Eminent Domain

I'm sort of in a standing mood lately. Standing was one of the issues (the only issue, if you ask me) in the Massachusetts v EPA case. It also plays a major role in a case from my beloved and very active Seventh Circuit. The case is Winkler v Gates, better known as the Boy Scout Jamboree case.

First, here's a little background on the issue. A group of taxpayers are challenging a federal statute, 10 U.S.C. § 2554, that requires the United States military to assist the Boy Scouts organization with its Jamboree, a big to-do held every four years. These plaintiffs are saying that the statute violates the Establishment Clause of the First Amendment because the Boy Scouts exclude atheists and agnostics. The federal district court (that's the lower trial court) said that the plaintiffs had standing, that the Boy Scouts were a religious organization, and that the statute violated the Establishment Clause and was unconstitutional.

Now we find ourselves in the Seventh Circuit Court of Appeals. Judge Diane Wood is at the pen for the majority. I'm going to quote from her opinion and give some analysis. In case anyone wants to cry bias, I'd like to state that I was never a Boy Scout or Cub Scout. I'm just not a big kerchief person.

Judge Wood begins with the standing issue, identifying Article III standing (Lujan standing) and prudential standing (Newdow) before diving right into the issue of taxpayer standing...

At one time, the Supreme Court did not recognize any doctrine of taxpayer standing in federal court. A taxpayer's stake in any government action, the Court pointed out, "is shared with millions of others, is comparatively minute and indeterminable, and the effect upon future taxation, of any payment out of the funds, [is] so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity." Frothingham v. Mellon, 262 U.S. 447, 487 (1923).

Frothingham was a taxpayer challenge to the Maternity Act, which gave federal money to the states to improve maternal and infant mortality. Frothingham said that she as a taxpayer had been injured because the program will increase the tax burden on her and take her property without due process. Yeah, that went nowhere. The Court did not want to grant her standing, because that would give virtually anyone standing to challenge any federal action that uses money. Government couldn't operate like that.

Where there is a rule, there is an exception. Judge Wood then discusses Flast v Cohen as the exception to Frothingham...

The Flast Court described the concededly limited set of cases in which a litigant would have standing to assert claims solely in her capacity as a taxpayer:

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. 392 U.S. at 102-03.

Faithful readers may remember this language from my post on the Hein case. Judge Wood explains the distinction...

The Court distinguished Frothingham as a challenge under the Due Process Clause, which, unlike the Establishment Clause, does not impose a specific limitation on Congress's power to tax and spend

Now, we get to the legal issue of the case...

The more difficult question is whether the Jamboree statute is the type of legislative enactment that the Flast Court had in mind. Is it an "exercise[ ] of congressional power under the taxing and spending clause of Art. I, § 8," or do we have only an "incidental expenditure of tax funds in the administration of an essentially regulatory statute"?

To determine what kind of statute we've got here, Judge Wood says we need to look at two cases: Valley Forge and Bowen. Valley Forge was a challenge to a transfer of an old military hospital to Valley Forge Christian College. A federal statute gave the secretary the power to transfer property to public and private entities as a way to put surplus property to use. The Court said that there was no taxpayer standing because this was a use of the Property Clause of the Constitution, not the taxing and spending power. Bowen involved a challenge to a federal grant program that the petitioners claimed violated the Establishment Clause. The Court found a sufficient nexus between the taxpayer standing and the tax-spend power.

So which one are we dealing with here?

Judge Wood looks at the statute. Basically, it lets the Secretary of Defense lend equipment, personnel, and facilities to the Boy Scouts. It's reproduced on pages 9 through 11 of the opinion if you want to read it all.

Judge Wood asks if the Boy Scouts are a religious organization. She recognizes that there are religious aspects to scouting, but there is no affiliation with any particular religious denomination. They let anyone in who can accept the Oath and the Scouting laws (atheism and agnosticism don't cut the mustard on that one). Most significantly, anyone (including members of the general public) can attend the Jamboree.

Judge Wood believes that this case is not like Bowen...

More persuasively, the Secretary contends that Winkler lacks standing because the Jamboree statute is not a "taxing and spending" statute but rather is authorized by Congress's powers under the Property Clause, Art. IV, § 3, cl. 2, and the Military Clauses, Art. I, § 8, cls. 12-14. The military is, in other words, just regulating its own property and manpower.

Wood recognizes that some money is spent, but Congress needs to expend some tax dollars anytime it does anything. There will always be some incidental use. The Jamboree statute has support in many areas of the Constitution...

Congress usually does not indicate which of its manifold powers it is exercising when it passes a particular piece of legislation, and some pieces of legislation undoubtedly rest on multiple constitutional clauses. The Jamboree statute is a good example. It apparently relies, in part, on the Property Clause, Art. IV, § 3, cl. 2; the Military Clauses, Art. I, § 8, cls. 12-14; and even the Commerce Clause, Art. I, § 8, cl. 3.

Judge Wood finds more support for the statute in its own language. There is another purpose: military recruiting...

Even assuming that it is correct to characterize the BSA as a "religious" organization, this statute is for the purpose of assisting the military in persuading a new generation to join its ranks and in building good will. This is a secular and valid purpose. Cf. Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 126 S.Ct. 1297 (2006)

I literally laughed with glee when she cited Rumsfeld v FAIR in this opinion. That decision is going to stick in the craw of the elite law school FAIR folks for a long time to come. More on the recruiting issue...

Furthermore, a court is poorly equipped to second-guess the military's own assessment of the benefits of the Jamboree. In a time when the armed forces regularly spend significant funds both for recruitment and public relations, Congress's decision to authorize them to take advantage of a built-in audience of potential recruits is reasonably related to the activities authorized by the Military Clauses.

Since the statute is an exercise of Congressional power under the Military and Property Clauses, not the taxing and spending power, the taxpayers do not have standing to challenge it. The 2010 Jamboree is on.

Judge Diane Sykes wrote a concurring opinion, agreeing that there is no standing but for other reasons. She reads the Flast exception much more narrowly than the majority...

the better course is to follow the admonition in Valley Forge, apply the Flast exception to the Frothingham rule with "rigor," and limit Flast's reach to factually similar claims until the Supreme Court tells us otherwise. That means no standing here, but for a threshold reason rejected by the majority: because the Jamboree statute does not establish a congressional grant or direct appropriation program of the type at issue in Flast and Bowen.

Judge Sykes thinks that the majority here and others on the Seventh Circuit in the past have been too lose with the standing rules. I guess there's a lot of that going around, right Justice Stevens?

Judge Sykes also makes a point about the bizarre injury claim of the petitioners. She looks at the order issued by the lower court...

This order was dated June 22, 2005, and it notes that "[t]he injunction the plaintiffs are seeking specifically excludes the upcoming 2005 Jamboree." Whether the plaintiffs' forbearance in this regard was the product of generosity, the spirit of compromise, or a desire to avoid the public relations fallout that would have attended their eleventh-hour scuttling of the 2005 Jamboree (if that's what would have occurred), their conduct undermines any claim that they were suffering a grave constitutional injury.

So they were being "injured" by the Jamboree statute... but they were willing to let the 2005 Jamboree happen on the off chance that their injunction might cause its cancellation and a PR nightmare. Yeah, I'm really doubting the severity of the injury here too.

Well, the Jamboree is on. We're all invited too, I guess. If you read all the way to the end of this very long post, thanks for being interested or being really bored.