private attorneys-general.” Flast, 392 U.S. at 119 (Harlan,

J., dissenting). In such cases, “[t]he interests that [the

taxpayer plaintiffs] represent, and the rights they espouse,

are bereft of any personal or proprietary coloration. They

are, as litigants, indistinguishable from any group selected at

random from among the general population, taxpayers and

nontaxpayers alike.” /d. at 119-20 (Harlan, J., dissenting).

Thus, the Court should “come[] to grips” with the reality

“that taxpayers’ suits under the Establishment Clause are not

in these circumstances meaningfully different from other

public actions.” /d. at 128 (Harlan, J., dissenting).

Because Flast cannot be squared with the limited judicial

role of redressing concrete individual injuries, the Court

should overrule it. Only by doing so may the Court avoid

recurrent demands to explain why only Establishment Clause

challenges to Spending Clause actions may be brought by the

merely offended. Cf Daimler Chrysler Corp. v. Cuno, __

U.S. _, 126 S. Ct. 1854, 1864-65 (2006) (explaining why

Flast does not apply to Commerce Clause cases).

A. Flast Cannot Be Reconciled with the Separation-

of-Powers Principles that Otherwise Govern

Federal-Court-Standing Limits

Flast has always been out of step with the rest of Article

III standing doctrine, and subsequent cases have only

exacerbated its isolation by stripping it of both

jurisprudential and historical support as a_ proper

embodiment of Article III] values. By now, Flast has been

exposed as a dead-end detour around legitimate Article III

barriers to the use of federal judicial power.

1. From the moment the Court staked out its role

reviewing acts of the other branches of government, it has

becn careful to limit itself to resolving cases where

something concrete—some real-world personal injury—is at

stake. In Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170

(1803), the Court announced the doctrine of judicial review

only after carefully explaining that “(t]he province of the

court is, solely, to decide on the rights of individuals, not to

enquire how the executive, or executive officers, perform

duties in which they have a discretion.”

This understanding of the limitations on the judicial

function animated the rejection of taxpayer standing in

Frothingham. There, and in other cases prior to Flast, the

Court spoke of standing in terms of the plaintiffs injury.

See Frothingham, 262 U.S. at 487-89. Taxpayer interests are

interests of the public, not of individuals, the Court observed,

so to decide a constitutional issue without a plaintiff who

suffered an individualized direct injury “would be, not to

decide a judicial controversy, but to assume a position of

authority over the governmental acts of another and coequal

department, an authority which we plainly do not possess.”

Id. at 489; see also Doremus v. Bd. of Educ., 342 U.S. 429,

434 (1952) (stating that a plaintiff who cannot show direct

injury and merely suffers in some indefinite way in common

with others cannot invoke the powers of the federal courts);

Ex parte Levitt, 302 U.S. 633, 636 (1937) (“It is an

established principle that to entitle a private individual to

invoke the judicial power to determine the validity of

executive or legislative action he must show that he has

sustained, or is immediately in danger of sustaining, a direct

injury as a result of that action” and “‘it is not sufficient that

he has merely a generally interest common to all members of

the public.”).

Similarly, in Poe v. Ullman, 367 U.S. 497, 503-05

(1961), the Court dismissed a challenge to a Connecticut law

prohibiting advice regarding contraception and contraceptive

devices because the plaintiffs did not stand to suffer a direct

injury. The Court observed that “federal judicial power is to

be exercised to strike down legislation, whether state or

federal, only at the instance of one who is_ himself

immediately harmed, or immediately threatened with harm,

by the challenged action.” /d. at 504; see also Baker v. Carr,

369 U.S. 186, 207-08 (1962) (holding that voters alleged a

sufficient direct injury to support standing by alleging vote

dilution).

2. Flast should be overturned because it does not follow

the principles set forth in these cases. Cf Crawford v.

Washington, 541 U.S. 36, 60 (2004) (overruling Ohio v.

Roberts, 448 U.S. 56 (1980), because it “departs from

historical principles”); Seminole Tribe v. Florida, 517 U.S.

44, 64 (1996) (overruling Pennsylvania v. Union Gas Co.,

491 U.S. 1 (1989), because it “deviated sharply from our

established federalism jurisprudence”). While acknow-

ledging that Frothingham rejected taxpayer standing as

inconsistent with the Article II] conception of judicial power,

Flast ultimately ignored it and other precedents when it

disjoined standing from separation-of-powers concerns: “The

question whether a particular person is a proper party to

maintain the action does not, by its own force, raise

separation of powers problems related to improper judicial

interference in areas committed to other branches of the

Federal Government.” Filast, 392 U.S. at 100; see also

Antonin Scalia, The Doctrine of Standing as an Essential

Element of the Separation of Powers, \7 Suffolk U. L. Rev.

881, 891 (1983) (“Never before had the doctrine of standing

been severed from the principles of separation of powers.”).

The Court instead proceeded from the understanding that

courts are concerned with standing only to ensure the parties

will /itigate a case properly. See Flast, 392 U.S. at 99-100.

Quoting Baker, 369 U.S. at 204—where the plaintiff proved

individual, if novel, injury—the Court in Flast opined that

what was really important for standing was that the plaintiff

had “‘alleged such a personal stake in the outcome of the

controversy as to assure that concrete adverseness which

sharpens the presentation of issues upon which the court so

largely depends for illumination of difficult constitutional

questions.’” Flast, 392 U.S. at 99. In other words, standing

was now about judicial utility, not judicial role. The Court

supplied no rationale for this alternative foundation for the

rules of standing. Cf Crawford, 541 U.S. at 62 (criticizing

and overruling Roberts, 448 U.S. at 66, for “replac[ing] the

constitutionally prescribed method of assessing reliability

with a wholly foreign one”).

Based on this radically recast predicate concern, the

Court relied on a supposed “nexus” between taxpayers and

the Congressional powers to tax and spend as evidence that

the taxpayer plaintiff would be a sufficiently useful litigant.

See Flast, 392 U.S. at 102-03. Flast, however, provided no

real explanation as to how there is a “nexus” between

taxpayer status and congressional spending (as opposed to

taxation) or how any such “nexus” equates with “‘concrete

adverseness which sharpens the presentation of issues.”” /d.

at 99. The Court cited only McGowan v. Maryland, 366

U.S. 420, 429-430 (1961), for the general proposition that

“our decisions establish that, in ruling on standing, it is both

appropriate and necessary to look to the substantive issues

for another purpose, namely, to determine whether there is a

logical nexus between the status asserted and the claim

sought to be adjudicated.” Filast, 392 U.S. at 101-02.

McGowan, however, was an appeal from a state criminal

conviction for violation of Sunday closing laws. See

McGowan, 366 U.S. at 429-32. The only “standing” issue

had to do with the nghts the criminal defendant could invoke

once in court, not with whether he had suffered an injury

sufficient to invoke Article LI] judicial power.

* McGowan is a curious precedent for the F/ast Court to have

cited for the added reason that, if anything, it demonstrates

how Establishment Clause challenges are available to others

besides taxpayer plaintiffs. See McGowan, 366 U.S. at 422-

23; see also Bd. of Educ. of Cent. Sch. Dist. No. 1 v. Allen,

392 US. 236, 240-41 n5 (1968) (adjudicating an

Establishment Clause challenge brought by a school board

seeking a declaration that a state textbook law was

unconstitutional and an injunction to prevent a state official

from removing them if they did not enforce the law).

Commentators—including some who favor expanding

access to federal courts—find only frustration in trying to

reconcile Flast with the direct-injury requirement. One

writer explains that if a plaintiff must have a personal stake

in the outcome of litigation, Flast “become[s] incompre-

hensible, for the opinion devoted not one word to

demonstrating Mrs. Flast’s actual monetary stake as a

taxpayer, and it is doubtful that the Court could have made

such a demonstration.” Kenneth E. Scott, Standing in the

Supreme Court—A Functional Analysis, 86 Harv. L. Rev.

645, 661 (1973). Neither of the Filast standing

requirements—{ 1) a nexus between status and claim and (2)

a specific constitutional limitation on the exercise of the

spending power—in any way “assure[s] the personal stake

and concrete adverseness necessary to satisfy Article III

requirements; there is simply no necessary connection

between taxpayer status and the stake one has or feels in

establishment issues.” /d.; see also Flast, 392 U.S. at 119-20

(Harlan, J., dissenting); Marc Rohr, Tilting at Crosses:

Nontaxpayer Standing to Sue under the Establishment

Clause, 11 Ga. St. U. L. Rev. 495, 496, 529-30 (1995)

(urging broader standing, but stating that “the fact remains

that a Flast plaintiff realistically has nothing more to gain

from a lawsuit than the satisfaction of helping enforce the

dictates of the Constitution’).

3. Nor does Flast hold together on its own. For

starters—to focus on the precise distinction at issue in this

case—Flast does not countenance taxpayer lawsuits against

all government spending, but only against spending that

arises from use of the Article 1, § 8 Spending Clause power.

In particular, the Court said, “[ijt will not be sufficient to

allege an incidental expenditure of tax funds in the

administration of an essentially regulatory statute.” F/ast,

392 U.S. at 102. The only apparent rationale for this rule

was the need to distinguish Doremus, where the Court ruled

that general overhead expenditures were an insufficient basis

for a taxpayer lawsuit challenging daily Bible reading at a

public school. See Doremus, 342 U.S. at 431.

Similarly, the decision to limit taxpayer challenges to

those predicated on “specific constitutional limitations on the

taxing and spending power” and not the inherent limits of

that power appears to have been necessary to distinguish

Frothingham, where the taxpayer-plaintiff alleged that a

particular congressional expenditure lay beyond the power

conferred by Article I, § 8. See Flast, 392 U.S. at 104-05.

At the same time, Flast distinguished Frothingham’s due-

process claim only by undertaking the forbidden practice of

adverting to the merits—or lack thereof—of such a

hypothetical claim. See id. at 104-05. Thus, Flast

apparently rests on a series of ad hoc distinctions from past

cases rather than a set of coherent constitutional principles.

See id. at 124 (Harlan, J., dissenting) (observing that the

Court is “compelled simply to postulate situations in which

such taxpayer plaintiffs will be ‘deemed’ to have the

requisite ‘personal stake and interest’”).

> The Flast Court purported to distinguish Spending Clause

challenges on the theory that im such cases taxpayers are

really invoking the reserved-powers rights of states. See

Flast, 392 U.S. at 104-05. This argument is not only

seemingly at odds with the text of the Tenth Amendment

(which reserves unenumerated powers to both the states “or

to the people”), but also conflicts with earlier decisions of

the Court. See, e.g., Carter v. Carter Coal Co., 298 U.S.

238, 286 (1936); Bailey v. Drexel Furniture, 259 U.S. 20, 36

(1922); Hammer v. Dagenhart, 247 U.S. 251, 269 (1918),

overruled by, 312 U.S. 657 (1941) (all permitting individuals

te assert that Congress exceeded its enumerated powers). Cf

City of Boerne v. Flores, 521 U.S. 507, 511 (1997); Printz v.

United States, 521 U.S. 898, 905 (1997); United States v.

Lopez, 514 U.S. 549, 551 (1995) (same).

An even deeper problem is the Court’s asserted historical

rationale for permitting taxpayers to bring Establishment

Clause claims, but not claims based on other constitutional

limits. The Court drew a connection between the

Establishment Clause and the Spending Clause because

“{ojur history vividly illustrates that one of the specific evils

feared by those who drafted the Establishment Clause and

fought for its adoption was that the taxing and spending

power would be used to favor one religion over another or to

support religion in general.” /d. at 103. Continuing, the

Court explained that

James Madison, who is generally recognized as the

leading architect of the religion clauses of the First

Amendment, observed in his famous Memorial and

Remonstrance Against Religious Assessments that

“the same authority which can force a citizen to

contribute three pence only of his property for the

support of any one establishment, may force him to

conform to any other establishment in all cases

whatsoever.”

Id. (quoting 2 Writings of James Madison 183, 186 (Gaillard

Hunt ed. 1901)).

This history, said the Court, means that “[t]he

Establishment Clause was designed as a specific bulwark

against such potential abuses of governmental power, and

that clause of the First Amendment operates as a specific

constitutional limitation upon the exercise by Congress of

the taxing and spending power conferred by Art. I, s 8.”

Flast, 392 U.S. at 104.

The logic embracing taxpayer lawsuits predicated on the

Establishment Clause, but not on the inherent limits of the

Spending Clause, thus proceeds as follows: (1) the “general

powers” of Article I, § 8—1including the Spending Clause—

are not self-limiting; (2) Madison, in his role as “the leading

architect of the religion clauses of the First Amendment,”

was motivated by an intense objection to taxation in support

of religious establishments; and (3) the Establishment Clause

is, first and foremost, a limit on the Spending Clause.

Even setting aside the logical gap between historical

offense at establishment faxation and lawsuits to prohibit

establishment expenditures, each of these premises is false.

The Court’s rendition of constitutional history in Flast

oversimplifies and misstates the reasons for Madison’s

support of the Bill of Rights and ignores his views

concerning Congress’s Article I, § 8 powers. Madison

originally opposed adding a Bill of Rights as both

unnecessary and potentially dangerous. See Akhil Reed

Amar, The Bill of Rights 40 (1998). Specifically, Madison

(like many of the Founders) was of the view that the power

to establish a national church was not among those delegated

to Congress by Article I, § 8, and an amendment specifically

prohibiting it would imply powers that never existed. See id.

at 41. A specific anti-establishment amendment to the

Constitution, therefore, was not necessary to prevent

Congress from encroaching on __ state-establishment

prerogatives (which was the concern that originally justified

the Establishment Clause). See id. What is more, when

Madison ultimately changed his mind about the Bill of

Rights for political reasons, he came to view the

Establishment Clause as confirming extant limits not of the

_ Spending Clause, but of the Necessary and Proper Clause.

See id. at 40.

So, even assuming the validity of the two-part nexus test,

Flast got it wrong about the Establishment Clause: There is

no historicai basis for inferring that Madison thought the

Spending Clause to be unlimited or even that he meant for

the Establishment Clause to limit it in particular.

Accordingly, there is no basis for treating Establishment

Clause lawsuits more liberally for purposes of standing than

any other taxpayer lawsuits. See Louis Lusky, By What

Right 177 (1975) (“The mystifying question is how the Flast

rule can be logically confined to specific limitations.”); see

also 15 James Wm. Moore, ef al., Moore’s Federal Practice

§ 101.60[6}[b] (3d ed. 1999) (arguing that Flast is a

“constitutional non sequitur’).

4. Since Flast, the Supreme Court has reunited standing

with separation-of-powers concerns and, in so doing, has

effectively left F/ast behind as a withered husk limited to its

own facts. See Scalia, supra, at 898 (“Flast has already been

limited strictly to its facts .. . .”); see also Korioth v. Briscoe,

523 F.2d 1271, 1277 (Sth Cir. 1975) (referring to the “fading

Flast doctrine”). Indeed, it was not long after F/ast that both

Schlesinger v. Reservists Comm. to Stop the War, 418 U.S.

208, 220 n.8 (1974), and United States v. Richardson, 418

U.S. 166, 171-174 (1974), re-established the primacy of

Frothingham and rejected taxpayer standing.

The trend toward recognizing only _ traditional

“Hohfeldian” plaintiffs, see Flast, 392 U.S. at 119 (Harlan,

J., dissenting), continued in Va/ley Forge, where the Court

rejected taxpayer standing to assert an Establishment Clause

violation through a transfer of property to a religious group,

underscoring the “rigor with which the F/ast exception to the

Frothingham principle ought to be applied.” Valley Forge

Christian Coll. v. Ams. United for Separation of Church &

State, Inc., 454 U.S. 464, 481 (1982). And in

DaimlerChrysler, the Court said that Flast has a “narrow

application in our precedent” and is strictly limited to

challenges to “congressional action under the taxing and

spending clause.” DaimlerChrysler, 126 S. Ct. at 1865.

It is important to observe that the bases for distinguishing

Flast in Richardson and Valley Forge—i.e., that something

other than Congress’s exercise of its spending power was at

stake—‘‘seem utterly irrelevant to what Flast sought to

accomplish.” Scalia, supra, at 898. Thus, while the Court

has adhered to F/ast as a matter of stare decisis, see Bowen

v. Kendrick, 487 U.S. 589, 618 (1988), it is equally clear that

it has since rejected Flast as precedent for the proposition

that standing is not a separation-of-powers concern. See

Lewis v. Casey, 518 U.S. 343, 353 n.3 (1996) (“Flast failed

to recognize that this doctrine has a separation-of-powers

component, which keeps courts within certain traditional

bounds vis-a-vis the other branches, concrete adverseness or

not. That is where the ‘actual injury’ requirement comes

from.”). The Court now consistently emphasizes that

separation-of-powers and federalism concerns dictate

adherence to the Article III injury-in-fact requirement. See

Friends of the Earth, Inc. v. Laidlaw Envil. Servs. (TOC),

Inc., 528 U.S. 167, 180-84 (2000); Steel Co. v. Citizens for a

Better Env’t, 523 U.S. 83, 103-04 (1998); Lujan v. Defenders

of Wildlife, 504 U.S. 555, 559-62 (1992); ASARCO Ince. v.

Kadish, 490 U.S. 605, 615-16 (1989); Allen v. Wright, 468

U.S. 737, 750-52 (1984); Simon v. E. Ky. Welfare Rights

Org., 426 U.S. 26, 38-39 (1976); Warth v. Seldin, 422 U.S.

490, 501 (1975); United States v. Students Challenging

Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 686-

90 (1973).

Thus, the Court has now made it crystal clear that

plaintiffs must show that they are genuinely injured before

invoking the power of the federal courts. Without such

limits, the Court has cautioned, federal courts would become

“*virtually continuing monitors of the wisdom and soundness

of Executive action,” which “‘is not the role of the

judiciary.’” Allen, 468 U.S. at 760 (quoting Laird v. Tatum,

408 U.S. 1, 15 (1972)). As Judge Easterbrook observed in

his concurrence in the denial of rehearing en banc in this

case, the different treatment of standing principles in Flast

and in the Court’s subsequent decisions appears to be

“arbitrary” and “illogical.” Pet. App. 62a (Easterbrook, J,

concurring in the denial of rehearing en banc). There is no

good reason to perpetuate this arbitrariness any longer

B. Overruling Flast Would Be Consistent with the

Court’s Stare Decisis Doctrine

When the Court considers whether to overrule precedent,

its decision “is customarily informed by a series of

prudential and pragmatic considerations,” including (1)

“whether the rule has proven to be intolerable simply in

defying practical workability,” (2) “whether the rule is

subject to a kind of reliance that would lend a special

hardship to the consequences of overruling and add inequity

to the cost of repudiation,” (3) “whether related principles of

law have so far developed as to have left the old rule no

more than a remnant of abandoned doctrine,” or (4) “whether

facts have so changed, or come to be seen so differently, as

to have robbed the old rule of significant application or

justification.” See Planned Parenthood v. Casey, 505 U.S.

833, 854-55 (1992).

Taking the last two considerations first, as discussed

above, see Part I11.A.4, supra, the Court repeatedly refuses to

use—and even criticizes, see Lewis, 518 U.S. at 353 n.3—

the Flast standard. See also DaimlerChrysler, 126 S. Ct. at

1864-65 (2006) (refusing to apply Flast to a taxpayer's

Commerce Clause claim). Also, historical events must now

be seen in a way that negates whatever justification Flast

originally had. See Amar, supra, at 40-41 (reciting facts that

cast doubt on the Flast Court’s version of Establishment

Clause history). The remaining two considerations—

workability and reliance interests—also support abandoning

Flast.

1. Flast has proven unworkable, as it is clear that lower

courts are generally confused about how to apply it. See

Nancy C. Staudt, Taxpavers in Court: A Systematic Study of

a (Misunderstood) Standing Doctrine, 52 Emory L.J. 771,

835-40 (2003) (reporting uneven application of taxpayer-

standing doctrine). This Court has had to correct erroneous

lower-court applications of Filast several times. See

DaimlerChrysler, 126 S. Ct. at 1863-64; Valley Forge, 454

U.S. at 479-80; Schlesinger, 418 U.S. at 212; Richardson,

418 U.S. at 167-68. And even as far back as Richardson,

Justice Powell stated that he would “lay to rest the approach

taken in Flasf’ rather than “perpetuate the doctrinal

confusion” it created. /d. at 180 (Powell, J., concurring).

Even more troubling, lower federal courts often treat the

invocation of taxpayer status as an automatic pass from

substantive standing analysis. See, e.g., Coal. to End the

Permanent Congress v. Runyon, 796 F. Supp. 549, 551, 558

n.8 (D. D.C. 1992), overruled by, 971 F.2d 765 (D.C. Cir.

1992) (failing to address taxpayer standing); L.S.S. Leasing

Corp. v. U. S. Gen. Servs. Admin., 579 F. Supp. 1565, 1572

n.3 (S.D.N.Y. 1984) (failing to address standing). In a recent

empirical study of federal-court taxpayer standing, Professor

Nancy C. Staudt concluded that a federal-court plaintiff

asserting state taxpayer standing has nearly a 50% chance of

being granted standing without asserting a First Amendment

violation, and a 63% chance regardless of the claim. See

Staudt, supra, at 824.

When courts do address taxpayer standing, the decisions

have shown that federal judges cannot agree on Fiast’s

meaning, as evidenced by the circuit conflict precipitating

review in this case. Compare Pet. App. la-l6a with In re

U.S. Catholic Conference, 885 F.2d 1020, 1027-28 (2d Cir.

1989) (no taxpayer standing because alleged action or

inaction by the IRS is not a challenge to Congress’s taxing

and spending power); Am. Jewish Congress v. Vance, 575

F.2d 939, 945 (D.C. Cir. 1978) (no standing when taxpayer

plaintiffs can point only to the expenditure of funds by

executive officials); Pub. Citizen, Inc. v. Simon, 539 F.2d

211, 214 (D.C. Cir. 1976) (executive spending does not fit

the second requirement of Fiast, that the enactment in

question exceeded specific constitutional limitations imposed

on Congress). Flast also frequently gives rise to imtra-court

disputes. See Pet. App. 16a-26a (Ripple, J., dissenting); 59a

(Flaum, J., concurring in the denial of rehearing en banc);

59a-62a (Easterbrook, J., concurring in the denial of

rehearing en banc); 63a-66a (Ripple, J., dissenting from the

denial of rehearing en banc); Laskowski v. Spellings, 443

F.3d 930, 939 (7th Cir. 2006) (Sykes, J., dissenting); Tarsney

v. O'Keefe, 225 F.3d 929 (8th Cir. 2000) (Magill, J.,

dissenting); Am. Jewish Congress, 575 F.2d at 949 n.7

(Spottswood, J., dissenting); Pub. Citizen, Inc., 539 F.2d at

219 (McMillan, J., dissenting).

In addition, Flast has led to idiosyncratic results. At

least until DaimlerChrysler, some federal courts allowed

taxpayer standing for non-Establishment Clause claims. See

Coal. to End the Permanent Congress, 796 F. Supp. at 551,

556-58 (First and Fifth Amendment challenge to

Congressional franking privileges); L.S.S. Leasing Corp.,

579 F. Supp. at 1567 (NEPA challenge to the construction of

government buildings); Wamble v. Bell, 538 F. Supp. 868,

869 (W.D. Mo. 1982) (Fifth Amendment challenge to

government funding of religious schools); Sch. Dist. of

Philadelphia v. Pa. Milk Mktg. Bd., 877 F. Supp. 245, 248,

251 (E.D. Pa. 1995) (Commerce Clause challenge to state

practice of setting milk prices).

More recently, an Indiana federal court relied on minute

expenses for correspondence, photos, and webcasting to

regulate, at the behest of a few state taxpayers, prayers in the

Indiana House of Representatives. See Hinrichs v. Bosma,

400 F. Supp. 2d 1103, 1109-14 (S.D. Ind. 2005); see also

Hinrichs v. Bosma, 440 F.3d 393, 396-98 (7th Cir. 2006)

(denying stay of district court’s injunction pending appeal

based in part on a preliminary determination that the district

court reached the correct decision on taxpayer standing).

And the Seventh Circuit has ruled that state taxpayers may

sue government grant recipients to disgorge funds received

as part of a program that violates the Establishment Clause,

even where the grant has expired and the government does

not want the money. See Laskowski, 443 F.3d at 933-34.

These discomfiting trends demonstrate that lower federal

courts find the logic of Flast inscrutable—and therefore

unworkable—as a constitutional standard. The source of

their confusion is as obvious as it is resilient. As discussed

in Part Iil.A., supra, Flast is, and has been from the very

beginning, incomprehensible both as an exegesis of Article

III principles and on its own terms. Because Flast has no

serious historical or jurisprudential rationale, it is no wonder

that the test it fabricated has proven elusive in practice. This

is an exceedingly important reason to overrule Flast now.

Cf Seminole Tribe, 517 U.S. at 64 (“Since it was issued,

Union Gas has created confusion among the lower couris

that have sought to apply the deeply fractured decision.”).

2. As to the collateral ramifications of overturning

Flast, it is implausible that Flast has induced special reliance

on its generous federal-court-standing rule. In fact, “it is

hard to imagine” how anyone could rely on Flas? in any

meaningful way or how any reliance “could conceivably be

frustrated—except the bringing of lawsuits, which is not the

sort of primary conduct that is relevant.” Vieth v. Jubelirer,

541 U.S. 267, 306 (2004).

In this regard, it is important to bear in mind that, while

Article III standing rules implicate constitutional norms, they

are still procedural rules. Standing rules do not, for example,

embody substantive rights concerning individual autonomy.

See Casey, 505 U.S. at 847-51. In the recent past, the Court

has overturned multiple precedents concerning constitutional

procedural norms. See Crawford, 541 U.S. at 60-62

(overruling Roberts, 448 U.S. at 66); Ring v. Arizona, 536

U.S. 584, 608-09 (2002) (overruling Walton v. Arizona, 497

U.S. 639 (1990)); Seminole Tribe, 517 U.S. at 64 (overruling

Union Gas, 491 U.S. at 1). Even with respect to Establish-

ment Clause issues, the Court has not been deterred by

reliance interests from overturning prior decisions. See

Agostini v. Felton, 521 U.S. 203, 208-09 (1997) (overruling

Aguilar v. Felton, 473 U.S. 402 (1985)). In short, with

respect to Flast, there are no noteworthy reliance interests to

add to the “cost of repudiation.” Casey, 505 U.S. at 854.

* * * *

It may be that the Court can reverse the decision below

simply by distinguishing this case from Flast. However, if

the Court discerns no real justification for, or end to logic of,

Flast—or if the Court concludes that it cannot distinguish

Flast—this case presents an opportunity to reject it entirely.

See Crawford, 541 U.S. at 60-62 (overruling Roberts,

notwithstanding the ability to distinguish it). The Court

should apply standing rules in Establishment Clause cases

that, as in other areas of constitutional litigation, are

consonant with the limited role of federal courts as

remediators of genuine individual injuries.

CONCLUSION

The decision below should be reversed.

Respectfully submitted,

Office of the Indiana STEVE CARTER

Attorney General Attorney General

IGC South, Fifth Floor THOMAS M. FISHER*

302 West Washington Street Solicitor General

Indianapolis, IN 46204 JULIE A. HOFFMAN

(317) 232-6255 Deputy Attorney General

*Counsel of Record Counsel for the Amici States

Dated: January 5, 2007

ADDENDUM

Table A

State Conferences Where Faith-Based Groups Learn

to Apply For and Administer Government Grants

"Faith Boned &

http: /Mtgov. state. ak. us/f |

Community bci/conference.php

Initiatives

Conference

Alabama | Grant and Funding http://www.servealaba

Resource Conference | ma.gov/PDFs/

Faith%20Based%20Lo

op/issue%201%20volu

me%201X%20correctio

n.pdf

Arkansas | Foundation for the http://www.arkansas.go

Mid South 2nd v/faith/events.html

Annual Pastoral! and

Community

Leadership

Conference “The

Power of

Entrepreneurial

Faith”

Hawaii Hawaii Faith-Based | http://starbulletin.com/

and Community 2005/10/18/news/story

Initiative Conference | 05.html

Indiana 2006 Faith Based http://www.in.gov/ofbc

Conference “A i/events/sept06.html

Challenge to

Excellence”

Maryland | Second Local http://www.gov.state.m

Government Grants

Conference

d.us/grants/jan06conf.h

tml

Michigan

——

Faith-Based Resource

http://www.michigan.g. ,

Symposium ov/ documents/OCFBI-

2006-Faithbased-

Symposium 163870 7.

pdf

Missouri | Community and http://ded.mo.gov/cgi-

| Faith-based bin/dispress.pl?txtpress

Employment id=1778

Initiative Presented at

Governor's

Conference on

Workforce

Development

New Annual Faith and hitp://www.nj.gov/state

Jersey Community Based /faith/acc2.html

Resource Expo

Ohio “Promising http://governor.ohio.go

Partnerships v/releases/

Conference” Archive2004/102704 fai