June 26, 2007

On the Decision in Hein

Dahlia Lithwick and Walter Dellinger have some reasonable points about Justice Alito's executive branch-friendly opinion in Hein (Alito executive-branch friendly? who'd have thought that?!?):


Justice Souter need barely put an oar in the water after Scalia's efforts. He merely notes in his dissent that for some ill-defined and incomprehensible reason "the controlling opinion closes the door on these taxpayers because the Executive Branch, and not the Legislative Branch, caused their injury." He is baffled that Alito has devised some sort of magical separation-of-powers rationale that renders spending decisions by the president less worthy of judicial review than those decisions made by Congress. As he puts it, "If the Executive could accomplish through the exercise of discretion exactly what Congress cannot do through legislation, Establishment Clause protection would melt away."

And what Souter need not add to this analysis—after all, it's been shouted from the front page of the Washington Post all week—is that now more than ever we should understand why shielding executive branch actions from court scrutiny, merely because they happen to emanate from the executive branch, is a pretty damn horrifying idea. That's assuming we can even identify anymore what the words executive branch might mean.


Flast was a very bad decision. It both reflected and contributed to the view that the court is above everyone else when it comes to interpreting the Constitution. Five current justices clearly think it was wrong (Roberts, Scalia, Kennedy, Thomas, and Alito). But the new arrivals, Roberts and Alito, stopped short of overruling it out of a stated respect for stare decisis (the principle that previous holdings of the court should usually stand). Instead they accepted the solicitor general's suggestion that there is a difference between the expenditure of congressionally earmarked money, which gave rise to standing in Flast, and general appropriations by the executive branch. But nobody, I mean nobody, can offer a really convincing explanation of why that difference (and a couple of other distinctions understandable only to somebody who is both a Jesuitical and a Talmudic scholar, as well as president of a law review) matters. Flast and Hein present the same issue: Either the court should limit itself to deciding real lawsuits, or it should proclaim upon the constitutional rightness or wrongness of governmental actions whether or not there is such a suit.
Posted by armand at June 26, 2007 06:52 PM | TrackBack | Posted to Law and the Courts


I know these decisions were bad (in the sense of "fairly right-wing"), but I haven't had anyone explain how bad they are. Is this "annoying but OK" or "move to Canada" territory?

Posted by: baltar at June 27, 2007 12:19 AM | PERMALINK

Well of course that depends a bit on which side of right-wing one's discussing.

On the business side, a Bloomberg report said: "In what may have been the most pro- business U.S. Supreme Court term in decades, standing out as companies' No. 1 ally was no small feat. Justice Samuel Alito managed it in his first full year."

On the social/rights side it sort of depends on the case (the abortion decision was full-on move to Canada horrible) and how it's interpreted in the future. The latter seems particularly important as while there now seems to be a MUCH firmer 5-4 split favoring the right, the conservative 5 don't appear to agree on their tactics on a lot of these issues - so you get badly fractured opinions in some cases.

But that's the take of a non-lawyer. So if a lawyer wants to chime in ...

Posted by: Armand at June 27, 2007 08:04 AM | PERMALINK

the speech cases were intrinsically (by their own terms) and extrinsically (as compared to each other) completely inconsistent. i haven't read Hein, but i don't suppose i need to do so to agree in principle that this Court's completely wack when it comes to standing as a general matter. distinguishing between legislative and executive action on this front -- taxpayer standing -- is harder to understand.

there is one possible rationale, though, that might at least nominally support that ruling -- to wit, while the executive is subject to supposedly meaningful legislative oversight, the legislature is subject to far less executive oversight. the problem with this view, though, is that the legislature also -- and more frequently, via the House -- faces the voters, which is itself, for abstract constitutional purposes, a sort of oversight that might replace the absence of executive oversight.

i guess i have to read Hein to know what the full argument was. i'm less and less impressed with Lithwick, frankly, and less confident than i used to be that her intellectual honesty always wins out over her desire to be pithy. and as for dellinger, well, just his quip about presidents of law reviews disqualifies him from serious consideration, considering that a) few law reviews have presidents, and b) almost all law reviews are nominally headed up by students, who are not the best at splitting hairs. maybe dillinger's just guilty of a bad joke -- jesuitical and talmudic scholars and whatnot -- but this rubbed me wrong anyway, whether as a dig at legal academe, or just a poorly constructed joke.

Posted by: moon at June 27, 2007 11:31 AM | PERMALINK

having given dellinger a hard time, however, i should give him credit for his dead-on account of the commerce clause and state sovereignty:

Congress has the power to ban anything from crossing a state line for any reason. And Congress can regulate any activity that's economic even if it's wholly within one state. But if it's not economic, and it doesn't cross state lines, then Congress cannot regulate it—unless five justices think the regulation in question is a really, really good one. This national power is limited to some extent by state sovereignty, a doctrine traditionally invoked by those on the right to insulate conservative red-state practices from federal regulation. This doctrine is now eyed fondly (but warily) by liberals seeking to protect blue state positions on gay marriage and medical marijuana. Rule of thumb: State sovereignty claims are more likely to be upheld by the current court when advanced by Alabama than when put forward by Oregon.
Posted by: moon at June 27, 2007 11:34 AM | PERMALINK

I think Delligener was simply trying out a bad joke - I guess he should leave pithy to Dahlia, as that's her forte.

Posted by: Armand at June 27, 2007 12:03 PM | PERMALINK

Uh, I'm not a lawyer, and don't pretend to be one, but the Executive has (in my opinion) way more oversight over the Legislature than the other way around. It's the Executive, after all, that actually puts into practice what the Legislature passes, and the bureaucracy gets to interpret what Congress passes. Thus, the Executive gets the final say. Additionally, of course, the Executive has actual people with actual guns that can do stuff, while Congress can (at best, and this is effective at times) just publicly yell at people (the power of the purse isn't really useful, I think).

Just say'n.

Posted by: baltar at June 27, 2007 12:20 PM | PERMALINK

sure, baltar -- congress proposes and the executive disposes. the same is true of the Court, so taking your point to its logical conclusion, only the executive has any power at all.

my point was structural, however -- the power of the purse amounts, on paper, to a substantial trump on executive power (and state prerogatives, as a practical matter), and the executive branch, again assuming good faith, can only enforce the laws that it is given the opportunity to sign into law by congress.

as for administrative action, the deference the courts afford administrative decisionmaking is limited by the terms of the enabling legislation, and congress can cabin administrative decisionmaking in enabling legislation as much as it wants. then there's the whole non-delegation doctrine, which further limits the degree of discretion that may be granted administrative agencies.

in short, i stand on my point -- taking bad faith and constitutional crises off the table as anomalous, the legislature enjoys more structural, constitutional power to limit executive action than does the executive vis-a-vis the legislature (the legislature constitutionally can cut off the executive; the executive can't constitutionally refuse to enforce the law entirely (allowing, of course, for the exigencies of triage)). accordingly, one might credibly argue that taxpayer standing is more critical as a check on legislative action than the executive.

personally, i prefer an account of taxpayer standing that errs on the side of inclusiveness. i'm merely making an observation. and in any event i still haven't read Hein; it's too much fun to speculate.

Posted by: moon at June 27, 2007 11:52 PM | PERMALINK
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