Taxation as Representation?

By Shawn Healy

Tomorrow the U.S. Supreme Court will consider a case involving the rather mundane issue of taxpayer standing in filing lawsuits against the government for programs enacted in violation of the Establishment Clause of the 1st Amendment. The case, Hein v. Freedom From Religion Foundation developed close to home. The Wisconsin-based organization challenged the constitutionality of the White House's Office of Faith-Based and Community Initiatives, and a federal district court in Madison turned them down, arguing that such standing applied only to cases involving congressional taxing and spending issues, not executive orders issued by the President.

In an appeal to the 7th District Court of Appeals, however, the court reversed course and ruled in favor of the plaintiffs. Judge Richard Posner wrote: "Taxpayers have standing to challenge an executive-branch program, alleged to promote religion, that is financed by congressional appropriation, even if the program was created entirely within the executive branch..."

His colleague, Judge Kenneth Ripple, in dissent, warned of a "dramatic expansion of current standing doctrine" if this decision stands. The petitioners themselves, the Office of Solicitor General, claim that the 7th District ruling goes so far as to violate the separation of powers doctrine, as the judicial branch invades upon executive branch authority.

The significance of a reversal by the Supreme Court could be a dramatic curtailment of Establishment Clause challenges by taxpayers. Stay tuned to this blog for updates on the oral arguments, the eventual decision and its long-term impact.