"This money has never been in the government's coffers. The government has declined to take this money."
—Antonin Scalia, at oral argument yesterday on a case called Arizona v. Winn, a case about whether a particular Arizona statutory scheme violates the First Amendment establishment clause’s prohibition against government establishment of religion.
"I have some difficulty that any money that the government doesn't take from me is still the government's money. … If you reach a certain age, you can get a—a card and go to certain restaurants and they give you 10 percent credit. I think it would be rather offensive for the cashier to say, 'and be careful how you spend my money.' "
—Anthony Kennedy, at the same oral argument.
The statute at issue provides for in-kind tax credits in exchange for donations to a state-created student tuition organization that in turn funnels the money to parents only for tuition to religious schools, and only to those religious of the agency’s choosing.
To answer Justice Kennedy’s rhetorical question, would indeed be offensive for the cashier to say, “and be careful how you spend my money." It would be even more offensive if the cashier said, “The discount is good only if you agree to pay that 10 percent to the non-profit organization we and other restaurants have set up to funnel the money to the Catholic Church (or to the Presbyterian Ministries, or to the School for Torah Studies, or to the Koran Children’s Education Fund). And the restaurants aren’t even government agencies. You don’t get the discount immediately; instead, you get a refund when you bring us the receipt for your donation.
How hard is it, really, to understand that under Arizona’s scheme, the government is taking the money from you? It’s just offering you the option of paying it directly to the government or instead allowing the government to use you to launder the tax money by giving it to an organization set up under state law for the very purpose of receiving it and distributing it in a manner that the government is prohibited under the Constitution from doing.
Does Kennedy think that Arizona is allowing the taxpayer to use the money as he or she wishes? It is not. The government is requiring that you pay the money either to it or to one of these organizations. "This money has never been in the government's coffers. The government has declined to take this money," Justice Scalia said. Well, yes; the state declined to take the money only upon the condition that money already was paid to one of these state-created agencies.
This is a classic laundering operation, a run-of-the-mill end run around the law. If this is OK, then such government-established laundering operations will be established for the purpose of evading other constitutional restrictions on government expenditures, too. Bet on it.
But before the Court decides whether to decide the establishment-clause issue—that is, the “substantive” First Amendment issue—it first must decide an arcane procedural one: Whether the people who filed the lawsuit challenging the constitutionality of the statute have legal “standing” (the legal authority) to bring the issue to court. To have “standing” to sue, you have to have some direct interest in the outcome of the lawsuit, and the Supreme Court has long held that people who, like the ones suing in this case, challenge the constitutionality of laws or government policies claiming as their interest in the outcome that they are taxpayers and that their taxes are being used for an unconstitutional purpose, don’t have a direct enough interest in the outcome to be able to bring the issue to court in the first place. You can’t sue to stop, say, the use of the military for what you claim is an unconstitutional purpose of your claim to legal standing is that your tax payments are being used to pay for it.
But there is an exception to this rule: If, by the nature of the statute or policy at issue, there is no one who would have standing to raise the issue in court either, then you will have standing to sue merely as a taxpayer. And the primary type of issue that falls within this exception is establishment-clause litigation, because otherwise, with respect to certain types of establishment-clause violations, no one would have standing to challenge the constitutionally of the government’s action. The government would be free to use tax money to build churches, for example, even though this clearly would violate the establishment clause, because no one would have standing to challenge the constitutionality of that use of tax money in court.
Or so that has been the law since 1968, when the Supreme Court said so, in a case called Flast v. Cohen. By the end of the Supreme Court’s current term next June, though, it may not be. And if it is not, it will be largely thanks to Neal Katyal, the Obama Justice Department’s acting solicitor general, who was allowed to participate in the case and in the oral argument on Wednesday in order to ask the Court to rule that these taxpayers have no standing to challenge the constitutionality of the Arizona statute. And, it turns out, to argue, to the apparent astonishment of several of the justices, including Kennedy, that Flast was wrongly decided and should be reversed, and that the Supreme Court had no jurisdiction (no legal authority) even to agree to hear the five other cases since Flast that the Supreme Court did hear in order to decide the substantive establishment-clause issue raised by the taxpayers who challenged the constitutionality of a statute or government policy in court.
In making this argument, Slate’s Dahlia Lithwick points out, Katyal invoked James Madison. Because, as Lithwick observes, well, he’s the go-to framer—for Reagan-era-brand conservatives.
Denial of access to court through the erection of procedural buriers has been a hallmark of modern-era movement-conservative lawyers and judges. So it was somewhat startling to read Katyal’s dogmatic, absolutist “standing” argument—made, according to several reports on the oral argument, with a near-religious fervor. But only somewhat startling. Katyal, who in his earlier carnation as a liberal Georgetown law professor who aggressively represented several Guantanamo prisoners, has, as chief deputy solicitor general under Elana Kagan and now as her acting replacement, become a Federalist Society wannabe.
Which raises the question of why he doesn’t just make it official.
As for his invocation of James Madison as his primary source for the idea that the Constitution’s prohibitions against certain government actions are all fine and good but that they exist only in theory because no one has access to court in order to enforce those prohibitions, he should check his history. Actually it’s not James Madison that invented that view of access to the courts. It’s the members of the modern rightwing bar group, The Federalist Society, of which Justice Scalia is a founding member and which Justices Thomas, Alito and Roberts are or were closely affiliated, that hold the view that most constitutional limitations on the powers of government are unenforceable in court because, for one procedural reason or another, no one has the right of entry to court in order to litigate the issue.
Unless, of course, it’s an issue that the ideological right really cares about. Then access to court usually isn’t a problem.