Hein v. Freedom From Religion Foundation, Inc. - Oral Argument - February 28, 2007

Hein v. Freedom From Religion Foundation, Inc.

Media for Hein v. Freedom From Religion Foundation, Inc.

Audio Transcription for Opinion Announcement - June 25, 2007 in Hein v. Freedom From Religion Foundation, Inc.

Audio Transcription for Oral Argument - February 28, 2007 in Hein v. Freedom From Religion Foundation, Inc.

John G. Roberts, Jr.:

We will hear argument this morning in case 06-157, Hein versus Freedom From Religion Foundation.

General Clement.

Paul D. Clement:

Mr. Chief Justice, and may it please the Court:

In Flast against Cohen, this Court recognized narrow circumstances in which a taxpayer could satisfy the requirements of Article III in challenging a congressional exercise of its spending and taxing authority.

This court in doing so rejected the suggestion of Justice Douglas that it allow all taxpayers to sue in all manner of claims, as well as the slightly more modest suggestion of Justices Stewart and Fortas that the Court allow taxpayer standing for all establishment clause challenges.

This Court's subsequent cases such as Valley Forge have made clear just how narrow the rule of Flast is.

In order for a taxpayer to satisfy the requirements of Article III, the taxpayer must challenge a congressional exercise of the taxing and spending authority, and assert that the act of spending itself is what gives rise to the establishment clause violation.

The court of appeals in the decision below substantially expanded the scope of taxpayer standing and in doing so, the court adopted a doctrine that I think can fairly be only understood as an exception to, not an application of normal principles of Article III standing.

The court did so on the rationale that there is much that the executive branch can do to violate the establishment cause, but there is much that all three branches of Government could conceivably do to violate the establishment clause, and that has never been thought a sufficient reason to extend taxpayer standing to all Government action, nor has it been thought a sufficient reason to relax the irreducible minimum requirements of Article III.

Antonin Scalia:

If I understand your position correctly, if Congress enacts a program that favors religion over non-religion, which is supposedly what the establishment clause prohibits, that's bad; but if Congress enacts a perfectly valid general program and the President implements it in a fashion that favors religion over non-religion, that's okay, insofar as the ability of anybody to challenge it is concerned.

Is that an accurate description?

Paul D. Clement:

Well, I don't think so, Justice Scalia.

I mean, first of all--

Antonin Scalia:

Why not?

Paul D. Clement:

--I mean, I think that may be sort of over inclusive and under inclusive.

Antonin Scalia:

Okay.

Paul D. Clement:

Which is to say, it's not a congressional program, it's a congressional spending statute that is the key predicate.

And then once there's a congressional spending program, whether it's facial challenge or an as-apply challenge that relies on an intervening ministerial act of the executive branch, taxpayer standing will lie under this Court's precedent.

Ruth Bader Ginsburg:

If this... if Congress had enacted this executive order that's in question here, if it had been congressional legislation, would there be standing?

Paul D. Clement:

I don't think so, Justice Ginsburg, but let me just be clear.

I don't think it's just a matter of this executive order that's challenged in this case and Congress could have enacted that into statute.

As I understand it, the... what is really at issue here is not the executive order.

It is the way that certain conferences were conducted by executive branch officials.

That's what the dispute--

Anthony M. Kennedy:

I had the same question as Justice Ginsburg, and I think was also suggested by Justice Scalia's question.

Suppose that Congress passed a statute that said we hereby appropriate a million dollars to the President to use to call religious conferences, and then it spelled out these conferences.

Is there standing there?

Paul D. Clement:

--I don't think so, Justice Kennedy, because I look at this Court's--

Anthony M. Kennedy:

But... and I of course want the answer, but then, why is that consistent with what you told us at the beginning that there had to be a statute?

Paul D. Clement:

--Because there has to be two things.