Posted 3:32 PM by Robert

Is The Court Planning To Excise The Religion Exception?

The New York Times reports regarding a federal court challenge to some aspects of the President's faith-based initiatives:

Judge John C. Shabaz of Federal District Court dismissed the lawsuit for lack of standing, finding that the officials activities were not sufficiently tied to specific Congressional appropriations. Taxpayers objections to the use of general appropriations could not be a basis for standing, he said. The president's Faith-Based and Community Initiative was created through a series of executive orders and not by Congress, he noted.

The decision was overturned, and the lawsuit reinstated, in a 2-to-1 ruling by the United States Court of Appeals for the Seventh Circuit, in Chicago. Writing for the majority, Judge Richard A. Posner said the distinction cited by Judge Shabaz made no difference. Judge Posner said the plaintiffs were entitled to challenge the conferences as propaganda vehicles for religion even if they were neither financed through a specific Congressional appropriation nor made grants directly to religious groups.

As a general matter, people do not have standing, based solely on their status as taxpayers, to challenge the expenditure of federal money. The Supreme Court's precedents have carved out religion cases as an exception to this general rule.

In its appeal, Hein v. Freedom From Religion Foundation, No. 06-157, the administration is arguing the exception is a narrow one, designed to prevent the specific historic evil of direct legislative subsidization of religious entities, a definition that the administration says does not apply to the conferences. For the federal courts to permit such a lawsuit, its brief asserts, would upset the delicate balance of power between the judicial and executive branches and open the courthouse door to anyone with a generalized grievance.

The Administration's position may be insufficiently ambitious. The exception that the Court has carved out for religion cases to the general rule that plaintiffs do not have "standing" based solely on their status as taxpayers to challenge the expenditure of federal money is all but indefensible. There is no good reason to treat religion as a special case. Indeed, the Court's exception runs quite contrary in spirit to the growing body of Court precedent affirming that generally applicable rules may not carve out religious exceptions. Moreover, there are many signs that at least the conservatives on the Court view the Court's "standing" rules as needing tightening. That was, for example, much in evidence during the Court's recent hearing regarding "global warming." Federal court "standing" requirements are essential to upholding the Constitution's requirement that federal court jurisdiction be limited to "cases and controversies." There is no good reason to suspend or weaken that requirement just because religion is involved. And there are plenty of indications that the Court is fed up with the annual deluge of religion cases brought on what often seem like general policy grounds by plaintiffs with no real connection to the issues supposedly driving the action. (One can almost hear the annual wails from the great white palace on Capitol Hill: "What, yet another damn slew of annual creche cases!?")

Looking at the matter from another perspective, one might ask: Why has the Court accepted review of a Seventh Circuit case written by one of the most able judges in the country, Richard Posner, where there is no split in the Circuits, and Judge Posner's opinion itself is probably correct - and certainly not seriously wrong? It is highly unlikely that Judge Posner needs "correcting" - he knows how to construe existing Supreme Court precedent better than almost any other person in the world. Moreover, the "exception to the exception" his opinion overturned has little independent merit if one accepts the Court's existing precedent. So why did the Supreme Court agree to review Judge Posner's decision?

Well, if the Court wants to reverse its own precedent and abolish the exception that the Court has carved out for religion cases, one would expect the Court to accept an appeals court decision that gets the existing law (that is, existing the Supreme Court precedent) right - and then reverse. (UPDATE: In fact, that appears to be just what the Court is doing to reverse its own recent decision permitting the limited use of racial criteria in public education.) Is that what the Court is up to now?

We'll just have to wait and see.

Posted 12:36 PM by Robert

The Two Misters Webb

The "icy exchange" between President Bush and Virginia Sen.-elect James Webb has occassioned a great deal of comment (here and here and here and here, for example). We are told that perhaps the exchange has turned Webb into something of a folk hero among critics of the president, who have longed for someone to challenge his bravado, or that maybe his refusal to play "gentlemanly political games" has renewed questions about how well Mr. Webb fits in Congress, where compromise is almost always key. Others assert that Webb was a "jerk" - or perhaps, on the contrary, that it was Mr. Bush who made sounds of the "rattling little aggressions of our day" (this last take seems particularly far fetched).

With all respect to the many commenters, the copious commentary may be missing the most likely root of this exchange: Senator-elect Webb's son probably does not agree with his father's anti-war stance. If that's true, then the elder Webb has very good reason to fear being drawn into a conversation with the President that a more customary response to "How's your boy?" would have occassioned. If the Senator-elect had been drawn into the conversation that the President invited, Mr. Webb père might well have faced the need to either admit that his son supports the war or to dissemble to the President. It's not surprising that the new Senator would choose to evade that choice after his original plan - completely avoiding the President at this gathering - was frustrated by Mr. Bush's attempt to be friendly.

And a serious difference of opinion between father and son probably does exist on this point. How likely is it that Mr. Webb fils - who volunteered as a marine, is now serving in Iraq, and who grew up in a Republican household - is as opposed to the Iraq incursion as the Senator-elect or his supporters? Not very, in my opinion. Moreover, "I'd like to get them out of Iraq, Mr. President," is not the same thing as "He and his buddies would like to get out of Iraq, Mr. President." And the ultimate response of Mr. Webb père, "That's between me and my boy, Mr. President," suggests that father and son may not see eye-to-eye. (According to an anonymous source in The Hill, Mr. Webb confessed that he was tempted to slug the President.) Similarly, another high profile war critic, Cindy Sheehan, has never been deterred by the fact that her son, now-deceased Charlie, re-enlisted after the launch of the Iraq incursion, knowing that his unit would be sent to Iraq. Of course, we don't (yet) know the opinion of Mr. Webb fils, and one would expect him to decline public comment if he does forcefully disagree with his father (although the son's marine buddies may be willing to say more than he would if some enterprising reporter were to ask them). This entire line of thought may therefore be validly criticised as "mere speculation" or "just a guess," at best speculation or guessing supported by general evidence of no great substance. But then, the many other commenters on this "icy exchange" are speculating and guessing no less where they pronounce on what the elder Webb was thinking at the time, or how the President might react in the long run, or how other Senators might take to someone apparently so out of sync with their long established ways (or "gentlemanly games") or how the public might or should respond. The line of thought presented here has at least as much supporting it as do any of those pronouncements.