No. 06-157
In the Supreme Court of the United States
JAY F. HEIN, DIRECTOR, WHITE HOUSE OFFICE OF FAITH-BASED AND COMMUNITY INITIATIVES, ET AL., PETITIONERS
v.
FREEDOM FROM RELIGION FOUNDATION, INC., ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
REPLY BRIEF FOR THE PETITIONERS
PAUL D. CLEMENT
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
Respondents' brief reads as if taxpayer standing is the rule under our Constitution, not a narrow exception. But the "general rule" is that taxpayers lack standing to challenge government action, no matter how unconstitutional they may allege it to be. Bowen v. Kendrick, 487 U.S. 589, 618 (1988). That principle is firmly grounded in Article III and the sepa ration of powers. See Daimler-Chrysler Corp. v. Cuno, 126 S. Ct. 1854, 1860-1864 (2006). In Flast v. Cohen, 392 U.S. 83 (1968), the Court recognized a narrow exception to that rule for a limited subset of Establishment Clause challenges. In so doing, the Court specifically declined the suggestion of Justice Douglas to allow all taxpayer suits, see id. at 107-114, and of Justice Fortas to allow taxpayer suits for all Establish ment Clause claims, id. at 115-116. Instead, this Court in Flast and in the four decades since has carefully confined taxpayer standing to suits that meet two criteria. First, the suit must challenge "only * * * exercises of congressional power under the taxing and spending clause of Art. I, § 8, of the Constitution." Id. at 102 (emphasis added). Second, the challenge must seek to vindicate the Establishment Clause's specific limitation on that congressional power. Ibid.; see DaimlerChrysler, 126 S. Ct. at 1864.
Respondents seek to discard both prongs and subsume the standing inquiry into a single question of traceability. But this Court has never conceptualized the Flast nexus require ments as a traceability standard. In any event, respondents clearly have something much grander than the mere recon ception of existing limits in mind. Their effort to recast tax payer standing doctrine as a traceability requirement appears designed to water down the requirements of Flast sufficiently to allow their suit to proceed. Their traceability test, how ever, offers nothing of substance to distinguish their current challenges from those they have apparently abandoned (such as their initial complaint alleging an Establishment Clause violation based on a single speech by the Education Secretary) or from any other Executive Branch action financed by appropriations. Respondents prudently abandon even the Seventh Circuit's de minimis exception (Br. 20 n.6), but fail to explain why their traceability standard does not allow tax payer standing to challenge each and every Executive Branch action alleged to violate the Establishment Clause.
Rather than replace something with nothing, this Court should reaffirm the limited nature of the Flast exception. Flast recognized a narrow exception for exercises of congres sional taxing and spending authority that, by transferring government largesse to outside entities for religious use, could be conceived of as the functional equivalent of state- compelled tithes. Both this Court's precedent and the consti tutional commands of Article III preclude any expansion of taxpayer standing beyond that specific context. And respon dents, who allege that Executive officials are unlawfully par ticipating in conferences and making speeches that are funded in the most indirect means through general appropriations, have not come close to satisfying Flast's established elements, much less the requirements of Article III.
A. Flast Is Carefully Limited To Challenges To Congress's Exercise Of Its Taxing And Spending Power
1. History and Precedent Require a Challenge to Congressional Power
Five times this Court has addressed the elements of tax payer standing under Flast and five times this Court has held that an indispensable element is a challenge to Congress's taxing and spending power.1 That is the "only" type of suit permitted. Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 479 (1982); Flast, 392 U.S. at 102. Where, by contrast, responsi bility for the allegedly unconstitutional conduct lies in the exercise of Executive Branch power, taxpayer standing has been denied. A constitutional objection to "a particular Exec utive Branch action arguably authorized by [an] Act [of Con gress]" will not suffice. Valley Forge, 454 U.S. at 479.2 In deed, this Court in Valley Forge was clear that the challenge there "[was] deficient in two respects:" not just that the only congressional authority at issue was the Property Clause, but also the simple fact that the target of their challenge was "not a congressional action," but an executive action. Ibid. More over, the Court has repeatedly rejected standing for chal lenges to executive actions, notwithstanding that all of the challenged Executive Branch activities necessarily entailed the use and expenditure of appropriated funds.3
The restriction of taxpayer standing to challenges to con gressional taxing and spending is constitutionally compelled. Taxpayers generally lack Article III standing. See Pet. Br. 12-16. Flast found Article III satisfied only with respect to a "specific evil[] feared by those who drafted the Establishment Clause," which was that Congress's taxing and spending power would be used to "force a citizen to contribute three pence only of his property for the support of any one estab lishment." 392 U.S. at 103. Although other government action-congressional or executive-can violate the Establish ment Clause, only congressional exercises of the taxing and spending power to bestow government largesse on the reli gious activities of others can give rise to Article III standing for a taxpayer.
Under Flast, that particular form of congressional action provides a basis for taxpayer standing not because it is more serious or obvious than other alleged Establishment Clause violations. After all, it is clear that even a joint resolution declaring one denomination the national religion would not give rise to taxpayer standing. Rather, congressional taxing and spending alone can give rise to Article III standing for a taxpayer because that particular governmental action is anal ogous to a state-compelled tithe, which not only was a princi pal concern of the Framers, but also is a practice that has a distinct nexus to taxpayer status.4 The Court in Flast accord ingly held that only when a taxpayer seeks to vindicate, not the Establishment Clause writ large, but that "specific consti tutional limitation[] imposed upon the exercise of the congres sional taxing and spending power," 392 U.S. at 103, an Article III injury in fact arises, id. at 102-103.
Respondents' answer to that body of precedent demarcat ing the narrow, historic bounds of taxpayer standing is to deny its existence. First, respondents insist (Br. 22) that "Flast v. Cohen did not present a challenge to congressional action." This Court held the opposite. See 392 U.S. at 85 ("In this case, we must decide whether the Frothingham barrier should be lowered when a taxpayer attacks a federal statute on the ground that it violates the Establishment and Free Ex ercise Clauses of the First Amendment.") (emphasis added).5 While the Court noted that the complaint also included a "nonconstitutional ground for relief"-a statutory argument that federal officials' authorization of payments "are in excess of their authority under the Act"-the Court expressly rested its jurisdiction (and that of the three-judge court below) on the inclusion of an "alternative and constitutional ground for relief, namely, a declaration that * * * the Act is to that extent unconstitutional and void." Id. at 90.6
Second, respondents argue (Br. 25-28) that Bowen v. Kendrick opened the door to taxpayer suits challenging dis cretionary Executive Branch activities. But Kendrick ex pressly "adhered to Flast" and reiterated that Flast standing is limited to Establishment Clause challenges to "exercises of congressional power under the taxing and spending power." 487 U.S. at 618. The Court also repeated that "a challenge to executive action" would not support taxpayer standing and, for that reason, the Court was at pains to describe the taxpay ers' as-applied constitutional claim as "a challenge to congres sional taxing and spending power." Id. at 619.
To that end, the Court stressed that the taxpayers' chal lenge remained focused, on "funding authorized by Congress [that] has flowed" to outside entities and "be[en] dis bursed"-not pursuant to Executive Branch discretion-but "pursuant to the [Act]'s statutory mandate." Kendrick, 487 U.S. at 619-620. The statute was "at heart a program of dis bursement of funds pursuant to Congress's taxing and spend ing powers." Id. at 619-620. Indeed, the statutory text itself made four references to the involvement of outside religious groups, id. at 595-596, and the Court viewed it as obvious that taxpayers had standing to challenge the Act on its fact, id. at 618. All Kendrick held was that the fact that the Executive Branch played a necessary part in putting that "[statutory] program of disbursement" into effect by disbursing funds to particular recipients did not make the as-applied challenge to the statute "any less a challenge to congressional taxing and spending power." Id. at 619, 620; see id. at 620 (finding "a sufficient nexus between the taxpayer's standing as a tax payer and the congressional exercise of taxing and spending power, notwithstanding the role the Secretary plays in admin istering the statute").7
Here, by contrast, there is no statutory mandate-much less any "[statutory] program of disbursement," Kendrick, 487 U.S. at 619-for taxpayers to challenge. The best that re spondents can point to is a non-discrete set of "Congressional budget appropriations." Br. 32. But respondents' complaint is not with those general appropriations, but with the discre tionary actions of the Executive Branch. Nor does the chal lenge before this Court take issue with any congressionally directed disbursements to outside entities that fit Flast's his toric paradigm for taxpayer injury. Unlike the plaintiffs in Kendrick, respondents here have utterly failed to identify any "direct dollar-and-cents injury" (Doremus, 342 U.S. at 434) that confers standing.
2. Respondents Do Not Challenge the Constitutionality of Federal Law As Applied
The fundamental flaw in respondents' argument is that it equates an as-applied challenge to an Act of Congress with a challenge to the Executive Branch's discretionary use of gen eral appropriations. See Resp. Br. 32-34. In respondents' view, challenges to the constitutionality of an Executive Branch action that entails the "spending of funds" (id. at 27)-which is essentially everything the Executive does-is the equivalent of an as-applied challenge to an appropriations law. That argument is foreclosed by precedent, common ex perience, and Article III's constitutional command.
a. Precedent
The Court's decision in Valley Forge squarely rejected the argument that the Executive Branch's "spending of funds" (Resp. Br. 27) is sufficient to support taxpayer standing. "[T]he expenditure of public funds in an allegedly unconstitu tional manner is not an injury sufficient to confer standing, even though the plaintiff contributes to the public coffers as a taxpayer." 454 U.S. at 477; see id. at 479 n.15 (objecting to "a particular Executive Branch action arguably authorized by [an] Act [of Congress]" will not support standing). That lan guage was not accidental. The Court expressly considered and rejected the contention that the taxpayers' standing to bring suit "extends to the Government as a whole, regardless of which branch is at work in a particular instance, and re gardless of whether the challenged action was an exercise of the spending power." Id. at 484 n.20 (emphasis added).
This case presents an a fortiori application of Valley Forge. The challenged use of taxpayer money here is for the discretionary administrative expenses associated with the day-to-day activities of government officials (such as salaries and resource costs). See Pet. Br. 26 n.8; Pet. App. 73a-77a. Unlike Valley Forge-where the government conveyed a 77- acre tract of land to a Christian college, 454 U.S. at 468-in this case there is no allegation that petitioners disbursed any federal funds, property, or other form of governmental lar gesse to entities outside the government. The most that is alleged is that Executive officials' conduct was intended to create a "climate conducive to funding." Pet. App. 76a. Fur thermore, while meetings and discussions between govern ment officials and religious groups are commonplace and un objectionable (see Pet. Br. 39-41 & n.13), preferential govern mental grants of land (glebes) to religious entities for their religious use was as much a hallmark of established religions as support through taxation.8
In addition, the Executive Branch activity at issue in Val ley Forge involved the devotion of substantial agency re sources to evaluating property and determining whether use of the property by a religious or secular entity would provide "the greatest public benefit," Valley Forge, 454 U.S. at 466- 467 & n.4 (citing 34 C.F.R. 12.5, 12.9(a) (1980)), as well as monitoring its use after the transfer, 80-327 J.A. 15. Under that program, the government had authorized more than 650 different transfers of surplus government property to reli gious institutions, the fair market value of which (in toto) amounted to nearly $26 million.9
Respondents summarily dismiss Valley Forge as involving the use of taxpayer funds for administrative expenses that "would not have been 'fairly traceable' to the challenged con duct" (Br. 37-38). That argument only serves to underscore the arbitrary nature of respondents' "traceability" inquiry. The taxpayer dollars spent to purchase and improve the land was a matter of record, U.S. Br. 5-6, Valley Forge, supra (No. 80-327), and the identities of the committees of agency offi cials and agency activities involved in the transfer decision and process (such as conducting land surveys and economic studies) were known or at least sufficiently knowable to trace some taxpayer dollars to the program, see id. at 22 n.11; J.A., Valley Forge, supra, 13-15 (No. 80-327). At a minimum, the surplus property program provided substantially more hard data for identifying the expenditure of taxpayer funds than discerning what portion of agency salaries and day-to-day administrative expenditures might have been employed with the "inten[t] to preferentially promote" an allegedly unconsti tutional funding "climate." Pet. App. 76a.10
Respondents' theory that an as-applied challenge to a stat ute and a challenge to the Executive's discretionary or regula tory activity are fungible is also wholly incompatible with Doremus v. Board of Education. In Doremus, the Court, in a decision by Justice Jackson, rejected taxpayer standing to challenge a state statute that enlists teachers in the reading of the Bible to students during the school day. 342 U.S. at 434. While the teachers' salaries and purchase of the Bibles were funded with tax dollars, the Court rejected the notion that the plaintiffs suffered any injury as taxpayers, explaining that "the grievance which it is sought to litigate here is not a direct dollar-and-cents injury but is a religious difference." Ibid. The Court was careful to preserve Doremus in Flast, as an example of a program that inflicts a regulatory injury, rather than a dollars-and-cents injury. See Flast, 392 U.S. at 102. The taxpayers challenge in this case to the actions of Executive officials at conferences is no more a "good-faith pocketbook action" (Doremus, 342 U.S. at 434) than the chal lenge asserted unsuccessfully in Doremus.11
b. Established Usage
Respondents' effort to blur the distinction between as-ap plied challenges to statutes and challenges to Executive ac tions ignores established practice. In the typical as-applied challenge, a plaintiff challenges the application in a particular context (usually, but not always, by virtue of some executive act of enforcement) of statutory terms, conditions, and prohi bitions chosen by Congress to accomplish particular legisla tive goals.12 Thus, pursuant to the statutory program at issue in Kendrick, Congress specifically directed the inclusion of religious entities, see 487 U.S. at 593-596 (discussing statu tory provisions), and the as-applied challenge for which the Court found standing focused on the constitutionality in ac tual operation of "the partnership between governmental and religious institutions contemplated by the AFLA," id. at 623 (O'Connor, J., concurring) (emphasis added).
Respondents have brought no such as-applied challenge in this case. They do not argue that the general criteria that accompany lump-sum appropriations to the Executive Branch are unconstitutional either on their face or as applied. Re spondents have not even identified the specific appropriations laws pursuant to which the activities at issue here were alleg edly funded (Pet. App. 10a), let alone taken issue with the application of express statutory criteria in a particular con text. The best that respondents have mustered (Br. 32) is an allegation that "Congressional budget appropriations" are somewhere in the picture. But the Executive Branch's discre tionary judgment concerning "[t]he allocation of funds from a lump-sum appropriation is an[] administrative decision tra ditionally regarded as committed to agency discretion." Lin coln v. Vigil, 508 U.S. 182, 192 (1993). Indeed, it is "a funda mental principle of appropriations law" that, when Congress "appropriates lump-sum amounts without statutorily restrict ing what can be done with those funds, a clear inference arises that it does not intend to impose legally binding restrictions." Ibid. Under those circumstances, it is clear that respondents' challenge, like that of the plaintiffs in Valley Forge and Doremus, is a challenge to Executive action, not a challenge -either facial or as-applied-to a taxing and spending deci sion of Congress.
Moreover, when a challenge shifts from the actual applica tion of a statute in a concrete setting to the general actions of the Executive Branch, the prospects for litigating non-final, unripe, or abstract disputes rises substantially. An important function of the traditional Article III requirements is to en sure that only concrete disputes are litigated. See, e.g., Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 221-222 (1974).13
c. Constitutional Limits
For four decades, historical experience has defined and set the contours of Flast's narrow exception to Article III's gen eral prohibition on taxpayer standing. See DaimlerChrysler, 126 S. Ct. at 1864-1865. Flast was careful not to hold that the Establishment Clause itself, in all of its applications, warrants an exception to Article III. Courts have no authority to sus pend Article III's constitutional limitations on their own juris diction, and the Establishment Clause itself has no greater claim to judicial enforcement than any other provision of the Constitution. Flast accordingly established its dual require ments that taxpayers (i) challenge Congress's exercise of its taxing and spending power, and (ii) allege a violation of a spe cific constitutional limitation on that power to ensure that its exception for taxpayer standing corresponded directly with the historic right not to "contribute three pence * * * for the support of any one [religious] establishment," 392 U.S. at 103. Respondents, like the court of appeals, would unravel both of these settled limits and thus would unmoor the Flast excep tion from any conceivable connection to Article III.
First, respondents would reduce the initial Flast prong to a pleading ritual. Because virtually all Executive (and Judi cial) Branch activities entail the "spending of [taxpayer] funds" (Resp. Br. 27), the only real limitation on taxpayer suits that respondents would recognize would be a require ment that the Establishment Clause be invoked. The court of appeals attempted to limit that breach in Article III by adopt ing a "marginal or incremental cost" exception to taxpayer standing, Pet. App. 12a. But that approach is so constitution ally indefensible-Madison's objection was to a tithe of a mere three pence-and administratively impracticable (see Pet. Br. 36-38) that respondents themselves have abandoned it and candidly acknowledge that "the size of the expenditure" is not "relevant" (Br. 20 n.6).
Respondents propose in its place (Br. 19-21, 27, 33) their ill-defined traceability test. There are several problems with that approach. To begin with, this Court has never conceived of its taxpayer standing cases as being primarily about trace ability. See, e.g., Valley Forge, 454 U.S. at 480 n.17 (prefacing the Court's discussion of the "at best speculative and at worst nonexistent" nature of the "connection between the chal lenged property transfer and respondents' tax burden" as "not necessary to our decision"); id. at 497 n.10 (Brennan, J., dissenting) ("[T]he cases in which a tenuous causal connection between the injury alleged and the challenged action formed the basis for denying plaintiffs standing do not control the case of a taxpayer challenging a Government expenditure.").
Furthermore, traceability is just one of the "requisite" standing elements. A plaintiff still must demonstrate an in jury in fact, as well as redressability. DaimlerChrysler, 126 S. Ct. at 1861; see Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992). Taxpayers generally lack standing to challenge government policies they dislike because they lack all three of Article III's irreducible minima for standing, in cluding but not limited to the reality that any alleged injury stemming from the use of federal tax money alone is not meaningfully traceable to individual taxpayers. More di rectly, a federal taxpayer's "interest in the moneys of the Treasury . . . is shared with millions of others," is "compara tively minute and indeterminable," and "remote, fluctuating, and uncertain." DaimlerChrysler, 126 S. Ct. at 1862 (quoting Frothingham v. Mellon, 262 U.S. 447, 487 (1923)). Respon dents utterly fail to explain what makes their current com plaint any more traceable than the "injuries" from a single speech of the Education Secretary, as featured in their origi nal complaint, Pet. App. 73a-75a, or any other Establishment Clause claim that involves some expenditure of public funds. Indeed, respondents simply declare, without explanation (Br. 47-48), that taxpayer funds cannot be traced to "[s]peeches and meetings of executive branch personnel," but can be traced to speeches or discussions and meetings at confer ences, at least if they are alleged to generate an impermissi ble "climate." Pet. App. 76a; see Resp. Br. 21.14
Flast's rationale did not and could not rest on any assump tion that tax dollars impermissibly spent on religious activity are any more traceable or identifiable than tax dollars spent on any other allegedly unconstitutional activity. Flast instead rested on the notion that challenges to congressional decisions to use tax dollars to fund outside religious groups present a sufficiently discrete and concrete injury to satisfy Article III, in the same manner that a state-imposed tithe would give taxpayers qua taxpayers a cognizable injury.
In the same vein, respondents would replace the require ment that the taxpayer identify a "specific constitutional limi tation[] imposed upon the exercise of the congressional taxing and spending power," Flast, 392 U.S. at 103 (emphasis added), with the requirement that the taxpayer simply iden tify a constitutional limitation upon the federal government. That is because what would make Executive Branch action unconstitutional (if respondents' allegations were correct and if they stated an Establishment Clause violation) would not be the Establishment Clause's specific limitation on Congress's taxing and spending power (as would be the case in an as-ap plied challenge to a spending statute), but the Establishment Clause's direct application to the Executive Branch itself. Stated another way, what would make the examples of reli gious discrimination and proselytization that respondents cite (Br. 29-30) unconstitutional would not be the specific Estab lishment Clause limitation on congressional power referenced in Flast, but the Establishment Clause's independent limita tions on the Executive Branch.15
This Court has already rejected the notion "that enforce ment of the Establishment Clause demands special exceptions from [Article III's standing requirements]." Valley Forge, 454 U.S. at 488. And while respondents and their amici can imagine long lists of things the Executive Branch could do to violate the Establishment Clause, this Court has identified only one injury that confers taxpayer standing under Article III: The tandem legislative authority to "'extract[] and spend[]' * * * 'tax money' in aid of religion." Daimler Chrysler, 126 S. Ct. at 1865 (emphasis added). The Executive Branch has no capacity to "extract and spend" taxpayer money. The Executive Branch (like the Judicial Branch) has no independent capacity to extract taxes from taxpayers, and it can only spend taxpayer funds as Congress permits. See U.S. Const. Art. I, § 9, Cl. 7; OPM v. Richmond, 496 U.S. 414, 424-434 (1990).
Finally, respondents argue (Br. 41-42) that abandoning Flast's established criteria for taxpayer standing is necessary because the Framers did not contemplate that appropriations laws would afford the Executive Branch substantial discre tion. That is wrong. "[T]he First Congress made lump-sum appropriations for the entire Government," and "[e]xamples of appropriations committed to the discretion of the President abound in our history." Clinton v. City of New York, 524 U.S. 417, 466, 467 (1998) (Scalia, J., concurring in part and dissent ing in part); accord id. at 446 (majority opinion); id. at 470 (Breyer, J., dissenting); see also Cincinnati Soap Co. v. United States, 301 U.S. 308, 322 (1937).
B. Flast Is Limited To Challenging Congressionally Di rected Disbursements Of Funds Outside The Government
The historic experience upon which the Flast exception rests implicated not just the congressional power to tax and spend, but a particular application of that power-decisions of the legislature to move money from the pocket of one tax payer into the hands of another to support religious exercise. See Pet. Br. 38-45. Moreover, legislative actions that are the functional equivalent of state-compelled tithing not only were of distinct historic concern, but also present a clear nexus between the Establishment Clause injury and the status of taxpayers qua taxpayers. The exception recognized in Flast and Kendrick, therefore, is limited to the "disbursement of funds," Kendrick, 487 U.S. at 619, to entities outside of the government, not financing the operations of the Executive Branch. Indeed, that is precisely how Justice Harlan under stood the Flast exception to operate. See, e.g., Flast, 392 U.S. at 122-123 (noting that the majority would distinguish be tween two programs involving equal expenditures because one is regulatory and the other involved "direct grants-in- aid"); see also Valley Forge, 454 U.S. at 511 (Brennan, J, dis senting) (noting that "the essential requirement of taxpayer standing recognized in Doremus" and Flast is a complaint not just about spending, but about "the distribution of Govern ment largesse").
Respondents argue (Br. 42-45) that established religions entailed more than the extraction of taxes to subsidize the preferred church, and that taxpayer standing is necessary to ensure that the government is not "free to use taxpayer funds itself to establish religion" directly rather than through third parties (Br. 44). The Republic has survived more than 200 years without any effort on the part of the Executive "itself" to "build a church and make the facility available to a chosen religion" (Br. 44), and without the threat of taxpayer standing to challenge such an establishment. But in any event, that argument is simply a variant of the long-since rejected theory that "the Establishment Clause demands special exceptions from [Article III]." Valley Forge, 454 U.S. at 488.
In addition, as the amici Legal Historians explain (Br. 27), the Constitution's separation of powers "left no fear that the executive would ever be free independently to authorize the use of taxpayer dollars" for religious purposes. Amici are no doubt correct that, if the Framers had perceived Executive establishment as a serious threat, they would not have been indifferent. But, while that observation might be an answer to an argument that the Establishment Clause does not apply to actions of the Executive Branch, no one is making that ar gument here. And the observation that Establishment Clause violations by the Executive were all but inconceivable to the Framers only strengthens the argument that actions of the Executive did not form part of the historical concern on which the Court in Flast rested taxpayer standing.
The point of Flast was not that the central concern identi fied by the Court (i.e., the "very 'extract[ion] and spend[ing]' of 'tax money' in aid of religion," DaimlerChrysler, 126 S. Ct. at 1865) was the only way that the Establishment Clause could be violated or even the only historical practice of con cern to the Framers, but rather that this particular exercise of congressional power-unlike those giving rise to other al leged violations of the Establishment Clause-was sufficiently concrete and individualized and sufficiently analogous to a state-compelled tithe to give rise to Article III standing for taxpayers. Thus, while it is true that established churches involved more than tax subsidization, the relevant point for taxpayer standing purposes is the Framers' focus on that particular aspect of colonial establishments and the clear nexus between that practice and injury as a taxpayer.16
If Flast is narrowly limited to congressional exercises of taxing and spending authority that result in disbursements to outside entities, it can be defended as an application of normal Article III principles. In those circumstances, but those alone, the net effect of Congress's taxation and spending deci sions can be analogized to a state-compelled tithe that a tax payer would have standing to attack under ordinary Article III standing principles. But if Flast is expanded along the lines urged by respondents, then it can only be understood as an exception to-not an application of-ordinary Article III standing principles. Needless to say, Article III courts are not free to fashion exceptions to the irreducible minimum requirements for Article III standing. Moreover, if the logic of Flast really requires the broad reading embraced by re spondents and the court of appeals, then this Court must abide by the requirements of Article III, rather than the logic of Flast. Principles of stare decisis cannot justify the adverse possession of jurisdiction that is not granted to the courts by Article III.17
At bottom, respondents' complaint is not that the govern ment itself is using tax dollars to finance the actual exercise of religion by third parties or even has taken any final, con crete agency action concerning funding for religious groups. Instead, respondents' central objection is to how government officials communicate and interact with other citizens and, in particular, Executive employees' alleged creation of a "cli mate" (Pet. App. 76a) that is intended to encourage eligible religious entities to participate, as they are legally entitled to do, in cooperative public programs. Their objection thus is not to the exercise of Congress's taxing and spending power as such, but to the words and actions of Executive Branch officials that respondents deem to be too favorable to religion in that they might induce other citizens to apply for federal funds, which might, in turn, someday result in some disburse ment of taxpayer funds to some religious group. But when it comes to the Executive Branch's compliance with the Consti tution in such routine functions, the taxpayer's interest is no different from that of the citizenry in general, all of whom have a right to-but not a chose in action to ensure-a gov ernment that obeys the Constitution. In other words, "the grievance which it is sought to litigate here is not a direct dollar-and-cents injury but a religious difference" over the conduct of governmental employees. Doremus, 342 U.S. at 434. Under Article III of the Constitution and this Court's precedents, taxpayers qua taxpayers lack standing to main tain such a claim.
* * * * *
For the foregoing reasons, and for those stated in our opening brief, the judgment of the court of appeals should be reversed.
Respectfully submitted.
PAUL D. CLEMENT
Solicitor General
FEBRUARY 2007
1 See Kendrick, 487 U.S. at 619-620; Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 479 (1982); Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 225 n.15 (1974); United States v. Richardson, 418 U.S. 166, 175 (1974); Flast, 392 U.S. at 102; see also DaimlerChrysler, 126 S. Ct. at 1864.
2 See Schlesinger, 418 U.S. at 228 & n.17 (no taxpayer standing to challenge "the action of the Executive Branch" and the "invalidity of Executive action in paying" out taxpayer funds); Richardson, 418 U.S. at 175 (no standing where the challenge was "not addressed to the taxing or spending power," but to Executive Branch compliance with the law); see also Doremus v. Board of Educ., 342 U.S. 429, 434 (1952).
3 See Valley Forge, 454 U.S. at 466-467 & n.4; Schlesinger, 418 U.S. at 211, 228 & n.17; Richardson, 418 U.S. at 168-169 (seeking to enjoin publication of a governmental report and reporting procedures).
4 If Congress enacted a tax for the specific purpose of funding religious entities, a taxpayer qua taxpayer would have standing to seek a refund. Flast extends taxpayer standing to the situation where the congressional decision to tax and the congressional decision to fund third-party religious recipients are separated and the prospect of a refund remote. Even that extension has been subject to criticism, see, e.g., 392 U.S. at 116-133 (Harlan, J., dissenting); U.S. Br. 49 n.17, but any further expansion of Flast would untether it from the irreducible minimum requirements of Article III standing.
5 See also Flast, 392 U.S. at 86 ("Appellants' constitutional attack focused on the statutory criteria * * * for federal grants under the Act.") (emphasis added); id. at 87 (challenging that "federal funds have been disbursed under the Act") (emphasis added); ibid. (seeking a declaration that "the Act['s]" authorization of such disbursements "is to that extent unconstitutional and void"). Respondents' argument (Br. 33) that Flast concerned the constitution ality of Executive Branch appropriations, rather than the Elementary and Secondary Education Act of 1965, is baffling because the Court identified the statutory target of the taxpayers' challenge by name and framed the constitu tional argument as a challenge to that "Act," not to some separate appropria tion provision or legislation. 392 U.S. at 90.
6 The Court did not understand the taxpayers to be arguing that the actions of the Executive Branch were themselves unconstitutional, because the Court described the alternative argument as couched solely in terms of statutory authority. Flast, 392 U.S. at 90. Respondents' reliance on select quotations from briefs overlooks that, when confronted with the government's challenge to jurisdiction, Flast was quick to confirm in her reply brief that "[i]t has been our position throughout the proceedings that * * * the statute is unconstitu tional" to the extent that it authorizes disbursements to religious schools. Pet. Reply Br. 2 (No. 416); see also Pet. Reply to Mot. to Dismiss 2 (No. 416) ("[T]he plaintiffs agreed *** that the only issue before the three-judge court would be the constitutionality of Title I and Title II" as applied.).
7 Although respondents' suggest that the government is merely reprising its unsuccesful argument in Kendrick (Br. 25-27), it is worth noting that not only is the context completely distinct, but also that the entirety of the government's standing argument in Kendrick consisted of two footnotes. See U.S. Br. 31 n.24, Kendrick, supra, (No. 87-253); U.S. Reply Br. 2 n.2, Ken drick, supra (No. 87-253).
8 See, e.g., Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 60 (1890); Michael W. McConnell, Establishment and Disestablishment at the Founding, Pt. 1: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2148-2151 (2003).
9 Americans United for Separation of Church & State, Inc. v. Department of Health, Educ. & Welfare, 619 F.2d 252, 254 (3d Cir. 1980), rev'd, 454 U.S. 464 (1982).
10 Respondents' alternative argument that Kendrick overruled that aspect of Valley Forge that prohibited taxpayer challenges to agency action is simply wrong. The Court in Kendrick emphasized its adherence to precedent, 487 U.S. at 618, and would have had no need to end its standing decision by emphasizing that the plaintiffs' challenge was to "a program of disbursement of funds pursuant to Congress' taxing and spending powers" and "statutory mandate" if challenges to executive action sufficed, id. at 619-620.
11 Doremus and this Court's subsequent decision in School District. of Abington Township v. Schempp, 374 U.S. 203 (1963), which invalidated Bible reading in a case brought by plaintiffs who suffered direct Article III injuries, id. at 224 n.9, also make clear that rhetoric by respondents and their amici about Executive Branch misconduct going unexamined if taxpayers cannot sue is wide of the mark. Although the absence of an alternative plaintiff does not suspend Article III's limitations on standing, Valley Forge, 454 U.S. at 489, in most cases, the consequences of not permitting every federal taxpayer to sue will not result in the absence of an appropriate plaintiff to litigate alleged misconduct.
12 See, e.g., Gonzales v. Raich, 545 U.S. 1 (2005); Tennessee v. Lane, 541 U.S. 509 (2004); Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550 (2005).
13 In addition, common usage rebels at the suggestion that every discre- tionary judgment by government officials that entails the use of taxpayer funds implicates the constitutionality of an appropriations law as applied. Every search and seizure requires law enforcement agents to spend appropriated funds, but any unconstitutional search or seizure that results does not, by reason of that use of taxpayer funds, implicate the constitutionality of the agency's appropriations law as applied.
14 Respondents propose (Br. 21) supplementing their traceability test with a "reasonable taxpayer" requirement. But they offer no framework for eval uating a taxpayer's unreasonableness, other than to emphasize that suits over even de minimis amounts of taxpayer money are permissible and hence reasonable (Br. 20 n.6).
15 Respondents' list of supposed horribles (Br. 29-30) is not, in fact, jurispru dentially troubling. With respect to the purchase and provision of governmen tal property to religious entities (id. at 29), Valley Forge already precludes taxpayer standing. With respect to instances of religious discrimination (id. at 29-30), the victims of such discrimination could bring suit, see, e.g., Northeast ern Fla. Ch. of the Associated Gen. Contractors v. City of Jacksonville, 508 U.S. 656 (1993); 42 U.S.C. 2000e et seq.; 42 U.S.C. 2000bb et seq. Moreover, respondents' and its amici's equation of a lack of taxpayer standing with a license for government to ignore the Constitution's commands overlooks, inter alia, that (i) there are often plaintiffs available who have suffered traditional Article III injuries, (ii) the Executive Branch is a co-equal Branch of govern ment whose officials are sworn to uphold the Constitution, and (iii) every other aspect of the Establishment Clause, see Valley Forge, supra, and every other provision of the Constitution has survived for more than two hundred years without being enforced in taxpayer suits.
16 It is a matter of historical debate whether the Church of England was, as respondents and their amici assume, structurally subsumed within the British government, or was instead a heavily regulated and controlled external entity that would fit the Flast paradigm. See, e.g., McConnell, supra, at 2112-2115. What is most relevant for present purposes is that the model for religious taxation that was most familiar to the Framers-and the subject of Madison's Remonstrance-was the ordered payment of taxes to local churches and church entities for their religious use, rather than the payment of such taxes to a centralized governmental entity for the salaries and administrative needs of government employees. Cf. Everson v. Board of Educ., 330 U.S. 1, 41 (1947) (Rutledge, J., dissenting) ("Tithes had been the lifeblood of establishment before and after other compulsions disappeared.").
17 In Flast itself, this Court justified "a fresh examination of the limitations upon standing to sue in a federal court and the application of those limitations to taxpayer suits" based only on "existence" of the "current debate" over the merits of Frothingham. See 392 U.S. at 94. Flast appears to have generated at least as much debate over its merits as Frothingham.