NO TAXATION WITHOUT REPRESENTATION IN COURT!

The July 4th holiday readily brings to mind the phrase "no taxation
without representation." A major reason for the Americans' wish to be
independent from the British empire was their belief that people
should have a say in the tax policies imposed on them.

Well, we got representation -- and a whole lot more taxes too. Is
representation the taxpayers' only recourse? Perhaps the courts could
provide another form of recourse. If the government is supposed to
be bound by the Constitution, then shouldn't taxpayers be able to sue
the government when their money is used improperly?

Alas, that's not how the courts see it.

Last week the U.S. Supreme Court ruled -- once again -- that merely
being a taxpayer confers no standing to sue the government when it
spends money unconstitutionally. The 5-4 decision in Hein v. Freedom
from Religion Foundation left intact the Bush administration's power
to run its Faith-Based Organization and Communities Initiative. The
Freedom from Religion Foundation (FFRF) filed suit after officials of
the Bush administration held conferences and gave speeches to
encourage the participation of religious groups in the Faith-Based
Initiative. The purpose of this program is to permit religious
social-service organizations to compete with secular organizations
for taxpayer money to carry out various government purposes, such as
drug counseling. FFRF argued that using tax money for religious
beneficiaries violates the First Amendment's Establishment Clause,
which states, "Congress shall make no law respecting establishment of
religion."

The Court did not say the plaintiff's argument had no constitutional
merit. It said that simply being a taxpayer does not qualify a
person to make that argument in court.

The Supreme Court has allowed one exception to its rule against
taxpayer suits. If a specific congressional appropriation violates
the Establishment Clause, a taxpayer can sue. But a majority of
justices said the FFRF case doesn't qualify because a presidential
order, not Congress, authorized spending on the Faith-Based
Initiative. Why that distinction should matter is anyone's guess.

What explains this bad attitude toward taxpayer suits? The answer
given is that no taxpayer is specifically harmed by the spending. As
the Supreme Court put it previously, "Interest in the moneys of the
Treasury ... 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."

In the FFRF case Justice Antonin Scalia added, "Is a taxpayer's
purely psychological displeasure that his funds are being spent in an
allegedly unlawful manner ever sufficiently concrete and
particularized to support ... standing? The answer is plainly no."

Another rationale for not permitting the suits is that they would
prompt a violation of the separation of powers. As Justice Anthony
Kennedy wrote, "Permitting any and all taxpayers to challenge the
content of ... executive operations and dialogues would lead to
judicial intervention so far exceeding traditional boundaries on the
Judiciary that there would arise a real danger of judicial oversight
of executive duties."

Justice Samuel Alito added another reason: "In light of the size of
the federal budget, it is a complete fiction to argue that an
unconstitutional federal expenditure causes an individual federal
taxpayer any measurable economic harm. And if every federal taxpayer
could sue to challenge any Government expenditure, the federal courts
would cease to function as courts of law and would be cast in the
role of general complaint bureaus."

To all of which, one may ask, so what? Who's supposed to be in
charge, the government or the people?

Taxpayer standing may seem like an arcane technical legal issue of
little consequence for freedom But that's not the case. It's
critical to keeping government on a short leash.

Isn't that why our ancestors revolted?