The Supreme Court and Standing

[Brown]

Part 1: Background (Standing)

In this post, I mentioned that the Supreme Court’s ruling on global warming could have implications for an upcoming civil rights case. I wrote:

The problem that I see--and that four of the justices see--is that of standing. What this decision seems to suggest to me is a disturbing trend: standing, far from being an objective constitutional doctrine, may be becoming an indicator of result-oriented jurisprudence. And that is a bad trend for the Court as a whole.

There is another pending case in which standing is a key issue. If the EPA decision is an indicator, certain members of the Court may be positioning themselves to rip one of the rights right out of the Bill of Rights by saying that citizens affected by government action in violation of the Bill of Rights have no right to sue to stop the violation.

The pending case of concern is Hein v. Freedom From Religion Foundation. This case was argued before the Supreme Court on 28 February 2007, and will be decided within the next few weeks.

Before talking about Hein, there are a few points to be made about the global warming case, Massachusetts v. EPA. The five-justice majority was made up of Justices Stevens (who wrote the opinion), Kennedy, Souter, Ginsburg and Breyer. Keep these names in mind, for they will come up again.

In the EPA case, several states and other governmental entities sued the EPA, saying that the EPA "has abdicated its responsibility under the Clean Air Act to regulate the emissions of four greenhouse gases, including carbon dioxide." Before the Court could determine the issues that were raised, the Court had to determine whether the entities bringing suit had "standing" to bring it.

We’ve seen the issue of standing before, perhaps most notably in the Newdow Pledge case. In Newdow, a five-member majority consisting of Justices Stevens (who wrote the opinion), Kennedy, Souter, Ginsburg and Breyer (I told you these names would come up again!) determined that Newdow lacked prudential standing to bring suit on behalf of his daughter to challenge the words "under God" in the Pledge. Because there was no standing, the majority avoided ruling on the propriety of the particular words in the Pledge. The minority (with an opinion written by the late Chief Justice Rehnquist) found no standing difficulty at all, and was eager to reach the issue, and to declare that there was not a thing wrong with a religious declaration in an official loyalty recitation.

Standing is not merely a quibble or a technicality. It is a constitutional requirement. It is not (or at least, it is not supposed to be) a requirement that the Court can raise when it wants to dodge an issue or water down if it wants to decide an issue.

We also saw standing—or more accurately, the lack of it—in Bush v. Gore. The majority, in its haste to make absolutely certain that Bush would win the office, ignored the standing requirement entirely. Bush was not a Florida voter, so he lacked standing to sue for the rights of Florida voters. But the majority wanted to reach the result that it did, and so standing was no obstacle whatsoever.

In the EPA case, the majority addressed the issue of standing first, saying that "that a litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury." The majority found that Massachusetts had made such a demonstration, and then proceeded to address the merits of the case, namely, whether the EPA can or ought to regulate greenhouse gases.

Most commentators focused upon the merits of the case, and gave scant attention to the standing question.

The dissent in the EPA case included Chief Justice Roberts (who wrote the dissenting opinion) along with Justices Scalia, Thomas and Alito. Their dissent was focused almost entirely upon the standing question. To the minority, there were all sorts of standing problems here, and so there was no need for the Court to meddle in what the EPA wanted to do (or in this case, avoid doing). There is no particularized injury, said the minority, nor is it likely that a victory will do a darn thing.

 

[Brown]

Part 2: More Background (The Flast Case)

This brings us to Hein, but before we delve into that case, we need to discuss a 1968 Supreme Court decision, Flast v. Cohen. In Flast, at issue was whether taxpayers had standing to challenge a statute that gave tax money to religious schools. In most cases, one does not obtain standing to mount a constitutional challenge a federal statute merely by being a taxpayer. The thinking is that taxpayers lack the "direct injury" needed for standing. But challenges to the disbursement of tax revenue in alleged violation of the Establishment Clause are different. Chief Justice Warren wrote:

Our 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. 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." 2 Writings of James Madison 183, 186 (Hunt ed. 1901). The concern of Madison and his supporters was quite clearly that religious liberty ultimately would be the victim if government could employ its taxing and spending powers to aid one religion over another or to aid religion in general. The 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, 8.

Remember Madison’s concern about the "three pence." It is a theme that will recur again.

 

[RandFan]

Cool, thanks.

 

[Brown]

Part 3: The Hein Case

Hein is a case involving President George W. Bush’s "Faith-Based Initiatives" program. Those bringing the suit are taxpayers, who allege that their tax money (their three pence) is being directed to religious organizations. Those resisting the suit say that the taxpayers lack standing. But wait, didn't Flast v. Cohen determine that in such cases, taxpayers do have standing?

Here is where the concern lies. Is the Court using standing as a tool to reach a particular result?

And if a majority wants to avoid telling George W. Bush that he cannot award tax dollars to religious institutions, will it raise the standing bar?

Subpart A: The Argument from the Solicitor General

The oral argument in Hein focused to a large degree upon the applicability of Flast. Solicitor General Paul Clement argued the case for the government. He argued that Flast applied to challenges to the Legislative Branch, but taxpayers have no right to challenge actions of the Executive Branch. But Clement didn’t even want to concede that taxpayers could challenge the Legislative Branch, either:

JUSTICE GINSBURG: If this—if Congress had enacted this executive order that's in question here, if it had been congressional legislation, would there be standing?

GENERAL CLEMENT: I don't think so…. There has to be a statute. And then there has to be an allegation that the statute creates a unique injury in the context of spending that affects taxpayers differently than anybody—than any other citizen.

Justice Scalia posed a good question. Suppose the government was going to build a church, something that is clearly not permitted by the Establishment Clause. In one case, there is a congressional authorization specifically to build a church. In another case, congress authorizes money to go to the president generally, and he uses it to build a church. Shouldn’t there be taxpayer standing in both cases? Clement’s answers bordered upon incoherent. He tried to draw a distinction between "disbursement of funds outside the Government" and "an internal Government church," but Justice Scalia (and others) weren’t letting him off the hook.

JUSTICE SCALIA: But we're talking taxpayer standing. And you think there is a real difference insofar as whether the taxpayer is harmed between the Congress saying we're going to give the money to a religious organization to build a church and Congress saying we're going to build a church. You really think there's a difference?

GENERAL CLEMENT: I think there's a difference in the extent to which there is a conceptually direct injury for the taxpayer as taxpayer. The citizens are clearly injured when the Government sets up the church.

JUSTICE SCALIA: In both cases money is being used for a purpose that is contrary to the establishment clause, according to the taxpayer.

GENERAL CLEMENT: But with respect, in the context of the internal Government church, the fact that money is being spent to establish that church is the –

JUSTICE GINSBURG: Taxpayer money.

GENERAL CLEMENT: -- least of your concerns. It's the fact that the Government is establishing it that's the principal concern.

JUSTICE SCALIA: I don't care whether it's the least of the concerns, it's a concern. It's the same establishment clause concern in both cases. Now you may well be correct that there's a freedom of religion clause violation in one case and not in the other, but as far as the establishment clause violation, I find it difficult to understand the difference between the two.

GENERAL CLEMENT: Well, Justice Scalia, I think it's a difference suggested by this Court's cases, and they do make an important distinction between the distribution of money outside the Government where the spending itself is the injury and what this Court has termed the incidental expenditure of money in the context of an executive branch activity that itself is alleged to violate the establishment clause.

Let’s stop a moment and analyze what’s being said here. In a case where taxpayer money is clearly going to establish religion, the Solicitor General is asking the Court to say that taxpayers might be allowed to bring suit when the money is going "outside the Government," but taxpayers cannot bring suit if the money is sent from one branch to another which would be presumably "inside the Government"), which is then used as an "incidental expenditure."

Right away, there should be a concern. Should a taxpayer’s right to sue depend upon governmental accounting legerdemain? Justice Souter had his doubts:

JUSTICE SOUTER: And why should that make any difference if the entire theory behind it is sort of a Madisonian theory, if not three pence from the pocket for a religious purpose? … (W)hen you build the church, you're spending the three pence whether … a Government employee is laying the bricks or … an outside contractor is laying the bricks or a third party institution to which a grant has been made is laying the bricks. It's the same three pence.
…
GENERAL CLEMENT: Again, I would take issue with that and say the primary concern that Madison was focused on was the taking of the money and then giving it to the outside religious entity.

After a few more questions in a less-than-successful effort to clear the air, Chief Justice Roberts sounded a new theme, to which he would return many times. If the taxpayer does not have standing, then who does have standing?

CHIEF JUSTICE ROBERTS: There wouldn't be … taxpayer standing, but of course there would be regular Article III standing in the sense that in a party claiming to be injured because they didn't get a grant, and a religious organization did, and the reason was religion, can bring any kind of claim they want under Article III. It's just they wouldn't qualify for the special exception to the general rule that there is no taxpayer standing for establishment clause cases.

GENERAL CLEMENT: That's exactly right.

To a layperson, these remarks from the Chief Justice border upon ridiculous. If there is an Establishment Clause violation in which taxpayer moneys were being unconstitutionally dispensed by the government teat to a religious group, the taxpayers—who say that the government should not give any tax money to any religious groups—could not complain. But other religious groups—who didn’t mind the unconstitutional dispensing as long as they got access to the teat themselves—could complain.

Justice Breyer chimed in, saying he could not understand what was being argued. Why couldn’t taxpayers challenge obviously unconstitutional uses of their tax money, especially in light of Flast? And if they couldn’t, who could?

GENERAL CLEMENT: I mean, I think the bottom line is that there would not be taxpayer standing. Plenty of people could probably challenge that.

JUSTICE BREYER: I don't know, I mean—

GENERAL CLEMENT: Probably—

JUSTICE BREYER: —everybody else who doesn't want to go just avoids it. So that they don't have to do anything. They just have to—

CHIEF JUSTICE ROBERTS: Any, presumably any other denomination that is not of the established church could bring a challenge that they're being discriminated against, because they're favoring a particular church over them. Your proposition is simply that somebody … in Oregon can't challenge the fact that they're building a church in Florida simply because the person in Florida pays taxes, right?

GENERAL CLEMENT: Exactly, and not just the person in Oregon. But everybody in between Oregon and Florida all have the same amount of standing. No, what we're saying is plenty of people would be able to challenge that. But not—

JUSTICE BREYER: Who? Who?

GENERAL CLEMENT: As … the Chief Justice suggested I think anybody from a different denomination that said that this was discriminatory probably could bring a claim. I also think that anybody who walked into one of those churches could bring a claim. And again, this Court—this Court—

JUSTICE BREYER: Maybe they don't walk into it because it is not "our church."

Once again, Chief Justice Roberts seems to think that misuse of tax dollars could be addressed by those groups who didn't think they got their fair share. Which raises a further question: if a religious group sued, saying: "We're being discriminated against because we didn't get any of that tax money; but we don’t want any tax money; we just want to be sure that no religious group gets any," would that group have standing? In other words, is it going to be up to religious groups to sue to enforce the Constitution, with secular litigants being kept out?

It’s all very confusing, and this led to a little humor:

JUSTICE ALITO: General Clement, are you … arguing that these lines that you're drawing make a lot of sense in an abstract sense? Or are you just arguing that this is the best that can be done that this is the best that can be done within the body of precedent that the Court has handed down in this area?

GENERAL CLEMENT: The latter, Justice Alito.

(Laughter.)

GENERAL CLEMENT: And I appreciate … the question.

JUSTICE SCALIA: Why didn't you say so?

(Laughter.)

JUSTICE SCALIA: … I've been trying to make sense out of what you're saying.

(Laughter.)

GENERAL CLEMENT: Well, and I've been trying to make sense out of this Court's precedents.

(Laughter.)

The transcript records no laughter when Justice Stevens threw a bucket of cold water on things:

JUSTICE STEVENS: Do we think have a duty to follow precedents that don't make any sense?

Justice Breyer proposed what he thought was a straightforward, easy-to-apply rule:

JUSTICE BREYER: So what's wrong with just saying that Flast stands for the proposition that when the Government spends money in violation of the establishment clause, a taxpayer—after all, the money comes from the taxpayer—can bring a lawsuit? And the reason that they do that is because the establishment clause is an important joint part of the religion clauses; and there'd be no other way to bring such a challenge. … So we have a pretty clear, simple rule. That rule applies whether it's Congress or the President acting under congressional authority….

The Solicitor General basically answered that such a rule would not be consistent with precedent.

One might conclude, based upon the argument so far, that the principal concerns of the Court are: What is the extent of the Flast rule? Does it make a difference that the disbursement comes through the executive rather than the legislative branch?

But actually, there are other concerns, which the balance of the oral argument brought to light.

 

[Brown]

Subpart B: The Argument from the Freedom from Religion Foundation

Andrew Pincus argued the case on behalf of the Freedom from Religion Foundation. Most of his grilling came from Justice Scalia and Chief Justice Roberts. Right off the bat, the Chief Justice introduced what appears to be the real concern of some members of the Court:

CHIEF JUSTICE ROBERTS: I don't understand under your theory why any taxpayer couldn't sue our Marshal for standing up and saying "God save the United States and this honorable Court." Her salary comes from Congress. You can trace that under your traceability requirement. So any taxpayer under your theory could bring that lawsuit.

MR. PINCUS: Well, I don't … think that lawsuit could be brought, Mr. Chief Justice, and let me explain why. We think that the limitations that are in this Court's opinions require the taxpayer to identify a discrete and identifiable non-incidental expenditure. In other words, it's not just any—

CHIEF JUSTICE ROBERTS: It's very—I can identify it. It's the appropriations that Congress extends to this Court that pay the salary of the Marshal.

Cynically, one might say that the Court is very sensitive about having to defend its own practices, and it most certainly does not want to open the door to court challenges to its own practices. But a more realistic concern is this: taxpayers generally don’t have standing to challenge government actions. If the Court were to find that taxpayers have standing here, wouldn’t taxpayers have standing in pretty much any Establishment Clause suit? Justice Alito expressed this concern very directly. In response Pincus said that there must be more than an expenditure of money, but "a measurable appropriation or disbursement occasioned solely by the activities complained of."

MR. PINCUS: The money has to be central to the violation.

All sorts of "incidental" expenses might not be challenged. Justice Scalia suggested a presidential address to a religious group would involve identifiable expenses: Air Force One, security, et cetera. Pincus seemed to get a little twisted around by this line of inquiry, but Justice Ginsburg came to his rescue:

JUSTICE GINSBURG: The President needs protection at all times no matter where he goes. The President may be doing something that violates the establishment clause, but protection is the job, and it doesn't make any difference where the President is. And so your answer to the question, well, suppose he had a special protector who just took care of his religious activities? I would still say that it's, protection is the thing.
…
MR. PINCUS: Well, I think that's right, and I think that's because there are two steps to our analysis, Justice Ginsburg. One is, is there a discrete and identifiable expenditure that only arises with respect to religious activities. The second question is, does that particular expenditure, is that particular expenditure an incidental one? Flast said incidental expenditures don't give rise to standing.
…
JUSTICE BREYER: (D)eciding what's incidental and what isn't incidental will be difficult.

(Justice Scalia later expanded on Justice Breyer’s idea, saying that deciding what's incidental and what isn't incidental would be a waste of a federal court’s time.)

Justice Kennedy then made remarks that seem to go to the crucial question in the case, and since it is highly likely that Justice Kennedy will be in the majority (if not the decisive justice), his remarks strike me as significant:

JUSTICE KENNEDY: It seems to me unduly intrusive for the courts to tell the President that it cannot talk to specific groups to see if they have certain talents that the Government may use to make sure that all of their energies are used properly by the Federal Government.
…
And perhaps you would say that's just a judgment on the merits, but it seems to me that there's a standing concern here, too, that we would be supervising the White House and what it can say, what it can—who it can talk to. And it seems to me that's quite intrusive from the standpoint of standing purposes. I'm not sure that this makes a standard that distinguishes the case from Flast or brings it within those—within those cases.

Here is the rub. Is the Court going to be result-oriented with standing questions? It is difficult to separate "the merits"—whether the suit has legal and factual validity—from standing—which is directed to whether the person bringing suit has a legally recognized stake in the outcome. Justice Kennedy may have a problem with the merits. But should that problem with the merits translate into a problem with standing? Is the Court going to insulate the president from all taxpayer challenges, regardless of how unconstitutional they are? Pincus gave a response that enlightened little. Justice Breyer returned to the theme later:

JUSTICE BREYER: Are your clients claiming that it would violate the establishment clause for the President to go to lots and lots of prayer breakfasts?

MR. PINCUS: No.

JUSTICE BREYER: No. I never met anyone who did, but I guess there is a legitimate concern, somebody might think that, I guess. And I guess that if people—there is some tendency of the people that are worried, you know, there are pro ses [litigants who sue without representation by a lawyer], there are all kinds of people, somebody could claim that. So you want a way to keep them out.

MR. PINCUS: You want a way to keep them out—

JUSTICE BREYER: It's Justice Kennedy's concern.

Yup, people might bring suits that are—on the merits—baseless. Of course, the courts have mechanisms in place to address such concerns, and those mechanisms don’t involve tinkering with standing.

Pincus stuck by his guns by asserting the "incidental" test. This test, by the way, was not his idea, but it came from Flast: "It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute." Nevertheless, some members of the Court really didn’t like this test at all:

CHIEF JUSTICE ROBERTS: But that shows how totally manipulable your incidental test is. You just have to phrase your claim so that it covers whatever expenditure … is offending you. (I)ncidental doesn't protect you from frivolous or insignificant claims in any way.

Pincus was asked whether it would make a difference if the government teat was dispensing property rather than money. He used this as a springboard to sum up his argument, and did so rather well. Many attorneys end their oral arguments awkwardly with "I see my time has expired" or words of that nature, but some attorneys get lucky enough to make a concise summation, and that is what Pincus did:

MR. PINCUS: (T)he idea that there's some difference between a … situation, where the executive had tremendous discretion in terms of where it was going to give the money, and the situation here, which is the exercise of precisely the same executive discretion, makes no sense.

The injury is the same. The conduct that's … the core of the violation is the same. It's an Executive Branch decision to use funds in a way that's impermissible under the establishment clause, and we've been drawing the lines that the Government has been trying to draw just makes no sense, and to leave out, to insulate from any taxpayer challenge really huge swaths of conduct that is really at the very core of what Madison was concerned about.

So our submission is that that really makes no sense. There's no basis in history, for example, for the Government's claim that Executive Branch decisions are somehow different and insulated with respect to spending. It's the spending of the same three pence, and if history indicates anything it's that concerns about establishment were focused just as much on the King as on the Parliament in terms of the history that the framers understood. And for the idea that the executive would be given free rein to exercise discretion with respect to spending and there would be no concern about the types of injuries that gave rise to Flast we think is just not right.

The Solicitor General got the last word. Interestingly, he may have helped his opponent’s argument by helping define "incidental":

GENERAL CLEMENT: Now, I think in trying to understand the Court's cases you really have to focus on this word "incidental." And I think that the colloquy in the second half of the argument shows that you can't look at incidental as being minimal. It doesn't mean that. It doesn't mean minimal. It doesn't mean incremental. It is trying to distinguish an incidental expenditure of funds … as to something where the expenditure of funds is central or vital to the establishment clause violation. In the context of money going to third party religious entities, nobody would say that the spending is incidental. It's the whole violation. In the context of Bible reading or anything else the Executive Branch does, the fact that money went to fund the Executive Branch to violate the establishment clause is the least of the problems. The problem is the primary conduct of the Executive Branch in violating the establishment clause, but that's not a spending injury. The funding that goes into that is incidental. I think that's the way to make sense of this Court's cases.

But then the Solicitor General deliberately invited the Court to tie the merits of the case to the standing question, and in so doing, he mischaracterized the nature of the suit:

GENERAL CLEMENT: It's important to emphasize what's at issue here. It's not a general challenge to the Faith-Based Office. It's not a challenge to the name of the office. It is a challenge to the particular offices and the assertion that the Executive Branch officials at the conferences spent too much time talking about faith-based groups and not enough talking about community-based groups. If that isn't intrusive on the Executive Branch, I don't know what is.

 

[a_unique_person]

Is it possible for the the point to be made in words of two syllables or less for the Gamma delta minus types here?

 

[EvilSmurf]

What the Supreme Court Arguments in part 2 and 3 appear to be about is "Do taxpayers have the standing to bring suit against the Government for using their tax dollars in violation of the establishment clause?"

What it looks like to me is that the Supremes are using standing issues to avoid giving opinions on the merits of these cases.

 

[shanek]

Question: given the separation of powers in the Constitution, how can the EPA possibly have any sort of ability, much less requirement, to regulate anything that hasn't first been passed as a law by Congress? Congress legislates; the EPA is part of the executive branch. If emissions are to be controlled, it must first be from an act of Congress.

The Supreme Court not only dropped the ball, they set a very dangerous precedent, IMO. They're basically saying that not only can the executive act unilaterally without an act of Congress, but that, at least in certain cases, they must.

 

[a_unique_person]

What the Supreme Court Arguments in part 2 and 3 appear to be about is "Do taxpayers have the standing to bring suit against the Government for using their tax dollars in violation of the establishment clause?"

What it looks like to me is that the Supremes are using standing issues to avoid giving opinions on the merits of these cases.

Like I said, some of us have no idea what is going on here. The establishment clause is a reference to religion, what does that have to do with a government body?

 

[drkitten]

Question: given the separation of powers in the Constitution, how can the EPA possibly have any sort of ability, much less requirement, to regulate anything that hasn't first been passed as a law by Congress? Congress legislates; the EPA is part of the executive branch. If emissions are to be controlled, it must first be from an act of Congress.

And, of course, as we all know, the Clean Air Act did not originate in Congress, but was found hiding in the back of a sound stage in Burbank, California.

Shane, have you ever gotten the factual basis for a legal argument right? Have you ever even gotten it plausibly and non-transparently wrong?

 

[shanek]

And, of course, as we all know, the Clean Air Act

does not cover CO2. This is what the EPA claimed, and this was not refuted either by the opposing side or by the court itself. The CIA isn't carte blanche for the EPA to regulate whatever it feels like.

The court didn't say that the EPA had to regulate it if they found a sound, scientific basis for doing so, as the CIA requires. They said that the EPA couldn't not regulate it unless they found scientific evidence that it isn't! Anyone with a modicum of scientific understanding can tell you the problem with that, and anyone with a modicum of legal understanding can tell you that this is a very dangerous thing.

Get beyond the blinders caused by you agreeing with regulating greenhouse gases, get that issue out of your head, and look at what the court did in general. Now imagine this being applied to, well, practically anything else.

 

[SezMe]

What it looks like to me is that the Supremes are using standing issues to avoid giving opinions on the merits of these cases.

Exactly. Brown, correct me if any of the following is wrong. IANAL

In Newdow, the issue of standing had been addressed in the many lower court rulings, the outcome of which was that Dr. Newdow did, in fact, have standing. Rarely do the Supremes overrule lower courts on standing but did in Newdow because, IMO, they did not to touch the "under god" part of the pledge because they would have to rule in Mike's favor. After which the poop would have really hit the fan in the USA. Thus, standing was used, as Brown notes, to (not) decide the merits of the case.

 

[SezMe]

does not cover CO2.

... NOT.

Under the CAI (not the CIA, Shane) the EPA is required to establish criteria pollutant standards. In other words, it is their job to identify the pollutants and the standards that should be applied to them. Bush's Clear Skies Initiative covered only three pollutants (SO2, NOx, and mercury) and ignored CO2. But that did not remove CO2 under the broader CAI originating legislation.

 

[shanek]

Under the CAI (not the CIA, Shane)

CAA, actually. We both get smited by the typo gods on this one...

Read the act: SO2, NOx, and mercury all have adverse human health risks. That's required by the act in Title I. It only deals with human health risks, ozone, and air quality as it relates to low-atmosphere pollutants in urban areas. Nothing to do with the global climate.

Title II deals with motor vehicle standards. The only part that has to deal with low emissions standards is Section 212, which was repealed by Congress.

Title III is just the supporting stuff and doesn't specify any particular pollutants or areas the way Title I does.

There's just nothing in there that says they can reduce emissions that affect the global climate. The remedy here is NOT what the court did; it's Congress amending the act to include CO2, greenhouse gases, or increasing the scope to the global climate. It would be bad enough if the executive could just assume new laws of their own; it's even worse having the court mandate that.

Again, separate yourself from the issue of global climate change and look at this from a legal precedent standpoint. Then tell me it's not a bad thing.

 

[davefoc]

does not cover CO2. This is what the EPA claimed, and this was not refuted either by the opposing side or by the court itself. The CIA isn't carte blanche for the EPA to regulate whatever it feels like.

The court didn't say that the EPA had to regulate it if they found a sound, scientific basis for doing so, as the CIA requires. They said that the EPA couldn't not regulate it unless they found scientific evidence that it isn't! Anyone with a modicum of scientific understanding can tell you the problem with that, and anyone with a modicum of legal understanding can tell you that this is a very dangerous thing.

Get beyond the blinders caused by you agreeing with regulating greenhouse gases, get that issue out of your head, and look at what the court did in general. Now imagine this being applied to, well, practically anything else.

This is from section 112 of the 1990 clean air act:

(2) Revision of the list.- The Administrator shall period-
ically review the list established by this subsection and
publish the results thereof and, where appropriate, revise
such list by rule, adding pollutants which present, or may
present, through inhalation or other routes of exposure, a
threat of adverse human health effects (including, but not
limited to, substances which are known to be, or may reason-
ably be anticipated to be, carcinogenic, mutagenic,
teratoge-nic, neurotoxic, which cause reproductive
dysfunction, or which are acutely or chronically toxic) or
adverse environ-mental effects whether through ambient
concentrations, bioac-cumulation, deposition, or otherwise,
but not including re-leases subject to regulation under
subsection (r) as a result of emissions to the air. No air
pollutant which is listed under section 108(a) may be added
to the list under this section, except that the prohibition
of this sentence shall not apply to any pollutant which
independently meets the listing criteria of this paragraph
and is a precursor to a pollutant which is listed under
section 108(a) or to any pollutant which is in a class of
pollutants listed under such section. No substance,
practice, process or activity regula-ted under title VI of
this Act shall be subject to regulation under this section
solely due to its adverse effects on the environment.

from:http://www.epa.gov/air/caa/caa112.txt

It seems like this might address your issue Shanek. CO2 is not in the original list but the EPA is required to revise the list where it finds that a pollutant might have adverse environmental affects.

So the argument, besides standing, is whether the EPA can choose to not investigate a potential pollutant as a way of keeping it off the list. I guess five of the justices thought that the EPA was so required and that the states had standing to sue and four of the justices decided that the states didn't have standing without deciding whether the EPA would be required to determine if the EPA was required to investigate CO2.

 

[shanek]

This is from section 112 of the 1990 clean air act:

And Section 112 is under, what? Hmm, looks like, Title I. And it specifically deals with hazardous air pollutants, greenhouse gases do not apply. And read Paragraph 7: "Adverse environmental effect. - The term "adverse environmental effect" means any significant and widespread adverse effect, which may reasonably be anticipated, to wildlife, aquatic life, or other natural resources, including adverse impacts on populations of endangered or threatened species or significant degradation of environmental quality over broad areas." That's broad, but not anywhere near broad enough to cover the global climate. They're talking about hazardous gases that threaten specific populations or ecosystems.

Just look at the list under Subsection b. They list a LOT of pollutants. CO2 ain't in there. And it specifies that they can add to the list, as long as it satisfies the following criteria: threat of adverse human health effects, or adverse environmental effects, again as it applies to wildlife or ecosystems.

Again, the only part of the act that has a global scope is Title VI, and that deals specifically with stratospheric ozone.

They just don't have the power to put greenhouse gases in the list. Congress needs to amend the act in order for them to do that.

 

[SezMe]

I don't think that titles of sections control the contents of that section. Can we get a legal opinion on this?

 

[Kerberos]

I don't think that titles of sections control the contents of that section. Can we get a legal opinion on this?

I'm not an expert, even on Danish law, but IMO titles couold be used to govern how the text was intepreted because they, along with other factors, could help determine the intent of the law. Of cause the text itself would be far the msot important factor.

 

[Brown]

Exactly. Brown, correct me if any of the following is wrong. IANAL

In Newdow, the issue of standing had been addressed in the many lower court rulings, the outcome of which was that Dr. Newdow did, in fact, have standing. Rarely do the Supremes overrule lower courts on standing but did in Newdow because, IMO, they did not to touch the "under god" part of the pledge because they would have to rule in Mike's favor. After which the poop would have really hit the fan in the USA. Thus, standing was used, as Brown notes, to (not) decide the merits of the case.

The standing question in Newdow was a little different from most standing questions, because it hinged upon "prudential standing" rather than "Article III" or "constitutional" standing. See this thread for a discussion of the difference and how it affected the Court's approach to the issues.

As I wrote in that thread:

A decision on the merits would have required the Court to interfere with matters of family law, which could affect not just the parties to the case but the millions of family law cases already pending in state courts. In short, the case wasn't "clean" enough for a decision on the merits.

Avoiding an issue on the basis of prudential standing is one thing. There is less to complain about when the Court says it won't address an issue because of problems with prudential standing.

But "Article III" standing is something else. As a general principle, the Court should not raise or lower the constitutional standing bar depending upon how a majority wants the outcome of the case to be.

In the Hein case, several justices have expressed an inclination favoring the Bush administration, and may think that the Bush folks ought to win the case on the merits. But the merits are not presented to the Court. Rather, the Court is presented with only the question of standing. (This is an inherent limitation on judicial power: the Court can only address questions that are properly presented to it. Basically the Court has to wait for issues to come to it. Subject to some exceptions, the Court cannot address issues that are not properly before it for resolution. To do so would be, in the minds of some individuals anyway, dreaded "judicial activism.")

Consequently, the only impact the Court can have on the litigation right now is on the question of standing. It may be tempting for justices that have inclinations favoring the Bush administration to nip the suit in the bud, and give the Bush administration the win. This win would shield the Bush administration even if the acts of the administration were unconstitutional in the extreme. If the Court gave the Bush administration the win right now, the suit would be over, the Bush administration would be safe, and it could unconstitutionally fund whatever religious programs it wanted, and taxpayers would have no right to object to any flagrant unconstitutional misuse of their three pence.

Some members of the Court, such as Justices Scalia and Breyer, recognized that the precedent set in this case would affect other Establishment Clause cases, including cases in which the Establishment Clause problems are much more serious. If the Bush administration wins here, the Executive Branch could overtly and expressly use tax dollars toward establishing religion, and as long as it acted without unfair discrimination, nobody would have a right to challenge such blatant violations of the Establishment Clause in court. Nobody.

 

[Meadmaker]

I'm going to wade in and see how good I am at reading Supreme Court stuff. Brown, correct me if I'm wrong, please.


It seems to me that the issue here is whether a taxpayer has standing to sue in a case like this, and the Bush administration is arguing they do not.

The precedent from Flast is that taxpayers do have standing to sue when the government breaks the establishment clause in such a way that taxpayer dollars are spent in supporting religion. So, the Bush administration would have to argue that somehow, the precedent doesn't apply. They appear to be doing so in two ways.

First, they appear to be saying that sincethe Executive branch is spending the money, as opposed to Congress appropriating the money for religious purposes, it isn't the same as in Flast. This argument seems destined to fail. As Scalia noted, it really doesn't matter which branch of government spends the money. The taxpayer is harmed when his money is spent, regardless of the specific path the money took to be spent.

The second way the Bush administration is arguing is that the expenditure of funds for religious purposes is incidental, not specifically for religious purposes. This one seems to me less open and shut. The Office of Faith Based and Community Initiatives is not tasked with appropriating money to religious groups, or in support of religion. It is tasked with providing money to organizations who provide charitable services. Many of those are already performing the same services with private funds, the government is just contracting them to do the same stuff, but with public funds. Strings are attached in this case to separate the religious purpose of the organization, if any, from the charity work. If that is truly the case, then any support of religion is indeed incidental, and if precedent says a taxpayer cannot sue for such incidental support, then the government has a point.

In the discussion, the case of government building a church came up. This case differs in a couple of ways. If Congress appropriates funds for church building, then a taxpayer can sue. Everyone agrees. If Congress gives money for some purpose to the Executive branch, and the money gets used to build a church, it seems almost as if the Solicitor General is arguing that this is different, but that's the argument doomed to fail, if I read things correctly. However, this case is different. This is a case where the government is appropriating money for the construction of meeting rooms, and they happen to be employing Joe's Church-Building service for the job, which Church-Building service is specifically in exixtence for the purposes of building Christian churches. In other words, government has a service they want performed. That service is secular. They are allowing a religious organization, Joe's Church-Builders, to apply for the contract.

So, does a taxpayer have standing in that case? It seems not, because the support of religion is incidental. It could be argued that Joe's Church Builders will benefit financially, and they can then use that money to advance religion. However, precedent (apparently) says that there is no standing for sucn indirect support. Therefore, the standing issue would be the same, and there would be no standing in this case.

Who, then, could sue? Well, if the meeting room business seemed to go only to churches and organizations like Joe's, a non-religious contractor could sue on the grounds that he was entitled to a contract, but deprived of it for not being religious, or of the correct religion. In the case of Faith Based and Community Initiatives, a non faith based provider could sue if they got passed over for a government contract.

The difference is that the work performed by the Office of Faith Based and Community Initiatives is (allegedly) not religious work. A taxpayer can't sue for misuse of his funds, because his funds aren't being misused. Everyone agrees that the work can be done. He's not suing because his three pence are being misappropriated. He is suing because a religion is benefitting from the appropriate of his three pence. That;s a different situation, and precedent apparently supports the government case in that situation.

In order to grant standing, the court would have to find that the mere inclusion of religious organizations in the list of those people who could be providers of government services constitutes a misappropriation of funds. It seems unlikely the court will find that, and so it seems that the standing argument might hold up after all.

If it were alleged that community organizations were being passed over, in favor of faith based organizations, then anyone harmed by that policy could, perhaps, sue. However, who is harmed when Catholic Charities get a bigger slice of government funds than they deserve? It's not the taxpayer. His funds are being spent appropriately for services, it's just that the wrong providers are getting the money. So, a contractor who was passed over would still have standing, but a taxpayer would not.