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80 Supra 1 (2010-2011)

handle is hein.journals/missourc80 and id is 1 raw text is: REPLY Taxpayer Standing from Flast to Hein Carl H. Esbeck* There are two preliminary matters with respect to Professor Maya Manian's response to my extended essay2 that need addressing. First, Manian's overall lament is that my essay concerning Justice Alito's plurality opinion controlling the result in Hein v. Freedom From Religion Foundation, Inc.3 pays insufficient homage to strict separation of church and state. My essay could just as easily have elicited a passionate scold that I was woefully undervaluing the doctrine of separation of powers which Hein slighted by not overruling Flast v. Cohen.4 However, church-state separation and separation of powers are of equal value in the Constitution. As my essay candidly admits, the Court in Hein had before it the proverbial hard choice of trying to sensibly mediate between clashing constitutional imperatives. Policing the line between church and state, while at the same time policing the Judicial Branch so that it does not exceed its powers by entertaining cases where the plaintiff is without standing, are constitutional goods of equal merit, and Justice Alito's opinion made a plausible case for striking the line between no-establishment and standing based on doing the least harm to these two restraints. Curiously, Manian has little to say about separation of powers as honored in Hein by maintaining the traditional requirements for standing. Separation of powers was the motor that caused Hein to be decided the way it was decided, yet Manian's response warms only when chatting on about the separation of church and state. I too value church-state separation, but candor compels me to acknowledge that it is but one good nested in a Constitution of multiple goods. The Constitution provides no sliding scale for privileging one good above others. Indeed, it is Flast taxpayer standing that is the exception to the rule, as Manian thrice reminds 5 us. This brings me to the second preliminary matter. Manian's response repeatedly exaggerates the scope of the principle of law stated in the Hein plurality. Her second paragraph, for example, says that Hein declined to extend taxpayer standing as a means to challenge executive expenditures that violate the Establishment Clause.,6 The line drawn by the Hein plurality, however, is not between congressional expenditures and executive expenditures. Rather, the focus is on discretionary expenditures by the executive. Indeed, the line is not even Carl H. Esbeck is the R.B. Price Professor and the Isabelle Wade & Paul C. Lyda Professor of Law at the University of Missouri. 1 Maya Manian, Response, Hein and the Goldilocks Principle, 79 Miss. L.J. MISSING SOURCES 178 (2010), http://mslj.law.olemiss.edu/mlj-online/volume79/responses/Manian.pdf. 2 Carl H. Esbeck, What the Hein Decision Can Tell Us about the Roberts Court and the Establishment Clause, 78 Miss. L.J. 199 (2008). 3 551 U.S. 587 (2007) (plurality opinion). The controlling plurality was written by Justice Alito and joined by Chief Justice Roberts and Justice Kennedy. Id. at 592. Justice Kennedy wrote a concurring opinion. Id. at 615. Justice Scalia, joined by Justice Thomas, wrote an opinion concurring in the judgment. Id. at 618. 4 392 U.S. 83 (1968). In a challenge under the Establishment Clause to federal legislation that provided limited funding to primary and secondary schools, including religious schools, the Court concluded that plaintiffs had standing to bring the lawsuit as federal taxpayers. Id. at 103-06. Manian, supra note 1, at 178-79, 182. 6 Id. at 178; see also id. at 178-80.

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