1. Constitutional Law I Spring 2004 Justiciability – Part III Feb. 3, 2004

2. Generalized Grievances Taxpayer Standing Citizen Standing

3. Flast v. Cohen (1968) Claim: Expenditure of federal funds on religion violates the establishment clause “Congress shall make no law respecting an establishment of religion …” 1 st Amd. Standing: Injury in fact: Pl. taxes used to fund religion Frothingham v. Mellon (1923): taxpayer standing is inadequate  De minimus injury  Generalized injury

4. Flast v. Cohen (1968) Dual nexus in taxpayer cases Logical link between injury and challenged law  Only approp. under taxing & spending clause allowed Logical link between injury and const’l claim  Only claims alleging specific prohibition on taxing or spending allowed Familiar causation requirement Required only in taxpayer cases

5. Flast v. Cohen (1968) Link between taxpayer status and expend- itures violating specific const’l limitations If const’l provision intended to prevent use of tax money for a purpose, then taxpayer has a requisite stake in outcome of controversy Establishment & Free Exercise clauses intended for such a purpose  Originalist interpretation of religion clauses (Madison) Injury-Claim nexus not required in any other context; only taxpayer standing

6. Flast v. Cohen (1968) Harlan Dissent: Distinction betw. direct / incidental expenditures  Example: direct aid to a religious sect vs. burdensome regulation of other sects  Is Harlan right that taxpayer has same interest in both Distinction for Const’l limits on spending power  Need to harmonize disparate const’l provisions/policies Distinct injury (Art. III) vs. Specific prohibition Restraint despite delegated jurisdiction Prudential rules, esp. where other branches are sensitive to constitutional liberties  Is this valid w.r.t. religion?

7. Valley Forge Christian College (1982) Claim: Gift of federal property to religious schools violates the establishment clause “Congress shall make no law respecting an establishment of religion …” 1 st Amd. Taxpayer standing: Link between injury and challenged action  Executive branch vs. congressional action  Gift of property (under Art. IV, § 3, cl. 2) vs. gift of money (under appropriations clause) Are these distinctions principled ones?  What about tax exemption for religion?

8. Valley Forge Christian College (1982) Brennan’s dissent: Proper tone? Is his criticism of obtuse formalism valid? Doesn’t 1 st amd itself draw a distinction between congress and executive?

9. Generalized Grievances Taxpayer Standing Citizen Standing

10. U.S. v. Richardson (1974) Claim: Secret CIA budget violates app. cl. “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” Art. I, § 9, cl. 7 Standing Nexus: Logical link between injury and challenged law  Approp. under taxing & spending clause per Flast Logical link between injury and const’l claim  Specific limitation upon taxing/spending power?

11. U.S. v. Richardson (1974) Generalized Grievance Is const’l limitation less specific than in Flast? Is claim more generalized than in Flast? Can anyone litigate this case? J. Rehnquist: “the absence of any particular individual or class to litigate these claims gives support to the argument that the subject matter is committed to the surveillance of congress.” I.e., this action by congress is beyond judicial review Does Richardson overrule Flast? Marbury? Should S.Ct. have roving commission to police the constitution? Council of Review?

12. Ripeness Timing: avoidance of premature litigation Premature if harm lies in future without fair degree of certainty that it will occur Premature if facts are yet to gel, such that precise contours of controversy are unknown Ex: challenging statute before signed into law  Certainty that a dispute exists, not hypothetical Ex: challenging a law after enactment but before it is applied to plaintiff  zoning restriction before the property owner seeks permits or variance (specific facts don’t yet exist)

13. Poe v. Ullman (1961) Claim: Connecticut law prohibiting use or prescribing birth control violates right of privacy Injury: Prosecution always satisfies injury & causation Fear of prosecution?  How well-founded? If unlikely, what purpose does litigation serve? No prosecutions since 1879 Except to intimidate clinics ??? Loss of income (from counseling services)?

14. Abbott Labs v. Gardner (1967) Claim: Secretary of HEW exceeded statutory power in promulgating drug labeling regulation Injury: Compliance would be expensive & affect sales Ripe? Are facts sufficiently concrete even without violation and subsequent prosecution? Declaratory judgments are discretionary Administrative Procedure Act Requires “Final Agency Action”

15. Mootness Plaintiff must have live controversy when complaint filed, AND at all stages of litigation burden on Def’t to establish mootness Case can become moot Parties die, events occur or lapse Controversy is settled Exceptions to mootness Voluntary cessation of harm Capable of repetition yet evading review Art. III or Prudential?

16. Capable of Repetition w/o Review Moore v. Ogilvie (1969) Election controversies are usually over by the time case can be resolved Strict mootness doctrine would preclude review Roe v. Wade (1973) Pregnancy usually over before case decided Defunis v. Odegaard (1974) Law School usually over by time case is final for him But dispute not capable of repetition for him  Thus, he might not have requisite stake in outcome Should case have been filed as class action?

17. Voluntary Cessation of Harm Ex Parte Yerger (1868) Union army released him before S.Ct. decided Party asserting mootness has burden of proof to show wrong “could not reasonably be expected to recur” v. (2000) After adverse ruling by Ct. of Appeals, Laidlaw closed

18. Class Action Suits – Geraghty (1980) At least 1 member of class must have live controversy at all stages of case Need not be named class representative If class cert. sought before case is moot  Substitute in new class representative,  Or appeal denial of certification