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Quick Post on Standing and the First Amendment

December 1st, 2006

Washington Post has an article on the Supreme Court’s decision to hear a challenge to the Bush Administration’s faith-based initiative program. There are a lot of opinions flying around about the faith-based thing, and I’m not really interested in getting into it (for discussions on religion, I suggest checking out my friends’ discussions).

What I am interested in is the Administration’s effort to get this case booted on procedural grounds. They argue the plaintifs in the case lack standing, which means the plaintifs have not personally suffered a harm. The plaintifs are suing as tax-payers, meaning the only harm they allege is that their tax dollars are being spent in an unconstitutional manner.

The administration is not wrong in that tax-payer suits are dangerous… to allow any old tax-payer to bring a suit would flood the courts with law suits while providing little context for the court to rule. See, the problem with the average tax-payer is that they have no specific facts, no information, nothing to bring to the table that a judge can consider. As such, we have a doctrine that says general tax-payer status does not count for standing.

The administration, however, is dead wrong when “[i]n written arguments filed with the Supreme Court, Solicitor General Paul Clement said the appeals court had transformed a narrow exception in law into a “roving license” for citizens to challenge any action of the executive branch of government.” See the mention of the narrow exception? That’s what is known as a bald face lie.

The narrow exception he’s referring to, and the only exception I know of to the tax-payer standing doctrine, is for establishment of religion cases. The argument is simple… if the government is, in fact, using tax dollars for unconstitutional establishment of religion (as the plaintifs argue in this case), who exactly suffers a harm other than the general tax-payer? Who, without this exception, has standing to challenge? Certainly not the religious institution receiving the funding. If no one has standing, then the behavior continues without scrutiny.

Which, I suppose, is exactly what the Bush Administration wants in this instance.

probonogeek Law

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