Watching the Watchers: A Partial Defense of Hein on Separation of Powers Grounds

Abstract:     
Warning: This is NOT a final draft, for submission or otherwise!

This Note suggests that the separation of powers inquiry in Hein was more complex than the Court was willing to acknowledge. Starting in Section II, I examine the background doctrine on federal standing – with a particular focus on taxpayer standing – and conclude that the principle espoused in Flast is vital and ought to be preserved if possible. After reviewing the background to Hein in Section III, I argue in Section IV that the conclusion in Hein creates more separation of powers problems than it solves, principally by creating incentives for the executive branch to engage in substantive lawmaking without congressional participation. As outlined in Section V, this problem could be solved by crafting a limited theory of standing in Establishment Clause cases focusing not on the expenditure of taxpayer money, but rather on whether the alleged Establishment Clause “injury” could be traced to executive action that otherwise implicates the separation of powers.

Keywords: Hein v. Freedom from Religion Foundation, Separation of Powers, Antonin Scalia, Lujan, Flast v. Cohen, executive power, standing, Frothingham v. Mellon, Article III, Federal courts

JEL Classifications: K40, K49

Working Paper Series