Standing Outside the Law: Of Incoherence and How Legal Sausages are Made
By Eric Segall
The doctrine of standing has been in the news recently because the Supreme Court dismissed the lawsuit by the State of Texas against the four swing states due to lack of standing, and because Donald J. Trump tweeted about how unfair it was that the case was dismissed because of the doctrine. Of course, there is no reason to think Trump understands anything about standing law, but then again few people do, and for good reason.
Of all the constitutional issues I have studied over my 30 years as a law professor, the Court's standing doctrine is the most incoherent. I have yet to meet a federal jurisdiction scholar, liberal, moderate, or conservative, who defends the various aspects of standing doctrine as currently articulated by the Supreme Court. This post discusses one corner of that doctrine because it illuminates well its utter incoherence and provides a behind-the-scenes account of how one landmark standing case was decided. We can see how at least one standing sausage was made, and it is not a pretty picture.
The Court has said that in every case in federal court, without exception, plaintiffs must suffer a personal injury, caused by the defendant, that can be redressed by the court. These requirements are necessary for establishing subject matter jurisdiction--meaning they cannot be waived--and judges have an obligation to address them on their own if the parties do not raise them. The Court has said these requirements are derived from Article III of the Constitution and its requirements of a "case" or "controversy." There is little or no originalist basis for these requirements as "strangers" to the court were allowed at common law, but these requirements for federal jurisdiction are not going away.
One issue that has vexed the Justices for a very long time revolves around what judges and lawyers call "taxpayer standing." This phrase does not refer to taxpayers claiming they have been personally taxed incorrectly and seeking their money back, as such plaintiffs obviously suffer personal injury. What Justice Scalia once called "wallet injury" is normally sufficient to meet the injury prong of the standing test.
The recurring and vexing issue of taxpayer standing is whether federal taxpayers have a right to challenge federal expenditures they claim violate the federal Constitution when their only injury is their objection to the illegal use of their tax dollars. They don't seek money in such cases, just an injunction against the allegedly unconstitutional government program (their share of the spending would be too small too warrant financial relief, and even if it wasn't, the government could just use their tax dollars for something else).
In Frothingham v. Mellon, decided in 1923, a woman challenged a law providing money to the states to combat infant and maternal mortality. She claimed the law exceeded Congress' spending power and thus took her money in violation of the Due Process Clause of the Fifth Amendment. She didn't ask for and and couldn't get her money back. She simply wanted an injunction to stop the government from acting illegally.
The Court didn't use the word "standing" but nonetheless held that her interest in the case could not support her lawsuit because she wasn't injured in a personal way differently from all other federal taxpayers (or for that matter citizens claiming they wanted to live in a country where the government follows the law). The Court did not say whether her claims were barred by Article III or by non-constitutional equitable considerations but the Court was concerned that the floodgates of litigation would open up if federal taxpayers could sue whenever they thought the government was using their tax dollars illegally.
The Court returned to this issue in several other cases reaching the same result. In Ex Parte Levitt, for example, the Justices dismissed a challenge to Justice Hugo Black's appointment to the Supreme Court. As a Senator, Black had voted to increase the salaries of the Justices and then became a Justice in apparent violation of Article I, Section 6, of the Constitution, which prohibits a congressman from being appointed to any civil office for which Congress increased the pay while the congressman was in office. The plaintiff did not explain how he was personally injured by Black's appointment and his belief, well founded though it was, that a constitutional violation had occurred, was insufficient by itself to allow the suit to proceed.
The Court consistently barred such lawsuits until 1968 and the case of Flast v. Cohen. That lawsuit was brought by a public interest organization claiming that federal expenditures to religious elementary and secondary schools violated the First Amendment's Establishment Clause. To understand this case fully, it is important to recognize that there are two constitutional clauses meant to safeguard religious freedom. The Establishment Clause prohibits the government from rewarding religion too much while the Free Exercise Clause stops the government from restricting religious exercise or religion generally.
The plaintiff alleged, correctly, that if taxpayers could not sue to stop the allegedly illegal disbursements for religion, no one could sue, because all objectors are injured identically when the government illegally spends money on religion. The plaintiff also made the sound argument that it will be the rare Establishment Clause case when a plaintiff suffers the kind of injury that normally gives rise to standing because if the government coerces or punishes religion the people harmed will be able to bring a free exercise case. But when the government uses tax dollars to support religion, objectors may well be mad and upset, but they don't suffer monetary loss or liberty deprivations.
Flast gave the Justices quite a headache. On the one hand, the Court had on several occasions rejected taxpayer standing and this case seemed indistinguishable from those precedents. On the other, if the Justices rejected standing in this case, the Establishment Clause would be, in effect, a dead letter, a result the Warren Court simply could not countenance (though one the Roberts Court seems to celebrate, but that's a different story).
It turns out that 20 years after Flast, I had a close professional and personal relationship with the law clerk for Justice Warren who wrote the first draft of the opinion in the case. He told me the inside story of how the result in Flast came to be and, when I became a law professor, he gave me permission to tell the story to whomever I wanted. His name was Charlie Wilson, and sadly he passed away a few years ago. This inside story is hearsay, but I trusted Charlie, who when I knew him was at Williams & Connoly, one of our country's most distinguished law firms, and he was representing the United States Catholic Conference.
The Court held in Flast that standing doctrine asks whether a plaintiff has the requisite "personal stake" in the case to allow him to stand before the court. The Court then articulated a test for taxpayer standing which every rational person since has concluded has nothing to do with whether the plaintiff in a taxpayer standing case actually has such a requisite stake. The Court said the following (and this is still essentially the law today):
First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, § 8, of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute.... Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power, and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8.
In essence, taxpayer standing would be allowed only when the plaintiffs challenged a law passed under Congress's taxing and spending power and alleged the law violated a "specific limitation" on that power. The Court said that the Flast plaintiffs met both prongs of that test whereas the Frothingham plaintiff did not because, although she challenged a taxing and spending law, the Due Process Clause was somehow not a "specific" limitation on the taxing and spending power, whereas the Establishment Clause was such a limitation.
The problem, as Justice Harlan pointed out clearly in dissent, and as pretty much everyone writing about Flast for the last 50 years has mentioned, is that the plaintiff's personal stake in a case has nothing at all to do with whether the law being challenged was passed under Congress's taxing and spending power or some other source of authority or whether the law violates the Establishment Clause or some other constitutional provision. In all taxpayer standing cases, the plaintiffs are alleging exactly the same thing: the government is using their tax money illegally and should stop doing so. In other words, the Flast test simply fails to distinguish those plaintiffs who should have their day in court from those plaintiffs who should not. In the 50 years since Flast, the Court has limited the case to its facts, but it remains the vehicle through which most Establishment Clause challenges are allowed in federal court, while all other taxpayer challenges are turned away for lack of standing.
What happened? Here's the back story. While the Justices were meeting to discuss the case, the clerks knew that the Court would find standing but they didn't know how. Some of the clerks thought the Court would overturn Frothingham and allow all taxpayer suits (this was the apex of the Warren Court) while others thought the Court would hold that the Establishment Clause is unique and taxpayer standing would be limited to cases arising under that Clause. Both of those alternatives were coherent if not persuasive.
My friend Charlie was called into Warren's chambers and told to draft an opinion finding taxpayer standing in the case. He asked the Chief if the Justices were willing to overturn Frothingham and allow all taxpayer suits but the answer was no. He then asked whether he could write an historical opinion saying the Establishment Clause was unique in that it was meant to limit the ability of the government to use tax dollars for religious purposes. But the answer to that was also no. So Charlie essentially said to Warren, "you want me to find taxpayer standing in this case, but no other cases, and you want me to distinguish not overrule Frothingham? How do I do that?" Warren apparently responded something to the effect of "I guess that's your problem."
Charlie tried and tried but could not arrive at a reasonable way to allow the Flast plaintiffs to sue, uphold Frothingham, and not say the difference was that the Establishment Clause was special. Hence we arrive at the incoherent Flast nexus test which in no way meaningfully separates those taxpayer suits that should be allowed from those that should not. To this day, the Court only allows such suits when the Establishment Clause is at issue, even though other taxpayers have challenged allegedly unconstitutional governmental actions and are in the exact same position as Establishment Clause plaintiffs.
But the story gets even worse. Over the years, the Court "refined" the test to say that, even in Establishment Clause cases, plaintiffs don't have standing to challenge purely executive branch decisions but only acts of Congress. So when George W. Bush set up an Office of Faith Based Initiatives to help religious groups secure government funds, and he did so out of general appropriations, the Court in Freedom from Religion Foundation v. Hein held that the challengers did not have taxpayer standing because they didn't meet the first prong of the Flast test. They were challenging an Executive Branch decision not a law passed by Congress under Article I, Section 8 (even though the general appropriations law was also, of course, passed under Article I, Section 8).
While dismissing the case, the Court, to Justice Scalia's disgust, affirmed the Flast test. The result is the completely absurd result that a plaintiff challenging a federal taxing and spending law under the Establishment Clause has standing but a plaintiff challenging an Executive Branch decision under the Establishment Clause does not have standing, even though both plaintiffs are injured in exactly the same way. The absurdity of all this was pointed out by Judge Easterbrook in voting to deny an en banc hearing in the case in the Seventh Circuit. He said the
principal difficulty with arguments pro and con about taxpayer standing is that the doctrine is arbitrary.... The problem is not of our creation and cannot be resolved locally. There is no logical way to determine the extent of an arbitrary rule. Only the rule's proprietors can bring harmony — whether by extension or contraction — or decide to tolerate the existing state of affairs.
Much to Justice Scalia's chagrin, the Hein Court simply reaffirmed the prior "arbitrary" doctrine. About all this, Scalia memorably said,
Today’s opinion is, in one significant respect, entirely consistent with our previous cases addressing taxpayer standing to raise Establishment Clause challenges to government expenditures. Unfortunately, the consistency lies in the creation of utterly meaningless distinctions which separate the case at hand from the precedents that have come out differently, but which cannot possibly be (in any sane world) the reason it comes out differently.
Scalia was right about the utter incoherence of the doctrine.
The Court's taxpayer standing morass is just one example of the many incoherent standing doctrines the Court has adopted over the years. As I once wrote for the LA Times, standing is what standing does, even if what it does makes absolutely no sense.