March (Web-only) 2007

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1. Faith-based initiative case goes to the Supreme Court
Just because you pay federal taxes doesn't mean you have the right to sue the government over how it spends your tax dollars, the Supreme Court ruled in 1923. If your "only injury is an anticipated increase in taxes," too bad.

In 1968, the court made an exception: taxpayers can sue over funding legislation that may unconstitutionally support religion.

"Our history vividly illustrates that one of the specific evils feared by those who drafted the establishment clause and fought for its adoption was that the taxing and spending power would be used to favor one religion over another or to support religion in general," Chief Justice Earl Warren wrote in Flast v. Cohen. "The taxpayer's allegation in such cases would be that his tax money is being extracted and spent in violation of specific constitutional protections against such abuses of legislative power."

Citing Flast, the Freedom from Religion Foundation (FFRF) sued over the White House's faith-based initiative. The White House, through Solicitor General Paul Clement, responds that the Flast exception is for congressional statutes, not executive branch expenditures on executive branch programs (like the faith-based initiative conferences FFRF wants to challenge).

At oral arguments Wednesday, that explanation didn't even sit well with Justice Antonin Scalia, who is generally dismissive of establishment clause claims. But Andrew J. Pincus, representing FFRF, seemed to fare worse with the justices. He had barely begun when Chief Justice John Roberts said, "I don't understand under your theory why any taxpayer couldn't sue our Marshal for standing up and saying 'God save the United States and this honorable ...