Hein v. Freedom From Religion Foundation: The Bagel Debate

Cream cheese and lox, anyone?

The case of Hein v. Freedom From Religion Foundation concerns whether or not an individual taxpayer has the right—the “standing”—to challenge expenditures made by President Bush in funding his Faith-Based initiatives. The case is NOT about whether the President’s expenditures were constitutional or unconstitutional. My earlier post gives some background.

While we're waiting for the bagels, here’s my favorite moment from today’s oral argument.

Solicitor General Paul D. Clement was, of course, arguing against taxpayer standing.

Justice Scalia: I’ve been trying to make sense out of what you’re saying.
General Clement: Well, and I’ve been trying to make sense out of this Court’s precedents. And the best that I can do—the best that I can do, when I put together Flast...
Justice Stevens: Do you think we have a duty to follow precedents that don’t make any sense?

From the questions and answers, I would guess that Breyer, Souter, Stevens, and Ginsburg will grant standing. Roberts and Alito sounded like they're against it. Thomas, as usual, asked no questions, and so gave no clue to his position. Kennedy was difficult to read, but, unfortunately, his sentiments might well be reflected in the following question he asked Andrew J. Pincus, the attorney for the FFRF.

Justice Kennedy: It seems to me unduly intrusive for the courts to tell the President that it cannot talk to specific groups to see if they have certain talents that the Government may use to make sure that all of their energies are used properly by the Federal Government. It’s almost like a speech rationale....[I]t seems to me that there’s a standing concern here, ... that we would be supervising the White House and what it can say, what it can—who it can talk to. And it seems to me that’s quite intrustive from the standpoint of standing purposes.

As usual, Scalia had the best lines. He was sharp with both parties. For instance, he got into this colloquy with Clement, in which he appears to be amazed at the Solicitor General's position:

Clement: ... [W]here the real injury is the spending ... that’s an Establishment Clause injury, then it makes sense to say that people that provided that money in the first place have a distinct injury.
Justice Scalia: But not if the President just gives the money out of a general appropriation, authorizing him to give money to people who are helping in the programs that the Faith-Based Initiative was designed to help?
Clement: Well—
Justice Scalia: If the President hands over the money, that’s okay?
Clement: Not necessarily, Justice Scalia, but it’s important to focus on what this case is about.
Justice Scalia: Why, why not necessarily? I thought that was your proposition, that it has to be a congressional violation, not an executive.
Clement: Right. And it would depend a little bit on about where the President is getting the money. I think the way that we would look at it—
Justice Scalia: He’s getting the money from Congress under a general appropriation. If he takes this money and he says “here, use it for a religious purpose,” that’s okay?
Clement: He—
Justice Scalia: As far as standing is concerned, he can’t be sued?

On the other hand, Scalia jumped on Pincus when the lawyer argued that only “central,” not “incidental,” expenditures for religious purposes should be subject to a taxpayer’s challenge. This got Pincus into trouble, as you’ll see.

Justice Scalia: You really want to condemn the Federal courts to deciding case by case at the insistence of all these people who feel passionately about this, case by case, whether the expenditure was incidental or not? It doesn’t seem to me an intelligent expenditure of any sensible person’s time.

Pincus continued to try to define “incidental.”

Pincus: If someone’s claim is that people in the White House have five meetings in the course of a year that they’re upset about, it does not take much at the jurisdictional—
Chief Justice Roberts: Well, then, five meetings isn’t enough. How many?
Justice Scalia: What about ten?
Chief Justice Roberts: Twenty?
Justice Scalia: I was about to ask twenty.
Pincus: Well, Your Honor, our position—
Justice Scalia: We’ll litigate it. We’ll figure out a number eventually, I’m sure.

Later, Scalia seemed to ask Pincus if Flast didn’t go far enough in granting standing:

Justice Scalia: The problem here is ...: Is the Government doing stuff with money that’s been taxed from me that it shouldn’t do? I fail to see how it makes any difference to the people who care so passionately about this ... whether it’s just an incidental expenditure or whether it’s part of a target program. We don’t do that in any other area of constitutional law. If someone has been subjected to an unreasonable search and seizure, we don’t say, “Well, you know, it was just incidental. Yeah, we know how you feel badly about it, but this was just an incidental search and seizure, and you don’t have standing." It doesn’t make any sense, given the gravamen that you’re directing this law against to establish such a standard.
Pincus: Well, Your Honor, it is a standard that the Court established in Flast. It is—
Justice Scalia: And you also acknowledge we’re not here to try to make sense.

Pincus did not fare particulary well on the “bagel” issue you've been waiting for. He couldn't seem to give Scalia something to sink his teeth into. The interchange began innocently enough with Chief Justice Roberts still questioning Pincus's definition of "incidental."

Chief Justice Roberts: Incidental with respect to what? All of the money for a particular meeting, a particular breakfast, a particular whatever, is it incidental to that? Or is it incidental to however many times the President has breakfast if he goes to a prayer breakfast?
Pincus: It’s incidental to what—what’s the focus of the claim? The focus of the claim isn’t that bagels were served. The focus of the claim is there was a prayer and that it was a religious meeting....And so the expenditure that’s been identified is the bagels, it really is pretty tangential to the focus of what someone’s complaining about.
........
Justice Scalia: So there’s no standing to challenge a presidential directive which says we are going to buy bagels for all evangelistic Christian breakfasts?
Pincus: No, I think there would be standing.
Justice Scalia: Why would there be standing?
Pincus: Because there the challenge is to the discriminatory purchase. It’s not about the prayer breakfast, it’s about the idea that the Government is purchasing bagels in a religiously discriminatory way
.........
Justice Scalia: How does that confer standing? How does that confer standing?
Pincus: The purchase—the idea that bagels are being purchased only for evangelicals and not for Jewish breakfasts?
Justice Scalia: Right. Right.
Pincus: Because the Government—
Justice Scalia: [I mean] Standing by Joe Doaks, not from somebody who’s starting a Jewish prayer breakfast and says, you know, “What could be worse than not buying bagels for a Jewish prayer breakfast?” With him, I could understand, he has standing. But I'm just talking about one of these many people who feel passionately about this just in general. You walk in and say, "he can't do this because I'm a taxpayer." And you say, "I'm sorry, being a taxpayer is not enough, we don't care how passionately you feel about it—"
Pincus: I don't think general passion is enough. I think what the Court said is there has to be a tie-in, and let me say that I think what's critical here is any test obviously is susceptible to hypotheticals ...

But didn't Pincus just say that he thought the JWB (Jews Without Bagels) would have standing? Oops.

Look: I would love my previous prediction to be wrong, wrong, wrong. Scalia is definitely the most entertaining, trap-setting justice on the Big Bench. He caught both attorneys in inconsistencies. I'm thinking (maybe only wishfully) that there's a possibility he'll vote for standing, and that he might even be the tie-breaker. Wouldn't that give us atheists something to chew on?