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Should the Courts Save Taxpayer Standing? Interpreting the Supreme Court's Decision in Hein v. Freedom from Religion Foundation Narrowly Through the Lens of Judicial-Branch Spending


Akiva Shapiro


Gibson Dunn & Crutcher


Journal of Appellate Practice and Process, Vol. 10, No. 2, 2009

Abstract:     
Lower courts have struggled to make sense of and apply the Supreme Court's recent, splintered taxpayer standing decision, Hein v. Freedom From Religion Foundation. By examining the case - which held that taxpayers did not have standing to challenge Executive Branch spending that allegedly violated the Establishment Clause - through the lens of Judicial Branch spending, this Article argues that those lower courts that have applied Hein broadly in a wide range of cases outside the federal Executive Branch have turned the reasoning and language of the plurality opinion - rooted in notions of judicial minimalism - on its head. In doing so, these courts have effectively eliminated taxpayer standing within their jurisdictions, thereby undercutting an important safeguard against government spending in violation of the Establishment Clause.

This Article argues that there are two paths that the lower courts can and should follow in interpreting and applying Hein, either of which would limit Hein to cases involving federal executive spending, and thereby save taxpayer standing in the vast majority of cases. First, because of the fractious nature of the opinions in the case, courts should apply the Supreme Court's Marks doctrine for split decisions and conclude that Hein has no controlling opinion and establishes no law of the land. Second, the much-criticized Alito plurality opinion can and should be read narrowly (and made sense of) as a decision rooted in separation of powers concerns unique to the Executive Branch, rather than broad Article III injury-in-fact concerns. In reading Hein in this way, this Article provides a roadmap for lower courts struggling to understand and faithfully apply Hein in judicial, legislative, state and municipal spending cases.

Number of Pages in PDF File: 48

Keywords: Taxpayer Standing, Establishment Clause, Hein, Freedom From Religion Foundation, Religion Clauses, First Amendment, Split Decision, Marks, Plurality Opinion, Judicial Spending, Judicial Branch, Judges, Minimalism, Separation of Powers, Injury-in-Fact

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Date posted: May 14, 2008 ; Last revised: February 28, 2010

Suggested Citation

Shapiro, Akiva, Should the Courts Save Taxpayer Standing? Interpreting the Supreme Court's Decision in Hein v. Freedom from Religion Foundation Narrowly Through the Lens of Judicial-Branch Spending. Journal of Appellate Practice and Process, Vol. 10, No. 2, 2009. Available at SSRN: http://ssrn.com/abstract=1132333

Contact Information

Akiva Shapiro (Contact Author)
Gibson Dunn & Crutcher ( email )
200 Park Ave.
New York, NY 10166
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