Title
A Call for Judicial Restraint: Federal Taxpayer Grievances Challenging Executive Action
Abstract
In my Article, entitled A Call for Judicial Restraint: Federal Taxpayer Grievances Challenging Executive Action, I call upon the Judiciary to stay its hand in taxpayer grievances concerning purely executive action. Recently, in Freedom From Religion Foundation, Inc. (Freedom) v. Chao, 433 F.3d 989 (7th Cir. 2006), the Court of Appeals for the Seventh Circuit held that the plaintiffs qua taxpayers had standing under Article III of the Constitution to challenge the constitutionality of the Executive Branch’s dedication of federal funds to President Bush’s Faith Based and Community Initiatives (FBCI) program. The majority opinion, written by Judge Posner, spawned a vigorous dissenting opinion by Judge Ripple, who on denial of defendants’ petition for rehearing, was joined by three more judges. Two more circuit judges, Chief Judge Flaum and Judge Easterbrook, concurred in the denial of rehearing, but only because they viewed the matter as one for the resolution by the Supreme Court. A petition for writ of certiorari, which was filed on August 1, 2006, is presently pending before the Supreme Court. In the Article, I argue that the Freedom court’s notion of taxpayer standing court is irreconcilable with Supreme Court taxpayer standing case law and, moreover, is untenable as a matter of modern standing doctrine. I argue that rejection of the Freedom court’s unprecedented notion of taxpayer standing is critical to the public’s confidence in the integrity of the unelected Judiciary and the separation of powers of government upon which the Constitution was founded. I propose that through general oversight authority and the power of the purse, the Legislative Branch is more capable of addressing and remedying taxpayer grievances challenging executive spending abuses.
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