A follow-up question on Arizona Christian v. Winn

I was too late to join in on Burt’s post about the Winn decision, but this was my question:  If Flast—carving out an exception for Establishment and Free Exercise Clause cases to Frothingham’s general holding that taxpayers lack standing to challenge federal spending—is a good policy that should be upheld, doesn’t that mean Frothingham represents a bad policy to a much greater degree and should be struck down? Similarly, should we get rid of the Chevron doctrine that gives so much deference to agencies and thus makes their actions, to a substantial degree, unreviewable by the courts?

My suspicion is that if you are a liberal, you will tend to reflexively like Frothingham because it protects big spending programs from challenge, and Flast because it permits challenges to spending that benefits religion—one of the relatively few sorts of spending programs liberals reflexively dislike.  Conversely, I also suspect that if you are a conservative, you are meant to dislike both Frothingham and Flast for precisely the same reasons. 

Tim Kowal

Tim Kowal is a husband, father, and attorney in Orange County, California, Vice President of the Orange County Federalist Society, commissioner on the OC Human Relations Commission, and Treasurer of Huntington Beach Tomorrow. The views expressed on this blog are his own. You can follow this blog via RSS, Facebook, or Twitter. Email is welcome at timkowal at gmail.com.


  1. The issue of taxpayer standing is a tricky one because there is such a big gap between the first principles (people shouldn’t be forced to pay taxes to support something unconstitutional) and the prudential understanding of what an institution made up of humans can bear (courts can’t handle every crank with a 1040-EZ and a beef).

    Flast is an unprincipled workaround for an unprincipled doctrine that we nevertheless need in some form. It’s two bad tastes that taste bad together.

    Is there a better solution? Congress could step in and pass a law allowing certain classes of taxpayer standing suits (as it has with some environmental law violations), but the result would inevitably be very partisan.

    • Rj’s idea is, of course, ideal. Like so many other things, political reality gets in the way. One cannot approach this subject without being branded liberal or conservative –as if access to the courts was somehow a partisan issue in the first place. Last time I checked,both sides were eager to use the courts when they perceive advantage in doing so.

      In the current climate of our culture we tend to see social conservative types (a fraction thereof, not all of them) looking to advance policies that skirt the establishment clause and social liberals (again not all of them) wanting to challenge them. But a rule made now can restrict rights in the future when the landscape is different. That’s why the rule needs to be righ no matter whose side benefits in the short run.

    • It’s worth noting that without a change to standing rules, we never would have had Roe v. Wade. To challenge abortion laws, you need a pregnant woman. You also need many years of working your way up the court system to reach the Supremes. Given the conflict, there could never logically be a challenge to abortion laws. However, in the Roe v. Wade that people don’t read, the court created out of whole cloth a class of cases “capable of repetition, yet evading review.”

      Logically, this makes perfect, nonpartisan sense – a carve-out to existing non-principled but necessary prudential rules where they clearly fail to serve the interest of justice, or at least to settle continuing controversies. I happen to agree with the decision in the case it led to (even if it was written clumsily), but a lot of other people don’t. Would a GOP-controlled Congress have allowed this commonsense change? Of course not, and for all the wrong reasons.

      So what does the lawmaker do? Vote for sensible legislation, or score some political points on an unrelated issue?

      • All the more reason Burt is right. Tough cases make bad law; when an issue so excites the passions that the outcome seems more important than the rules and principles that need to be manipulated or ignored to get there, then we tend to see rules and principles manipulated or ignored. Better to establish and firm up those rules and principles in the easy cases so that they’re less susceptible to mischief when the hard cases come around.

Comments are closed.