Standing in the Mud: Hein v.Freedom From Religion Foundation, Inc.

In 1968, in Flast v. Cohen, the Supreme Court first set forth the requirements that a plaintiff must satisfy to have standing to challenge a government action in federal court solely based on his or her status as a taxpayer. The subsequent history of taxpayer standing is littered with precedents supported by unclear reasoning. Hein v. Freedom from Religion Foundation, Inc. represents the Supreme Court’s latest effort to address the limits of taxpayer standing in an Establishment Clause challenge. Unfortunately, the Court in Hein maintained its tradition of providing perplexing decisions in taxpayer standing cases. In Hein, a plurality of the justices, claiming to have left the holding of Flast undisturbed, denied the plaintiffs standing to challenge Executive Branch discretionary expenditures alleged to violate the Establishment Clause. This note examines the Hein decision to determine if the impact of the decision is truly to leave the Flast holding unchanged, as the plurality claims, or if, as the author believes, the decision actually modifies the Flast holding by adding a new distinction between expenditures of earmarked and generally appropriated funds. Part II provides a brief background on the concept of standing and provides a history of the Court’s treatment of taxpayer standing. Part III identifies the facts and issues presented in the Hein case and describes the Supreme Court’s decision and the lower courts’ decisions in order to give appropriate context for an examination of the impact of Hein. Part IV analyzes the Court’s decision to show that in fact a majority of the justices voted to alter the Flast holding and that the new distinction introduced by the plurality is not supported by the Court’s precedent. Finally, this note analyzes the impact of the Court’s decision on plaintiffs asserting taxpayer standing in future cases and on actions the Federal executive and legislative branches might take to avoid the possibility of judicial challenges to their actions