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Friday, January 13, 2006

Ind. Decisions - 7th Circuit decides case on standing to challenge an executive-branch program under the establishment clause [Updated]

In Freedom from Religion Foundation v. Choa, DOL, where a 15-page opinion by Judge Posner is followed by a 10-page dissent by Judge Ripple, Judge Posner writes:

The question presented by this appeal is whether a taxpayer can ever have standing under Article III of the Constitution to litigate an alleged violation of the First Amendment’s establishment clause unless Congress has earmarked money for the program or activity that is challenged. The district judge thought not, and would have been correct in his thinking under an earlier view of Article III’s limitation of the federal judicial power to deciding “Cases” and “Controversies.” It was once thought that these terms (which “are, for all intents and Taxpayers have standing to challenge an executive-branch program, alleged to promote religion, that is financed by a congressional appropriation, even if the program was created entirely within the executive branch, as by Presidential executive order. We therefore vacate the judgment and remand the case for a determination of the merits of those claims that we have determined the plaintiffs have standing to litigate. VACATED AND REMANDED, WITH DIRECTIONS.
Judge Ripple:
RIPPLE, Circuit Judge, dissenting. Today, the panel majority holds that executive conduct alleged to have violated the Establishment Clause may be challenged by federal taxpayers so long as that conduct was financed in some manner by a congressional appropriation. Because I do not believe that the applicable Supreme Court precedent permits such a dramatic expansion of current standing doctrine, I respectfully dissent.
[More] This case is the "Decision of the Day" here, at the Decision of the Day blog, under the headline "Challenge to Bush’s Faith-Based Initiative May Proceed."

Posted by Marcia Oddi on January 13, 2006 11:53 AM
Posted to Ind. (7th Cir.) Decisions