When the government has violated the Constitution, who is entitled to complain? The Supreme Court will soon cast new light on this question in one of the most intriguing cases in recent years, a suit challenging President Bush's "faith-based initiatives."
To be entitled to go to court to challenge a government action, people have to have "standing." Taxpayers as such lack standing. But in the particular domain of religion, the Supreme Court has long made an important exception. If Congress says that taxpayer money will go to a particular church, taxpayers can complain. The reason is simple: The Constitution bans the establishment of a religion by government, and a major point of this ban is to ensure that the power to tax and spend would not be used to support preferred religions. It is most unclear whether Chief Justice Roberts and Justices Scalia, Thomas, and Alito would originally have supported taxpayer standing to contest congressional expenditures; but the principle is pretty firmly entrenched in the law.
Which brings us to the current controversy. The president's faith-based initiatives aim to eliminate "obstacles to the participation of faith-based . . . organizations in the provision of social services." The Bush administration has been spending taxpayer money to hold conferences to promote the use of faith-based organizations. Some people have challenged these expenditures of federal money and contend that, as taxpayers, they have standing to do so.
Judge Richard Posner, writing for a majority of the court of appeals, agreed. He acknowledged that earlier court challenges involved specific congressional appropriations for the benefit of private religious groups. By contrast, the challenge here involved the Bush administration's use of general appropriations for its own conferences, not for religious groups. But Judge Posner deemed these differences irrelevant. If the Bush administration used a general appropriation to fund the Catholic Church, surely taxpayers could mount a challenge. And if the executive branch used taxpayer money to build its own church or mosque, taxpayers could also complain, even if private religious groups were not receiving a nickel. Or so Judge Posner concluded.
The Bush administration disagrees. Before the Supreme Court, its most ambitious argument is that taxpayers can sue in federal court only when challenging a specific congressional mandate. In its view, the executive branch can use a general appropriation free from judicial review at the behest of taxpayers. This is an alarming argument, and the court should reject it. The executive branch often has broad discretion under general appropriations. If it uses those appropriations to fund religions, taxpayers should be allowed to complain.
The Bush administration also contends that taxpayers should be allowed to complain only if taxpayer money is dispersed outside the government. If the court accepted this argument, taxpayers would still be able to object to any financial support directly to religious institutions. Even so, the administration's argument would render the executive branch immune from taxpayer challenge if it used public money to finance its own operations -- including those that have the purpose and effect of supporting particular religions.
There is a much larger issue in the background here. For a generation, many religious institutions have been working both to reduce restrictions on federal aid to religion and to limit people's standing to challenge those restrictions in court. Justices Clarence Thomas and Antonin Scalia have accepted their arguments; Chief Justice John Roberts and Justice Samuel Alito may well be prepared to join them.
Reasonable people have contended that for some social services, the government can fund a variety of institutions, including religious ones, so long as the funding decisions are neutral. On the merits, their arguments -- originally championed by Judge Michael McConnell when he was a Chicago faculty member -- might well be convincing. But the standing question must be analyzed separately. it would be most unfortunate if the Supreme Court imposed severe limits on taxpayers' ability to question whether their money is being used in violation of the Constitution. (An earlier version of this post appeared in the Boston Globe.)