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July 10, 2007

Stephanie Salter: The Supreme 5: Only Congress can be sued, not White House

Stephanie Salter

TERRE HAUTE — In Joseph Heller’s “Catch 22,” the only way a man could get out of flying deadly bombing missions was to be crazy. But if he asked to be grounded because he knew it was crazy to keep flying, it meant he was really sane, so he had to keep flying.

As Capt. John Yossarian says, “That’s some catch, that Catch-22.”

“It’s the best there is,” says the squadron sawbones, Doc Daneeka.

The U.S. Supreme Court’s ruling late last month on Hein v. Freedom From Religion Foundation is reminiscent of that same kind of “logic.”

The decision was, of course, 5 to 4, with the majority again consisting of the men who decry “activist judges” all the while they overturn precedent with their increasingly peculiar view of Constitutional law: Justices John Roberts, Anthony Kennedy, Clarence Thomas, Antonin Scalia and Samuel Alito.

Some “conservatives” these guys are.

In Hein, a Wisconsin group dedicated to separation of church and state, sued several members of the Bush White House, including Jay F. Hein, the head of the Office of Faith-based and Community Initiatives. The suit was based on the Establishment Clause of the First Amendment, that long-held idea that taxpayer money should not go to an office or program that favors religious groups over any other kind of charitable or educational organization.

Last year, the U.S. Court of Appeals for the 7th Circuit agreed, 2-1, with the Freedom From Religion folks. The appeals court noted a 1968 U.S. Supreme Court decision that specifically permits taxpayers to sue the government over funding that appears to promote religion.

But the Roberts Five overturned that appellate decision, saying the taxpayers from Wisconsin had no standing to sue in this instance.

Why? Here comes Catch-22.

As Justice Alito wrote, the Office of Faith-based and Community Initiatives doesn’t have to follow the law set out in 1968 because the office is the creation of President Bush, not Congress. The faith office receives its share of taxpayer dollars through “general Executive Branch appropriations,” Alito wrote, not through the House and Senate.

In other words, the court agrees that taxpayers should be able to sue when the government seems to be giving money to support religious endeavors — but only when it’s Congress, not the White House, doing the giving.

If it’s the White House — where no votes must be taken and no majorities achieved to set up programs or hand over billions of dollars — taxpayers have no standing to challenge their government.

Justice David Souter, writing for the minority Dissed Four, noted that the Hein decision wasn’t about whether it appears public funds went for religious use.

“Here there is no dispute that taxpayer money in identifiable amounts is funding conferences, and these are alleged to have the purpose of promoting religion,” he wrote. “When executive agencies spend identifiable sums of tax money for religious purposes, no less than when Congress authorizes the same thing, taxpayers suffer injuries.”

The majority, however, seems to take its notion of injuries and suffering literally. Forget principles and the Constitution, it’s all about dollars and cents.

Writing for three of the Ruling Five — a word in a minute about the other two — Alito actually said the federal government’s budget is so big, there is no way that “an unconstitutional federal expenditure causes an individual taxpayer any measurable economic harm.”

Got that? Who cares if it might be illegal? It isn’t going to cost you, the taxpayer, any real money, so you have no right to even bring the issue to court.

Individually, Alito may be right about small change. But all those puny individual tax dollars add up. As an Associated Press analysis of the Hein ruling noted, seven federal agencies gave away $2.1 billion to religious charities in fiscal 2005.

For some of us Americans, that seems to leave a lot of potential for unconstitutional federal expenditures.

As for Justices Thomas and Scalia, those two “conservatives” penned their own opinion on Hein. In it they complained that the new ruling didn’t go far enough in denying taxpayers access to the courts. Scalia called the 1968 ruling (Flast v. Cohen) “an inkblot on our jurisprudence,” and said it should be thrown out.

Writing for himself and Justices Ruth Bader Ginsburg, Stephen Breyer and John Paul Stevens, Souter saw it way differently. He pointed to the ridiculous distinction between Congress and the White House in the court’s new ruling and said the Hein decision “closes the door on these taxpayers because the executive branch, and not the legislative branch, caused their injury.”

Souter added: “I see no basis for this distinction in either logic or precedent.”

No, Justice Souter, you wouldn’t — unless you pull out your copy of “Catch-22” and review the rules about being crazy. The logic and precedent are invincible. As Doc Daneeka said, they’re “the best there is.”

Stephanie Salter can be reached at (812) 231-4229 or stephanie.salter@tribstar.com.

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