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Esbeck on Taxpayer Standing

By Lawrence Solum

Carl H. Esbeck (University of Missouri School of Law) has posted Taxpayer Standing from Flast to Hein (Mississippi Law Journal Online, Vol. 80, 2010) on SSRN. Here is the abstract:

This essay plays off a critique by Professor Maya Manian of an article where I discussed the decision in Hein v. Freedom From Religion Foundation, Inc., 551 U.S. 587 (2007) (plurality opinion). While Professor Manian was concerned about how the result in Hein would lead to under enforcement of church-state separation, my article had utilized Hein, and more generally the law of taxpayer standing beginning with Flast v. Cohen (1968), to look beyond the question of aid to religion. Rather, I began by showing that the only cases in which the Court had announced a ?generalized grievance? and thereby denied standing were when the cases alleged a structural violation of the Constitution as opposed to stating rights-based claims. Taxpayer claims allege a structural violation, thus they are dismissed as ?generalized grievances?. Since Flast, however, the Court has made one exception: where the taxpayer claim concerns an appropriation said to violate the Establishment Clause. It follows that the Court is viewing the Establishment Clause as a structural restraint; namely, the separation of church and state is about keeping in right order these two centers of authority. That is why it can be said that the Establishment Clause is about policing the boundary between government and organized religion. The Court responded to that in Flast by making an exception to the rule against taxpayer standing. In Hein, the Roberts Court, by a vote of 7-2, continued to adhere to the presupposition that the Establishment Clause is structural in nature.

Full post as published by Legal Theory Blog on June 21, 2010 (boomark / email).