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Monday, April 04, 2011

Supreme Court narrows Flast, rejects challenge to Arizona tax-credit law

The Supreme Court's (5-4) decision in Winn is available here.  (Thanks to Howard Bashman for the link.)  I've read the decision quickly, and want to do so again, but the bottom line seems clear:  The Ninth Circuit's decision, which badly misapplied Zelman, is reversed, on standing grounds.  Because the tax-credit mechanism is one that involves not government expenditures (of the kind that worried James Madison in his Memorial and Remonstrance), but instead allows people to keep, and direct, their own money, the Flast exception to the no-taxpayer-standing rule does not apply.  

I'm torn:  I think Flast was probably a mistake, because I don't think (with all due respect!) that there's anything about the injury to a taxpayer who objects to public funds being spent on (say) a school-voucher program that distinguishes it, constitutionally, from the injury to a taxpayer who objects to public funds being spent on (say) a bridge in Alaska.  (I argued, in this short paper, that the Establishment Clause does protect "conscience", but not in the way that the Flast exception presumes.)  At the same time, I would have liked a majority opinion clearly rejecting, on the merits, the Establishment Clause challenge to the Arizona program.

Posted by Rick Garnett on April 4, 2011 at 10:44 AM in Rick Garnett | Permalink


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Anyway, as to the "second-guess" part, in both cases, I would think that the courts could in the appropriate case put a higher standard in place for the government (in a Carolene Products sort of way) than spending money on a bridge. In both cases, there still are openings left for standing, but they don't amount to much in practice.

Posted by: Joe | Apr 4, 2011 11:36:11 AM

"Not the same thing" was meant to be taken in context respecting taxpayer suits, so if all you mean is that a church and a bridge isn't the same thing, it really doesn't help me much.

Anyway, as to school choice programs, that is too open-ended, since that might include a choice between public schools. The issue is funding of sectarian schools, that is, schools with a function of educating children under church dictates. Not saying "church" really isn't too useful.

The reason there is a difference is that the religious clauses are specifically concerned about use of the tax system in ways provisions in general (again, I suggested a few might be) are not. There is a middle ground in taxpayer standing, therefore, that allows looser rules in certain categories.

Also, if taxpayer standing is not present there sometimes might not be in practice any standing at all, since no one would take up the case. In a torture case, the person tortured would. A similar case might not be present in a tax exemption case.

Posted by: Joe | Apr 4, 2011 11:31:50 AM

Joe, I think we can agree that it's "not the same thing" -- but it's not clear why the standing rules should allow lawsuits to challenge the one and not the other. We can change the comparison to "spending money on a school-choice program" (not a "church") and "spending money on a rendition program that involves the torture of suspected terrorists"; why should standing rules allow courts to second-guess policy decisions in the former case but not the latter?

Posted by: Rick Garnett | Apr 4, 2011 11:13:09 AM

I, with all due respect, think spending money for a church is not the same thing with respect to the government as spending money for a bridge, so find Flast reasonable. I would also apply it perhaps to other cases, such as standing when disclosure of spending is at issue. See, Art. I, sec. 9. As to this case, putting aside the merits of the question, I think Kagan's frosh dissent on standing is compelling. The result, honestly, was probably prudentially a good thing per my views, since a merits ruling probably would have been worse.

Posted by: Joe | Apr 4, 2011 11:01:26 AM

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