Eminent Domain

Today, the Supreme Court heard oral arguments in Hein v Freedom from Religion Foundation. This case has a lot of Wisconsin connections. Just check out the Milwaukee Journal Sentinel article about it...

Anne Gaylor, Wisconsin's best-known atheist, has fought to keep church and state separate for almost 30 years. But the 80-year-old Gaylor marked a first Wednesday when a lawsuit she brought was heard by the United States Supreme Court.

...

Two others from Wisconsin have high-profile roles in the litigation.

Jay F. Hein of Shawano has directed the White House's faith-based initiatives office since August. He, too, was in court, but let the Justice Department do the talking.

Doing that was Paul D. Clement, the U.S. solicitor general, who grew up in Cedarburg.

This case is a challenge to the Bush Administration's faith-based initiatives executive order. The real legal issue here is standing. Standing means that you can bring the lawsuit in court. Generally, the Court isn't big on giving someone standing based on the fact that they are a taxpayer. That policy goes all the way back to Frothingham v Mellon in 1923. But there is an exception. Flast v Cohen said that taxpayer standing would be permitted in certain circumstances...

The nexus demanded of federal taxpayers has two aspects to it. 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. This requirement is consistent with the limitation imposed upon state-taxpayer standing in federal courts in Doremus v. Board of Education, 342 U.S. 429 (1952). 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 [392 U.S. 83, 103] 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. When both nexuses are established, the litigant will have shown a taxpayer's stake in the outcome of the controversy and will be a proper and appropriate party to invoke a federal court's jurisdiction.

Straight from Earl Warren's pen. In that case, the Department of Health, Education, and Welfare had been spending money on religious schools.

Here is what Jan Crawford Greenburg, who was in attendance at the oral arguments, had to say...

Chief Justice Roberts really ran the show, completely directing the argument against taxpayer standing-and even stepped in a couple of times to help Solicitor General Paul Clement explain why the atheist group, Freedom from Religion Foundation, had no legal right to sue. Roberts nailed Andrew Pincus, the group's lawyer, with a pointed question right out of the box: "I don't understand, under your theory, why couldn't any taxpayer sue our marshal for saying, 'God save this honorable court?'" It was Pincus's very first question, and it turned the argument. By the end, it appeared that the atheists were going to be on the losing side-though the justices didn't seem especially taken with Clement's proposals, either (or, for that matter, with the line-up of their own precedents they have to take up to decide the case).

The Chief in the drivers seat as usual... Roberts was made for that job.

Scanning through the argument transcripts, I'm a little puzzled about how this will come out. I know that this is starting to get repetitive, but Kennedy has the controlling vote here. I think it's safe to say that the ideological blocs will form as they tend to do, and Justice Kennedy will once again hold the final vote. Kennedy did seem sympathetic to the President's position though. At one point, he expressed concern about the courts being too involved in who the President "can talk to." We'll have to see what happens.