Bench Memos

No Leg to Stand On

Another bit of catching up: in Friday’s Wall Street Journal (sub. req’d), Chicago law professor Richard Epstein took issue with last Monday’s ruling in Hein v. Freedom From Religion Foundation.  The case turned on the threshold question whether the respondents, a gaggle of anti-religious litigating busybodies, had “standing” merely as taxpayers to sue the White House over any incidental expenditures involving conferences or speeches sponsored by the president’s “Faith-Based and Community Initiatives” program.  The Foundation’s standing to sue was denied, in a less than perfectly coherent plurality opinion by Justice Samuel Alito (the relative incoherence suggesting, once again, what it takes to keep the vote of Justice Kennedy).

A little quick background is in order.  In 1923 the Court held in Frothingham v. Mellon that a taxpayer is not, as such, in a position to claim the kind of particular concrete injury that must be shown in order to challenge a federal spending program.  An individual taxpayer’s interest in how treasury funds are spent is “comparatively minute and indeterminable,” and cannot amount to a “direct injury as the result” of the spending.  The unanimous Frothingham Court never actually used the term of art “standing” at any point in the case–its language was mostly keyed to the broader principle of the separation of powers–but the ruling has been taken to be a landmark “standing” case.

In 1968, in Flast v. Cohen, an 8-1 Supreme Court left Frothingham generally intact but carved out an exception for the “establishment of religion” clause of the First Amendment.  Justice John M. Harlan, at the time, had the better argument in his lone dissent, and in last week’s Hein case, Justice Antonin Scalia completely dismantles the Flast fraud in his concurrence, calling on the Court to overturn the precedent because it enshrines the mistaken principle of “psychic injury,” when a more concrete “wallet injury” is called for–and for the reasons given in Frothingham, no mere taxpayer has an authentic wallet injury.  Instead of this sensible course, the controlling opinion of Justice Alito made an exception to the exception, holding that Flast’s status as precedent can remain untouched, and finding it somehow relevant that the activities of the White House “faith-based initiatives” office were funded by discretionary executive accounts and not by a specific appropriations line item passed by Congress.  Got that? 

Now back to Professor Epstein.  Not a word about the separation of powers from him.  Epstein argues that Flast should be converted from an exception into a universal principle of taxpayer standing, which would anoint us all as private attorneys general to make a federal case out of any complaint we might cook up that this or that act of Congress or action of the executive branch was unconstitutional.  ”The proper rule should allow all taxpayers free rein to challenge either Congress or the executive branch for overstepping their constitutional authority.”  Frothingham, therefore, was the real innovation, and a mistaken one, in Epstein’s view.

This is a breathtaking argument for judicial supremacy.  (And Epstein has the nerve to accuse Justice Scalia of “judicial activism”!)  For Epstein, it is evidently hard to think of any way to uphold the Constitution that doesn’t involve lawyers and judges:

At stake is whether judicial review itself remains as a check on the political branches. Blocking taxpayer standing often leaves no one to challenge congressional or presidential actions as inconsistent with our basic constitutional design–allowing both branches to act in areas where they have no constitutional authority.

Epstein has, it seems, never heard of an “area in which” the Supreme Court has “no constitutional authority.”  To bolster this anything-goes view of constitutional litigation, Epstein turns to Article III, noting that its text “contains no standing requirement at all.”  Quite true.  It does, however, insist that the writ of the judiciary runs only to various “cases” and “controversies,” and it was correctly held long before 1923 that a genuine “case” under Article III had to involve concrete rights and injuries that were particular to the parties making claims before the bench.  (Epstein accepts this for cases in “law,” but introduces his own distinction into a text that doesn’t contain it when he says the courthouse door ought to be wide open to all claimants pressing cases in “equity.”  He gives us no reason to adopt this reading of Article III.)

As Congressman (later Chief Justice) John Marshall said in 1800, the judicial power does not extend to “all questions arising under the constitution,” but only to “cases” arising thereunder.  The difference is crucial, said Marshall:

If the judicial power extended to every question under the constitution it would involve almost every subject proper for legislative discussion and decision . . . [and] almost every subject on which the executive could act.  The division of power . . . could exist no longer, and the other departments would be swallowed up by the judiciary . . .

Marshall clung to this view–notably, in an equity case–when he said in Marbury v. Madison that the Court’s duty is “solely to decide on the rights of individuals,” not on abstract claims or the imagined constitutional grievances of imaginative citizens. 

This was echoed by Justice George Sutherland in the Frothingham case:

We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional.  That question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act.  Then the power exercised is that of ascertaining and declaring the law applicable to the controversy.  It amounts to little more than the negative power to disregard an unconstitutional enactment, which otherwise would stand in the way of the enforcement of a legal right.

The trouble with Epstein’s argument is that he has severed judicial power from its anchor in the adjudication of rights.  Or, what amounts to the same thing, he so universalizes the reach of judicial power that it would come to the aid of “rights” possessed by everyone in general and no one in particular.  But that is not the judicial power the framers put into the Constitution.

 

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