| Topic: |
Sociology > Education |
| User: |
"" |
| Date: |
14 Feb 2007 07:09:53 AM |
| Object: |
Taxpayer Standing Rule a thing of the past? |
Taxpayer Standing Rule a thing of the past?
January 5th, 2007
Establishment Clause cases are among the very few kinds of cases (if not
the only cases) where a plaintiff has standing to sue the government merely
by virtue of being a taxpayer and need not allege that the government has
caused him any specific, personal injury. On Feb. 27, the Supreme Court
will hear Hein v. Freedom From Religion Foundation, which will challenge
this exception to the standing rule. News story here
http://www.cnsnews.com/ViewCulture.asp?Page=/Culture/archive/200701/CUL20070104b.html
and docket entry here.
http://www.supremecourtus.gov/docket/06-157.htm
***************************************************************
You are invited to check out the following:
The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm
American Theocrats - Past and Present
http://members.tripod.com/~candst/theocrats.htm
The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html
[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]
HRSepCnS · Historical Reality SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/
***************************************************************
.. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why "a
page of history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
.. . .
****************************************************************
USAF LT. COL (Ret) Buffman (Glen P. Goffin) wrote
"You pilot always into an unknown future;
facts are your only clue. Get the facts!"
That philosophy 'snipit' helped to get me, and my crew, through a good
many combat missions and far too many scary, inflight, emergencies.
It has also played a significant role in helping me to expose the
plethora of radical Christian propaganda and lies that we find at
almost every media turn.
*****************************************************************
THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE
http://members.tripod.com/~candst/index.html
****************************************************************
.
|
|
| User: "hob" |
|
| Title: Re: Taxpayer Standing Rule a thing of the past? |
14 Feb 2007 12:46:51 PM |
|
|
<buckeye-elo@nospam.net> wrote in message
news:ug26t2hucfkumouqjii96k5f21sv7rbcgv@4ax.com...
Taxpayer Standing Rule a thing of the past?
January 5th, 2007
Establishment Clause cases are among the very few kinds of cases (if not
the only cases) where a plaintiff has standing to sue the government
merely
by virtue of being a taxpayer and need not allege that the government has
caused him any specific, personal injury. On Feb. 27, the Supreme Court
will hear Hein v. Freedom From Religion Foundation, which will challenge
this exception to the standing rule.
If a citizen cannot challenge the constitutionality of a law or a flawed
execution thereof, then who?
I understand the legal logic of the usual party-in-standing requirement:
that redress requires some measurable economic harm against which to measure
the amount of redress, and that that measurable harm must have been suffered
by the party bringing suit; and I understand that it is appropriate in civil
cases, but that principle flags when cases involving Constitutionality
arise.
To measure all cases by one standard is an attempt to brush all canvas
with one color.
To argue that a citizen lacks standing to bring a suit to revoke a civil
law that promotes a specific philosophy held by the majority of the moment,
lacks standing simply because there is no ability to measure a loss or
because the citizen cannot show it directly and specifically affects him
economically, implicitly states that all matters of government action are
purely economic matters.
That then says that individual constitutional rights are merely items of
economic value; that voting merely has specific economic value; and it means
the denigration of any morality or ethical standard to mere dollars and
cents, commodities in commerce.
There may well be a need for a requirement that there be a value lost by
a party in order to bring a suit; but it should not be limited by judicial
fiat to mere economic value.
Is it more difficult to measure the value of a human life or the value of
a sunset in a protected canyon over the value of an oxcart if one does not
limit the measure to gold? Yes. But that measure is not difficult for all,
only for some.
Having only one standard to measure all does not mean uniformity; it
means loss of value not measured. We do not measure the length of a string
by gallons; yet in our courts we demand dollars be used to determine
standing and worth of all value, save organized religion, in order to
challenge the loss of another value.
If a man's life is affected because the majority decides to allow search
without warrant, be he affected because it incenses him, or makes him
fearful, or distracts him from his pursuit of happiness, he should not be
required to show how many dollars his fear is worth.
The Constitution protects the minority from the tyranny of the majority,
the majority who elect the President and the Congress.
If a citizen questions the constitutionality of a law that they have
passed, a law that he feels adversely affects his well-being, then he
should not need to show it by first having an economic interest; he should
be able to challenge it on his own worth as a citizen, citing his measure of
value.
And if that requirement causes the majority to have to make laws that do
no harm to the minority, for fear of loss of power by that majority over
some minority, then so much the better.
This country will need to choose if it is just a herd of cattle that
dismisses a loss of a calf to a lion as necessary and unfortunate part of
being a herd, or if it is a country of individual citizens that value their
rights above the demands of the frightened cows hiding in the middle of the
herd.
News story here
http://www.cnsnews.com/ViewCulture.asp?Page=/Culture/archive/200701/CUL20070104b.html
and docket entry here.
http://www.supremecourtus.gov/docket/06-157.htm
***************************************************************
You are invited to check out the following:
The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm
American Theocrats - Past and Present
http://members.tripod.com/~candst/theocrats.htm
The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html
[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]
HRSepCnS · Historical Reality SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/
***************************************************************
. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why
"a
page of history is worth a volume of logic." New York Trust Co. v.
Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
. . .
****************************************************************
USAF LT. COL (Ret) Buffman (Glen P. Goffin) wrote
"You pilot always into an unknown future;
facts are your only clue. Get the facts!"
That philosophy 'snipit' helped to get me, and my crew, through a good
many combat missions and far too many scary, inflight, emergencies.
It has also played a significant role in helping me to expose the
plethora of radical Christian propaganda and lies that we find at
almost every media turn.
*****************************************************************
THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE
http://members.tripod.com/~candst/index.html
****************************************************************
.
|
|
|
|
| User: "" |
|
| Title: Re: Taxpayer Standing Rule a thing of the past? |
14 Feb 2007 08:16:37 AM |
|
|
"David Schwartz" <davids@webmaster.com> wrote:
:|On Feb 14, 5:09 am, wrote:
:|> Taxpayer Standing Rule a thing of the past?
:|> January 5th, 2007
:|>
:|> Establishment Clause cases are among the very few kinds of cases (if not
:|> the only cases) where a plaintiff has standing to sue the government merely
:|> by virtue of being a taxpayer and need not allege that the government has
:|> caused him any specific, personal injury. On Feb. 27, the Supreme Court
:|> will hear Hein v. Freedom From Religion Foundation, which will challenge
:|> this exception to the standing rule.
:|
:|I hope courts will find standing for much the same reason they should
:|(and have) in Hapting v. AT&T.
:|
:|1) This is conduct that is allegedly unconstitutional, significant,
:|and ongoing.
:|
:|2) If you assume the allegations are true, there is nobody better
:|situated to challenge the conduct than those bringing the case. (In
:|other words, this is not a situation where the wrong party has brought
:|a case to court.)
:|
:|In effect, if you deny them standing, then nobody has standing, and
:|the constitutional violations (assuming there are any) can and will
:|continue.
:|
:|The standing rules are designed to prevent two types of problems. The
:|first problem is when someone files a court case to litigate something
:|that is not a live dispute, that is, in which nobody is actually
:|suffering a concrete harm. The second is to make sure that when there
:|is a real dispute, the correct parties bring that dispute to the
:|court, rather than those not sufficiently involved. Neither principle
:|is offended by the taxpayer standing rule in a case like this one.
:|
:|DS
You might find this of interest
From
http://ffrf.org/news/2006/supreme.php
[excerpt]
The standing question centers on three Supreme Court precedents, two in the
Foundation's favor:
Flast v. Cohen (1968) permitted a taxpayer challenge of federal assistance
to religious schools. The court ruled that challenges could be heard that
question the use of "the taxing and spending power . . . to favor one
religion over another or to support religion in general."
Bowen v. Kendrick (1988) also upheld taxpayers' standing to challenge
grants by a federal agency to religious institutions. The court ruled that
taxpayers must simply show that Congressional taxing and spending were
necessary for the violation to occur.
In a third case, Valley Forge Christian College v. Americans United for
Separation of Church & State (1982), the Supreme Court denied standing of
taxpayers to sue over transfer of an army hospital to a religious group.
This was the case cited as prevailing by the lower court judge who threw
out the Foundation's federal lawsuit.
[end excerpt]
*********************************************
You have to understand the importance of Flast v Cohen
FLAST v. COHEN, 392 U.S. 83 (1968)
http://caselaw.lp.findlaw.com/script...ol=392&page=83
Appellant taxpayers allege that federal funds have been disbursed by
appellee federal officials under the Elementary and Secondary Education Act
of 1965 to finance instruction and the purchase of educational materials
for use in religious and sectarian schools, in violation of the
Establishment and Free Exercise Clauses of the First Amendment. Appellants
sought a declaration that the expenditures were not authorized by the Act
or, in the alternative, that the Act is to that extent unconstitutional,
and requested the convening of a three-judge court. A three-judge court
ruled, on the authority of Frothingham v. Mellon, 262 U.S. 447 (1923), that
appellants lacked standing to maintain the action. Held:
1. The three-judge court was properly convened, as the constitutional
attack, even though focused on the program's operations in New York City,
would if successful affect the entire regulatory scheme of the statute, and
the complaint alleged a constitutional ground for relief, albeit one
coupled with an alternative nonconstitutional ground. Pp. 88-91.
2. There is no absolute bar in Art. III of the Constitution to suits by
federal taxpayers challenging allegedly unconstitutional federal taxing and
spending programs since the taxpayers may or may not have the requisite
personal stake in the outcome. Pp. 91-101.
3. To maintain an action challenging the constitutionality of a federal
spending program, individuals must demonstrate the necessary stake as
taxpayers in the outcome of the litigation to satisfy Art. III
requirements. Pp. 102-103.
(a) Taxpayers must establish a logical link between that status and the
type of legislative enactment attacked, as it will not be sufficient to
allege an incidental expenditure of tax funds in the administration of an
essentially regulatory statute. P. 102.
(b) Taxpayers must also establish a nexus between that status and the
precise nature of the constitutional infringement alleged. They must show
that the statute exceeds specific constitutional [392 U.S. 83, 84]
limitations on the exercise of the taxing and spending power and not simply
that the enactment is generally beyond the powers delegated to Congress by
Art. I, 8. Pp. 102-103.
4. The taxpayer-appellants here have standing consistent with Art. III to
invoke federal judicial power since they have alleged that tax money is
being spent in violation of a specific constitutional protection against
the abuse of legislative power, i. e., the Establishment Clause of the
First Amendment. Frothingham v. Mellon, supra, distinguished. Pp. 103-106.
271 F. Supp. 1, reversed.
Leo Pfeffer argued the cause for appellants. With him on the briefs were
David I. Ashe, Ernest Fleischman, and Alan H. Levine.
Solicitor General Griswold argued the cause for appellees. With him on the
brief were Assistant Attorney General Weisl, Alan S. Rosenthal, and Robert
V. Zener.
Sam J. Ervin, Jr., argued the cause and filed a brief for Americans for
Public Schools et al., as amici curiae, urging reversal.
***************************************************************************
****
[From a post I posted in the UseNet Newsgroups a couple years ago]
Prior to 1968 and Flast v Cohen, 392 U.S. 83 (1968) taxpayers did not have
a right to challenge how the government spent tax monies in federal courts.
In Flast v Cohen, the court ruled that if it could be shown that one
portion of the constitution (taxing and spending powers) was being used to
violate another portion (Establishment clause) then that act would be
unconstitutional.
" Our history vividly illustrates that one of the specific evils feared by
those who drafted the Establishment clause. . . was that the taxing and
spending power would be used to favor one religion over another or to
support religion in general." Flast v Cohen.
-------------------------------------------------------------------------------------
Now, if you read along closely in what follows you will see how one
interacts with the other and how not being able to file suits in Federal
courts dampened the filing of suits in state courts.
You will also se how that changed as a result of the Flast v Cohen ruling
in 1968.
=============================================================
"Standing to sue" is the procedural requirement that has most often
created a problem for those seeking to question the constitutionality of a
practice of government as infringing one or both of the religion clauses.
This important but complicated and nebulous concept has been held to mean
that the party bringing the suit must convince the Court that the interest
presented is a substantial and legally protected interest; that it has been
injured or is in direct danger of such injury; and that it is a personal
right peculiar to him or her--not just one shared with all other persons
generally. Obviously, proof of these requisites is a formidable assignment,
particularly if the Court is not sympathetic to the substance of the
appellant's cause.
One avenue of attack, which was until 1968 unavailable in federal courts
due to the Supreme Court's interpretation of standing, is the taxpayer's
suit. This is a rather commonly used method of contesting the
constitutionality of municipal and state actions. The theory of such
litigation is that the taxpayer has standing because if tax money taken by
government is used for an unconstitutional purpose, the taxpayer, in
effect, has been deprived of property without due process of law.
In 1923 the Supreme Court was confronted with such a suit when Mrs.
Frothingham, a citizen of the District of Columbia, challenged the
constitutionality of the Federal Maternity Act of 1921. A unanimous Court
denied Mrs. Frothingham's standing to sue, saying with respect to the
status of a United States taxpayer: "His interest in the moneys of the
Treasury--partly realized from taxation and partly from other sources--is
shared with millions of others; is comparatively minute and indeterminable;
and the effect upon future taxation of any payment out of the funds, so
remote, fluctuating and uncertain that no basis is afforded for an appeal
to the preventive powers of a court of equity." (262 U.S. 447, 487)
Because Frothingham v. Mellon related only to federal taxpayers' suits, it
did not inhibit continued use of such litigation at the state level.
Appeals of these decisions to the Supreme Court have sometimes been
accepted, sometimes rejected. The Court has never enunciated a
clear doctrine as to what extent the standing issue is resolved through
acceptance of a case by the state court.
.. . . In the early 1960s, Frothingham v. Mellon took on added significance
for both supporters and opponents of state aid to parochial schools as
bills providing for federal aid to education were hotly debated in each
session of Congress. Separationists feared that the holding in the 1923
case would prevent any judicial review as to the constitutionality of the
provisions for parochial aid, which the act would almost certainly contain.
Amendments were repeatedly attached to the proposals to provide for
judicial review by means of taxpayers' suits, but the comprehensive Federal
Elementary and Secondary Aid to Education Act was passed in 1965 without
any such condition. Under the leadership of Senator Sam Ervin of North
Carolina, new measures that would have granted standing to challenge
alleged violations of the First Amendment were introduced in the Senate,
only to die in the House.
In the face of these legislative defeats, seven taxpayers in 1967 brought
suit against the 1965 act in a federal district court in New York, They
sought to enjoin the Secretary of Health, Education, and Welfare, on
constitutional grounds, from spending funds under the act for services
and textbooks for religious schools. The district court dismissed the case
(Nast v. Gardner) for lack of standing under the Frothingham rule, but the
Supreme Court granted certiorari and heard the case in 1968 as FLAST v.
COHEN.
Without passing on the constitutionality of the Elementary and Secondary
Education Act itself, and without expressly overruling Frothingham, the
Supreme Court, by an eight-to-one vote, lowered the barrier against
taxpayer suits challenging federal expenditures as violations of the
Establishment Clause, Such suits could be entertained, said Chief Justice
Warren, provided a taxpayer could demonstrate a two-point "nexus": "First,
the taxpayer must establish a logical link between that status and the type
of legislative enactment attacked.... Secondly, the taxpayer must establish
a nexus between that status and the precise nature of the constitutional
infringement alleged." (392 U.S. 83, 102) To establish the second nexus
the taxpayer must prove that the challenged statute exceeds limits imposed
by the Constitution on the exercise of the taxing and spending power.
Appellants here had met all the tests and were now free to pursue their
suits on its merits in the appropriate court.
Justice Douglas concurred in the opinion but would have preferred to go
further and overturn Frothingham completely. That the majority of the Court
was not willing to do so but, instead, rather narrowly limited the breach
in the Frothingham rule to First Amendment establishment claims is
significant in itself. It indicates the high priority the justices attached
to those claims.
The Supreme Court has never passed on the constitutionality of the
Elementary and Secondary Education Act since the 1968 decision.
Nevertheless, FLAST v. COHEN is a landmark decision. It not only removed an
almost insurmountable barrier to challenges of federal aid to
church-related schools, but also opened more widely the doors of federal
courts to taxpayer suits against state aid. The significance of the latter
development is attested to by the number of such cases subsequently
accepted and decided.
SOURCE OF INFORMATION: Toward Benevolent Neutrality: Church, State, and the
Supreme Court. Fourth edition, Robert T Miller Baylor University, Ronald
B. Flowers, Texas Christian University. Markham Press Fund of Baylor
University Press. (1992) pp 289-290
To read a summation of fast v Cohen, then read the entire opinion
SEE:
Important Establishment Clause Cases decided by the U. S. Supreme Court
http://members.tripod.com/~candst/tableidx.htm
Cases from 1899 to 1970
http://members.tripod.com/~candst/table1.htm
Find Flast v Cohen, 392 U.S. 83 (1968) on the table, read the summation,
then click on the cite (case name) and it will take you to FindLaw and the
entire opinion.
You will also discover if you take the time to go on and check out the
remaining two tables in this section that virtually every single aid to
religious schools cases came after Flast v Cohen and as a direct result of
the ruling in Flast v Cohen
The remaining tables are:
Cases from 1971 to 1977
http://members.tripod.com/~candst/table2.htm
Cases from 1978 to Present
http://members.tripod.com/~candst/table3.htm
***************************************************************
You are invited to check out the following:
The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm
American Theocrats - Past and Present
http://members.tripod.com/~candst/theocrats.htm
The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html
[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]
HRSepCnS · Historical Reality SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/
***************************************************************
.. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why "a
page of history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
.. . .
****************************************************************
USAF LT. COL (Ret) Buffman (Glen P. Goffin) wrote
"You pilot always into an unknown future;
facts are your only clue. Get the facts!"
That philosophy 'snipit' helped to get me, and my crew, through a good
many combat missions and far too many scary, inflight, emergencies.
It has also played a significant role in helping me to expose the
plethora of radical Christian propaganda and lies that we find at
almost every media turn.
*****************************************************************
THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE
http://members.tripod.com/~candst/index.html
****************************************************************
.
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