Cases by Issue - Taxpayer's Suit

DaimlerChrysler Corp. v. Cuno - Oral Argument

Fri, 09 Jan 2009 14:48:55 +0000

Case:

DaimlerChrysler Corp. v. Cuno

Media File:

04-1704_20060301-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Theodore B. Olson

Chief Justice Roberts: We'll hear argument first this morning in 04-1704, Chrysler versus... DaimlerChrysler versus Cuno, and 04-1724, Wilkins versus Cuno.

Mr. Olson.

Mr. Olson: Mr. Chief Justice, and may it please the Court--

Respondents dispute the wisdom, efficacy, and constitutionality of Ohio's franchise tax system, but they face two insurmountable obstacles in this Court.

First, they cannot demonstrate any actual, concrete, and direct injury as a result of Ohio's investment tax credit to satisfy the irreducible minimum requirement for standing in this Court.

Secondly, the facial Dormant Commerce Clause challenge that they bring is without merit.

Ohio imposes no burdens or tariffs on interstate commerce.

Its investment incentive program is available on equal terms to in State, out of State, local, or interstate businesses.

It is nondiscriminatory, and it stimulates, rather than impedes, commerce.

Respondents are not injured when a business with which they do not compete receives a reduction in their taxes as a result of a tax credit.

Respondents pay no higher taxes for products.

They suffer no coercion because of a tax credit that is given to others.

Their tax burden is not increased by Ohio's investment tax credit, nor will it be lessened if it is eliminated.

Justice Ginsburg: Mr. Olson, who would have... who would have standing?

I understand your argument that Ohio taxpayers don't, but are there people who would have standing?

Mr. Olson: I'm not sure, Justice Ginsburg.

In some of this Court's Dormant Commerce Clause cases, competitors, who are arguably injured because they are paying a higher tax against the... compared to the company that's receiving the benefit... in a couple of cases, this Court has recognized customers of companies that are paying higher products, and, therefore, potentially higher prices, for the products that they purchase.

And, in one or two cases, States have been recognized for purposes of standing.

But--

Justice Scalia: You think there has to be somebody who can challenge it, though.

Mr. Olson: --No, we don't think that at all.

As this Court--

Justice Scalia: Some of our opinions say that, don't they, that--

Mr. Olson: --Well--

Justice Scalia: --it's not necessarily true that there has to be--

Mr. Olson: --What... Justice Scalia, I think the strongest statement is in the Valley Forge case, at page 489, where the Court said,

"If Respondents have no... the argument that if Respondents have no standing to sue, no one would have standing, is not a reason to find standing. "

This would convert "standing" into a requirement that must observed only when satisfied.

But the fact is that under any standard articulated by this Court in its Article III cases, the Respondents here do not have standing.

The effect of the tax is very

"uncertain, hypothetical, or speculative. "

to use the words of this Court, with respect to them.

They cannot demonstrate that they are affected by it.

And as--

Justice Ginsburg: Mr. Olson, I had asked you the question, because I wanted to know whether this case was distinguishable from Flast in that regard, although I recognize your quotation from Valley Forge.

That... Flast seemed to be a case that fit that description, that there was no one who would have a better claim for injury, in fact.

Mr. Olson: --Well, nonetheless, the Court made that distinction in the Flast case with respect to the Establishment Clause, and, specifically, the spending and taxing powers exercised by Congress.

And the Court determined, in that case, that the Establishment Clause was a specific limitation on spending authority.

The Court has been very careful, and many Justices of this Court, individually, have said that that distinction in that case will not be extended beyond the Establishment Clause, in the context of spending, in connection with a religious conviction, or the establishment of a religion.

The Court has indicated, frequently, I think, that that is not going to be extended.

At any rate, it wouldn't be extended... the logic of Flast wouldn't be applicable here anyway.

This is not an application of the spending power by Congress or the taxing power by Congress.

This is the Commerce Clause, which is a permissive grant of authority to Congress, and, at most, under the Dormant Commerce Clause, a limitation on the States.

These respondents are not remotely close to what this Court has said are the irreducible minimums.

Even if they--

Chief Justice Roberts: With respect to the claims that are before us.

But there was standing below for the municipal taxpayers with respect to their challenge to the property taxes.

Mr. Olson: --We believed, at the time, that there was standing with respect to the property taxes... the municipal taxpayers, with respect to the property taxes.

That was the--

Chief Justice Roberts: Right.

Mr. Olson: --basis for the--

Chief Justice Roberts: So, why isn't... these... why aren't the present claims brought under... you know, within the same nucleus of operative facts, the same sort of supplemental jurisdiction that allows the Federal Court to consider purely State law claims if they have jurisdiction of another related Federal claim?

Mr. Olson: --The Court has never treated Article III standing that way, Mr. Chief Justice.

The Court has said,

"a standing is not dispensed in gross. "

--that was the Lewis versus Casey case... that standing has to looked at... be looked at individually with respect to the claim.

Furthermore, this... there was not an identical nucleus of facts.

I mean, it is a... the property tax exemption was issued pursuant to a contract between the company here, DaimlerChrysler, and the City of Toledo.

The State tax--

Chief Justice Roberts: But just to get... I mean, you don't dispute the standing of the municipal taxpayers on the property tax issue?

Mr. Olson: --We did not, and do not.

Now, I... there may be arguments that might be made, that are not before this Court, with respect to the whole idea of--

Chief Justice Roberts: Well, if it's an Article III issue, I think that's always before us.

Mr. Olson: --Well, with respect to the municipal taxpayers and the... and whether there would be standing to challenge the property tax exemption.

That's not an issue that has been briefed here.

It's--

Chief Justice Roberts: Well, I was thinking if your... if the argument is that the claims that you're concerned about today can be piggybacked onto the other ones, then we do have to consider whether there's a pig to piggyback them onto.

Mr. Olson: --Yes.

But that would require a rather significant change in the Court's Article III standing jurisprudence.

It would, furthermore, allow the tail to wag the dog, the exception to swallow the rule.

If anybody could bring any kind of a case at all, then all manner of cases of... with... for which the Court had no jurisdiction at all could be along with them.

Justice Scalia: --In any case, it's clear that that... that that entity no longer has standing, isn't it?

Mr. Olson: No, the... there's a separate entity, called Kim's Auto.

That--

Justice Scalia: Yes.

Mr. Olson: --that entity no longer has standing.

There are still property taxpayers, but that--

Justice Scalia: But they don't--

Mr. Olson: --that's cause--

Justice Scalia: --But they don't... I mean, I thought the assumption here is that they don't have standing.

The--

Mr. Olson: --The--

Justice Scalia: --The former standing of Kim's Auto cannot allow this suit to proceed, under any theory--

Mr. Olson: --That's--

Justice Scalia: --can it?

Mr. Olson: --That's--

Justice Scalia: Don't you have to have standing during the entire--

Mr. Olson: --That's--

Justice Scalia: --process--

Mr. Olson: --That's absolutely correct.

But the Chief Justice was asking me about the municipal property taxpayers with respect to the claim concerning the property tax exemption.

Those plaintiffs... respondents are still in the case.

That's not Kim's Auto.

Justice Scalia: --Yes, but the only person who could give them standing, even by this associational theory, is gone.

Mr. Olson: No, there are... there are still property tax... some of the respondents that are still in the case are property taxpayers.

Kim's Auto--

Justice Scalia: But--

Mr. Olson: --wasn't the only one.

Justice Scalia: --But they are not property taxpayers who have standing under any... under the argument that you've just made.

Mr. Olson: With respect to--

Justice Scalia: The only property tax individual who had standing was somebody whose land had been condemned.

None of these other people in it have had their land condemned--

Mr. Olson: --In--

Justice Scalia: --have they?

Mr. Olson: --In fairness, Justice Scalia, I think that there are other respondents who claim to be property taxpayers in the City of Toledo, aside from Kim's Auto.

Justice Scalia: Whose land has been condemned.

Mr. Olson: No.

They are... they are complaining about the--

Justice Scalia: Well, but--

Mr. Olson: --property tax--

Justice Scalia: --but you say that a property taxowner, simply by being... simply by being subject to the property tax, does not have standing.

Isn't that your position?

Mr. Olson: --No, we're saying... we... the property... under this Court's jurisprudence, municipal taxpayers have been permitted, under some circumstances, to challenge municipal actions, irrespective of the imminent domain proceeding.

So, there is that separate issue that's in the case.

If I might, I would like to spend a moment or two with respect to the merits of this case, because it is a very important issue.

Nearly every State in the United States has some sort of incentive program.

This... with respect to the location of businesses or the drawing of businesses within the State, which is--

Justice Ginsburg: Mr. Olson, I don't mean to deflect you from getting on to the merits, but there was one point in your brief that was of concern to me.

That is, you said that you questioned whether, assuming we accept your argument on standing, it would be appropriate to return this case to the Court of Appeals with instructions that it be remanded to the State Court and with the counsel fees that 1447 entitle one to.

And you said that would not be right.

Mr. Olson: --No.

We believe that the case was properly removed, and, therefore, there's not counsel fees with respect to the removal statute; that the proper resolution would be to vacate the Sixth Circuit decision and then remand to the District Court for a dismissal because of lack of standing, or the Court... this Court hasn't resolved whether it would be a dismissal or a remand to the... to the State Court.

We don't believe that there would be standing under State Court taxpayer or State... Ohio jurisprudence, either.

If I may, Mr. Chief Justice, I'd like to reserve the balance of my time.

Argument of Douglas R. Cole

Chief Justice Roberts: Thank you, Counsel.

Mr. Cole.

Do they have standing in State Court?

Mr. Cole: Your Honor, we do not believe that they have standing in State Court, either.

Ohio has a taxpayer standing doctrine much like the Federal taxpayer standing doctrine.

They would need to show some unique harm separable to them.

I believe the language is that they would have to show that they contribute to a special fund.

And that's out of a case called Masterson, in Ohio.

There is a separate Sheward case that the Respondents cite in, I believe, footnote 5 of their brief.

We don't believe that this falls within the Sheward exception to standing, in Ohio.

There's a certain exception that allows certain cases of great public importance to go directly to the Supreme Court, but we do not believe that--

Chief Justice Roberts: So--

Mr. Cole: --this would fall within that.

Chief Justice Roberts: --And what about the municipal taxpayers on the property tax claim that we were talking about earlier?

Mr. Cole: Yes, Your Honor--

Chief Justice Roberts: Do they have standing?

Mr. Cole: --Yes.

And I wanted to respond a little bit to Justice Scalia's point.

I think what they're trying to claim is, because they have municipal taxpayer standing to challenge the property tax exemption, that that somehow allows them, then, to sweep in their challenge to the investment tax credit, as well.

We don't dispute that they have municipal taxpayer standing to challenge the property tax exemption.

We do, however, dispute whether or not that gives them standing to also challenge the ITC.

Justice Ginsburg: And that's because it's a local... it's a Toledo city property tax, is that the distinction you're making?

Mr. Cole: Well, the property tax exemption is a State tax program, Your Honor, but it requires action by local city leaders--

Justice Ginsburg: So, that's--

Mr. Cole: --to--

Justice Ginsburg: --You would be challenging the local action--

Mr. Cole: --It--

Justice Ginsburg: --rather than the State--

Mr. Cole: --It--

Justice Ginsburg: --action, and that's how you distinguish the municipal taxpayer.

Mr. Cole: --In a sense, that's right, Your Honor.

This Court has noted that the relationship between a municipal citizen and a municipal corporation is akin to between a shareholder and a corporation, generally, and that, in some instances, that will allow the municipal citizens to challenge the actions of their municipal leaders, in a sense.

This property tax exemption involves that type of action.

It would, in a sense, be a challenge to that, and, I think, cognizable under the Court's municipal taxpayer--

Chief Justice Roberts: So, a tax... just... so, a taxpayer in Wyoming can't challenge a State tax, because his claim is too diffuse, but a resident in New York City can challenge the city tax, because it's not.

Mr. Cole: --Your Honor, when looked at from a numerical basis, I agree that the distinction might not seem to carry a lot of weight.

The Court, however, has not looked at it in terms of numbers, it has looked at it in terms of the, quote, "special relationship" that arises between a municipal citizen and a... and a corporation.

And presumably that special relationship exists independent of the size of the municipality.

But, in any event, whether or not they have municipal taxpayer standing to challenge the property tax exemption, there's no way to somehow grow that into standing to challenge the separate enactment by the Ohio General Assembly.

Justice Scalia: There's also a redressability problem, too, isn't there?

I mean, assuming they could, is there any... would action against the Assembly eliminate their tax?

Mr. Cole: It wouldn't, Your Honor, although--

Justice Scalia: No?

Mr. Cole: --I think it puts a point on the problem with, in a sense, trying to grow standing.

You asked, Would it redress?

And I guess the question is, Redress what?

I mean, they don't have any separate harm associated with the investment tax credit that's constitutionality cognizable.

Justice Ginsburg: There are some... at least it's arguable that there's Federal municipal taxpayer standing.

And certainly some States have said that there is.

And that... and whatever Ohio might or might do is not relevant to this proceeding.

We don't know that.

I'm... you've given your opinion on what it would be.

Mr. Cole: Well, that's correct, Your Honor, but, still, there needs to be some way to grow the municipal taxpayer standing into--

Justice Ginsburg: Well, that's a--

Mr. Cole: --standing to--

Justice Ginsburg: --that's the piggybacking question.

That's quite different.

And--

Mr. Cole: --Right.

Exactly, Your Honor.

And my only suggestion was that, even if there is municipal taxpayer standing to challenge a property tax exemption, which we've conceded below, that doesn't somehow confer standing to challenge of separate enactment by Ohio's General Assembly.

Respondents, in their brief, talk about this notion of ancillary standing, but that... the case they cited... and they... principally, they talk about the Flast case, where, in addition to considering the Establishment Clause challenge, the Court also, in a footnote, mentioned the free exercise challenge and the question of whether there would be separate standing for that.

But there, in the Flast case, it was a situation where they were using two theories to attack the same legislative enactment.

Here, they're trying to attack a statute which they haven't shown causes them any harm.

And so, the case is... the challenge that they are bringing is, in a sense, an abstract challenge.

It isn't one that's in a... in a form that's judicially cognizable.

That's why this ancillary standing theory, which would represent a dramatic expansion of the Court's Article III jurisprudence, would not be a sound constitutional interpretation.

It would allow the Court to interject itself into disputes where there's no injury to any... no concrete injury to any specifically identified plaintiff.

Article III's case for a controversy requirement is supposed to ensure that when the Court takes action, it takes action in the context of a particular concrete harm, and it can do its legal analysis against the backdrop of this plaintiff who's been harmed in this manner.

These plaintiffs can't meet that.

They haven't shown any harm to themselves, any judicially cognizable harm, under Article III.

If I could, for a moment, Your Honors, I'd also like to turn to the merits, briefly, of the Respondents' claim.

We believe Respondents' claim also fails on the merits of the Dormant Commerce Clause.

Ohio provides a benefit for those who invest in the State; but Respondents have not, and cannot, identify any burden that the ITC places on interstate commerce.

Absent that burden, their Dormant Commerce Clause claim fails.

Justice Breyer: On the merits, I think that their claim is... take company A and company B.

Both are located in Toledo, both hire a certain number of people, have a certain payroll, have a certain amount of property, and have a certain amount of business.

Identical.

And they're charged a tax.

And now, what... company B, when it's thinking of building a new plant or make new investment in machinery, if it goes to Wisconsin, it will discover it pays less taxes on all those things that were already in Ohio.

And, therefore, the people who sell land or machinery in Wisconsin are discovering it isn't being bought, because that old tax, which really had nothing to do with this new investment, is now less because of the new investment.

So, that hurts businesses in Wisconsin.

As I understand it, that's their claim.

And if I've got it wrong, I'm sure you'll correct me.

Mr. Cole: Well, I don't think that... that's not the way that I understand their--

Justice Breyer: All right.

Mr. Cole: --claim, Your Honor.

Justice Breyer: Well, then I'm probably wrong.

[Laughter]

Mr. Cole: I understand their claim... I understand their claim more to be that two identically situated businesses, if... both have the same tax bill... one builds a new facility in Ohio, one builds a new facility in Wisconsin.

The one who builds the new facility in Ohio is going to have a lower tax bill than the one who builds the new facility in Wisconsin.

Justice Breyer: So, that... that is true, and then the effect of that is that firms that now do business in Ohio won't build their new facility in Wisconsin, because they like the lower tax bill in Ohio.

And that hurts businesses and others in Wisconsin.

Mr. Cole: Your--

Justice Breyer: You were saying they have no harm?

I think they're pointing to that harm.

Mr. Cole: --Well, Your Honor, first, I'd note that's not a harm that they face, of course, going back to--

Justice Breyer: Well, what is the harm--

Mr. Cole: --standing issue, but--

Justice Breyer: --they think... well, they can tell me.

All right.

Mr. Cole: --Yes.

But--

[Laughter]

--separately, Your Honor, I think what... in this Court's Dormant Commerce Clause jurisprudence, when the Court has talked about "burden", in the past, the Court has talked about the situation where activity out of State is somehow assessed a tax.

That is, the tax in State A goes up as a result of activities in State B.

The Westinghouse case is a perfect example.

There, there was a New York tax that increased for each export transaction that occurred outside the State.

In a sense, New York was exporting the tax burden to activities that existed in some other State.

And that's the sense in which the Court has used the word "burden" in its past cases, not this more amorphous sense that Plaintiffs... or Respondents are pushing here.

Justice Ginsburg: --There isn't... the tax credit doesn't give them... require them to buy, in State.

I mean, the purchase... whatever they equip the plant with can come from vendors and manufacturers, out of State?

Mr. Cole: That's absolutely right, Your Honor.

There's no limit on where the taxpayer purchases the equipment they install in the State.

There's no limit... no effect on where the goods from the factory go.

There's no limit on who you can hire to work in the factory, or where they come from.

Justice Scalia: And the credit's available to out of State companies.

Mr. Cole: Absolutely, Your Honor.

The credit is available independent of whether you already have a presence in Ohio, whether you've never had a presence in Ohio, whether you've never even paid taxes in Ohio before.

Certainly, if you invested in the State, you're now going to have a corporate franchise tax bill, and the credit would be useful to you at that point.

But you could have had no preexisting relationship with the State at all, as a taxpayer, and still take advantage of this tax credit.

It's equally available to all comers.

The only question is, What do you do in the State of Ohio?

Do you invest money in the State of Ohio?

And the credit turns on the amount of that activity in Ohio.

If DaimlerChrysler establishes a new plant in Missouri or Montana or California, it, in no way, impacts the credit that they receive in Ohio.

They're not deprived of that credit.

It doesn't become of a... of a lower value because of their decision to invest elsewhere.

And so, under this Court's--

Chief Justice Roberts: Well, but it would be of higher value if they invest it in Ohio.

I mean, that's all--

Mr. Cole: --Interestingly, Your Honor, it--

Chief Justice Roberts: --Presumably, the Ohio legislators were not doing this irrationally.

Mr. Cole: --I would... I would hope not, Your Honor.

I mean, I think the sense is that it increases investment in Ohio.

And that's what this Court has called a "laudable goal" of State economic policy, is to try to increase investment within the State to benefit the citizens of the State.

Certainly, that's--

Chief Justice Roberts: That... in some sense, at the expense of the citizens in other States.

Mr. Cole: --I don't know, Your Honor.

A couple of responses to that.

First, to the extent this spurs investment that otherwise would not have taken place anywhere else, of course that's just positive sum.

That's new economic development that wouldn't have occurred, but for this incentive, or incentives like it.

Of course, at some level there's going to be competition for where these manufacturing facilities are located.

But, again, this Court has noted that competition among the States for their share... or their fair share of interstate commerce is not, in and of itself, a Commerce Clause problem.

The question is only when that competition becomes discriminatory in some way.

And what the Court has meant by "discriminatory" is, Does it somehow tax your decision to be somewhere else?

When you decide to be in Missouri, does that increase your Ohio tax bill over what it would otherwise be?

Camps Newfound, perfect example.

You decide that you're going to serve an interstate clientele, your tax bill goes up above what it would be if you didn't serve an interstate clientele.

And Ohio's tax credit doesn't have that characteristic that the Court has found so troubling.

In fact, looking back through the Court's cases, over and over again this notion of burden comes up, and... whereby, "burden", it means

"imposing taxes on the business of other State. "

all the way back to Guy versus Baltimore,

"You can't build up your commerce by means of an... unequal and oppressive burdens upon the industry and business of other States. "

So, certainly if Ohio were attempting to tax DaimlerChrysler, or treat DaimlerChrysler worse because it had put a plant in Missouri, that would create a Dormant Commerce Clause question.

But here, there's simply nothing like that.

In fact, Respondents' theory would dramatically expand this Court's Dormant Commerce Clause jurisprudence, and would strike down a whole swath of State laws that have engendered substantial investment backed expectation at this point.

Billions of dollars have been invested by thousands of companies in reliance on various forms of locational credits, whether it be job incentive credits, whether it be investment tax credits, whether it be environmental cleanup credits.

All of those credits would be at risk under the theory that Plaintiffs espouse.

Your Honors, this Court has more than once noted that the Commerce Clause demands that the States must sink or swim together, but it has never suggested that the States must be indifferent between those two options.

Frankly, Your Honor, the States would prefer to swim.

ITCs like Ohio's help the States keep their economies afloat.

Respondents disagree with this, as a policy matter, but that debate belongs in Ohio's statehouse, not here.

The ITC is not protectionist, and it imposes no burden on interstate commerce.

And, thus, it does not violate the Dormant Commerce Clause.

Ohio respectfully urges the Court to reverse the decision below or, in the alternative, to vacate the decision for lack of standing.

Justice Stevens: May I ask this question?

Would the case be any different if, instead of a tax credit, they offered a cash subsidy?

Mr. Cole: Your Honor, I don't actually think it would be any different, in the sense that neither one of those two would violate the Dormant Commerce Clause.

Of course, this Court has noted, in various cases, albeit in dicta, that subsidies ordinarily do not run afoul of the Dormant Commerce Clause.

I think this tax credit ends up having the same economic impact.

And, for all the reasons I stated about a lack of burden, even if some tax credits that might be like subsidies could create a Dormant Commerce Clause problem, this tax credit does not.

It imposes no burden on out of State activities.

Thank you.

Argument of Peter Enrich

Chief Justice Roberts: Thank you, Mr. Cole.

Mr. Enrich.

Mr. Enrich: Mr. Chief Justice, and may it please the Court--

I'd like to begin with the question of standing, and then turn to the Commerce Clause merits.

Let me begin at the point where Petitioners and Respondents agree on the question of standing.

The original lawsuit brought by Respondents in the Ohio State Court raised two claims, one challenging the investment tax credit that's before this Court today, the other challenging the property tax exemption.

The point on which Petitioners and Respondents agree is that Respondents do have standing, in their status as municipal taxpayers, to bring their challenge to the property tax exemption.

And, indeed, the District Court agreed and found that there was standing, in the District Court's judgment, to reach both parts of the case on the basis of the Respondents' municipal taxpayer standing.

Justice Ginsburg: Is there any--

Chief Justice Roberts: What was--

Justice Ginsburg: --Is there any authority at all for saying you can piggyback the basic case or controversy requirement?

I mean, it's one thing to say you can hook a nondiverse claim, but it's a claim; it's a case or controversy.

I'm... I don't know of any authority that says that you can... you can take a matter that is not a constitutional case or controversy and latch it onto something that does qualify.

Mr. Enrich: Justice Ginsburg, there are two reasons why we believe that there is such a basis.

First, there are cases... one case in this Court, in Flast v. Cohen, where the Court has found that standing to raise one claim extended, as well, to raise, in that case, a free exercise claim.

There are a number of such cases in the Courts of Appeals.

Wright and Miller has recognized a concept of what they refer to as "ancillary standing" on that basis.

But the second point that we think is perhaps more important is, once there is one claim in the case that satisfies the Article III "case and controversy" requirement, then there is a case or controversy here.

The question that then faces this Court is, How far should it reach in addressing the other claims which are part of that very same case or controversy?

Justice Ginsburg: I think it was pointed out that, in Flast, at least, you were dealing with the same spending on the part of the Federal Government.

Here, you have apples and oranges.

The property tax is quite discrete from the investment tax credit.

Mr. Enrich: That is true, Your Honor.

And in at least some of the Circuit Court cases, they have reached a second claim where the... where a different part of the same transaction was being attacked.

The Sierra Club case that we cite in our brief is one good example of that.

In the present case, the two issues that we challenge both arise out of the very same transaction, out of a deal that was entered into between the City of Toledo and DaimlerChrysler--

Chief Justice Roberts: --Can I back you up just a bit before we talk about piggybacking?

This Court hasn't held that municipal taxpayers have standing in this sort of situation, have they?

Mr. Enrich: --No, this Court has not ever had to address the question of municipal taxpayer standing, except in Establishment Clause contexts.

Chief Justice Roberts: So, if you want us to piggyback, we... and if it is an Article III question... we would have to decide that issue before we can decide whether we can piggyback your current claims onto it.

Mr. Enrich: Mr. Chief Justice, you would at least have to decide the question of whether municipal taxpayer standing was... satisfied the Article III requirements under your standing doctrines.

If you found that it satisfied the Article III requirements, then that would suffice to bring this case or controversy past the Article III threshold--

Chief Justice Roberts: Right.

And you agree that the--

Mr. Enrich: --bring us to prudential threshold.

Chief Justice Roberts: --And you agree that the municipal taxpayer standing on the property tax question is an open issue before this Court.

We have not had a holding on that.

Mr. Enrich: That's absolutely correct, Your Honor.

We would suggest that, in keeping with the consistent holdings of every Circuit Court that has addressed this topic, it would make sense for this Court to acknowledge municipal taxpayer standing, or, at the very least, to acknowledge that the obstacles, any obstacles to municipal taxpayer standing, are prudential obstacles, rather than Article III obstacles.

There are actually other reasons why we believe the Article III barrier is crossed.

We believe that this case... that, as Judge Posner wrote in a recent opinion that we referenced in a letter to the Court... it came out after our brief was filed... in his analysis of the taxpayer standing cases, he concluded that the Court's burden on taxpayer standing was based on prudential, not on constitutional grounds.

We believe his analysis is correct.

Once this becomes a question of the prudential standards, we believe that the very particular factual history of this case provides ample reason for the Court to find that there should be standing in this particular case to reach the investment tax credit claim.

Respondents brought this case in the Ohio State Courts largely out of a recognition that the standards for standing were different in the State and Federal Courts in this area.

In fact, if Petitioners felt that we didn't have standing in Ohio, perhaps the wisest strategy for them would have been to oppose standing there.

But, instead, they chose to remove the case to the Federal Court.

And there, we requested that the case be remanded to the State Courts, because we identified to the District Court the risk, that if the Federal Court kept the case, we might find ourselves, years later, before a higher court that might say, "But you don't have standing", and require us to go back and begin all over in the State Courts.

Petitioners, at that time, argued that, in fact, we did have standing.

And the District Court so held.

And then Petitioners have not again raised the question of standing until before this Court.

Justice Breyer: Have you found any other instance in which... any case... there was a absolute lack of standing, prudential standing, but the Court waived that, because it was prudential and not constitutional?

Mr. Enrich: Yes, Justice Breyer.

Justice Breyer: Which one?

Mr. Enrich: In Craig v. Boren, this is exactly what the... this Court did.

There, the one plaintiff who provided standing for a sex discrimination claim no longer had standing by the time the case was adjudicated.

The plaintiff who ultimately had standing to keep the case going was one who, although she suffered an actual injury, was not... was asserting third party rights, and so, did not satisfy prudential standing requirements.

Justice Kennedy: Did the case use the phrase

"capable of repetition and evading review. "

or... which is a mootness--

Mr. Enrich: I actually--

Justice Kennedy: --I just have to read Craig--

Mr. Enrich: --don't believe that--

Justice Kennedy: --on the--

Mr. Enrich: --they did use that concept in Craig.

I think that's a concept that has come into this Court's jurisprudence more frequently in later days--

Justice Ginsburg: The problem in Craig, with the name plaintiff, is, it wasn't a class action, an 18-year-old sent to turn 21 in the fullness of time.

But I didn't understand your answer about the beer seller whose standing saved the case, at least in the view of the majority of this Court.

She had a real pocketbook injury.

She was not able to sell her beer to the thirsty boys.

So--

[Laughter]

--I don't understand why that's an example of a loose standing connection.

I mean, she surely had an... a pocketbook injury.

True, she was complaining about a denial of equal protection to the fraternity brothers, but that she had an injury, in fact, there was no doubt.

Mr. Enrich: --Justice Ginsburg, the premise behind our argument is that the Article III hurdle is cleared on other grounds, on grounds that I've already discussed and we can certainly reiterate.

The question then becomes... on prudential grounds.

And that is the issue that was presented in Craig, that she had a direct injury, but she was in... she did not satisfy the prudential standards because she was asserting third party rights.

And what this Court there held was, because the parties had adjudicated the issue below without objecting about standing, that the Court would proceed to the merits.

Justice Ginsburg: There was no lack of standing below.

The problem was that the... Craig turned 21 while the case was pending in this Court.

There was standing below.

He was 18 when the litigation started.

Mr. Enrich: Yes, Your Honor, that... and, similarly, we believe that there was standing, and still is standing, for the Plaintiffs to be in this Court on Article III grounds because of the continuing pendency of our challenge to the property tax exemption as municipal taxpayers.

We--

Justice Scalia: Counsel, could I ask about the ancillary doctrine?

You say the case you cite to establish it is Flast versus Cohen.

Was the doctrine discussed in Flast versus Cohen, or are you relying simply on the fact that Flast versus Cohen involved both an Establishment Clause and a free exercise challenge, and the Court only discussed the Establishment Clause challenge?

Mr. Enrich: --No, Justice Scalia, in a footnote in Flast, the Court specifically says,

"Having now decided that there's Establishment Clause standing, we can also reach the free exercise question without discussing whether there would be-- "

Justice Scalia: Okay.

I--

Mr. Enrich: --"# independent standing"--

Justice Scalia: --I had not--

Mr. Enrich: --"# for that"--

Justice Scalia: --recollected that footnote.

I will... I will find it.

I don't read footnotes, normally.

[Laughter]

Justice Ginsburg: In any event, they were attacking the same thing.

So, your case is different, at least to that extent, that you have two discrete taxes.

Mr. Enrich: --It is, indeed, Your Honor.

We acknowledge that, although, again, as I say, in some of the lower court cases there have been challenges where the claim that the plaintiffs did not have standing with regard to was challenging a different outcome in the same transaction or occurrence.

The specific example was a challenge to an environmental impact statement, where the plaintiffs had standing to challenge certain elements, but did not have standing to challenge the potential... the failure of this impact statement to consider impacts on indigenous tribes.

And the District... the District of Columbia Circuit held that they did have standing, based on their other standing claims, to reach that claim, as well.

If I can turn, Your Honors, to the merits, if Ohio were to impose an income tax on those corporations which did their manufacturing outside of the State of Ohio, but not to impose that tax on those businesses which did their manufacturing inside of Ohio, there's no question that such attacks would violate the Commerce Clause by facially discriminating in favor of in State business activity.

It would be a tariff, by any other name.

Justice Scalia: What about the fact that a State has a lower income tax or a lower property tax than any other State in the Union?

Does that violate the Commerce Clause because it induces businesses to--

Mr. Enrich: No, Your Honor, we are not suggesting that any tax measure gives an... which encourages businesses to locate in the jurisdiction, poses a Commerce Clause problem.

A Commerce Clause--

Justice Souter: What's--

Mr. Enrich: --problem--

Justice Souter: --What's the difference?

Mr. Enrich: --A Commerce Clause problem, Your Honor, is posed only when the provision provides a benefit which is specifically distinguished and provided to in State activity but not provided--

Justice Souter: But that's the case--

Mr. Enrich: --to out of State--

Justice Souter: --That's the case--

Mr. Enrich: --activity.

Justice Souter: --in the tax example.

I mean, the taxes are apportioned.

The part of the tax... or the business that would be taxable in the State gets taxed at a lower rate.

Businesses say,

"Gee, let's do more business in Ohio and pay less taxes. "

In this case, they're getting, effectively, taxed at a lower rate, because they make an investment in Ohio.

Mr. Enrich: But, Your Honor, in this case, the only ones who are getting the lower effective tax rate are those who locate their manufacturing activity in the State.

Justice Souter: Well, I--

Mr. Enrich: They--

Justice Scalia: --The only one who gets the advantage of the lower... the lower income tax rate and the lower property tax rate is someone who is located in the State.

It's exactly the same.

Mr. Enrich: --Well, I'm... in the case of a lower income tax rate, Your Honor... it's a different situation for the lower property tax rate, but take the lower income tax rate first... the lower income tax rate will reduce the tax burden on all businesses, wherever their manufacturing capacity is located, who have a taxable business presence in Ohio.

There is no discrimination based on where they locate any activity.

If they locate new activity in Ohio, more of their income will be subjected to that lower rate of tax, but that is not discriminating between two businesses, based on where they locate their activity.

Justice Scalia: I told you, you have to locate... you'd have to locate in the low tax State to get advantage of the low... of the low tax.

Mr. Enrich: That's not true, Your Honor.

The way that corporate income taxes work, they look at a tax... an apportioned share of the worldwide income of the business.

Chief Justice Roberts: Well, then all the... but all you're saying... but you have to do business in the State with the lower income tax rate to get the advantage of the lower rate.

Mr. Enrich: Yes.

If you're not doing business in the State, then you will not pay any tax.

Chief Justice Roberts: Well, that--

Mr. Enrich: If--

Chief Justice Roberts: --would seem to present the same Commerce Clause problem that you're posing for us today.

Mr. Enrich: --Well, Your Honor, a business that doesn't have a business presence in the State of Ohio will not pay any Ohio tax.

It is not subject to any burden.

It is not discriminated against in any way.

That's the same situation for the property tax.

Justice Scalia: Likewise, a business that does not locate in Ohio is not subject to the... to the higher Ohio tax, which has been reduced for them.

Mr. Enrich: Yes, Your Honor.

The--

Justice Scalia: I mean, they're--

Mr. Enrich: --discrimination--

Justice Scalia: --they're exempt from it entirely, which is even better, I suppose.

Mr. Enrich: --Yes, Your Honor.

The discrimination here is not between those businesses which are not present at all in Ohio and those which are doing their manufacturing in Ohio, the discrimination is between those who are doing business in Ohio, but not locating their new manufacturing activity in Ohio, and those who do business in Ohio, but do locate their new manufacturing activity.

This is the same situation that the Court has confronted over and over again.

In Boston Stock, the discrimination only affected those purchasers or sellers of stock where the transactions had sufficient nexus with New York to be subject to New York's tax.

The problem was that, of that universe of transactions, the ones where the sale was made on a New York exchange were subjected to a lower rate of tax than the ones that were transacted on an out of State exchange.

Justice Scalia: Was the legislation that established this tax benefit... was it controversial?

Were there those who opposed it as a giveaway to--

Mr. Enrich: Your Honor, the record does not disclose what the political context was in Ohio at the time that--

Justice Scalia: --Well, they--

Mr. Enrich: --that this was enacted.

Justice Scalia: --I have... I will take judicial cognizance of the fact that such proposals are sometimes politically controversial.

Isn't that the place to fight out this thing?

Isn't your basic objection here that you don't agree that a State should give tax credits to business, and that's something that, you know, is in the political arena, and let the people fight it out?

Mr. Enrich: Justice Scalia, our objection--

Justice Scalia: Why should that be an issue that a court should decide?

Mr. Enrich: --our objection is that when States use discriminatory tax measures as a way to provide tax benefits to those businesses that locate in the jurisdiction, that it leads to a competition between the States that ends up hurting taxpayers, like Respondents here, by reducing the ability of the States to generate tax revenues from business.

Justice Souter: --Yes, but what you call--

Mr. Enrich: This Court has--

Justice Souter: --what you call discrimination is any differential.

In fact, in this case, the effective tax differential is a quid pro quo for an investment.

And, basically, your argument boils down to saying that there's discrimination whenever the State offers a quid pro quo for an advantage and somebody decides not to take advantage of it.

Mr. Enrich: --Your Honor--

Justice Souter: That's not discrimination.

That is simply the effect of a free choice, and any business is free to make that choice.

Mr. Enrich: --Your Honor, we would suggest that that is exactly the situation in many of the cases that this Court has previously struck down as facially discriminatory tax provisions.

In Bacchus Imports, anyone could move to Hawaii and produce pineapple wine and receive the benefit of the tax exemption.

In Boston Stock, anyone could make their transactions on the New York exchanges, rather than an out of State exchange, and get the benefit of the lower rate.

What this Court has consistently said is, when the benefit that is given is... takes the form of a credit, an exemption, a reduction in a tax which applies to out of State businesses, transactions, and activities, that that constitutes the kind of discrimination--

Justice Souter: Oh.

Mr. Enrich: --that the Commerce Clause forbids.

Justice Souter: I could... I could see your argument, if, for example, in the tax exchange case, there was not taxation being made of the out of State transactions.

But that was the case in--

Mr. Enrich: Yes.

And--

Justice Souter: --the tax.

And there is... there's no such parallel here.

Mr. Enrich: --Yes, Your Honor, there is a very precise parallel here.

The corporate income tax imposed by Ohio applies to any business that transacts business in Ohio, whether or not it has manufacturing presence.

Justice Stevens: May I ask you the same question I asked your adversary?

Suppose, instead of a tax credit, they said,

"We'll pay for the construction cost of a building, or we'll give you a piece of real estate, in order to get you to come in. "

"Part of big redevelopment progress-- "

Mr. Enrich: Yes.

Justice Stevens: "# program, we would give you this parcel of real estate. "

Would that also be subject to the same analysis?

Mr. Enrich: No, Your Honor, it would not.

As this Court has suggested, as far back as Hughes v. Alexandria Scrap, when the State is essentially acting as a participant in the market, deploying its own resources--

Justice Stevens: No, they wouldn't be acting... other than the one transaction,

"We'll give you one particular benefit in this new development progress... project, with no further participation as a market participant or anything like that. "

that would... it seems to me that would fit right into your analysis.

Mr. Enrich: --Well, in terms of its economic effect, it would, Your Honor, but this Court, in cases like Camps Newfoundland, has recognized a significant distinction between cash subsidies, on the one hand, and tax benefits, on the other, largely because the tax that is reduced is a tax which does involve an exercise of what this Court has called "a primeval governmental activity", and constitutes a kind of regulation which brings it within the scope of the Dormant Commerce Clause; whereas, in... ordinarily, a direct subsidy paid out of the general funds of the State does not involve any such regulatory impact on interstate commerce.

Justice Stevens: But in terms of discrimination and economic impact, they really are the same, right?

Mr. Enrich: Yes, Your Honor.

In fact, there's a wide, wide continuum.

At the one end, there is the standard... the pure tariff.

On the other end, there is providing training for workers or infrastructure for a plant.

This Court has clearly recognized that tariffs are unconstitutional.

There is no suggestion that providing training or infrastructure would be.

All of those have the same economic effect.

Justice Scalia: Yes, but they're... what our opinions hold are that there are some matters of producing the same result as a cash subsidy--

Mr. Enrich: Yes.

Justice Scalia: --that are no good, but there are other matters that are perfectly okay.

Mr. Enrich: That--

Justice Scalia: And the mere fact that it has the same effect as a cash subsidy is not a problem, as far as the Commerce Clause is concerned.

And what you're arguing here is, the mere fact that it has that effect of favoring businesses that choose to locate in Ohio is what makes it bad, not the fact that it's relieving, from a tax that applies to both in State and out of State businesses, only in State business.

That's... that was the Hawaii case, and all the other cases you cite.

But what... your argument here is that the mere fact of providing a subsidy violates the Commerce Clause.

And I don't know--

Mr. Enrich: --No, Your Honor--

Justice Scalia: --any case--

Mr. Enrich: --what we're suggesting is that a measure which has the identical effect, and is structured very much like a provision which applies a tax to those businesses who engage in out of State activity, while excusing from tax those businesses that engage in in State activity, is a tariff, by another name.

And this provision, as--

Justice Souter: Except the criterion is not mere in State activity.

The criterion is a particular in State activity, an investment, as to which the credit is a quid pro quo.

And the opportunity to make that investment is open to every business, presently in State, presently out of State, no matter where domiciled.

Mr. Enrich: --Yes, Your Honor.

And, in that respect, this is no different than, for instance, the Westinghouse Electric case, which granted... which struck down a grant of a credit against a corporate income tax that was available to any business that chose to locate some of its export activity in the State of New York.

Again--

Justice Scalia: --But that tax did apply to out of State businesses--

Mr. Enrich: --It was--

Justice Scalia: --and they got no reduction--

Mr. Enrich: --It was exactly--

Justice Scalia: --right?

Mr. Enrich: --the same tax as the tax in question here, Your Honor.

It was a corporate income tax apportioned on the basis of the ordinary three factors that Ohio uses, on the basis of where the company's sales are located, where the company's payroll is located, where the company's property is located.

The two taxes, in Westinghouse and here, were identical.

There were some small differences in exactly the way that the credit was structured, but the underlying taxes were, in all respects, identical.

The problem that the Court recognized in Westinghouse is that by giving a credit that was restricted to a particular kind of in State activity, and not to its out of State counterpart, the State was effectively providing a benefit to in State business and a burden on out of State business that constituted the functional equivalent of a tariff, and the Court struck it down.

Now--

Chief Justice Roberts: Some States... Counsel, some States have homestead exemptions to property taxes for people when they're buying homes in the State.

That... those would be invalid under your theory?

Mr. Enrich: --Your Honor, I don't believe that they would be.

Again, a homesteader who buys a property in another State is not going to owe any tax to--

Chief Justice Roberts: Yes, but that--

Mr. Enrich: --Ohio.

Chief Justice Roberts: --that person may have another piece of property in the... in the other State.

Mr. Enrich: But--

Chief Justice Roberts: And he's not getting the benefit of this, because his homestead... he lives somewhere else.

Mr. Enrich: --Your Honor, we would suggest that the question is whether the tax scheme in question in the State whose provision is being challenged imposes differential burdens on two different entities based on where they locate some activity.

In the case of the homestead exemption, the State offering the homestead exemption is not saying,

"We'll tax you if you locate outside the State. "

Perhaps some other State is taxing them.

But, again, this Court has repeatedly avoided judging the legitimacy of one State's tax by the question of what other States did.

Chief Justice Roberts: But they're two identical cases of property, and they'll say... one say,

"You're going to be taxed at a lower rate if that's where you're living, if that's your homestead; but if you have to live outside the State, you're going to get taxed at a higher rate. "

It would seem to me very similar to what you're challenging here.

Mr. Enrich: Your Honor, maybe I'm not understanding your example.

Are you imagining that the State that's offering the homestead exemption was imposing a tax on the property located outside the State?

Chief Justice Roberts: No, it's imposing tax on property in the State at a higher rate if it's not the person's homestead; in other words, if they don't live in the State.

Mr. Enrich: Okay.

So, that is a provision that, I think, does raise at least--

Chief Justice Roberts: Yes.

Mr. Enrich: --some questions.

It's one where I think there are strong justifications outside of the effect on interstate commerce that very well might provide ample justification for it.

It raises... and the question on which we have asked this Court to grant cert about the property tax exemption raises precisely the question of what sorts of conditions on a property tax exemption do, and what sorts do not, constitute discrimination against interstate commerce.

I would suggest that there would be ample opportunity to distinguish something like the homestead provision, which is directed at a quite different purpose than encouraging in State economic activity from--

Chief Justice Roberts: It's the same purpose.

There's some place... they want people to move in... into the District here, for example, just like Ohio wants businesses to move in.

Mr. Enrich: --I would suggest that the Commerce Clause is much more concerned with efforts to relocate businesses than with efforts to protect individuals from burdens of local property taxation.

Justice Scalia: A lot of money in building homes.

Mr. Enrich: That is true, Your Honor.

We would suggest that that raises a very different set of questions from the facially discriminatory distinction between out of State businesses who are subjected to the tax, in the case of the Ohio investment tax credit, and in State businesses, which are excused from paying that same tax, which is, again, exactly what a tariff does, Your Honor.

Rebuttal of Theodore B. Olson

Chief Justice Roberts: Thank you, Counsel.

Mr. Olson, you have 4 minutes remaining.

Mr. Olson: Thank you, Mr. Chief Justice.

In the first place, this is Article III standing that we're talking about, not prudential considerations of standing, as the Court made very clear in Valley Forge, where a taxpayer seeks to employ a Federal Court to air grievances about the conduct of Government or the allocation of power in the Federal system.

The III is not met.

With respect to the issue of municipal taxpayer standing, the Court would have to determine that that did exist, something that has not happened before, and then would piggyback onto that claim a challenge to a separate tax by a separate Government under a separate claim arising out of a separate transaction.

The deal between DaimlerChrysler and Toledo was separate from the tax granted by the investment tax credit under the State's system.

Respondents state, in the first page of their brief, that, because all of these States do these things, these investment tax credits have only minimal effect on business transactions.

That's the first page of their brief.

That's harmful to their standing, that's harmful to their Commerce Clause challenge.

Ohio only taxes in activity.

It uses a constitutionally appropriate apportionment formula to determine how much of the interstate business's activity is attributable to Ohio, and only taxes that.

So that if there is a benefit given because someone comes to the State and builds a plant there, it may result, actually, in increased taxes in Ohio, because the plant will raise the proportion of business being done in Ohio.

But what Ohio does not do is... what this Court has held unconstitutional... is, tax the out of State activity, or burden the out of State activity, or make interstate commerce itself more burdensome.

As the Court has pointed out in questions, Justices have pointed out in questions, this same issue could be raised with respect to the State of Nevada.

There's no franchise tax in the State of Nevada, and same with other States.

Some States offer accelerated permitting requirements or relaxed environmental rules or different educate... employment standards, all matters of State regulation.

This Court has said that competition between States for commerce lies at the heart of a free trade society.

That is what's going on here.

States are competing with appropriate permissive incentives to do business within the State.

This is, as this Court said, a laudable purpose for State activity.

What the Respondents would do would nationalize State tax systems.

You couldn't have a more beneficial tax system in Massachusetts than in Ohio, because that would provide some sort of a burden, under the Respondent's theory.

The same with other regulations by States of business.

We would have a system where this Court would be deciding... all States would have to have uniform taxation, uniform systems of regulations, the very antithesis of federalism.

Justice Breyer: If you have--

Mr. Olson: Now, what I would--

Justice Breyer: --dog license... dog license costs $10, but you have to pay 20 if you invest next time in Wisconsin.

[Laughter]

By the way, we're not going to do it that way, we're just going to say you pay half.

Mr. Olson: --If you have your dog in Wisconsin, you may pay whatever--

Justice Breyer: No, no.

Mr. Olson: --Wisconsin--

Justice Breyer: No.

But, you see... but my point is--

Mr. Olson: --If--

Justice Breyer: --separate tax in Ohio, and we're going to double it, though, if your next investment is in some--

Mr. Olson: --That would be--

Justice Breyer: --other State.

Mr. Olson: --That would be something this Court would be severely concerned with.

Justice Breyer: Correct.

Now, all we do is, we say,

"We're not going to double it. "

"You're going to pay the same. "

"But everybody invests here, pays half. "

Mr. Olson: Well, again, that's... and I think that goes to Justice Souter's point, that there's a relationship between the tax system and the investment.

We should end on the point that every... virtually every State has this kind of system, not just because of competition with States, but to find the right location, a depressed area within a State.

And this is important with respect to businesses in the United States competing with foreign countries.

Justice Scalia: You don't believe in harmonization, Mr. Olson?

[Laughter]

Mr. Olson: We don't believe that the Dormant Commerce Clause stands the... stands for the proposition that these regulations should be nationalized.

Chief Justice Roberts: Thank you, Counsel.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Valley Forge CC v. Americans United - Oral Argument

Fri, 09 Jan 2009 14:47:53 +0000

Case:

Valley Forge CC v. Americans United

Media File:

80-327_19811104-lq-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF C. CLARK HODGSON, JR., ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Burger: We will hear arguments first this morning in Valley Forge Christian College against the Americans United for Separation of Church and State.

Mr. Hodgson, you may proceed whenever you are ready.

Mr. Hodgson: Mr. Chief Justice, and may it please the Court, my client's petition to this Court raises for review the question of whether or not taxpayers who are unable to meet the criteria of Flast against Cohen and any other Article III decision of this Court will nonetheless be able to challenge the transfer of federal surplus property.

This, in short, is an Article III case.

It is not an establishment clause case.

The constitutional and statutory context is outlined by Article IV, Section 3, Clause 2 of the Constitution, which is called the property clause.

Under that clause Congress has the power to dispose of territory or other property belonging to the United States.

The Federal Property and Administrative Services Act of 1949 was enacted pursuant to that power, and creates a comprehensive program for federal property disposal, particularly property which is surplus, that is, property no longer needed by the United States.

The statute confers upon agencies of the executive branch a variety of options for property disposal, including the sale or lease to health or educational institutions.

Sale may be for cash, but the Act requires that the Secretary consider any public benefit accruing to the United States as a result of the sale, and an educational institution may be entitled to a reduction in the purchase price computed on the basis of benefits which may accrue to the United States for the use of the property by that institution.

The regulations refer to that reduction as a public benefit allowance.

Now, for the first time in the 32-year history of this Act, a program over which Congress has given exclusive if not plenary power under Article IV is subject to attack and the intervention of the judicial process.

This particular transfer, the Valley Forge General Hospital, originally about a 181 acre tract slightly outside the city of Philadelphia, was acquired by the government in 1942.

It served the military as a hospital facility for nearly 30 years.

In 1974, by order of the Secretary of Defense, the facility was closed.

The Secretary states reasons of declining work force and economy as the reasons for the closure of the facility.

As is required by the Federal Property and Administrative Services Act, the following four steps took place.

First, the military departments determined that it was excess to their needs and the needs of the United States Coast Guard.

Secondly, Congressional clearance was sought and obtained from the Armed Services Committee of both Houses.

Thirdly, the General Services Administration, after notifying all other Federal agencies and all other branches of the government of the availability of this facility, reported that there was no need, and it was declared under the statute surplus to the needs of the federal government.

Finally, it was assigned to the Secretary of the Department of Health, Education, and Welfare for disposition to a health or educational institution.

My client, Valley Forge Christian College, applied for a portion of the tract, and was ultimately selected to receive 77 acres and some personal property.

The value of the surplus facility was $577,000.

The government, in connection with this sale, allowed a 100 percent public benefit allowance based in part upon my client's promises and representations to continue the broadening of its offerings in the arts and humanities and otherwise strengthen its academic position, conferring benefits upon members of the public.

In August of 1976, a deed was executed by the government transferring the real estate to my client.

The deed included restrictive covenants which forbid the college from utilizing the property for anything other than educational purposes and some other restrictions, and included in the government the right at any time within 30 years to revert the title back to the Department in the event of a breach of these conditions.

In the fall of 1976, as a result of a news release that was issued following this transfer, Americans United, the organization, and four paid employees on its executive staff filed a lawsuit in the district court seeking a recision of the transaction, thereby effectively ousting my client from its college campus.

After limited pretrial discovery, the district court dismissed the complaint, finding that none of the plaintiffs could comply with the standing criteria of Flast against Cohen, and further holding that their complaint alleged no more than a generalized grievance about the conduct of government.

The United States Court of Appeals unanimously agreed with the lower court's finding that these taxpayers could not meet the Flast criteria, but nevertheless reversed.

The majority opinion of the Third Circuit launched an unsupportable test for establishment clause standing, wherein standing is now to be predicated upon the violation of the shared, individuated right that each citizen has to a government that obeys its Constitution.

Mr. Lee: Did the Third Circuit make any effort to distinguish Frothingham against Mellon?

Mr. Hodgson: Not really, Your Honor.

The Third Circuit spent most of its time on Flast against Cohen and tried to steer its reasoning around Flast.

I think it finally concluded that under Flast, or this Court was bound by limitations on the pleadings when it decided Flast.

Had the fact situation been presented to this Court that was before the Third Circuit, namely the presence of citizen separationists, the Flast Court would have decided that differently.

That was the general approach.

Mr. Lee: Do you think that the Third Circuit opinion would extend so far that if B is the subject of a wrongful arrest under the Fourth Amendment, A could complain about it?

Mr. Hodgson: Yes, I do, Your Honor.

I agree that the words of the opinion appear limited to the establishment clause, but I think that the potential reach of this decision, the implication of a personal right in every citizen to enforce the Constitution at his or her demand is limitless.

Mr. Lee: That would include a challenge, do you think, to the recently approved sale of some aircraft to Saudi Arabia if they didn't like the foreign policy?

Mr. Hodgson: I would say that I could envision a plaintiff, if this is Your Honor's question, making that challenge.

I am a little lost to think of what provision of the Constitution but I could see that easily.

I think it is limitless.

Mr. Lee: Mr. Hodgson, I expect you may already have covered it, but I didn't catch it.

Mr. Hodgson: Yes, sir.

Mr. Lee: Was this an outright transfer to your client?

Mr. Hodgson: I am sorry, I don't know what you mean by outright.

Mr. Lee: The property that you received.

Mr. Hodgson: Yes.

Mr. Lee: I mean, this is a fee simple transfer, is it?

Mr. Hodgson: Well, yes, it was fee simple transfer, but it had conditions, restrictive conditions, including a reverter clause.

The college is--

Mr. Lee: Well, is there any rental arrangement or anything like that?

Mr. Hodgson: --No, Your Honor.

The college is obliged to live up to the representations made in its application for the property for a period of 30 years, and any time during that 30-year period if the government determines that there is non-compliance with those representations, it may enter and revert the title.

Mr. Lee: Thank you.

Mr. Hodgson: The law of this country on standing until the radical reconstruction of this standing test by the Third Circuit related to the finding of a personal stake or injury in fact.

That has been the construction of Article III by this Court.

As to taxpayer standing, Flast has been the first and, until that opinion, the last word.

As Your Honors will recall, Flast allowed a taxpayer to challenge on establishment clause grounds a Congressional exercise of the taxing and spending power of the Constitution, the Article I, Section 8 powers.

It was specifically limited by the text of the opinion to those circumstances and to that type of a statute.

This Court has strongly and consistently resisted any effort to expand Flast on taxpayer basis beyond Article I, Section 8, the taxing and spending power.

Specifically, in Schlesinger, this Court rejected a taxpayer's challenge that was brought pursuant to the incompatibility clause under Article I.

The same could be said of Richardson wherein executive action was challenged by a taxpayer pursuant to Article I, Section 9, Clause 7.

Here, of course, these taxpayers seek still a further run around Flast and say that the property clause, Article IV, and Congressional action taken pursuant to that clause should become the basis for standing.

Mr. Lee: Mr. Hodgson, are there any citizens who in your view would have standing to file a suit to challenge this action--

Mr. Hodgson: Yes--

Mr. Lee: --in this case?

Mr. Hodgson: --Oh, excuse me.

Although I would call them persons rather than citizens to get away from the concept of citizen standing, yes, I can imagine a number of Article III type injuries which would give a plaintiff standing to sue.

For example, an applicant for the property that was denied the application.

In other words, if Valley Forge had been preferred over some other applicant, that individual could bring an action to challenge--

Mr. Lee: How about people living in the near vicinity?

Mr. Hodgson: --Adjoining landowners, I think, if they could establish an injury that was causally related to their estate, could equally bring a lawsuit.

Mr. Lee: Wouldn't you still have the tax spending problem?

You would concede, though--

Mr. Hodgson: No, Your Honor, I--

Mr. Lee: --That they could bring the suit?

Mr. Hodgson: --I would say that you don't have the taxing and spending power because that is Article III injury.

It is injury in fact.

There is aggrievement independent of Flast, and you only need Flast and taxpayer standing where there is an Article I challenge.

And of course any category of Article III plaintiff would have the right to raise the establishment clause question.

Mr. Lee: And didn't we say either in Schlesinger or in Reservists that the fact that there is no one that has standing doesn't necessarily mean that we must create standing for someone to sue?

Mr. Hodgson: Yes.

It said it is not a reason for granting standing.

I think it addressed this very question, and Your Honor, it was both in Richardson and Schlesinger.

Mr. Lee: Mr. Hodgson, let me follow up on Justice O'Connor's question if I may.

The adjoining landowner standing--

Mr. Hodgson: Yes.

Mr. Lee: --on review would depend on some kind of adverse... not the mere fact they were an adjoining landowner.

Mr. Hodgson: No, no, that adjoining landowner would have to show, for example, that the utilization of the property would impact in some manner on his rights as an adjoining owner.

Maybe a sewage system would be changed in some fashion.

I can't--

Mr. Lee: I see.

And the other applicant for the property, I can see the theory there.

Of course, if the other applicant were also a religious institution, I suppose they wouldn't have standing there.

Mr. Hodgson: --No, I think they would.

I guess the question then would be whether under... on the merits, whether the successful applicant was or was not a disqualified institution under Article I.

Mr. Lee: But if the theory of the claim is that all religious institutions are disqualified--

Mr. Hodgson: Well, of course, that is not what... at least not how this Court has interpreted Article... or the establishment clause.

Pervasively sectarian seems to have been disqualified, but not all religious institutions.

Mr. Lee: --Let me put the question just a little differently.

Instead of it being a property disposition, supposing the Secretary of HEW just decided to give your client a million dollars.

Mr. Hodgson: Yes.

Mr. Lee: Would anybody have standing to challenge that?

Mr. Hodgson: Well, I assume that a gift of funds--

Mr. Lee: Right.

Mr. Hodgson: --would be an action, a Congressional action, I assume, executive action taken pursuant to the taxing and spending power.

Mr. Lee: Right.

Mr. Hodgson: And so a taxpayer most assuredly would have standing to challenge.

Mr. Lee: You would say that if it were a gift of funds, because it is the spending power, that there would be standing.

Mr. Hodgson: Yes, and Flast so holds.

Mr. Lee: Economically, it is hard to see much difference between the two.

I understand the theory, but--

Mr. Hodgson: Well, I think that there is a world of difference for the reasons that this Court has set forth, notably in Warth against Seldin and Simon versus Kentucky Welfare Rights Organization, because you have the theory, you have attenuated injury when you have a plaintiff of this kind.

If you were to say $577,000 worth of real estate is the equivalent of $577,000 worth of cash, and you are saying the government should have taken the cash, for example, instead of the real estate, that assumes an awful lot.

First of all, the government would have to maintain the property, and the government's brief says it was $250,000 a year.

Secondly, the college clearly indicated on the record it was going to move.

It may well have moved to a different location, used tax... federal assistance funds, such as those in Tilton versus Richardson, to support a building.

It would have raised a building fund.

Contributors would have taken tax deductions.

That is all cash.

Mr. Lee: --Well, I can see on the merits that is all relevant, but just in terms of the right of the individual who objects to the transaction, the standing of the person, it seems somewhat hard to differentiate between the two other than you say, well, one is a spending power and the other is a property disposition.

Mr. Hodgson: Well, if you are saying that conceptually this is a difficult area of the law, I agree, Your Honor.

Mr. Lee: I suppose you would say that if they are indistinguishable, that Flast ought to be overruled.

Mr. Hodgson: I have great reservations about Flast, Justice White.

I know that other Members of the Court have expressed those reservations.

I find it difficult--

Mr. Lee: Well, what if in the million dollar case the government specified that, please use the million dollars to buy a piece of property and use it precisely as it is described in this case?

Mr. Hodgson: --It is still the use of the taxing and spending power.

Mr. Lee: But that makes it even closer, doesn't it?

Mr. Hodgson: A little.

The reason that I say that is that these are the sort of grants that this Court has considered in Tilton, Hunt versus McNair, Lemon, where you have the actual transfer of funds and then the utilization by the institution--

Mr. Lee: No, you interrupted.

Mr. Hodgson: --I am sorry.

Mr. Lee: On your adjoining landowner case--

Mr. Hodgson: Yes.

Mr. Lee: --why would the adjoining landowner, just because his drainage system is being damaged, have any standing to attack the transfer on the First Amendment ground?

Mr. Hodgson: Well, assuming that there is an Article III injury, I just--

Mr. Lee: Well, there is an injury, all right.

Mr. Hodgson: --Okay.

If there is an Article III injury, this Court has said in Sierra Club and elsewhere that once an individual has standing to sue, he may assert basically any claim, including the public interest, including a citizen's interest.

You said that in Sierra and other cases.

So that once the threshold is crossed by an Article III plaintiff, he has a veritable panoply of issues that he can raise and argue, and which the Court can--

Mr. Lee: Well, there are some cases to the contrary, too.

But that is your theory, anyway--

Mr. Hodgson: --Yes, Your Honor.

Mr. Lee: --on the adjoining landowner.

Mr. Hodgson: Yes, Your Honor.

Mr. Lee: Are there not some cases in which, in effect, cash grants made to religious colleges have been sustained?

Mr. Hodgson: Yes.

Tilton, Roemer, Hunt against McNair, are all college education grant cases, where money, pursuant to the taxing and spending power, is appropriated and delivered to the institution for the use... for secular uses, not for sectarian uses.

Mr. Lee: That is a question on the merits, not standing.

Mr. Hodgson: It goes to the merits, Your Honor.

It does not go to the question of standing.

The line of attack generally taken by the Americans United in this case really relates to the merits, claims that we are pervasively sectarian, claims that we seek the perpetuation of formalism to this Court, claims that this entire transaction is a sham, that the statute is really an effort to bootleg federal surplus property around the establishment clause and into the hands of a disqualified, religiously sponsored institution are all the kinds of claims which go to the merits, and as this Court has said repeatedly, the standing inquiry focuses on the litigant, not the issues which he seeks to have litigated, and in Warth, very directly, standing in no way depends on the merits.

Thank you, Your Honors.

Chief Justice Burger: Mr. Solicitor General.

ORAL ARGUMENT OF REX E. LEE, ESQ., ON BEHALF OF FEDERAL RESPONDENTS SUPPORTING PETITIONER

Mr. Lee: Mr. Chief Justice, and may it please the Court, I agree with Mr. Hodgson that there probably are other plaintiffs who could bring the suit in this case, but it is correct, as he also pointed out, that this Court in Schlesinger said that the lack of a better plaintiff does not mean that this plaintiff has standing, and indeed it is worthy of note that in the companion case, United States versus Richardson, this Court went one step further, and said that the fact that there is not a plaintiff who has standing in the traditional Article III sense is a good indication that it is the kind of case that ought to be left to the political branches of government rather than to the judiciary.

It is quite clear that since these plaintiffs allege a harm that cannot be differentiated from the hundreds of millions of other American citizens, and since they do not fit the Flast versus Cohen standards for taxpayer standing, the only way that the judgment of the Court of Appeals can be sustained is to uphold the rationale of that court, which was that the establishment clause creates in each citizen a personal constitutional right to a government that does not establish religion.

There are two basic theories on the basis of which that could be accomplished.

One is the one that Mr. Hodgson suggested, which is that any citizen has a right to enforce any provision of the Constitution, and frankly, it would be difficult if the right were limited to the establishment clause to distinguish it from many other provisions of the Constitution, but the approach of the Court of Appeals appears to have been to limit it to establishment clause to distinguish it from many other provisions of the Constitution.

But the approach of the Court of Appeals appears to have been to limit it to establishment clauses.

As I say, it has been difficult to do that, but that appears to have been the approach of the Court of Appeals.

We would urge that even that approach represents neither good law nor good constitutional policy for several reasons.

One is that it would violate this Court's consistent teaching which gives more deference to the judicial article of the Constitution, Article III, that the fundamental aspect of standing is that it focuses on the party seeking to get its complaint before a federal court, and not on the issues that he wishes to have adjudicated.

More specifically, requiring the precise overruling of Doremus versus Board of Education, which was an establishment clause case brought by a citizen and dismissed because of the fact that there was no standing.

Doremus has been cited with approval both in Flast and also Schlesinger.

Perhaps most important of all, the rulings of this Court requiring first that the plaintiff be affected more narrowly than members of the total populace, and second, that standing focused on the plaintiff rather than on the nature of the claim that the plaintiff is bringing lies right at the heart of basic constitutional principles.

The feature of our constitutional system that distinguishes courts from the other two branches of government is that courts perform their law interpretive function, including declarations of constitutionality, only in cases or controversies and interest of the kind that these plaintiffs are pressing in this case, an interest in seeing that a particular philosophy of government prevailed, can be carried to the elected branches, and those branches are free to entertain it.

Mr. Lee: Mr. Lee, wouldn't those same arguments have called for a different result in the Flast case?

And aren't you really saying, then, that Flast was incorrectly decided?

Mr. Lee: I agree with what Mr. Hodgson said in that respect.

Flast can be distinguished.

At least Flast presents only a... if not a principle, at least a practical departure from the general proposition that there is no general authority in private citizens performing the function of Attorney General, because of its limitation to Congressional action and taxing and spending.

I would shed no tears if Flast were to be overruled.

Mr. Lee: And yet, Mr. Solicitor General--

Mr. Lee: Yes.

Mr. Lee: --Americans United, I take it, would have had standing had rather than a transfer of property there had been a transfer of $577,000 of cash, would it not?

Mr. Lee: Yes.

Under Flast, if done by Congress.

Mr. Lee: Well--

Mr. Lee: Under the--

Mr. Lee: --isn't this property transfer sort of a Congressional act?

Mr. Lee: --Well, this is an executive branch transfer pursuant to--

Mr. Lee: The Congressional statute.

Mr. Lee: --so if you had a Congressional action pursuant to the taxing and spending clause, then your statement is correct.

Yes, Your Honor.

Mr. Lee: Really, the only distinction here is that we have real property rather than cash.

Mr. Lee: That is correct.

Mr. Lee: Under Doremus, both would have come out the same say, would they not?

Mr. Lee: That is correct.

Under Doremus, both would have come out the same way, and you really are at a Flast kind of crossroads.

You either maintain that holding that is not entirely principled but at least practical and workable.

A principle which this Court has cautioned on at least two occasions represented only a slight departure from Frothingham versus Mellon, or if you say that there is no practical distinction, economic distinction between a conveyance of money on the one hand and a conveyance of property on the other hand, then you can forget about Flast versus Cohen, you can forget about the taxpayer standing.

You don't need it any more, because if citizens have standing, then any property owner also or any taxpayer will also have standing.

And that really brings me to the fundamental reason that that would be a bad idea, to decide the case that way.

In contrast to the political branches of government, which are perfectly free under the Constitution to entertain any advocacy for a particular form of government, philosophy of government that is put to them, the tradition ever since Marbury versus Madison has been that courts decide only those issues as they arise in actual lawsuits brought by persons who are injured in fact, and on at least seven separate occasions, reaching all the way back to the early parts of this century, this Court has said that that injury in fact means an injury more specific than the effect that is felt by the populace as a whole, and in our separation of powers, check and balance constitutional system, the most effective check on judicial power is the case or controversy limitation.

The Court of Appeals suggested two possible bases for distinguishing this case or for distinguishing establishment clause cases from other cases.

One was that the establishment clause does have or is a guarantor of individual liberties, and it is true beyond doubt that it can be, but far from being an argument in support of the Court of Appeals decision, it is squarely against it for this reason, that in those instances where you do have that kind of individualized harm, then that gives you a plaintiff with traditional Article III standing, and where you don't have it, then what you have is, as this Court said in Richardson, the kind of case that by definition ought to be handled by the Article III... ought to be handled by the Article I or the Article II branches.

The second proposition that was set forth by Judge Rosen, whose vote was essential to the majority in the Court of Appeals decision, was this matter that has already been discussed, is there a better plaintiff, and this Court made it very clear in both Richardson and Schlesinger that that was not a relevant concern.

To the extent it is relevant, it cuts the other way.

Finally, setting aside establishment clause cases as being something of a special... would give... would unduly degrade the judicial article of the Constitution, which should have an independent life of its own, because to the already complex and difficult issues that surround standing, we would be visiting another layer of complexity, a layer of complexity that would incorporate into the Article III inquiry the question of what is an establishment of religion, presumably including the three-part test that this Court has struggled so mightily with over the past decade.

Mr. Lee: Is there anything in the Constitution, Mr. Solicitor General, that would prohibit Congress from enacting a statute that no property and no money would be transferred or granted or given to a religiously controlled college or school, and thus cut off any power in the executive branch to make such a transfer as was made here?

Mr. Lee: I would be reluctant, Mr. Chief Justice, to give a categorical answer to that until I have thought it through a little.

My immediate temptation is to say no, and yet if there were a categorical disqualification of religion as religion from... solely because they were religious groups--

Mr. Lee: From receiving it for nothing.

Mr. Lee: --Receiving it for nothing, then clearly where there was not adequate compensation, then Congress would--

Mr. Lee: That, of course, would mean, then, that that would be a modification in effect of the decision of this Court, I think, in the Tilton case--

Mr. Lee: --Oh, yes.

Oh, yes.

Mr. Lee: --They couldn't make grants to Catholic colleges as were involved there.

Mr. Lee: That is correct.

That is correct.

And that brings up--

Mr. Lee: Does that relate to... I assume that relates to your argument--

Mr. Lee: --Indeed it does.

Indeed it does.

Mr. Lee: --as to the political question.

Mr. Lee: Indeed it does.

And it bears out also the point that this Court has stressed on a number of occasions, stated first by Justice Holmes a good part of a century ago, that there are also, in addition to protections that are built into the judicial system, but there are also protections in Congress.

The fear has been, well, what if you simply gave away the War College, or gave away the Naval Academy.

In the first place, there probably would be someone who could challenge that, but even if there weren't, our system has survived for two centuries without that ever happening, and the most immediately responsive branches to that kind of thing ever happening would be the branches that are going to have to respond to the pressures of the people who cast the votes, as this Court pointed out in its opinion in Warth versus Seldin.

Mr. Lee: Mr. Solicitor General, I am not sure that argument is controlling, because the phenomenon of government support for private schools has become more important in recent years, and the fact that it wasn't done historically may not be a total answer, but suppose this case had arisen in a state court, supposing a state government did exactly what the federal government did here, and a person who was not even a taxpayer sought to challenge it, and the state court said, yes, we will entertain the challenge, would we have the right to review such a decision?

Mr. Lee: I think not.

I think not.

Mr. Lee: That is Doremus, I guess, isn't it?

Mr. Lee: I guess it is.

Yes.

Mr. Lee: As I recall Doremus, the state court said there was standing.

Mr. Lee: Yes, that is Doremus.

The decision of, I believe it was a New York court--

Mr. Lee: New Jersey court.

Mr. Lee: --I certainly defer to your expertise on that matter, Your Honor.

Let me just say in conclusion that I can conceive of a constitutional system which gave to any citizen the right to accede to the courts for the resolution of any problem of public importance.

Something like that, not that kind of... it would not be, in my opinion, the best kind of system, because I believe that our separation of powers, checks and balances system is a better one.

Something like that was proposed with the Council of Revision, which was expressly rejected by the Constitutional Convention.

The underlying premise of Marbury versus Madison, the reason for judicial review is that judicial review is necessary to the performance by the Article III branch of its function of deciding real lawsuits between real parties, and this Court clarified a half-century ago in Chicago Grand Trunk Railway versus Wellman that the corollary to that Marbury versus Madison principle is also true, that courts perform that function only in those circumstances where it is necessary in order to perform their Article III case or controversy decisional process.

Perhaps the most revealing statement on the record in this case is that of the plaintiff Setumbrini, who said, I represent all American citizens, and indeed he does.

That is the kind of claim that under our constitutional system and under traditional practice under this Court's precedents must be taken to the political branches of government, and not to the courts of the United States.

Mr. Lee: Mr. Solicitor General, may I ask you one other question?

If you recall in Justice Harlan's dissent in Flast against Cohen he draws the distinction between Hofeldian and non-Hofeldian cases--

Mr. Lee: Yes.

Yes.

Mr. Lee: --And he says that if Congress authorized a non-Hofeldian standing, it would be all right.

Do you disagree with that view?

Mr. Lee: I have serious problems with it, and particularly in light of the subsequent holdings, probably best spelled out in Warth versus Seldin, that there are constitutional minima, that one of those constitutional minima is injury in fact, so that the real issue becomes, is the Richardson-Schlesinger type ruling, the citizen standing, rooted in injury in fact, and in my view it is.

That is the only part of Justice Harlan's opinion that I disagree with.

Thank you.

Chief Justice Burger: Mr. Boothby.

ORAL ARGUMENT OF LEE BOOTHBY, ESQ., ON BEHALF OF NON-FEDERAL RESPONDENTS

Mr. Boothby: Mr. Chief Justice, and may it please the Court, I believe that this is the first opportunity which this Court has had to address the question of standing as it impacts on the establishment clause since the landmark decision which had been discussed here of Flast versus Cohen some 13 years ago.

This case also presents the first establishment challenge to the Federal Property and Administrative Services Act which the Court of Appeals has suggested in this particular case that there is the probability that no one... that if these plaintiffs do not have standing, no one perhaps has standing to challenge, and I would suggest that if the Court should find that there is no standing, that that particular Act, that particular Act of Congress would be immune from the establishment clause challenge, no matter how gross the violation might be.

Mr. Lee: Wasn't it said either in Reservists or Schlesinger that the fact that there is no one who has standing does not confer standing on someone?

Mr. Boothby: It says that it is an indication that it does not, that perhaps it should be handled by the political branch.

However, I think in that particular case the suggestion of then Solicitor General Robert Bork as he argued that case before this Court is instructive, because he in that particular case argued that the plaintiff interest in CIA funding hardly rose to the dignity of a constitutional right involved in Flast because, as he said, First Amendment freedoms need breathing space to survive, and there is a broader concept of standing appropriate in that particular area.

That was the argument that was made in Richardson.

In the brief in Richardson, the Solicitor General argued that the case did not involve core values involved in Flast; it involved the statement and account provision not central to the Constitution, and thus the circumstances rendered doubtful the occurrence of substantial adverse interest.

Mr. Lee: But it was nonetheless a constitutional provision.

Mr. Boothby: It was a constitutional provision, but it was dealing with Article I rather than with the establishment clause, and I think that brings us to really the very heart of this particular case.

The question is, is the ultimate protection of values enshrined in the establishment clause to reside with the judicial system, or the judicial branch of government, or are there certain establishment clause values that perhaps the political branch has the ultimate authority in?

Mr. Lee: Well, how do you distinguish the establishment clause in Article I, say, from the right to be free from unlawful searches and seizures in Article IV and the right to counsel in Article V or VI, or the right to fair trial, that sort of thing?

Isn't it true that if the judgment of the Third Circuit would be affirmed, the Court would, as the Solicitor General suggests, have to be grading various provisions of the Constitution as to their fundamentality?

Mr. Boothby: I think that the establishment clause is different from even any other First Amendment right for this reason.

It is an amorphous type right.

All other First Amendment rights, right to free speech, free exercise, to publish, have two aspects.

One is protection from certain government action, and the other one is protection for, to do certain specific things.

That is not true necessarily with the establishment clause, because basically that right is a right to be free from certain governmental actions, and may not directly impact specifically uniquely on any particular person, and I think that presents a separate, specific problem that must be addressed in a practical way.

Mr. Lee: Well, isn't that true, then, of any taxpayer suit, that no... we all pay taxes for many things that we object to and perhaps wouldn't vote for if we were legislators, but that we can't show any discrete impact on our own tax bill for it.

Would you say everybody had standing to attack those sort of expenditures if they claimed they violated the Constitution?

Mr. Boothby: No, I think there is a distinction, which was in fact pointed out in Richardson and in Schlesinger, where a distinction was made between certain core value rights given by the Constitution and the type of political situation that was involved in both the decisions of Schlesinger and Richardson.

Mr. Lee: Well, are all constitutional provisions core value?

Mr. Boothby: I think perhaps there are certain core values which have to be protected in different ways, and I think a lot of what we are discussing today deals with the prudential concerns of the Court, the concerns of self-restraint, and I would suggest that there is standing from the constitutional standpoint in this particular case, and what we are dealing with now are prudential concerns, and the fact that if one accepts... if one does accept the view, which I suggest is an appropriate view under West Virginia versus Barnett, that certain rights must not be left in the political process, then prudentially we have to look to the court enforcement of those rights.

Mr. Lee: But in Barnett, there was actual standing in the sense that a particular school child was forced to do something that he objected to on constitutional grounds that he shouldn't have to do.

Mr. Boothby: That may be true, but it gets back to the basic question as to whether establishment rights should be subject to the political process, subject to the vote of the majority, and I suggest that that basic core value right under the theory of Madison and Jefferson when they suggested the religion clauses be included in the Bill of Rights was to commit that to the judiciary for protection.

Mr. Lee: Would you distinguish between the free exercise clause and the establishment clause of the First Amendment?

Mr. Boothby: Mr. Chief Justice, both of those are co-guarantors of religious liberty.

The difference is that the free exercise right always impacts on a specific individual or group of people, so prudentially you have a person with standing without much difficulty.

When we are discussing the problem with reference to the establishment clause, we have a much different situation.

Mr. Lee: Well, on your theory, then, on your theory members of Jehovah's Witnesses and other religious people who sincerely are opposed to all forms of warfare and defense, military establishment, would have standing to challenge the levying of a tax on them to the extent that tax was used to buy tanks and airplanes and other things.

Is that right?

Mr. Boothby: Well, perhaps they have standing.

The question then would be raised as to what the compelling state interest might be, and how--

Mr. Lee: Well, all we are concerned here with now, we are talking about standing, aren't we?

Mr. Boothby: --Yes, the question in that case--

Mr. Lee: We are not getting to the merits of this case.

Mr. Boothby: --Under the free exercise clause, the question would be, does that particular governmental action impact or burden their religious freedom, and if they could demonstrate under the free exercise clause that it does, then they would have standing, I think, to bring the matter before the Court as to whether what the decision would be would be based upon the balancing test.

Mr. Lee: Do you agree with the Solicitor General, whose response was that Congress would have the power to forbid transfers of this kind and transfers, grants to colleges on religious grounds?

Mr. Boothby: I would think that they would have the power to do that.

The question is as to whether they should be the final authority to determine whether their own actions are in violation of the establishment clause, which I suggest has been committed to the judiciary.

Mr. Lee: Well, I don't follow that.

If Congress simply said, we are not going to give any money, we are not going to transfer any property to a religiously sponsored school or college, do you seriously question their authority to do that?

Mr. Boothby: Are we discussing it now in the context of the free exercise clause?

Mr. Lee: No, we are just discussing it in the abstract.

They just say no money, no money can be given to any religious school, no property can be transferred except for full value to any religious school.

Do you question the right of Congress to do that?

Mr. Boothby: I think Congress--

Mr. Lee: That avoids all your problems of the establishment clause, doesn't it?

Mr. Boothby: --It would avoid it if the Congress in fact did that.

The question is, we have here a 31-year history where that has not been the situation, where the benefit allowance has always been granted to the extent of 95 to 100 percent, and the question is whether anyone can ever challenge what seems to us to be indistinguishable, the question of whether you are giving cash, giving an appropriation of dollars, or whether you are giving bricks and mortar, and whether you are giving personal property, it seems indistinguishable.

Mr. Lee: What was the government giving in the Tilton case?

Mr. Boothby: Well, in the Tilton case, it was... it involved different items, but one of the items which was specifically addressed by the Court was with reference to buildings which 20 years... there was a provision there that at the end of 20 years, the restrictions were at an end, and this Court invalidated a specific part of it dealing with a facility that might be turned into a chapel or something for a religious purpose.

Here, in this particular case, we don't have to wait 20 years down the road to find some speculation as to whether it is going to be used for a chapel.

There was a specific building which was in the nature of a chapel that was given to the... to the college and used directly and immediately for a chapel, so what we have here in part was the government giving a chapel to the college to be used for pervasively sectarian instruction, which I can see no difference between this and the decision in Tilton.

Mr. Lee: Which chapel was formerly used by the government.

Mr. Boothby: That is correct.

Mr. Lee: With nobody's objection.

Mr. Boothby: That is correct, but of course we have distinguished under the free exercise clause prisons and chapels and chaplains in the armed services, because of the restrictions that are placed upon servicemen and upon prisoners, and as a means to accommodate because of the restrictions that government has imposed, we have permitted the furnishing of chapels in those instances, but--

Mr. Lee: I am not too worried about what you permit.

I am worried about what the Constitution permits.

Mr. Boothby: --I believe that that has been the theory under the chaplaincy and for chapels in the armed services.

Mr. Lee: How about chaplains in the Senate and House?

Mr. Boothby: That has, of course, been a long tradition there, and perhaps under the decisions dealing with the ceremonial decisions, those type of decisions, that would be a basis for sustaining that.

Mr. Lee: Mr. Boothby, if the Court were to affirm the Court of Appeals' decision, would you agree that really any person could come in then as a plaintiff and raise any establishment clause question, without any practical limitation?

Mr. Boothby: I think the Court... they always impose certain prudential considerations.

As this Court has said as recently as last year, in the Geraghty case, that the Court should view these cases on a case by case basis.

Mr. Lee: But wouldn't that be the danger or concern we would have if we were to approve that decision?

Mr. Boothby: To the type of cases that directly impact on specific individuals, I see no particular problem with those requirements.

In addition, I would suggest that we are not dealing nor should we deal with a generalized grievance or one where we are asking merely for an advisory opinion.

That is not the situation in this case.

In this case, where it is a plaintiff not attacking generally an Act of Congress, but is attacking a specific transfer of property, and so we have a factual context in which this case is brought, and I would suggest that to the extent that the injury that we are concerned with is an amorphous type of situation where it is a step down the way towards the establishment of religion than citizens should be.

Let me suggest this, because I think we are going to the question of the locus of the injury.

Does it make any difference, for instance, whether the citizen who feels aggrieved lives next door to Valley Forge Christian College?

It really doesn't.

Now, it does make a difference if we are talking about a public school engaging in sectarian religious education within that school.

Yes, the people within that community have a more direct impact.

But that is not the situation here.

We are talking about a transfer of property, government property, to be used for pervasively sectarian teaching, and I think the locus of it is unimportant.

Mr. Lee: Didn't the framers of our constitution really reject the idea of a roving commission to challenge actions of the government, and didn't the framers really contemplate the case in controversy requirement, which in essence embodies standing, and isn't this opinion a significant departure from that basic concept?

Mr. Boothby: I don't believe it to be a significant departure.

As I understand the Article III requirements of standing, that is, that there must be injury in fact, we are talking about a case presented in a manner where it is an historical setting for judicial relief.

We are talking about a situation where the issues are presented by adversaries in a factual context, and I believe that is met in this particular type of case.

Mr. Lee: What is the injury in fact?

Mr. Boothby: Injury in fact in this particular case is that type of injury which is experienced by many people in this country, but the fact that government is not being neutral and establishing an environment which prevents a government operating with a separation of church and state.

Mr. Lee: Well, is that the sort of injury in fact that Barlows or Associated Processing was concerned with?

Mr. Boothby: Well, of course, those were concerned with economic problems.

Mr. Lee: Yes.

Mr. Boothby: But in Data Processing the Court specifically indicated that what it said in that case also applied to spiritual values, and we are dealing here with a spiritual value, not an economic value.

Mr. Lee: Mr. Boothby, along that same line, can you argue your case on standing without getting into the merits?

Mr. Boothby: Yes.

I don't think one needs to get into--

Mr. Lee: I don't see how you can argue your standing without the merits, because you say that unless this is a church school, you have no case.

Mr. Boothby: --I don't think one--

Mr. Lee: Well, if this is a school that is completely non-sectarian, do you have standing?

Mr. Boothby: --I think that in order to reach the standing question, as the Court said in Flast, to find out if there is a nexus between the plaintiff and the injury, that you have to look at the facts in that fashion, but you do not need to cross the threshold and decide the merits of the case.

You do not need to determine whether in fact this is a pervasively sectarian institution, merely look to see whether there is an allegation--

Mr. Lee: Then you have to get to the merits.

You would rather call it facts, but I prefer to call it merits.

Mr. Boothby: --I think you have to look to see whether there is an allegation raised by the plaintiff that there is a pervasively sectarian institution involved, but you need not decide that fact.

Mr. Lee: But you have to get to it.

Mr. Boothby: To that extent.

Mr. Lee: If this was a non-sectarian institution, you would have no case.

Mr. Boothby: Well, there would not be the claim of establishment violation.

Mr. Lee: You would not have any standing, would you?

Mr. Boothby: You would not, and that would probably be a political question at that point.

Mr. Lee: You wouldn't have any standing.

Mr. Boothby: That's true.

Mr. Lee: So that any person in the country can file a complaint in any federal district court saying that the transfer was to a pervasively sectarian institution, and be entitled to a hearing on his allegation.

Mr. Boothby: Well, I think one of the ways of handling that particular problem is that summary judgment method of handling it, perhaps, but I think if there is a--

Mr. Lee: But it must nonetheless be considered.

Mr. Boothby: --I think... yes.

Mr. Lee: Under your theory, could an anti-war group object to the selling of these AWACS?

Mr. Boothby: No, I think that comes under--

Mr. Lee: They are against war.

Would they have standing?

Mr. Boothby: --I don't--

Mr. Lee: I didn't say when.

I said, have standing.

Mr. Boothby: --I don't believe so.

I think that--

Mr. Lee: Why not?

Mr. Boothby: --Unless they are making out a free exercise type of argument, it certainly--

Mr. Lee: I am saying that their religion says we are against war, and we object to you selling AWACS to anybody.

Would they have standing?

And when you get through with that, you can ask about declaring war.

There is no limit to where you could go.

Mr. Boothby: --Well, of course, to some extent that was the issue that was argued here on Monday with reference to the social security tax, and they were raising the question, but they did have standing.

Mr. Lee: Was the standing point involved in that?

Mr. Boothby: No, but they--

Mr. Lee: We are talking about standing now.

I would like to leave it with standing.

I have great problems with where your line is drawn.

I can allege that my religion is against taxing, so I want to stop paying my income tax.

I don't have standing for that.

Mr. Boothby: --I think then you reach the question of whether it is a burden on the free exercise rights of those people.

I think you have to look to that issue, and then the question of sincerity.

Now, perhaps they would have standing to raise the question.

Mr. Lee: And they could plead forma pauperis and it wouldn't cost them a nickel to do it.

Right?

Mr. Boothby: Basically, Sherbert versus Verner dealt with somebody objecting to the impact of a particular statute, state statute.

The question was not standing.

The question that was disposed of was the question of the use of the balancing test to determine whether there was a compelling state interest to override the free exercise presented in a historical way with specific facts asking for specific relief directed against the... what is perceived to be the wrong.

Mr. Lee: And the specific allegations about establishment.

Mr. Boothby: I think that you need to say that--

Mr. Lee: You have to have allegations.

Mr. Boothby: --you are basing it upon an establishment claim, yes.

I think there might be an illustration that would demonstrate perhaps why the establishment question raises separate questions, and let me suggest, what if Congress would enact a law that would say, we are officially recognized in a certain church as the official church, Baptist church, Unitarian church, Presbyterian, or whatever it might be, but we provide no sanctions and we grant no money, we make no appropriation.

The question is, would anyone have a right to come before a court and ask that that particular Congressional act be voided, or is that something specifically that you would have to go to the Congress and go through the political process in order to accomplish, and I submit that those are the type of problems as it is particularly highlighted in this case, where you must have, you need to have access to the courts to prevent violations of the establishment clause from occurring.

Mr. Lee: Would you be here, Mr. Boothby, if they had sold it for $500,000?

Mr. Boothby: First of all, this really involves $1,300,000 when you involve the personal property, but I think the principle involved is important whether we are talking about $500,000 or whether we are talking about $100, the principle is.

Now, obviously--

Mr. Lee: What principle would be involved if they sold it for $500,000?

Mr. Boothby: --Oh, if they sold it and received $500,000?

Mr. Lee: Yes.

Less than value.

Mr. Boothby: Less than the value?

Mr. Lee: Less than value.

Mr. Boothby: Then you would be perhaps... I think perhaps there would be standing, but the question would be on the merits as to whether there was an actual gift made by the government without consideration, whether it was in fact a contribution or a donation to some extent.

Mr. Lee: Then what if they put it up for auction, limiting the bidders to colleges and universities, and this institution was the low bidder, and the bid was $100,000, way below value.

Would you have standing first?

Let's stay with standing.

Mr. Boothby: To the extent that you could make out a claim of violation, I would say perhaps you would have standing.

Mr. Lee: Doesn't that illustrate the practical side of this situation, that you must leave the running of the government to the people who were elected to run it?

Mr. Boothby: I think that is normally true, except when you have this type of situation where we are talking about a violation of such a basic core value, and I don't believe that one should have to go to the political processes in order to have that redressed.

One other... perhaps one other matter which goes to this particular problem is the fact that one of the things that indicates that this is a case in controversy, and this is a case for judicial relief, is, I would seriously question whether the executive or the legislative would have power to provide the relief which is requested.

We are requesting that a transfer which has been made be voided.

I would suggest that it would be difficult, if not impossible, for the legislative branch or the executive branch to perform that.

That is the type of relief which is uniquely within the power of a court to provide.

So, I don't think that the executive or legislative branch can provide that type of relief.

Mr. Lee: Mr. Boothby, I have been looking at your complaint.

What provision of the complaint... I am looking at Page 10 of the Joint Appendix... contains your allegation of injury in fact?

The Joint Appendix--

Mr. Boothby: Yes.

Mr. Lee: --Page 10.

Is that the complaint that is before us?

Mr. Boothby: That is the complaint.

However, as was pointed out in the--

Mr. Lee: Well, before we--

Mr. Boothby: --Pardon?

Mr. Lee: --Before we leave that, could you identify in the complaint the injury in fact language upon which you rely?

Mr. Boothby: Paragraph 12 is the one that deals with the claimed violation of the establishment clause.

I would like to, however, add to that--

Mr. Lee: Before you leave the complaint, what about Paragraph 2, which is the one that speaks of the injury to the plaintiffs?

Mr. Boothby: --Yes.

That describes... that describes the organizational plaintiff in this particular case, and indicates the fact that these particular people that are members of the organization are taxpayer members affected by the use of the property.

Mr. Lee: Each individual member would be deprived of the fair and constitutional use of his or her tax dollar.

Mr. Boothby: That's correct.

Mr. Lee: Is there any allegation in here other than that, which seems to relate to status as taxpayers, that indicates an injury in fact to these particular plaintiffs?

Mr. Boothby: Not in the complaint, Your Honor.

I might make reference to Page 13 of the brief that was filed on behalf of the college, where they specifically stated, which is correct, that Respondents were given the opportunity through discovery to particularize the allegations of the amended complaint in connection with the district court's ruling of the college's motion for summary judgment.

The depositions and answers to interrogatories were considered.

And I would suggest that the injuries that we are talking about were particularized in those depositions, and specifically Pages 28 through... 27 through 30 of the plaintiff Gunn's deposition, where he described in a very particularized way those type of injuries with which he was concerned, where, on Page 28, he stated,

"When the government establishes religion, that is, contributes to the establishment of religion, my religious liberty is being violated."

"It affects me in that my freedom of conscience is being violated and my religious liberty is being trampled upon because the government is taking... is fostering and promoting religion."

"It is not the business of government to do this."

"The government is to remain neutral."

Then,

"When the government gives over public lands that belong to the public, and public buildings and personal property, then it is promoting one religion over against all other religions."

And further,

"When the government takes sides on matters of religion, it is taking a side against my religion, and therefore is inhibiting me and violating my freedom of conscience by forcing me as a taxpayer and as a citizen to give support to someone else's religion."

Mr. Lee: Is that document before us, Mr. Boothby?

Mr. Boothby: The document is not in the Appendix.

It is part of the record, and as I have indicated, was considered by the district court at the time of the dismissal of the case.

Mr. Lee: The record here?

Mr. Boothby: Pardon?

Mr. Lee: Is the record here?

Mr. Boothby: I would assume that the record--

Mr. Lee: I mean, in this building.

Was it filed with the clerk?

That's all.

I am sure it had to be.

Mr. Boothby: --That is my understanding.

And as I say, that... there are other... there are several other similar statements in other depositions, and I won't go in great detail, but I might make reference to Plaintiff Doerr, on Pages 15, 22, and 23, Plaintiff Binns, Pages 14, 15, 18, and 19, 24, 25, 31, 32, and 36, and Plaintiff Gunn on Page 10, 11, 12, 27, 28, 29, and 30, all indicate what we would suggest would be the particularized injuries complained of in this particular case.

In United States versus Carolina Products Company, Justice Stone, in Footnote 4 of his--

Mr. Lee: United States versus Carlolene Products?

Mr. Boothby: --Carolina Products?

Mr. Lee: That is C-a-r-o-l-e-n-e?

Mr. Boothby: L-i-n-a.

Carolina.

Suggested that exacting judicial scrutiny of state action is appropriate when state action violates the Bill of Rights or frustrates the political process.

I would suggest that we can't have exacting judicial scrutiny when there is an absolute denial of all judicial scrutiny, and one of the things that has been highlighted in this particular case is that no one perhaps might have standing if these particular plaintiffs do not have standing.

It has been suggested that perhaps someone close by in the area might have some standing about a drain or something, but those people are not going to be specifically concerned about raising establishment issues except to some extent that it might assist their case.

Also, it was suggested that there might be another applicant for the property, and again I would suggest that that concern is more economic than one dealing with the values enshrined in the establishment clause, and it would seem that if we are trying to find the plaintiff to raise the establishment issue in the most specific way to bring to the attention of the court the issue, we should be looking at the plaintiff that can best present the establishment clause challenge from the standpoint of their own specific injury, the injury being a violation of their rights under the establishment clause.

In Warth versus Seldin, it was stated that the standing question requires a determination as to whether the constitutional or statutory provisions on which a claim rests properly can be understood as granting persons in the plaintiff's position judicial relief, and I would suggest that the establishment clause does do just that.

It grants to a specific individual the right to judicial relief.

I question whether it is ever tolerable to expect the establishment clause by the doctrine of standing to be divided into enforceable and non-enforceable establishment clause rights, and I suggest also that the precious aspects of religious freedom should never be placed upon the barter block of legislative debate, political trade-offs or compromise.

Mr. Lee: Well, in Doremus they were.

Mr. Boothby: I think that is correct.

I think in Doremus it was.

I think that Flast went a long way in resolving the problem there.

Mr. Lee: But Flast cited Doremus with approval.

Mr. Boothby: That is correct, but it certainly was a departure from what was said by the Court in Doremus.

I think that there has been also a substantial change in the way the question of standing has been viewed since Doremus, as far as this Court is concerned, in its most recent expressions--

Mr. Lee: Well, there certainly was a substantial change in view of standing in the Third Circuit's opinion as compared to this Court's cases in Warth and Simon versus East Kentucky.

Mr. Boothby: --I think that this Court has never really had to face this issue in this context before, and it did face it to some degree in Flast, but it did not need to go further than to find some taxpayer standing.

This is a situation which is somewhat different, but I would suggest that as the establishment clause was deemed to be a limitation of Article I, Section 8, it is equally a limitation on Article IV provision granting to the Congress the power to dispose of property.

I don't see any distinction.

Mr. Lee: Well, do you just read out Article III, then?

Mr. Boothby: No, I think that there must be a case in controversy.

I don't think you can merely ask for an advisory opinion, but when you have real parties litigating real factual issues and asking for specific relief, not merely an adjudication of a Congressional Act, but asking for specific judicial relief, I think that the case in controversy requirements of Article III have been met, particularly where there is an allegation of injury in fact of the character involved in the establishment clause itself.

Your Honor, I believe I have a minute or two.

If the Court has any questions, I will do my best to attempt to answer them.

Otherwise, I am prepared to submit the case.

ORAL ARGUMENT OF C. CLARK HODGSON, JR., ESQ. ON BEHALF OF THE PETITIONER -- REBUTTAL

Mr. Lee: I have a question that occurred to me during the argument.

Someone referred to the case we had earlier this week that also came from Pennsylvania, involving a religious group, some people who felt very deeply that paying a certain tax would be a sin against their religion.

Supposing someone living next door to this institution felt that it would be a sin to live in a community in which the government established a religion in which they had no belief, or they just thought it would be a sin even to live where the government established religion.

Would that person have standing?

Mr. Hodgson: You seem to be positing the existence of a free exercise injury in fact, Article III, and I would say yes.

Mr. Lee: Well, supposing somebody said it is a sin to live in a country in which the federal government does this sort of thing.

Would that still... would you think that would be standing?

Mr. Hodgson: I think it alleges--

Mr. Lee: A deeply held belief.

Mr. Hodgson: --it alleges an injury in fact, an alleged violation of the free exercise clause.

Mr. Lee: Well, the injury to him is continuing to live there.

Mr. Hodgson: Yes.

I can't help but think of it on the merits, thinking particularly of Reynolds versus United States, the polygamy case, that believing as a matter of religious conscience that the practice of bigamy was appropriate, but of course that goes to the merits, but I think that the allegations that you fashion, while they appear at least to be frivolous, might fall within the free exercise.

Mr. Lee: Well, supposing these people, instead of stressing their taxpayer status, had just said they believe very deeply that it will offend their conscience to have their government do this.

Is that really different?

Mr. Hodgson: That it offends their conscience?

Mr. Lee: It offends their conscience.

Mr. Hodgson: Yes.

Mr. Lee: Just as a matter of conscience.

Mr. Hodgson: I think it is very different.

Their conscience as citizens of the United States.

Because matters of citizen conscience, I think, are not protected under the Constitution.

Matters of deeply felt religious conviction are protected under the free exercise.

Mr. Lee: I see.

Mr. Hodgson: Thank you, Your Honors.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Attribution:

The OYEZ Project

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Argument of Bork

Chief Justice Warren E. Burger: We’ll hear arguments next in 72-885, William v. Richardson.

Mr. Solicitor General, you may proceed whenever you are ready.

Mr. Bork: Mr. Chief Justice and may it please the Court.

This case presents at this stage is only an issue of federal taxpayer standing and the question is whether the exception made in the rule of Frothingham against Mellon by the later decision of Flast against Cohen should be widened to grandstanding in cases not involving the Establishment Clause and the Free Exercise of clauses of the First Amendment.

The Government will attempt to demonstrate that an affirmative answer, the answer the respondent here seeks would effectively overrule all of Frothingham which Flast did not purport to do, and would probably destroy the concept of standing altogether.

That result we think is precluded by considerations rooted in Article III of the Constitution, and by considerations relating to the role of this Court and other federal courts in exercising the power of judicial review.

Respondent brought this suit in the District Court for the Western District of Pennsylvania to enjoin the publication by the Secretary of the Treasury of the combined statements of receipts, expenditures and balances of United States Government on the ground that, that document does not identify appropriations for and expenditures by the Central Intelligence Agency.

Now, this confidentiality of CIA funding, its spending is expressly provided by statute as an exception to the general statute which requires that the Secretary of the Treasury annually lay before Congress the combined statement.

The CIA budget of course is reflected in the total figures in the combined statement, but it is not identified as such.

Respondent’s theory is that this congressionally provided confidentiality violates the Statements and Accounts Clause of Article I, Section 9, Clause 7 which reads, “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.

The District Court dismissed respondent’s complaint on the ground that he lacks standing as a taxpayer, but the Court of Appeals for the Third Circuit sitting en banc reversed with three judges dissenting.

I would like to approach this case initially through an examination of Flast against Cohen in an attempt to show that, that case denies respondents standing here.

And then I would like to turn briefly to issue of constitutional policy and argue that the standing concept in cases like this is in Article III concept as Flast against Cohen recognizes and it’s important to preserve that concept.

I think the majority opinion in Flast plainly denies standing in this case.

Only if the limits set by that case to taxpayer's standing are abandoned can respondent here be accorded standing and of course Flast must be seen against the background of Frothingham against Mellon.

In that case, in Frothingham, the taxpayer attacked the constitutionality of the Maternity Act of 1921 which setup a Federal program to grant -- make grants to States who would undertake programs to reduce maternal and infant mortality.

And the taxpayer sued and challenged the constitutionality of the Maternity Act on the grounds that it is exceeded the powers delegated to Congress under Article I, that it violated the powers reserved to the States by the Tenth Amendment and that deprived her through the taxing process of her property without due process of law under the Fifth Amendment.

Those are constitutional claims that at that time were certainly regarded as quite as important as any constitutional claim to respondents who seeks to litigate here.

But this Court nevertheless denied standing and that rule against taxpayers standing stood in violate until Flast.

The Flast majority was very careful to the state that it was reading the Frothingham rule intact except for the defined category of cases and the exception it made in the Frothingham rule was for cases in which the taxpayer could show a logical annexes between the taxpayers’ status and the claim he sought to adjudicate and that logical nexus test breaks down into two further tests in Flast.

First, there must be a logical link between the taxpayers’ status and the type of legislative enactment sought to be attacked.

And second, there must be similar nexus between the test status of taxpayer and the precise nature of the constitutional infringement alleged.

I don’t think, pardon me, the respondent in this case can satisfy either of those tests.

The Flast opinion set up this first nexus, the one between the status of taxpayer and the enactment to this challenge.

I quote a taxpayer would be a proper party to allege the unconstitutionality, only of exercises of congressional power under the taxing and spending clause of Article I, Section 8.

The respondent here of course is not attacking any exercise of the taxing and spending power under Article -- under Section 8.

He is attacking a reporting provision under Section 9.

The Court in Flast continued, “It will not be sufficient for a taxpayer to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute.”

Now I would like to make two observations about that first test in connection with this case.

The first is that here the respondent makes no complaint of any injury to his pocket book.

He is not saying that any tax money is being taken from him in violation of the constitution.

So that there is no link between the status he asserts, that of a taxpayer and the statute permitting CIA funding to be placed in the budgets of other agencies or departments.

It’s apparent on the face of the matter that what he has is the interest common to all citizens, that is as this Court has put it, merely a general interest common to all members of the public and that he seeks to air his generalized grievances about the conduct of Government and those are precisely the phrases of this Court has used to describe a litigant who has no standing.

The second observation I would like to make about this first test in Flast is that the theory of the majority of the Court of Appeals below and I believe the theory of the respondent here is that the first Flast test is satisfied because the respondent is injured by lack of knowledge about the CIA budget.

As the respondent’s brief puts it, it is the intimacy of the constitutional provision to the spending process that is relevant.

If that were the test, then Flast actually left no vestiture to Frothingham despite its protestations to the contrary.

Taxpayers would have I think, under that test, standing to litigate any grievance that is colorably related to the appropriation process.

And that in turn would inject the courts into every imaginable question bearing on the constitutionality of actions by the legislative and executive branches at the request of every disgruntled taxpayer, who wanted to oppose some governmental program or procedure.

Justice Thurgood Marshall: Mr. Solicitor General, do I gather from your brief that no one can attack this?

Mr. Bork: I am -- Mr. Justice Marshall, I am unable for the moment to imagine how this particular provision could be attacked, but of course that is not --

Justice Potter Stewart: The Court will be --

Mr. Bork: Yes the Court, the Court yes, but that of course is not a unusual situation with constitutional provisions.

For a variety of reasons just as you can be among them, a variety of constitutional provisions may not be enforced by a court.

Chief Justice Warren E. Burger: But Congress could require them to render an account down to the last postage stamp if they wanted, could they not?

Mr. Bork: Undoubtedly, yes Mr. Chief Justice.

Congress could require them to specify the number and salary level of every secret agents throughout the rest of the world.

There is no question about that.

Chief Justice Warren E. Burger: Isn’t the issue in this case, who is to define what is a regular statement and account under --

Mr. Bork: That --

Chief Justice Warren E. Burger: -- whether it’s Congress or whether it’s the court or someone else?

Mr. Bork: That is the -- a question we must get into it to some degree at least Mr. Chief Justice that it also impinges upon the ultimate question if the respondent were found to have standing, but I think the second Flast test which talks about what is the purpose of a constitutional provision necessarily requires to be talked about that as well.

I think the history --

Chief Justice Warren E. Burger: If we need to get to that at all that’s the point, isn’t it?

Mr. Bork: Well --

Chief Justice Warren E. Burger: If we reach that, are you suggesting that it’s not necessary to reach that?

Mr. Bork: No, no I was about Mr. Chief Justice to discuss that very point.

Chief Justice Warren E. Burger: Very well.

You're own schedule Mr. Solicitor General.[Laughter]

Mr. Bork: The second Flast test is of course the question of whether the taxpayer has stated a relationship and nexus between themselves and the constitutional provision.

And as our position is you just suggested, it might be Mr. Chief Justice, that in fact this provision is designed toward the protection of Congress.

It's designed to give Congress control over executive spending to find out what the Executive is spending and what the Executive is receiving.

I think that’s apparent both from the history of the statute although the history is not free from ambiguity in all candor, but I think is even more apparent from the necessary construction of this clause in connection with other clauses.

In the history, the history is set forth in our brief, the opposition of George Mason and Patrick Henry to this clause of the constitution was apparently founded upon the fact that it might allow secrecy and expend some accounts.

In addition to that in a phrase which is perhaps not entirely free from bad ambiguity, but I think it supports the Government’s position here.

In the debate in the constitutional convention on this clause in September 14 which is reported in 2 Farrand's records at page 619.

James Wilson of Pennsylvania supported the motion to change the provision before them from an accounting year-by-year in annual accounting to an accounting from time-to-time which is the present language in the clause, by saying that many operations of finance cannot be properly published at certain times.

But I think we rely unless upon that history which I think is incomplete than we do upon two other factors.

One is, but after that history it became regular practice for the Congress to keep some appropriations secret when the occasion of the national interest seem to demand it.

Our brief at page 26 points to the fact that there was secret appropriation in 1811 to $100,000.00 I believe for the occupation of Spanish Florida an Act by the Congress which obviously had a great deal of sensitivity in Foreign Affairs.

That appropriation was kept secret for seven years until 1818 when it was published and of course the most famous example of this kind of procedure was the $2 billion secretly spent to develop the atom bomb in the Manhattan project during World War II.

So I think there is a course to the historic practice which supports the idea that this is -- the reporting is in the control of Congress and its intended to give Congress control over what the Executive is doing with funds.

Justice William H. Rehnquist: Mr. Solicitor General if it's just for the benefit of Congress, I would think Congress could have provided for that by law for finding it the Constitution?

Doesn’t that suggest that it is does designed the benefit somebody in addition to Congress?

Mr. Bork: Mr. Justice Rehnquist, I wouldn’t think so.

There are a number of things in the Constitution, I think which give powers exclusively to Congress and are for the benefit of Congress and not for the benefit of others.

The power to expel members, the power to pass on for the qualifications and a variety of others.

I don’t think every constitutional provision is because it is a constitutional provision necessarily designed to be enforced by the citizens.

Justice Potter Stewart: Oh!

But by hypothesis every provision of the Constitution it is for the benefit of the American public, by hypothesis I should say, is it not?

Mr. Bork: Entirely true Mr. Justice Stewart by hypothesis.

Justice Potter Stewart: And for every member the American Public?

Mr. Bork: I beg your pardon?

Justice Potter Stewart: For every member of the American Public.

Mr. Bork: That is entirely true.

Justice Potter Stewart: I mean that the President has to be a national born citizen or that the Senator has to be, what is it, 30 years old or whatever.

It is presumably by -- it wouldn’t be there were it not by hypothesis for the member -- for the benefit of each member of the public in the United States of America.

Mr. Bork: That’s entirely true.

The question always is, is it enforceable by every member of the public and our position here is that this is a provision enforceable by Congress and waivable by Congress and not enforceable by every citizen who may object to the way Congress enforces it.

If he does object to the way Congress enforces, I think his clear remedy is to deal with Congress and try -- if he wants the CIA budget published, the simple matter is to go to a Congressman and go to his Congress and get other like-minded citizens to get Congress to require that the CIA be -- budget be published.

Justice Potter Stewart: To convince Congress even that is their constitutional duty to do so?

Mr. Bork: That is correct.

Justice Potter Stewart: Even if they don’t want to?

Mr. Bork: That is correct.

But I think from other aspect of this derived from the consideration of the structure which the constitution puts together in the case that, that is the correct reading of this clause.

It'd be exceedingly strange just in passing if the framers had believed they would never be matters relating to Foreign Affairs and never be matters relating to Military Affairs and Military Intelligence that must not be disclosed to the world in full.

That’s -- that would be attributing to the framers a lack of practicality which I don’t think we may attribute to them.

Now, the respondent’s brief attempts to find the negative pregnant in the fact that the constitution explicitly authorizes in Article I, Section 5, Clause 3, each house to keep secret its debates and decisions on matters that it believes require secrecy and respondent argues that see they knew how to provide for secrecy when it was called for and the fact that they did not provide for it in the Statement and Accounts Clause, explicitly means that it doesn’t exist, power of confidentiality does not exist.

I think the necessary inference runs quite the other way.

It would be extraordinary if the framers had intended the House in the Senate to be able to keep secret matters which they regarded as sensitive, but at the same time required the executive to publish those same matters to the world.

Chief Justice Warren E. Burger: What is the practice now? I am not very clear on it with reference to publishing details of the expenses of the operation of the Congress itself and perhaps it’s not relevant?

Mr. Bork: Well, Mr. Chief Justice I hope it’s not because I cannot answer the question.

Chief Justice Warren E. Burger: I have the impression that there are complaints from time-to-time and others by various people that Congress does not ever publish any account on the detailed expenditures?

Mr. Bork: I have not -- I have heard those complaints, I have not inquired into the details here.

Perhaps, I should say something that question brings to mind and that is that these matters, the CIA funding is not kept secret entirely from Congress.

Obviously, the matter is sensitive.

The appropriation’s committees of both the House and the Senate have sub-committees to which the CIA budget and expenditures are reported and from time-to-time in the Senate there is joint membership between the Armed Services Committee and the Budget Committee.

So there is a congressional check on this process.

It is just that it is deemed wise I suppose that matters of this sensitivity not be given to bodies of the size of the full House and the full Senate.

I think then it is fairly plain I think that the respondents claim the standing as a taxpayer doesn’t meet either first or the second Flast test requiring a logical nexus between his status and enactment and his status in the constitution.

When you think about -- when I think about his claim to standing here, it seems to me that he'd be indistinguishable from the claim to standing made in Ex parte Levitt where a citizen and a member the bar of this Court filed a motion requiring, asking that Mr. Justice Black be required to show cause why he should not be disqualified to be a member of this Court because of Article I, Section 6, Clause 2.

And the Court thought so little of that claim that they dismissed with per curiam opinion saying that they did not sit to discuss generalized grievances about the way the Government is operating.

I think this case is also indistinguishable from Laird against Tatum.

That was a case in which there was a citizen interest in the possible chilling effect in Army Intelligence System though there was no direct impact upon the plaintiffs.

And they were denied standing, the case is already standing case that cites Ex Parte Levitt for its main holding.

I would think that citizens in general would have as much interest in the possible and alleged chilling effect from an Army Surveillance System upon First Amendment values as citizen if in general would have here upon the reporting of the CIA budget.

Justice Potter Stewart: Mr. Solicitor General, if I may interrupt you and to go back a moment.

Did you have a citation for the case arising, arising under the Article I, Section 6 posture of the short per curiam on this.

Mr. Bork: Ex parte Levitt, Mr. Justice Stewart is found at 302 U.S. 633.

Justice Potter Stewart: Thank you.

Mr. Bork: So I think the Laird v. Tatum is also a direct holding and a more recent one, Laird than Ex parte Levitt, that there is no standing in this case, I think I should say why I think it’s important, why I think standing is much more than a rule of judicial self-restraint or discretionary rule as the respondent’s brief puts it and as some of the cases put it, I think it is.

We can see what the standing here is in Article III doctrine.

It's a doctrine relates fundamentally to the way that this Court and the lower federal courts (Inaudible) in judicial review.

It is usually said that standing isn’t an issue of whether the party is a proper one.

Whereas justiciability is an issue, it's a question of whether the issue was one that’s suitable for a court to handle.

I think that it is not put it quite accurately.

I think standing is a branch of justiciability because it goes -- it examines the party only to discover whether he is a party who will put the issue in the forum, in a forum which is suitable for judicial resolution.

And that makes it I think an aspect or a subdivision of justiciability and I think the Flast opinion agrees that indeed it is an aspect of justiciability, it is an Article III doctrine.

It has also said that the doctrine one having to do with whether the issue will be presented by sufficient adverseness.

I suppose extending standing to all citizens might require -- might result in the decline in the vigor of adversary presentation in some cases, it is also necessary to admit that it will not in many because citizen standing will be used often by persons with ideological interests or groups with ideological interests who will press the case with great vigor.

So, I am not so sure that the decline in vigor presentation is a general problem, although it maybe in some cases.

What standing and the requirement of an injury in fact actually does is delay the presentation of the issue to the Court until the law challenged has some actual impact upon members of the society and I think that’s important for a variety of reasons.

One is that we ought to examine cases, the courts ought to examine cases in concrete factual settings because our constitutional law too is law that has a common law tradition.

A common law of jurisprudence and we like to concrete factual settings because they qualify the rules announced in the cases.

They explained the meanings of the rule to people who must read the cases and they help the Court in imagining the difficulties they can get into with a particular rule because it is presented with factual situations that indicate the complexities that are involved.

So the standing issue aside from being -- it is also has an aspect of fairness to parties who maybe interested.

That is a party may have a specific injury done to him and a rule of citizen or taxpayer standing might result in somebody who does not have such interests or a factual setting getting to the courts first with this case and perhaps resulting in a rule that would not have been arrived or not arrived at in precisely that form, had a person with a real person's stake had been in the case.

But primary, I think the concept is important as a rule of fairness to the court.

I think not just fairness to the court, but the ability of the court to perform the awesome function of judicial review with maximum effectiveness sanction.

Where there is citizen standing and taxpayer standing, generally, is quite plain I think that we would have an increased number of groups and persons who would attack the statutes the moment they were enacted.

Who would attack Executive programs the moment they were announced and having standing, they would find themselves in court debating abstract theorems instantly.

There are two things wrong with that.

I have already discussed I think what’s wrong with that in terms of the fact that the issues are not quite well without a concrete factual setting.

But there’s also something wrong with ideological litigation in that lawyers in such litigation often do not explore the issues fully.

They are looking for a sweeping constitutional result and are likely not to explore narrow or statutory or factual problems that maybe quite important to the court.

Whereas a person with a personal stake wants to win the case and will explore every ground upon which he might win that case.

This kind of standing which would come immediately after a law has passed or statute or executive action announced means that the court at the behest of such a litigant and ideological litigant does not want to explore all the concrete settings, in fact there is no concrete setting, would in effect repeat the legislative or executive decision making process that had just concluded and would probably repeat it with fewer materials than were available to the legislature and to the executive in arriving at the decision, I don’t think that, that is the court’s test in the system of judicial review.

It makes the court into something like the counsel of revision, the framers rejected.

It puts the court in something of the position of giving advisory opinions and I think that would be most unfortunate for the function of this Court.

Thank you.

Justice Harry A. Blackmun: General Bork, may I ask you a question that has nothing to do really I suppose on the merits.

This case was heard en banc for the Third Circuit.

I notice that District Judge Kraft sat on the en banc panel, do you know on what authority he participated?

Mr. Bork: I don’t know the authority.

Justice Thurgood Marshall: Could be that if he was on the panel he is automatically on it?

Justice Harry A. Blackmun: Well, this is what I question because Section 46 (c) makes no reference whatsoever to a District Judge who sat on the panel.

It makes reference only to a Circuit Judge of the Circuit who has retired sitting on the panel.

And my point I guess is that with an eight-judge court would Judge Rosen desist Judge Kraft’s status in my view somewhat questionable and Chief Judge Sykes not participating with majority.

I wonder where the five to three-vote really comes out today.

Mr. Bork: In our brief or in our petition Mr. Justice Blackmun, I am sorry to say that I am having difficulty at moment locating the footnote.

Chief Justice Warren E. Burger: I think you have pointed out that it made no difference in the end result.

but there was some doubt perhaps about a District Judge?

Mr. Bork: I think Mr. Chief Justice that we did say that there was only some doubt, probably it was incorrect, but in this case we do not make a big point.

Justice Harry A. Blackmun: You are making no point of it, but I am --

Justice William J. Brennan: This is in the footnote 5, Mr. Solicitor General of your petition.

That’s where you made reference to it.

Mr. Bork: Page 6.

Justice William J. Brennan: Page 6.

Justice Byron R. White: Mr. Solicitor General, you do not address yourself in the brief or to the -- or in your oral argument to the question of justifiability it’s -- the District Court said -- How do you view the District Court’s decision to dismiss?

Mr. Bork: Oh!

I think it was entirely correct Mr. Justice White.

Justice Byron R. White: On what ground did he dismiss?

Mr. Bork: District Court dismissed on both grounds of standing and political question.

The Court of Appeals sitting en banc addressed only the standing issue because it thought it that the political question issue was so entwined, intertwined with the merits of the case.

Justice Byron R. White: And you don’t -- your suggestion is that if we disagreed with you on standing I take it you anticipate we would remand to the Court of Appeals to consider political question or --

Mr. Bork: Or to the District Court --

Justice Byron R. White: You do not address yourself to that issue here?

Mr. Bork: No, I think that Mr. Justice White, I think the Court of Appeals was correct that the political question issue could be resolved much more effectively if we were into the full merits of the case than we can at this stage.

I think standing is all that really can be effectively discussed in the posture of the case is in now.

Justice Byron R. White: So the Court of Appeals did say that it did not reach here the political question -- it must have reversed to District Court on that too, it must have?

Mr. Bork: Well, in the sense that if -- I suppose it did in the sense that it said political question was not properly considered until we got to the merits.

Justice Byron R. White: So the dismissal on that ground was reversed also by the Court?

Mr. Bork: Yes it was Mr. Justice White, but not on the ground that the District Court was wrong about political question but --

Justice Byron R. White: And then do you agree with that, I take it that you agree with that.

That if we disagree with you on the standing we -- the Government agrees then that the case should go back to the District Court?

Mr. Bork: I think that’s correct.

Justice Byron R. White: And how about the motion to dismiss for failure to state a cause of action?(Voice overlap)

That would still have to be reached?

Mr. Bork: That would be the merits, we have to reached the question of whether --

Justice Byron R. White: No, it wouldn’t be that – it would be the --

Mr. Bork: In the meaning of Article I, Clause -- Section 7 --

Justice Byron R. White: As to whether we're satisfied perhaps by the congressional -- by the statutes on the books?

Mr. Bork: That is correct.

Chief Justice Warren E. Burger: Did the motion to dismiss properly raise the issue of justiciability?

Unknown Speaker: It did.

Mr. Bork: I think --

Chief Justice Warren E. Burger: Is resolution of that be resolution on the merits even if he didn’t go to the -- on the justiciability issue?

Mr. Bork: It’s little hard to tell Mr. Chief Justice exactly what the District Court’s reasoning process was because the order and memorandum did not it spell it out very well.

Perhaps, he thought that when he said it was a political question.

No, I do not think that when he said that he thought he was construing Article I.

Chief Justice Warren E. Burger: Very well.

Justice Byron R. White: I thought a good part of your argument here has been that this really -- the prosecution really assigns the enforcement or the reaction to this provision, to the account’s provision to the Congress and that’ part of your standing argument?

Mr. Bork: That is true and I am --

Justice Byron R. White: And yet you don’t say that -- you don’t make any separate point of -- out of it as a political question?

Mr. Bork: On the separate point at this stage, I am -- the Flast tests drive one into a consideration of what that -- I suppose I am saying the same (Voice Overlap).

Justice Byron R. White: Are you really saying that if we reject standard, we reject your standing argument we are also necessarily rejecting the political question side of your argument?

Mr. Bork: I think that there maybe more to the political question doctrine than that and I would certainly like a chance to explore it below if we -- while the standing here --

Justice William J. Brennan: That gets back to Mr. Justice White’s original question.

If we were to disagree with you on standing, what not I think go back to the Third Circuit on the question, on the issue of political question?

Mr. Bork: Well, since the Third Circuit is already ruled Mr. Justice Brennan that --

Justice William J. Brennan: (Voice Overlap) Do you think it’s clear to have reversed too?

Mr. Bork: I think they have said that the – that it’s not appropriate in this forum to discuss political question because you have to go fully into the meaning of the clause in question into the merits in order to get the political question.

Chief Justice Warren E. Burger: Very well.

Mr. Fraenkel.

Argument of Osmond K. Fraenkel

Mr. Osmond K. Fraenkel: Mr. Chief Justice and may it please the Court.

I think the Solicitor General has towards the end of his argument raised a man of straw.

We are not claiming here that standing should be abolished and we agree with that portion of the Solicitor General’s argument that it is composed of two elements.

One, a constitutional element resting on this case and controversy clause and the other on what this Court has itself described as a discretionary element in order perhaps to limit the kind of cases that come to the Court.

In passing, I perhaps should object to the reflection placed upon what my delightful friend called ideological lawyers as confusing issues, I don’t think that is a fair description of their function.

I think ideological lawyers have done a great deal in the past to help this Court reach understanding of the problems raised by the Bill of Rights particularly, but that’s not this case.

We submit that in this case both tests are met.

What plaintiff sought here was a compliance with the constitution by the inclusion in the published reports of some reference at least to the finances of the CIA.

That’s what he asks for and that was what was refused of him and we submit the fact is a case on controversy.

He was seeking information from the government.

Now, clearly if that information had been denied him we'll say because he was a member of some minority group or was politically just faithful to the administration, information otherwise available, clearly the courts would have the right to pass on that.

And if Congress had passed the law denying information on that score, clearly this Court could pass on that law.

Chief Justice Warren E. Burger: Do you think Mr. Fraenkel that there would be the same standing and the same justiciability in a claim brought to -- by a taxpayer, your client for a full statement of account receipts and disbursements on the building of the Rayburn building for example?

Mr. Osmond K. Fraenkel: No.

No, I will agree that there must be some discretion vested somewhere as to the nature of the details, but it's one thing to say that information may be categorized, it’s another thing to say that Congress can by law take out of what the constitution says the public is entitled to have.

And the question of this Court will have to consider therefore when we come back from lunch is to what extent the constitutional provision does require some accounting by every branch of government, bearing in mind as the history shows that the framers of the constitution both in the convention and in the State Conventions which considered it later, recognized that there might be delay in publication of certain sensitive matters as of course was the case with the two instances mentioned by the Solicitor General.

Chief Justice Warren E. Burger: I am puzzled then, why you should have any difficulty with the costs of the Rayburn building Mr. Fraenkel?

There is no basis for confidentiality or any public policy to be served by that, is there?

Mr. Osmond K. Fraenkel: No, but I don’t say that --

Chief Justice Warren E. Burger: Why shouldn’t you be able to get it?

Why should your client be able to get that if he wanted it?

Perhaps you could (Voice Overlap) and I am not sure how relevant it is, but I was just wondering why the clause does not reach the Congress and the Courts as well as the Executive Branch?

Mr. Osmond K. Fraenkel: Oh, I think that Congress reaches all agencies --

Chief Justice Warren E. Burger: The clause.

Mr. Osmond K. Fraenkel: Because it reaches all agencies of the Government.

But the question which Mr. Chief Justice you have just raised as to what extent the particular details as for instance whether it would be necessary to publish every appropriation made for every employee in --

Chief Justice Warren E. Burger: Well, we will resume there after lunch.[Luncheon Recess]

Mr. Fraenkel, you may proceed.

Mr. Osmond K. Fraenkel: To come back to your question Mr. Chief Justice, I suppose if we come to the merits of this case as I think if I am correct on my issue of standing the District Court will come to as to Justice Rehnquist's question earlier, I think that will go back to the District Court.

Then the question will arise what constitutionally can Congress do in fulfilling the mandate of the Constitution?

And I would suppose there would be some room for discretion as to details, but not as to categories.

In other words, if the public is as we believe entitled under the constitution to public information about what the Government does, that at least has to be outlined in broad terms and no department of Government can in our view be constitutionally excluded from the detailed account.

Now, how detailed that would be, I don’t think it becomes the constitutional question.

The Solicitor General has relied on basically three cases.

First, he says we are doing by Flast.

Well, we don’t read Flast that way.

Now it is true of course that there is language in Flast written with an eye to the particular problem that was presented by Flast.

And that language has to be construed in relation to that problem which did arise under the Establishment Clause of the First Amendment.

And when the Court talked about that as being the consideration, of course it was the consideration.

Well, I do not believe that the Court intended to say that that’s the only thing which a taxpayer could ever challenge.

Certainly the Levitt case has no bearing on this, whatever, because there is nothing in the Levitt case to indicate any connection between the individual who brought the proceeding and the appointment of Mr. Justice Black.

Whereas here, there is a direct connection between the individual who brought the suit and the refusal to give him the information which he claimed he was entitled to under the constitution.

Justice Potter Stewart: The applicant or the movement or whoever he was in Levitt was a member of the Bar of this Court interested in the -- being an officer of a Court that was constitutionally valid?

Mr. Osmond K. Fraenkel: Yes!

And there are many other questions which as has been pointed it out for instance the guarantee of the Republican Form of Government which every individual citizen is interested in, that which can probably become a subject of litigation.

Only when because of the denial of that form of government by some state, the individual is subjected to impediments which the Bill of Rights protects him against and he would then have a rest.

Justice William H. Rehnquist: But then his claim would be under the Bill of Rights and not under the Republican form of Government law, was it?

Mr. Osmond K. Fraenkel: That’s true and that of course brings us to the question which I do not think can be decided or should be decided here.

Whether this provision of the constitution is purely political which was one of the grounds of the District Court’s dismissal.

I don’t think we need reach that point or should reach that point because it is unnecessary for a resolution of the standing question if my view as correct, that a request for information which is supposedly granted by the constitution dies create a judicial basis and that is all the standing really amounts to.

Chief Justice Warren E. Burger: Let me come back if I may for a moment to the Levitt case.

It would certainly be considerably more than academic interest to the bar and to the public if one member of the Court was not a lawful member of the Court when it came either to the problem of grants of writs in the presente or in five to four decisions, would that give a degree of the concreteness?

Mr. Osmond K. Fraenkel: I would say that I suppose it’s a matter general interest to the public of this country whether one of our present Executives could be subject to impeachment perhaps, but I don’t think anyone could contend that the individual could bring a proceeding towards that end.

Because the Constitution provides that Congress shall determine that and the constitution provides that a Justice of this this Court shall be approved by the Senate and having been appointed by the President and approved by the Senate, the constitutional provisions have been complied with, it seems to me.

Chief Justice Warren E. Burger: Similarly the -- at least the claim of the government who would be undoubtedly be if it isn't already that the constitutional clause and question here has been implemented by Congress by a statute tender a general rather than a detailed annual account or periodic account?

Mr. Osmond K. Fraenkel: A particular statute which we say Congress had no power to enact because excluded, it didn’t merely describe categories, but it is excluded an important organ of Government from any disclosure.

Justice William H. Rehnquist: But couldn’t it just as well had been argued in Levitt that the Senate had no power to confirm Justice Black because he had voted to increase the emolument of the office which was sum of the constitution then prohibited him from taking?

Mr. Osmond K. Fraenkel: Well, I would say that if the constitution -- provision of the constitution that we are now considering said that the accounts of agencies of the Government shall be published to the extent that Congress may provide.

Then of course Congress’ decision could not be subjected in the way that we are attacking here.

But it didn’t and therefore it begs the question to say that Congress had the power to exclude an agency of Government that’s what this Court has decided, that’s the issue, and it wasn’t in my opinion anything like such an issue in Levitt.

And then Laird against Tatum was cited, but of course in Laird against Tatum, this Court was very careful to point out that the particular plaintiffs did not show any injury to themselves as in the Sierra case for instance, leaving open clearly the possibility that other persons who might be affected either by this surveillance of the army or by environmental disturbances would have standing.

Now that is not the situation here.

No one would have any special standing here than this plaintiff and this Court has on a number of occasions stated that standing can arise because of the circumstance that no one else could raise the issue.

For instance, in the Rhode Island so called censorship case, this Court expressly said that the booksellers there who were not directly affected had standing because otherwise the basic issues of freedom of speech involved might never be presented to the Court and of course the same was true in NAACP against Alabama and in Barrows where the question arose as to the impact of a restricted covenant whether a white person could raise the issue that such a covenant discriminated against Negroes.

This Court ruled, he could because otherwise that issue could not be raise at all.

So we come back then to the basic issue here is right to know important, not only to a taxpayer but to a citizen.

And I think that recent events in this country have clearly demonstrated how important it is for the people of this country to know what their Government is doing.

Justice Lewis F. Powell: Mr. Fraenkel on the point of the right of the public to know about expenditures by the Congress, the Solicitor General mentioned the Manhattan Project during World War II.

Would it be your position that a taxpayer would have had standing to force a divulgence of the funds that were then being appropriated for that project at that time?

Mr. Osmond K. Fraenkel: I think that in time of war many considerations exist which do not otherwise.

Certainly troop movements can be kept secret from the press, various things of that kinds are tolerated in time of war which would not be tolerated in time of peace.

Justice Lewis F. Powell: Would you think it perhaps equally important to have information that how Government to have information that might prevent war?

Mr. Osmond K. Fraenkel: Well, of course it’s important to say have information.

The question of course is how much of that information can legitimately be kept secret from the people.

And then maybe a period of time during which it can properly be kept secret as I think was recognized by some of the discussions in the conventions at the time of the adoption of the Constitution.

Chief Justice Warren E. Burger: Mr. Fraenkel --

Mr. Osmond K. Fraenkel: But we’re dealing here with an agency which had been in existence now for some 25 years.

Chief Justice Warren E. Burger: Do you know?

I do not know, or perhaps you do whether at present there is a detailed account filed by the Atomic Energy Commission on all its expenditures and what it’s -- how much it’s spending?

Mr. Osmond K. Fraenkel: I do not know, Your Honor.

Chief Justice Warren E. Burger: There is a special oversight committee of the Congress, is there not, which does have access to all the details.

Mr. Osmond K. Fraenkel: Of course there are also specific appropriations enacted by the Congress for particular agencies of government which are public acts and therefore available to the public.

As far as the CIA is concerned there is no such General Appropriations Act to see appropriations come from other agencies of government and are hint and that is the thing that we say Congress should -- had no right to do.

Justice Byron R. White: You could win on your standing argument and still lose on that argument?

Mr. Osmond K. Fraenkel: We could lose in the Court below said --

Justice Byron R. White: On the merits, on the ground?

Mr. Osmond K. Fraenkel: We can lose on the merits --

Justice Byron R. White: -- that the law wasn't violated?

Mr. Osmond K. Fraenkel: We could lose on the merits certainly.

I might point out that the plaintiff here asks this Court to review while this case was in the Court of Appeals to bring up the merits right away and this Court refused.

Of course we could loose on the merits.

We have not argued the merits fully.

We just touched on it because the other side discussed it at some length but that is true of almost any standing case.

Justice Byron R. White: Mr. Fraenkel, I do not still understand that why you say we don’t -- we aren’t -- we would not be compelled to reach the political question issue if we agreed with you on standing?

Mr. Osmond K. Fraenkel: Well, if you being --

Justice Byron R. White: Because the Court of Appeals did reverse the judgment of the District Court and at least dealt with standing -- dealt with political question to the extent that by -- upholding that it was right, that it was intertwined with the merit.

Now --

Mr. Osmond K. Fraenkel: Of course this Court has the -- I am at loss to find the right word to say the privilege may I say, of deciding anything that this Court thinks should be decided, that’s happened before.

I just don’t think it need be decided.

Justice Byron R. White: If we affirm the judge -- if we have affirm the judgment of the Court of Appeals we're also affirming their judgment that political question doctrine did not justify the dismissal by the District Court?

Mr. Osmond K. Fraenkel: You are affirming that judgment, the two questions are closely intertwined and should be reconsidered by the District Court in that light.

Justice Byron R. White: So that we -- we do then even if we don’t say anything about it if we affirm saying nothing we would at least be affirming their dealing with the political question to that extent?

Mr. Osmond K. Fraenkel: Yes, I would say so.

Of course if this Court thinks that the case is so clear that there can be no possible recovery on the merits because this is obviously a political question.

I assume this Court will in this best judgment say so.

I don’t think it should, I don’t think it need to and it seems this Court on the whole tries to avoid things it doesn’t need to do.

I suggest we stick to the question of standing.

Justice Byron R. White: But then do you think we at least need to say something if we agreed with your understanding, mustn’t we at least then say at least something about political question say we also agree with the Court of Appeals, political questions often is intertwined (Voice Overlap)

Mr. Osmond K. Fraenkel: You can say it.

You don’t need to say it affirming the judgment would accomplish the same result while saying it --

Justice Byron R. White: Well, are you suggesting that we really should decide something about saying so?(Voice overlap)

Mr. Osmond K. Fraenkel: Every time a judgment is affirmed you decide that lower was correct.

Sometimes you do without saying anything.

Justice Byron R. White: It's not necessary in your view?

Mr. Osmond K. Fraenkel: It’s not necessary, I think --

Justice Potter Stewart: It’s the judgment that’s affirmed if it is affirmed.

It is not the opinion that’s affirmed.

Mr. Osmond K. Fraenkel: That’s right.

Well, the judgment is affirmed of course the judgment is one remanding the matter to the District Court for further consideration of the whole issue.

Justice William H. Rehnquist: Mr. Fraenkel, do you think there is a fairly sharp line between the concept of standing and concept of political question?

Mr. Osmond K. Fraenkel: Well, I assume that if the question is purely political then the Court will say, no one has standing to raise it.

That was of course the situation for a long time with the question of challenges to reapportionments.

This Court said for a long time that that was a political question that was the end of it.

Then came Baker against Carr and its progeny and there this -- for the first really modern decision this Court pointed out what standing meant.

And it said that standing involved two things, the constitutional question of case of controversy and whether or not the individual really was sufficiently involved and of course --

Justice Byron R. White: I thought Baker and Carr was the first pronouncement of the Court on that --

Mr. Osmond K. Fraenkel: Yes, but --

Justice William O. Douglas: Even the case that Baker and Carr was a reversal of a prior --

Mr. Osmond K. Fraenkel: No, no, no.

I said it was the first.

The first, well it was a --

Justice William O. Douglas: I don’t think the Court ever held that the issue was political, some members of the Court had --

Mr. Osmond K. Fraenkel: Well that was the impression I think that the bar had it at that time, but in any case --

Justice William O. Douglas: I refer you to my brother Brennan’s question --

Justice Potter Stewart: They didn't know the case really --

Mr. Osmond K. Fraenkel: In any case -- there are certain issues which I assume are so attenuous that can be formulated with such difficulty in legal litigating terms as for instance the question of the guarantee of the Republican form of government.

That --

Justice William O. Douglas: Well that was pretty well explored, wasn’t in Hughes; opinion opinion in Sterling versus Constantine?

Mr. Osmond K. Fraenkel: Well, yes I know.

After all there -- there was a denial of due process very simply.

Justice William O. Douglas: Oh!

The denial for Republican form of government?

Mr. Osmond K. Fraenkel: Well, but it was taking -- it was taking property without due process of law in effect.

Justice William O. Douglas: Well, that’s part of the Republican form of government I suppose.

Mr. Osmond K. Fraenkel: Well, that every violation of the Bill of Rights could be argued to be denial of the Republican form of government, but in any event to come back to what we considered to be the elements here.

A demand for information, a refusal of that information, the refusal justified by an Act of Congress which on its face at least -- there is to apply in the face of a direct command of the constitution.

It’s hard to say how that can be any clearer case of a person having an interest in obtaining important information.

Now, it is said by my opponents that he doesn’t claim that his tax moneys are directly involved as with taxpayer in Flast.

He claimed that is money is being improperly expended.

But of course, any taxpayer is interested vitality and knowing how his tax moneys are being spent and in perhaps he knew the facts which enabled him to make a constitutional challenge.

We don’t know here whether the facts might not disclose a basis for some constitutional challenge with respect to the expenditure of the moneys.

But certainly a taxpayer is as much interest in knowing in order to properly perform his function as a citizen which is involved as to well being a taxpayer.

What has happened in the past in order to determine how he should act in the future?

The suggestion by the Solicitor General that this would open the plug gates to all kinds of litigation, I submit is without any justification.

Here is no sudden rushing into Court to get some basic principle established the minute the Executive presents something or a law has been passed.

As I said this agency had been in existence for 25 years.

This is a -- here is no ideological expedition into philosophic notions.

A very practical matter of the taxpayer who wants to know what has been done with his money claiming that under the constitution he has a right to know, claiming that Congress has arbitrarily interfered with that right by an exclusionary statute.

Whether the Congress had the right to passed that exclusionary statute is something which the Court would will have to determine on remand as I think this Court will certainly hope it will affirm the decisions below.

Chief Justice Warren E. Burger: After he has, but suppose Mr. Fraenkel he got everything that you think he ought to have and you were satisfied with it, then what?

Mr. Osmond K. Fraenkel: Maybe nothing.

Chief Justice Warren E. Burger: What does he do with it?

Mr. Osmond K. Fraenkel: Maybe nothing and if he satisfied then he need take no further actions.

It maybe that -- what he finds out will disclose something which does justify further action.

That is something which no one seem --

Chief Justice Warren E. Burger: Such as what?

(Voice overlap) kind of action.

Mr. Osmond K. Fraenkel: Well, it might turn out if the CIA had acted unconstitutionally in some respects and might result in litigation for a declaratory judgment to that effect.

That was as Your Honors well know, a good deal of discussion involves the possibility of the CIA having been involved in domestic surveillance which is beyond its supposed function.

We don’t know.

We might learn that’s why I am hoping this Court will let us do.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Fraenkel.

Mr. Bork, you have a few minutes left if you --

Rebuttal of Bork

Mr. Bork: I think not Mr. Chief Justice.

Chief Justice Warren E. Burger: Very well.

Thank you Mr. Fraenkel, Mr. Solicitor General.

The case is submitted.

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The Oyez Project

Featured:

Flast v. Cohen - Oral Argument

Thu, 23 Aug 2012 18:13:53 +0000

Case:

Flast v. Cohen

Media File:

416_19680312-argument.mp3

Related Transcript:

416_19680312-argument

Transcript:

Argument of Leo Pfeffer

Chief Justice Earl Warren: Number 416, Florence Flast, et al, appellants versus John W. Gardner, Secretary of the Department of Health, Education and Welfare, et al.

Mr. Pfeffer.

Mr. Leo Pfeffer: Mr. Chief Justice and may it please the Court.

This is a suit brought by a group of individual taxpayers residing in the City of New York challenging under both Establishment and Free Exercise Clauses of the First Amendment, the expenditure by the federal government funds to provide teaching services and textbooks and church related sectarian schools, the Government Act pursuant to which interpretation of the Elementary and Secondary Education Acts of 1965.

Our suit was brought and the Government made a motion to dismiss on one ground and one ground only and that is since the plaintiffs were merely taxpayers, under the decision of this Court in Frothingham against Mellon, they did not have standing to challenge the Act and its administration.

We cross moved for the convening of the three-judge courts and Justice Frankel granted our motion and referred to the three-judge court, the question of standing.

This was argued before the chief -- before the three-judge court.

By a vote two to one, the Government's position was upheld and with the dissent by Judge Frankel and our complaint was dismissed.

The sole authority for the dismissal of this complaint, at this level anyway, is that we do not have standing to sue and as Frothingham constitutes barring to a suit by taxpayers, challenging federal expenditures of funds, alleged to be in violation of the First Amendment.

Now, the initial question which the -- which we address ourselves to and which the Government addresses itself to in its brief other than the technical question of the three-judge court which I presume the Government will argue, is whether Frothingham presents a constitutional barrier to a taxpayer's suit.

It's our contention that unlike the companion suit of Massachusetts against Mellon, which may -- which we are willing to concede may have serve as a constitutional barrier to taxpayer suits.

Frothingham was a decided on a party of judicial self-restraint statute rather than constitutional lack of capacity.

I must say that Mr. Justice Brandeis would not concur with my concession because according to Mr. Justice Brandeis, even Massachusetts against Mellon in which the State of Massachusetts brought the suit challenging expenditure, even that was not a case of constitutional lack of competence, but of abstention.

In the classic concurring opinion of Mr. Justice Brandeis in Ashwander against T.V.A., he said, page 341 of 279 U.S., “the Court developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision.

They are at least of five of them, the fifth is the following.

The Court will not pass upon the validity of a statute by complaint of one who failed to show that he is injured by its operations.”

In Massachusetts against Mellon, the challenge of the Federal Maternity Act was not entertained, although made by the Commonwealth on behalf of its citizens.

Now, Justice Brandeis was one of the Justices of the Court which decided Massachusetts and Frothingham.

He participated in the conference and presumably was in the position to know what the Court intended and according to Justice Brandeis, even Massachusetts does not represent a constitutional question under office but on the question of judicial self-restraint.

However for the purpose of our case, we need not go that far and we urge that even if, even if Massachusetts interpret to represent a determination that a state had no constitutional power, for the Court has no constitutional power to hear a case by a state allegedly in behalf of its citizens, this does not apply to the Frothingham against Mellon which was decided simultaneously, but was an entirely separate and independent case by a taxpayer.

Justice John M. Harlan: Are you going to deal Mr. Pfeffer with the Solicitor General's three-judge court argument?

Mr. Leo Pfeffer: Yes, I would try to deal with it – if the Court wants I would be glad to deal with it --

Justice John M. Harlan: Well, that's threshold question, isn't it?

Mr. Leo Pfeffer: It was raised for the first time -- it was raised for the first time in the -- in the answering brief.

If you prefer I'll --

Justice John M. Harlan: Well, you do it --

Mr. Leo Pfeffer: I prefer deal with it in our rebuttal, unless the Court prefers --

Chief Justice Earl Warren: I wonder if we shouldn't – I wonder if we shouldn't have that in our minds as we go along because that is a threshold case Mr. Pfeffer and that's a --

Mr. Leo Pfeffer: Well, then turning to that question, for the first time, in its answering brief, not before Judge Frankel, not before the three-judge court nor the motion to dismiss or affirm, but for the first time in its answering brief, the Court asserts, the Government asserts that this case should have been heard by a single judge and therefore direct appeal is not proper.

Apparently, it's difficult for me fully to grasp the thrust of the Government's position, but apparently it appeared that it's that.

Our complaint asserts that the Commissioner of Education had misconstrued the statute and has interpreted to authorize the use of federal funds to finance education in parochial schools.

However, in the alternative, if we are wrong and if the Commissioner did correctly interpret the statute, we assert that the statute to that extent was unconstitutional.

The Government's position apparently is that we have pleaded in the alternative.

Now we do not initially challenge the statute itself, but only its administration, a three-judge court is improper.

I have examined carefully every single one of the decisions cited by the Government in its brief.

I have penalized every one of these in my reply brief.

I find not a single case cited by the Government or elsewhere which supports that proposition.

On the contrary, I have cited at least five cases in which this Court has held that where you have all kinds of pleadings of this kind and assert first that the statute was not complied with or the governmental agency did not act in compliance with the statutory authority, but in the event it did, that the statute is valid and constitutional.

This Court has held that the three-judge court is the appropriate in direct appeal is the procedure.

Justice John M. Harlan: What case are you referring to?

Mr. Leo Pfeffer: Well, I'm referring to the following cases, Allen against Grand Central Aircraft, 347 U.S. 535.

The latest case on this is Zemel against Rusk, 381 U.S. 1.

Also Florida Lime and Avocado Growers versus Jacobsen, 362 U.S. 73 and Lee against Bickell of 1934, 292 U.S. 415 and Sterling against Constantin 287 U.S. 387.

Justice John M. Harlan: So what you're saying is that if this complaint had two causes of action have set forth the unconstitutional claim and the cause of action in a constitutional claim, you would have -- a three-judge court would have been required.

Mr. Leo Pfeffer: Yes sir.

Now, the reason for that I think it's entirely logical.

Suppose we had not asserted that this -- the agency was acting beyond a statutory authority but had a simple one cause of action, the statute to the extent that it authorizes -- the statute is unconstitutional because it authorizes this expenditure.

Pursuant to the decisions of this Court consistently, this Court would have insisted from the first week question whether the agency did act in authority with the statute would not reach a constitutional issue if it could find that agency acted beyond its statutory authority in the case after case which I have I cited in my brief where the assertion was that the statute is unconstitutional and of course we don't reach that.

We'll only reach that in the event we find that the agency acted pursuant to its statutory authority.

Therefore, in a sense, you might very well say Your Honor.

That our assertion that the agency is acting beyond its statutory authority is mere placid.

We would have done it anyway.

The Court would have to decide that anyway.

It's therefore quite appropriate, indeed you might very well say if you accept the logic, the Government's position of three-judge court is never appropriate because in every case, you will have to -- you can't attack a statute on its face.

Once the statute is passed you can't go to court and get it attacked and get it declared constitutional.

You have to wait until it's administered and then it comes up to initial question, did the administration complied with the statutory intent?

But that you may find it difficult to appreciate why the Government has thought fit to assert that this case is not proper before it.

One more point on this and I refer -- if Your Honors please, I got first to go to the merits.

Suppose the Government is correct, suppose the Government is right, what happens?

The Court – the case is remanded to whom?

To Judge Frankel which is the initial judge.

He decided in our favor.

He held we did have, we did have the standing.

We have to therefore go to trial, appeal to the Court of Appeals and then appeal to this Court to which time perhaps this Court would tell us we're wrong.

Now, we didn't have that which would mean in a trial unnecessary bearing upon the Government in defending this suit in front of this Court.

Now, if there ever was a case which is ripe for decision, this case is.

It was argued first before Judge Frankel, briefed before him.

It was argued before the three-judge court.

It was argued in our brief.

It was a subject of it as a hearing, extensive hearings by the Senate Judiciary Committee in which every recognized the authority on the subject has testified and given the opinion, been subject of innumerable law review articles and textbooks.

What additional with all due respect to the Court of Appeals, what additional light can another argument before the Court of Appeals and the decision before them shed to help this Court?

Justice John M. Harlan: Well, that's a practical argument, but not a legal argument on the equation of jurisdiction.

Mr. Leo Pfeffer: Yes, Your Honor, it's a practical argument.

Now, returning -- returning to the merits of the issue --

Justice John M. Harlan: Yes, before you leave that, you do say, do you not in your -- in your brief, you disclaim any attack on the constitutionality of the statute, this statute?

Mr. Leo Pfeffer: Only if it is interpreted according to what the Government interprets that authorized the conduct which we declare to be unconstitutional.

We believe that the statute can be conserved or preserved by holding that the Court -- that the agency or the Commissioner misinterpreted the statute and the authority, it does not have a statutory authority to use public funds for sectarian schools.

Now, returning to Frothingham, we suggest that the examination of the opinion itself and comparison to the opinion with the Massachusetts opinion showed that the Court did not intend there to hold that it lacked constitutional jurisdiction.

To give you one or two, if you want two examples, the Court asserts that if Frothingham were allowed to sue, there would be the danger of a multitude of these civil suits and this is of course the practical point, you pointed out so strong, it's a practical thing, not jurisdictional.

The Court would not have raised -- asserted that practical consideration if the issue is one of jurisdiction.

It will simply say, under this, does not present a case of controversy under Lee therefore we have to dismiss.

But that went into that and it did raise that issue, that practical issue which is an issue relevant to a determination of whether or not to exercise discretionary jurisdiction, but irrelevant where there is no jurisdiction to act at all, no power to act at all.

Similarly, the Court referred to the distinguished case of Bradfield against Roberts.

Bradfield against Roberts, a taxpayer suit, challenging the constitutionality of the expenditure of federal funds to maintain a sectarian hospital in the District of Columbia.

The suit was accepted and was decided on the merits.

In Frothingham, the Court said, “Well, that case is different because that was considered as it if were a suit by a -- against a municipal corporation.

I will come to that in a moment, but assuming that is correct, and the Court cited in (Inaudible) in this corporation's order (Inaudible), I don't remember what, in a corporation law showing that this is analogous to a stockholder in a corporation, a city is like a municipal corporation and just like a stockholder is allowed to sue in a Court of Equity against waste by the board of directors, so the same way a citizen of a city is considered like a stockholder to sue the board of directors or the mayor or whoever it is for waste.

That too, Your Honors, is a question of equitable discretion.

It's not a question of constitutional jurisdiction, so the point I am making is that the examination of Frothingham on its face indicates that the basis of the decision was not lack of jurisdictional competence, but a judicial discretion.

Justice Abe Fortas: Well, Mr. Pfeffer, as I read Frothingham, I would say that it's based squarely upon separation of powers that for the courts to entertain a stockholder to pay a taxpayer's action of this sort would be to invade the legislative prerogatives of the Congress for example and that the Court certainly talked in terms of one of jurisdiction, an absence of jurisdiction.

And that the very last sentence in the opinion which I have before me says that to entertain the suit, would be not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and co-equal department and authority which plainly we do not possess, which reads to me as the Court is saying two things.

One, that it does not have jurisdiction and two, that it does not have jurisdiction because of the principles of separation of powers.

Mr. Leo Pfeffer: The -- as I interpret that part of the opinion, that last sentence it's that the Court reached the conclusion in this way.

First, it determines that and the previous language of the Court indicates, it determines that as the Court of Equity it will not entertain on the theory of de minimis a suit by an individual who suffered a de minimis injury.

Therefore, the Court said that this is a decision made by a Court of Equity.

Justice Abe Fortas: But I followed your argument on that but you did not, you haven't heretofore addressed yourself to this question of the separation of powers, which as I read the opinion in Frothingham is the basis of it.

Mr. Leo Pfeffer: Mr. Justice Fortas, the separation of power is not ever since Marbury versus Madison is not a jurisdictional power.

The -- whatever this Court, whatever this Court has passed upon the constitutionality of an Act of Congress it's to that extent infringing, if you will, on the concept of separation of powers.

Marbury versus Madison said this is the responsibility of the Court.

And as we indicate --

Justice Abe Fortas: But Frothingham says there are certain types of actions including that the exercise of the appropriation of power and the determination of how federal moneys which will be expended which are exclusively within the province of the legislative branch of the government and therefore, as I read Frothingham and perhaps I'm wrong, I'm asking for your help, as I read Frothingham where the Court said, “and therefore, we have no jurisdiction on this type of suit.”

Mr. Leo Pfeffer: Mr. Justice Fortas, I don't read Frothingham that way.

I read Frothingham, the Court's determination that it will not issue in effect in part of the opinion where it decides first as a Court of Equity, that the plaintiff has no standing therefore dismiss the case, that's the end, there was therefore no controversy before it.

There was simply an issue, but there was no litigant, therefore in that case, there's no case of controversy.

Justice Abe Fortas: Well, if you're right about that I suppose you would have to take the position that Mr. Justice Sutherland used some language kind of loosely when he said, that by jurisdiction that we do not possess, and said that we have a want of jurisdiction here.

Mr. Leo Pfeffer: The only thing I can reply to that is that, though Mr. Justice Brandeis has interpreted and Mr. Justice Brandeis was on the bench then, and presumably he has with the position to know what was this intended.

This is one loose sentence at the end which I might suggest that if that was case, the Court would have hand it down, a single opinion both in Massachusetts and Frothingham.

It carefully had two of things with different reasoning with different approaches.

Now I also --

Justice Byron R. White: But absolutely, we're talking about equity jurisdiction?

Mr. Leo Pfeffer: I beg your pardon?

Yes, perhaps an equity jurisdiction.

Now, equity that's my argument.

They're talking about equity jurisdiction which is not a question of oxley not a question of constitutional jurisdiction.

Justice Hugo L. Black: What do you understand was meant by that last sentence?

Mr. Leo Pfeffer: Pardon?

Justice Hugo L. Black: What do you understand was meant by that last sentence?

Mr. Leo Pfeffer: My --

Justice Hugo L. Black: Was that a legislative power to enact laws, and therefore we can't consider the constitutionality of any outcome?

Mr. Leo Pfeffer: No, I trust that's not what he intended to say, couldn't possibly have.

Justice Hugo L. Black: That seems to be the reading interpretation of my Brother Fortas' case now.

Mr. Leo Pfeffer: Well, I tried to find that relationship, but other than the possibly, loose use of concluding sentence which there may be more accurate psychological explanation for --

Justice Hugo L. Black: I assume that if you take the position that's Marbury versus Madison was decided, this Court does have found, passed on the constitutionality of legislation whether the corporations or other things.

Mr. Leo Pfeffer: Indeed it does and in my brief, I have listed and analyzed many cases, many cases both before and after Frothingham.

It was the Court which did exactly that in suits by taxpayers.

I have just cited two for the lack of -- the others are all in my brief. One of the case is Wilson against Shaw in which the Court accepted jurisdiction, decided on the merits on a taxpayer suit challenging the building of Panama Canal, the expansion of the Panama Canal.

Now the Court took that.

If this were a case of competence, judicial incompetence, lack of judicial competence, now the Court would never have proper merits for it.

Justice Abe Fortas: Well, your position in Frothingham is that the Court had jurisdiction that the suit was properly brought by a taxpayer that the Court might have passed on the constitutionality of the Maternity Act and that it's merely declined to do so in the exercise of its discretion or something of the sort, is that right?

Mr. Leo Pfeffer: Yes, that's exactly my position.

Now, assuming -- assuming --

Justice Potter Stewart: Wilson against Shaw of course was that -- was before Frothingham and I suppose the Government counsel says that Frothingham simply overruled it.

Mr. Leo Pfeffer: Yes.

In fact the Government does so contend.

The Government does so contend that Wilson against Shaw is overruled by Frothingham.

Well, if that's so then I ask this Court to overrule Frothingham, but what one Court can do another Court can undo, but I don't think -- I don't think that the Court intended to overrule Frothingham or with to overrule Shaw, it did not face them.

It said that Wilson against Shaw and Bradfield against Roberts, and the other case the question was reserved.

Now, our argument that this by the Court in Frothingham saying that no case or the question was reserved is the determination that the issue is not one of jurisdictional power or jurisdictional -- judicial power, but judicial discretion because ever since the earliest time of the Supreme Court, it does not give a advisory opinion.

There must be a case of controversy.

Therefore, when it did decide on the merits in all those cases even though the question of standing was raised and it was consciously considered by the Court, it nevertheless proceeded to decide it on the merits.

I can offer no explanation for that other than a finding, a determination, yes we do have -- we do have jurisdiction under the Constitution.

Now what the Court said in Frothingham by interpreting this “at the most we made a mistake in exercising the jurisdiction we have.

Perhaps, we shouldn't.

In this case, we will not make that mistake.

We will not exercise the jurisdiction we have,” but it could -- did not say that those cases were erroneously decided on the question of jurisdiction, but only perhaps on the question of judicial discretion.

Now, since Frothingham, -- I want to say one word about Bradfield against Roberts, this is just a case directly in point to our case.

It was absolutely the same as our case.

It indicates that it did intend to overrule Bradfield against Roberts is the fact that they sought to distinguish it -- Mr. Justice Sutherland so distinguishes it in Frothingham, that doesn't indicate an intent to overrule.

How did they seek to distinguish it?

He said, “that was treated by the lower court as if it were a suit against a municipal corporation, a taxpayer's suit against a municipal corporation and of course said that we consider those somewhat similar to a stockholder's suit and therefore we accept it.”

We have argued that if that is so, we're trying to doubt the validity of that distinction because many -- there's a variety of reasons which we have set forth in our brief, but even if that were so, then this case is exactly our old force with Bradfield against Roberts.

Bradfield against Roberts was a suit not against the municipal government of the District of Columbia, Mr. Roberts was the Secretary of Treasury of the United States.

The expenditures which were challenged were the building of a hospital didn't come from taxes paid exclusively by residents of District of Columbia.

It was paid, came out of the General Treasury of the United States, paid off by 120 million Americans at that time.

The suit was defended not by the corporation council of the District of Columbia but by the Attorney General of the United States.

There was a corporation, a municipal corporation in sense of -- but they were the instrumentality by which the money was passed over to the sectarian institutions.

Every one of these factors are present here.

Our suit is against a national official, the Secretary of Health, Education and Welfare and Special Education not local.

It's being defended by the Department of Justice not by the corporation counsel of City of New York and all on respect it's entirely identical.

Chief Justice Earl Warren: We'll recess now Mr. Pfeffer.

Mr. Leo Pfeffer: Just one short addendum on the point raised by Mr. Justice Fortas about the separation of powers.

I think it is important to emphasize that this is a First Amendment case.

This is a – indeed it invoked the opening words of the Bill of Rights, Congress will make no law establishment of religion or prohibiting the free exercise thereof.

In respect to the First Amendment, I think separation of powers argument is least apposite.

I will remind, Your Honors, of the classic statement in Barnette, West Virginia against Barnette case that the very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of the majorities and officials to establish them as legal principles to be applied by the courts.

One's the right for life, liberty, and property, free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote; they depend on the outcome of no election.

Now I have set forth in my brief prior number of cases after Frothingham in which taxpayer suits similar to the present one were accepted by this Court.

Because of lack of time I will rely on my brief rather than to summarize those cases.

I come now to the -- well, I believe the major consideration, should the Court exercise that discretion which the Constitution gives it in accepting or rejecting this similar case.

Initially, I want to make one point that should the Court decide to follow the discretion of Frothingham and hold that the plaintiffs in this case can't sue, or the plaintiffs -- taxpayers cannot sue in any First Amendment case on the Establishment Clause involving expense through federal funds then there were simply no way, none that I know of, whereby a congressional act granting a million dollars to a church, to build a church can be challenged in the courts.

Justice Potter Stewart: Well, the Solicitor General's brief suggest a variety of possible ways?

Mr. Leo Pfeffer: The Solicitor General's suggests a variety of the -- none of which are applicable to this case.

The Solicitor General suggests for example that the state can conceivably sue to challenge the constitutionality of the application of this law.

But the stand of New York has taken the position that this is not, it has no jurisdiction here.

New York had -- where this case originated, New York has a constitutional provision specifically forbidding, specifically forbidding this type of expenditure which is being carried on under the Federal Act by the Commissioner of Education.

And an opinion which was requested of the Attorney General of the State of New York and I have furnished the clerk of this Court the copy of that opinion and the opinion of the counsel for State Department of Education, asking whether -- the question was, could the State of New York cooperate whether the -- from the case of a Federal Act because of its own constitutional prohibitions?

The Attorney General of New York and attorney for Commissioner of Education said, “Yes, because this is not state money.”

The State of New York is merely acting as the conduit, merely acting as conduit to transfer the federal money to the schools.

Now, the federal government takes a position that this is state responsibility, the state's exposition is that this is the federal responsibility.

The result is, nobody can challenge.

The State of New York says, “We have no grievance because not a penny of our money is being involved here.

Now, there is many reasons why the court should take jurisdiction of this case.

First and foremost, this is -- the issues in this case are just the type of questions which a court should have defied upon on the day this Court was established in 1789.

This is a forum to determine the constitutional application of federal statutes.

There is no other forum.

Second, this is a First Amendment case.

The court, the federal courts ever since the Bill of Rights was written, it hasn't been pointed out, they definitely pointed out, the debate on having the Bill of Rights, that the courts are the peculiar guardians of the Bill of Rights.

It is to the courts which an aggrieved citizen goes to, to determine whether the Bill of Rights is being adhered to or violated.

This would be the only case, the only area of the Bill of Rights which would tie for want of practical reasons.

There is no other part of the the Bill of Rights, from the First through to the Tenth Amendment or the Eight Amendment, which isn't somebody who can go to the courts and get a judicial determination, except if Frothingham is followed except this.

For all practical purposes, this constitutes, you might almost say, a repeal of the Bill of Establishments Clause insofar as it concerns governmental expenditures.

Justice Byron R. White: Were you -- did you -- do you suggest that the government's position would mean that there was absolutely no one to do that, there are other kinds of parties I suppose, but the Government you think would object to them too.

Mr. Leo Pfeffer: I have said, I have no doubt that they would object to them nor do I concede of any case.

All I can say is that there never has been a case that I know of in which a government would probably have challenged the federal expenditure under the First Amendment.

I've know of no such case.

Moreover, if the -- this case is barred --

Justice Byron R. White: Don't you think the state or what about the state or the authority within a state, if the plan they submitted was not approved by the Secretary on the grounds that it didn't comply with the act in that benefits were not allocated to a certain private school?

Mr. Leo Pfeffer: Well, the states have done, at least one, two other states have followed the opinion of the New York Attorney General in saying that they can that those private -- that the state can't act as a conduit to transfer the money to the private school because as they have no grievance.

They have no grievance one way, they are completely without grievance.

If the money can be transferred in the deal -- on the type of two the state has very relatively minor part in this Act.

Justice Byron R. White: Yes.

But they are the ones who originated the plan, aren't they?

Mr. Leo Pfeffer: They -- ones originate the plan as --

Justice Byron R. White: But the Attorney General of New York doesn't require them to present a plan which involves this particular kind of money expenditure?

Mr. Leo Pfeffer: It doesn't have an authorized -- it authorized this.

Justice Byron R. White: But if the local administrator wanted to submit a plan without these disbursements and I suppose he could and if it were turned down, he might have legitimate complaint.

Mr. Leo Pfeffer: I don't know.

I don't know if we have time to get around.

You might very well argue that [Indiscernible] has no standing.

Justice Byron R. White: How about the Massachusetts case?

Mr. Leo Pfeffer: I presume Massachusetts know why a suit brought in the sense by the State of Massachusetts on behalf of its residents.

Now, there is one -- another factor which the Government has asserted in its brief which I want to call the Court's attention to.

The contention that the issues in this case are very complex and therefore it's not in -- the taxpayer's action is not appropriate means of securing the judicial determination of it.

I suggest to Your Honors that the issues in this case are relatively simple, child's play, compared to those which were involved in apportionment cases.

Apportionment cases that involve congressional districts, state upper chamber districts, state lower chamber districts under the committee of municipal districts, municipal apportionment districts, each district, each of these districts is an island to itself must be decided by a Court individually.

Yet the Court has taken ever since Baker against Carr, has taken suits which are the equivalent of taxpayers suit, a suit of an individual citizen.

One individual citizen who has relationship to the whole area of representation is similar to a taxpayer's relationship to the expenditure of federal funds.

He is in the same concept, the same category of de minimis.

There is anything hardly more de minimis than the value of an individual citizen both in respect to, let's say, congressional representation which represents the half the million people.

Yet this Court ever since Baker versus Carr and even before Baker against Carr, never had the problems of that, never doubted that the individual citizens whose interest is so minute nevertheless has standing to bring this suit.

And as I say, the issue there is far more complex than the issues here.

The point of the matter is that de minimis on which filing was based has no relevancy under the First Amendment and it doesn't have under the citizenship's right to participate in -- select to represent this government.

Justice Abe Fortas: Could you -- would you make any distinction between or among the types of cases that taxpayers may bring, that is may a taxpayer -- would a taxpayer have standing to attack for example, the constitutionality of appropriations for welfare funds or the constitutionality of expenditures for farm subsidies and that sort of thing?

Mr. Leo Pfeffer: Constitution -- as far as constitutional jurisdiction is concerned, no, as far as judicial discretion is concerned, yes.

This Court had --

Justice Abe Fortas: What is this discretion business?

You mean to say that we can decide that we will or will not entertain suits without any later hindrance, there being no alternative forum?

Mr. Leo Pfeffer: What I am --

Justice Abe Fortas: Is that a matter of complete discretion in the Court?

Mr. Leo Pfeffer: Well, discretion is a broad sense.

What I'm referring it to Justice Brandies' rules of self-governance as set forth in the Ashwander against TVA.

He said over the years, this Court has developed a pattern of what case it will take, what case it will not take.

Justice Abe Fortas: Well, I not talking about this Court, the federal, we're talking about the federal courts.

Now, can they -- can the district courts although the proposition is established that a taxpayer has standing to challenge any sort of expenditure of federal funds.

If that proposition were established, could a District Court say, we'll enter, you have standing to attack this kind, but not the other kind and on what basis would you draw such a line?

Mr. Leo Pfeffer: This Court had a supervisory capacity over to this question in the District Court.

Justice Abe Fortas: I know, I'm raising questions of what is the discretion?

Whether it's a matter of discretion of the court or whether the taxpayer has a right to maintain the suit and therefore the District Court has a duty to entertain it?

Mr. Leo Pfeffer: No.

This Court can very well hold that where there is a First Amendment right involved, the court's sound discretion is required the acceptance of the suit, pure due process.

Justice Abe Fortas: Alright, apart from sound discretion, is it your submission that a taxpayer has standing to challenge the appropriation and expenditure of federal funds where that challenge is based upon alleged violation of the First Amendment, but not otherwise.

Is that your submission?

Mr. Leo Pfeffer: All I can say is that the Wilson against Shaw, the court took jurisdiction of the suit against Panama Canal?

Justice Abe Fortas: Well, that -- I'm afraid that doesn't help me very much.

Mr. Leo Pfeffer: And -- oh, I am saying that the Court has jurisdiction.

I'm convinced the Court has jurisdiction even if there were no First Amendment case.

I do not have, just --

Justice Abe Fortas: In other words, you draw -- you make no distinction, whatever --

Mr. Leo Pfeffer: On the first --

Justice Abe Fortas: -- that there is jurisdiction that taxpayer's standing to challenge any federal appropriation and that means that this -- that the Congress passes a law, authorizing certain expenditures for let's say, farm subsidy or welfare program and that means that a taxpayer can go into a District Court.

And the District Court if it is so minded would have a -- the District Court has jurisdiction and if it's so minded, it could for example issue a restraining order and temporary injunction pendente lite, right?

Mr. Leo Pfeffer: Yes, as far as [Indiscernible] is concerned and as far as the system is concerned, yes.

I find nothing in the case of this Court which is decided to contrary.

I am now yielding 10 minutes of my time for Senator Ervin and I will reserve 10 minutes for rebuttal.

Thank you.

Chief Justice Earl Warren: Senator Ervin.

Argument of Sam J. Ervin, Jr.

Mr. Sam J. Ervin, Jr.: Mr. Chief Justice, may it please the Court.

Judge Sutherland might well have stopped in the Frothingham case with his holding that the plaintiff attempted to attack the economic interest and our economic interest was so indeterminate and immeasurable as he could not invoke the preventive powers of Court of Equity.

He didn't stop there however and he made other remarks which have been -- which stated in substance that a plaintiff does not have standing to attack an Act of Congress, unless he can establish that he has been injured directly and not merely in some indefinite way uncommon with people generally.

Now, as we noted that the Frothingham case does not say that a plaintiff will not be barred from prosecuting his suit merely because his injury is held in common with others.

If the plaintiff injures or if this reasonably direct to defer.

The First Amendment insofar as the statute was concerned was based in the Constitution tot make effective the decoration of the Thomas Jefferson statute for religious freedom in to -- in Virginia that it compelled them make contributions of money for the dissemination of religious opinion.

He does believe is more simple and ironic.

By adding that into the First Amendment, the Establishment Clause, they all go make [Indiscernible] and simple but also unconstitutional.

I maintain that a First Amendment case is different from a case generally that an appropriation on expenditure or the violation on the First Amendment of the entire -- on entirely different footing from an appropriation or disbursement authorized by an Act of Congress didn't list, but the case in the Frothingham case.

I respectfully submit that on a fair analysis of the Frothingham case that has nothing whatever to do with the case at bar.

The -- under the First Amendment, every American has the constitutional rights not to be taxed or to have his tax money expended for the establishment of religion in violation of the Establishment Clause.

This is the -- not some remote indefinite right but it is a -- it is the direct interest.

It is something in which he has a personal to stake just as a plaintiff in Baker and Carr had a personal state in not having his vote diluted.

So you have in this case, taxpayers, citizens taxpayers.

You have them with a specific -- right under the First Amendment not to be taxed or to have that tax money expended in violation of the amendment.

In addition to that you have them as -- in the capacity as taxpayers or alleging that federal funds, federal tax moneys to which they have contributed as taxpayers about to be used by the Secretary of Health, Education and Welfare and the Commission of Education to establish religion in violation of the First Amendment.

Now, it is absolutely essential, unless we're going to amend the – for all intents and practical purposes, if this Court does not have jurisdiction or federal courts does not jurisdiction to pass on this claim, it will for all practical intents and purposes make a dead parchment out of a part of the Establishment Clause of the First Amendment because effect of the -- or lack of judicial review in claims of this kind would be to say that Congress shall pass no laws respecting an establishment of religion provided that Congress may pass laws appropriating and authorizing the disbursement of tax moneys to establish religion.

This is in the -- this First Amendment provision -- of this -- as late Mr. Justice Jackson so well said on one occasion was placed first in the Bill of Rights because it was first in the minds and the hearts of those who drafted and ratified the Bill of Rights.

And this Court -- other decisions of this Court, there is a way to obtain judicial review of every denial, of any right created by the Bill of Rights with the exception of these rights under the Establishment Clause of the First Amendment, if the position of the Government prevails in this case.

Mr. Pfeffer, pointed them out a moment ago, the great decision in which this Court declared that the right of Americans to enjoy the rights vouchsafed to them by the Democrats does not depend upon any election, does not depend on any vote.

But these are rights which are particularly within the guardianship of this Court and certainly, in cases like Baker against Carr where this Court said that a man had a personal stake and he had an concrete adverse position to those on the other side of the case, was the case in which the federal courts had jurisdiction.

That's the situation.

Here, all these taxpayers, these citizens who have a constitutional right under the First Amendment are to be taxed or to have their taxes extended for the establishment of religion in violation of the First Amendment.

That's a direct interest.

That's a serious personal stake.

And every American citizen, who has a personal stake in seeing that the independence of government from religion and the independence of religion from the government observed and when the Congress give -- our executive branch of the government, even in a violation of the Act of Congress on the take -- to take federal tax moneys and they have them expended to establish religion in violation to the First Amendment then a justiciable controversy rises because of the interpretation of the First Amendment is necessary, the decision of the controversy and those who have such a serious -- in such a direct, in such a personal stake in maintaining the separation of church and state as decreed by the First Amendment have standing to sue --

Justice Byron R. White: Well, Mr. -- Senator what do you with the Doremus and that was --

Mr. Sam J. Ervin, Jr.: And that --

Justice Byron R. White: That was Mr. Jackson too?

Mr. Sam J. Ervin, Jr.: Yes.

In that case the plaintiff, two plaintiffs, one of whom had a child in the school and both of whom were taxpayers.

They brought a suit, to test of the validity under the First Amendment of the New Jersey statute which provided for the reading of three or four verses from the bible --

Justice Byron R. White: You don't suggest it would've been different if there's just been actually expenditures with --

Mr. Sam J. Ervin, Jr.: [Indiscernible] independence of the action, the child of one of the plaintiffs, finished his school and was not in school at the time the suit was tried and of course as far as -- the jurisdiction was based upon the claim of the parent that was the establishment of religion or denial free exercise which was concerned became moot.

The Court held was held as far as the taxpayers were concerned that they did not allege as do the taxpayers in this case that the reading of these -- three or four verses of the bible entailed any increased outlay of money.

So there was no question of expenditure of tax bonds involved in the Doremus case.

Justice Byron R. White: That's your reading of Doremus?

Mr. Sam J. Ervin, Jr.: Yes.

Justice Byron R. White: Do they involve no --

Mr. Sam J. Ervin, Jr.: No taxes.

Justice Byron R. White: No money at all?

Mr. Sam J. Ervin, Jr.: They didn't allege that any increase in taxes had been occasioned by the reading of this three or four verses from the bible.

It is defied up -- here because a great expenditure of tax money was involved.

So that's the reason that Doremus case has no application here and I say that when you take the fact that you have these people, who have a direct, who have an interest and a personal stake in maintaining the separation of church and state and in not having therefore -- their tax moneys used to establish religion in violation of the First Amendment, it is in my mind the clear case of standing in these plaintiffs to sue.

Chief Justice Earl Warren: Mr. Solicitor General.

Argument of Griswold

Mr. Griswold: Mr. Chief Justice and may it please the Court.

The basic charge in this suit is that two high officers of the federal government have acted improperly.

It's irrelevant, but I think it highlights the abstract nature of the case to point out that the first of the defendants is no longer in office.

I don't know what's the name of the case is now.

It isn't Flast against Gardner.

The essence of the charge is that these officers have misapplied an Act of Congress or more accurately that they have allowed others, state school officials to make such a misapplication.

As indicated in our brief, we raised first the question whether this Court has jurisdiction of this appeal or putting it in another way, whether this was a case which was required by any Act of Congress to be heard by a District Court of three judges.

In examining this question, I will ask the court to look in three places.

First, the complaint filed in the District Court; second, the text of the statute itself and third, the arguments made here by the appellants.

The complaint begins on page 5 of the joint appendix which from the course of habit, I suspect I will call the record.

It's carefully drawn by skilled lawyers and I would suppose it could be taken at face value.

Incidentally, it makes no allegation whatever that the plaintiffs' tax liabilities have been increased by a reason of anything that has been done.

Let me call attention first on page 6A of the record to paragraphs 8 and 9 where it is alleged under the heading, factual allegations higher on the page, it was not the intent of Congress in enacting Title I, Section 205 (a) (2) to require local educational agencies in order to qualify for federal funds to violate the prohibitions of the First Amendment.

In other words, they are contending that the statute properly construed, does not provide for any violation.

And then in paragraph 9, there is a very interesting allegation, “there are many programs within the meaning of Title I of the Elementary and Secondary Education Act of 1965 which could practicably be instituted by local educational agencies which would qualify them for the receipt of federal funds under the Act, but which would not violate the provisions of the federal constitution.”

In other words, the act, the alleged is constitutional.

And then finally on paragraph 11, “on inspiration and belief, it is feasible and practicable for the Board of Education of the City of New York to,” it says expand, I assume it means, expend this -- to -- no, it is expand, “to expand this constitutional programs and institute other constitutional programs and thereby qualify for and receive all the federal funds to which it is entitled under the Act.

Then the complaint goes on to a heading on page 9 under causes of action and there are two causes of action, paragraph 16, first count.

“The determination and action of the defendants violate the First Amendment of the United States Constitution in that they,” now that's the determination and action of the defendants which is the question of construing the statute, not that the statute is invalid, “constitute a law respecting an establishment of religion.”

And summarily in the paragraph 17 of the second count, “the determination and action of the defendants,” again it is the construction made by the defendants which is charged not the statute itself and finally, at the bottom of the page, payers for relief, paragraph 21, the last full line, they referred, they asked the court to declare unconstitutional the determination and action of the defendants.

On the page 10, the complaint does move a little further.

It starts out to say that the determination and action of the defendants should be declared unconstitutional and then almost as an afterthought and with no factual allegation to support it, they ask in the alternative if such determination and action are within the authority and in the intent of the Act, the Act is to that extent unconstitutional and void and that phrase is the only thing in the complaint which either asserts or presents any facts.

Justice Thurgood Marshall: Well General, how about 13 on page 8A where the alleged money is the -- already has been spent and will be spent, the Secretary of Education?

Mr. Griswold: They alleged that it has been.

They make -- that is a completely allegation.

It makes no reference to any particular place, any particular school.

No way to tell what are the circumstances surrounding that and I think it is appropriate to observe that that does tie in with the argument about unconstitutionality.

But let me refer next to the statute itself.

Much of it though not all of it, is printed in the appendix to the appellants' brief beginning on page 57.

It's a long statute and obviously very carefully drawn.

This is the blue covered brief.

It's obviously an Educational and Welfare Act by which Congress sought as it stated in the opening declaration of policy to recognize the special educational needs of children of low income families.

And the fact that special problems are created because such children tend to be concentrated in certain areas and the desire of Congress to assist local educational agencies with concentrations of children from low income families to expand and improve their programs in order to contribute particularly to meeting the specially -- special educational needs of educationally deprived children.

The statute then contains provision for grants to the states either directly or though local education or agencies.

The applications of the local educational agencies must be approved by the appropriate state, educational agency and this approval requires a determination of several factors, and that I would call the Court's attention to material in Section 205 on page 63 of the appellant's brief.

205 (a) (1) that payments under this Title will be used for programs and projects which are designed to meet the special educational needs of educationally deprived children in school attendance areas having high concentration of children from low income families.

And then I would call attention to the -- of the Court to the provisions for judicial review which appear on page 69 and then to Title II which relates to library resources where Congress directs the Commissioner to carry out a program for making grants for the acquisition of school library resources, textbooks and other printed and published instructional materials for the use of children and teachers in public and private elementary and secondary schools.

On page 74 in Section 203 (a) (3) (b), the states are required to provide assurance that to the extent consistent with law such library and textbook facilities will be provided on an equitable basis.

And there are provisions on page 75 in the same Section which require that the expenditures shall in no case supplant state, local and private school funds.

And finally on page 76 in Section 205, it is expressly provided that title to library resources, textbooks and other printed and published instructional materials furnished pursuant to this title and control and administration of their use shall vest only in a public agency.

And then finally again on page 77, there is provision for judicial review and there is also provision in Section 206 that the Commissioner shall watch and see that there is no change in the plan which has been provided.

Justice Hugo L. Black: May I ask you, I looked at all these.

Do you claim that any of them detracts the plain allegation of the Bill, that the Bill provides for using money to give to state churches, to state schools, to public church school?

Mr. Griswold: Yes, Mr. Justice, I contend, there's one more Section of the statute that helps in this contention that the statute is perfectly, plainly constitutional on its face.

Justice Hugo L. Black: I understand that but I'm talking about the acute issue they raise that it's not constitutional because it provides for the appropriation of tax-raised funds to operate church schools.

Mr. Griswold: I am trying to contend at this point in my argument, Mr. Justice, that their contention is directed not against the statute, but against the administration of the statute and if it is against the administration of the statute, it was not a case which called for a three-judge court and therefore does not lie within the --

Justice Hugo L. Black: You're limiting your reference to this to that subject.

Mr. Griswold: At this point, I am discussing simply the jurisdictional question.

I do want to refer to what I will now call Section 805 of the Act, and I think I should explain this because the Court may in looking and checking on this may find some problem.

This was first enacted in 1965 as Section 605 and then in 1966, the Act was amended and this was changed to Section 705.

Justice William J. Brennan: Where is the text?

Mr. Griswold: And this is not --

Justice William J. Brennan: Where is the text of this one?

Mr. Griswold: It is summarized on page 4 of the Government's brief.

Justice William J. Brennan: Thank you.

Mr. Griswold: The last part of the last full paragraph on page 4 contains practically all of it, but I'll read the full text of Section 705 which is three-and-a-half lines long.

“Nothing contained in this Act shall be construed to authorize the making of any payment under this Act or under any Act amended by this Act for religious worship or instruction.”

That is Section -- now Section 805.

Now, finally, let me turn to the --

Justice Abe Fortas: Well, does that really help you, Mr. Solicitor General?

Does that help you because I --

Mr. Griswold: I think it helps to support the proposition that the complaint here and all of the contentions are against the administration of the Act and not against the Act.

Justice Abe Fortas: Well, I understand your point up to 705 of the complaint and the complaint alleges as I understand it not that funds are being expended for religious instruction, but they are being expended for instruction in religious schools and that is unconstitutional.

The complaint --

Mr. Griswold: And I would suggest to the Court that that is not enough of an allegation without any factual basis to support it, to support the contention that the statute is unconstitutional.

Now, let us turn to the brief which was filed by the appellees, by the appellants in this Court.

This reinforces the position taken in their pleading.

It makes it plain that they are talking about administration and not about the basic constitutionality of the statute.

Indeed, at page 4 of the brief as already been pointed out, the appellant expressly states, first two lines of the last paragraph on that page, “the plaintiffs do not count the constitutionality of the Elementary and Secondary Education Act of 1965.”

They then quote paragraph 9 of their complaint to which I've already referred in which they assert that there are many ways in which the statute can be administered constitutionally.

Now, let me also point out two other items on page 4 of their brief.

One of the contentions that was made in the District Court and which is relevant here is that in this suit as taxpayers they are federal taxpayers and if they have standing to question things in New York, they have as much standing to question was being done in California, Hawaii, and I guess Guam as what happens in New York and they tried to cut that down in the District Court and the statement at the top of page 4 that the plaintiffs through their attorney expressly stated that this case was to be deemed one limited to the practices of the New York City Board of Education not what the federal officer join but the New York City Board of Education.

And the last line and a half of the following paragraph, “to defend only the programs and practices engaged within the City of New York.”

Justice Abe Fortas: I thought you think that's really surely clear that they mean something a little different from, what I understand you to imply, what they're saying is they're attacking the actions of the Secretary of Health, Education, and Welfare in approving the plan of New York.

Mr. Griswold: Well, I think so, but let's take a look at page 17 of their brief.

Just above the middle of the page about 10 lines down on page 17, they say the complaint in the present suit should not have been dismissed for it too should have been deemed a suit against the municipality.

Now the only municipality would be that of the City of New York.

A similar statement is made at the bottom of page 24 where we are told that this Court has jurisdiction of this case even if it be deemed a suit against the federal government rather than the Board of Education of the City of New York.

I'm not here representing the Board of Education of the City of New York, but the appellants seem to regard this as a suit against those officers.

Justice Potter Stewart: Didn't I read in the briefs somewhere that there is pending litigation in the state courts attacking this?

Mr. Griswold: Yes, Mr. Justice there is pending a case there and that seems to me they go to what you might call equity jurisdiction in this case.

That is the case where the defendants against whom they do have a charge are in court and where this matter might be decided and it's seems to me rather difficult to sustain the proposition that high federal officers should come in here to defend a matter which turns largely on actions done by state administrative officers.

Finally on pages 52 --

Justice Potter Stewart: Is there a reference to the caption and file of that case and then where it is, I suppose that's a matter of the court's judicial notice?

Mr. Griswold: Yes, it cited in our brief, but I'm not -- it's in a footnote, but I am not sure that I can turn to it at once.

Justice Potter Stewart: Well, --

Justice Thurgood Marshall: Isn't it true that reply briefs are the copy that's been filed with the clerk of the New York action?

Mr. Griswold: A copy of the --

Justice Thurgood Marshall: New York Action has been filed with the clerk of this Court?

Mr. Griswold: That may be, I'm not -- well.

Justice Thurgood Marshall: And is also -- is it correct that it has no attack on Title II of the New York action?

Mr. Griswold: I do not know Mr. Justice.

Justice Thurgood Marshall: Well, I don't see how we can decide without reading it whether it affects this case of not.

Mr. Griswold: I'm not contending that it does materially affect this case.

Justice Thurgood Marshall: But as a matter of fact, the only thing we passed on is this complaint.

Mr. Griswold: The only thing that is before the Court is this complaint and I am suggesting that a complaint which does not in effect allege any facts with respect to the defendants in the complaint does not present the issue which the parties seek to present here.

Let met finally call attention to pages 52 and 53 of the appellees' brief where twice they say that what they are contending against is the administration of the Elementary and Secondary Education Act.

Justice Byron R. White: Well, wouldn't that be the – if what you say is the proper construction of the complaint there is really nothing stated against these defendants.

Do you think that it comes out to a jurisdictional question of standing or shouldn't it be just a motion to dismiss or failure to complaint?

Mr. Griswold: It would have been a motion to dismiss Mr. Justice if it were not for the fact that the Court had found probable jurisdiction.

So we thought it appropriate to raise the question in our brief.

It is our duty to raise jurisdictional questions whenever they --

Justice Byron R. White: Well, I agree with that, I agree with that.

I certainly would agree with that but the argument doesn't state the facts against these sentences of standing problem, but it is just a failure to state a cause of action.

Mr. Griswold: Well, I will get to that in the next portion of my argument.

But to conclude on the jurisdictional question, this Court has made it clear in many cases that Congress did not intend to require three-judge court with attendant direct appeal when and I'm quoting, “when administrative action and not the Act of Congress is the sale.”

Here the appellants expressly disclaim any attack on the constitutionality of the statute.

As this Court said in the Ex parte Bransford where the complaint seeks an injunction on the ground that the unconstitutionality of the result obtained by the use of a statute which does not attack this unconstitutional, no special court is required where the attack is aimed at an allegedly erroneous administrative action.

Justice John M. Harlan: However this question was raised [Indiscernible]

Mr. Griswold: Mr. Justice, I think that it first became apparent to us when we read the appellants' brief and found that striking statement at the beginning that no charge is made against the constitutionality of this statute.

Justice John M. Harlan: Of course, you understand the cause, why not [Indiscernible]

Mr. Griswold: Of standard fall on --

Justice John M. Harlan: On the pleadings.

Mr. Griswold: I agree on the pleadings and that led us to reexamine the pleadings and when we re-examined the pleadings we found repeated allegations relating to the administration of the Act and only incidental, but seemed to us afterthought allegations relating to the constitutionality of the statute.

I now turn to the other jurisdictional question in this case.

It might be known as Frothingham revisited where the setting here is extraordinarily close to that which was actually involved in the Frothingham case.

Among other things that was a welfare statute.

The Maternity Act of 1921, it called for payments to be made to State Child Welfare or Hygiene agencies.

The states were required to present detailed plans for carrying out the provisions of the Act and for approval of a newly created Board of Maternity and Infant Hygiene composed of the Chief of the Children's Bureau of the Department of Labor, the Surgeon General and the Commissioner of Education, the same officer who is involved here.

I did not have a chance to carry out some research and find out whether some of the money actually expended under the Maternity Act of 1921 was used in Presbyterian or Jewish hospitals, but I think is very likely that it was.

In the Frothingham case, this Court held that a taxpayer could not maintain a suit to enjoin an expenditure under that Act.

With the benefit of hindsight --

Justice Potter Stewart: You suggested, I think here that long ago that an attack might have been made upon that Act upon First Amendment ground if as you suspect or suppose some of the money was used in Presbyterian or Methodist or Roman Catholic or Jewish hospitals, was that -- that was the point (Voice Overlap).

Mr. Griswold: That was -- that would have been --

Justice Potter Stewart: That would have suggested?

Mr. Griswold: -- possible to make such an attack.

Justice Potter Stewart: But the fact is that there was no attack in that case upon the legislation upon the grounds of the First Amendment.

Mr. Griswold: No, Mr. Justice.

I was merely trying to point out that cases are extraordinarily parallel.

Justice Potter Stewart: Well, the attack there was based on the Tenth Amendment, wasn't it?

Mr. Griswold: The attack made by the Commonwealth of Massachusetts was based on the Tenth Amendment.

Justice Potter Stewart: And Mrs. -- does the Frothingham party was based on what constitutional provision?

Mr. Griswold: I don't quite know.

Justice Potter Stewart: I thought the Tenth Amendment.

Mr. Griswold: Due process perhaps, taking of her money without proper constitutional warrant.

Justice Potter Stewart: I thought it was the Tenth Amendment.

Mr. Griswold: I have no doubt he relied in part on the Tenth Amendment, but not sue it.

I think that it can be said that with the benefit of hindsight the result that was reached in the Frothingham case was a fortunate one.

The case has served us well.

It's not operated to shield great illegality on the part of either the federal government or the states.

With the Frothingham on the books, this Court has had ample room to move around to fulfill its function and our constitutional and federal system.

If the rule had not been so long established, it would still be a good one.

There is no occasion, we contend, to overturn a doctrine which has functioned well and has stood the test of time.

One of the first cases that came before this Court was Hayburn's case in 2 Dallas in 1792.

There the Court made up of judges who were familiar with the framing of the Constitution declined to decide a friendly suit designed to get an opinion on a legal question with which government officers were confronted.

During the same decade, the Court concluded that it was not give an advisory opinion at the request of President Washington.

Affirming him against Mellon was, I submit, simply a modern exemplar of the doctrine so clearly stated in the early days of the Court.

It has been explained in various ways as a matter of case or controversy, as a matter standing, as a matter of judicial denial or judicial self-limitation, as something akin to the rule of the court will not decide political questions and so on.

I think it partakes of all of these things and that they are ways of expressing an important element that lies back of the decision without in any way losing any benefit that those ideas provide.

I would suggest that the Frothingham decision and its predecessors and successors are in last analysis, expressions of the doctrine of separation of powers which is embedded in our history and as substantially affected constitutional doctrine.

In the field of intergovernmental immunities, for example, the McCulloch and Maryland, and Collector against Dave, well, the latter case has been overruled.

It's still the law I suppose that a discriminatory state tax against a federal officer would be unconstitutional.

There's no provision in the Constitution which says so, but the Constitution does establish the federal system and the constitutional doctrine flows from that fact.

Now, similarly, the Constitution sets up the three co-equal branches of our government and this is the basis for constitutional rules and practices.

Only two weeks ago, we had in this area an example of the application of the doctrine of separation of powers in the decision of the Court of Appeals of the District of Columbia Circuit in the case involving a Congressman Adam Clayton Powell.

Of course this Court has not passed on that decision, but it is relevant since the result reached for the Court of Appeals turns essentially on concepts of separation of powers.

Under that doctrine --

Justice Abe Fortas: I would have thought we had enough trouble with this case.

Mr. Griswold: I want to get all the help that I can.

[Laughter] Under that doctrine, the matter of the capacity, the whole seat in Congress is one for the houses of that body to decide and it is not fitting for a court says the Court of Appeals, a part of another co-equal branch of the Government to enter into it.

Do I mean by this that it's never appropriate for a court to consider the constitutionality of an Act of Congress since that would inevitably bring the Court into conflict with the legislative body which has of course given its own opinion of the constitutionality of the statute by enacting it?

Obviously enough I make no such contention.

I do say though that considerations arising out of the separation of powers make it appropriate and I would say impair that the Court considered heavily the circumstances under which it will undertake to pass upon the constitutionality of an Act of Congress.

Now, that I suggest was what the Court was doing in Frothingham against Mellon.

The considerations that led the Court to withhold its hand there are equally valid today.

Justice Potter Stewart: Mr. Solicitor General, I now passed again at Frothingham and I find it -- you're quite right.

The attack of the appellant Frothingham in that case was based not only on the Tenth Amendment, but also that the taking of her checks would violate the due -- take her property without due process of law, but it was as we both agree not based upon in anyway upon the First Amendment.

It occurs to me that whatever the validity or rational of the Frothingham decision may be and there has been some difference of opinion about that expressed here today, that as suggested by in oral argument here, particularly by Senator Ervin and as suggested by the dissenting opinion of Judge Frankel in this District Court that might even accepting Frothingham that there might and should be quite a different rule with respect at least to the Establishment Clause of the First Amendment because what the Establishment Clause itself prohibits among other explicit things, but most explicitly prohibits is the expenditure of public taxpayers money for religious purposes whereas the Tenth Amendment doesn't have very much to do with the expenditure of federal money nor does the Due Process Clause have very much to do with the expenditure of federal money.

The Establishment Clause at least of the First Amendment has directly and explicitly to do with that very subject and that's the difference between this case and Frothingham.

Mr. Griswold: Justice, I kind of like to qualify you explicitly there there because of course this is a --

Justice Potter Stewart: Of course it does have to do with it.

Mr. Griswold: This is a modern view of the First Amendment.

Justice Potter Stewart: Well, --

Mr. Griswold: It's perfectly plain that it was not conception of the First Amendment when it was written --

Justice Potter Stewart: Well, certainly (Voice Overlap) no official church in this country.

We [Discernible] modern church of England though --

Mr. Griswold: (Voice Overlap) my --

Justice Hugo L. Black: Are you asking us to overrule?

Mr. Griswold: No, not at all I like it.

My brother was the treasurer of a congregational church in Exeter, New Hampshire and he, on behalf of the finance committee, wanted to borrow money on a mortgage in order to put an elevator in the church and they discovered that the title to the church is in the Town of Exeter.

And they had a good deal of difficulty giving the title out of the Town of Exeter because constitutional objections were made that this would be an appropriation for a religious body and I simply mentioned this to say that this is not a case where the First Amendment says there shall be no appropriation for an establishment of religion.

The First Amendment does prohibit an establishment of religion --

Justice William O. Douglas: Counsel, do you know of any better way to establish an institution and to finance it?

Mr. Griswold: I know that what constitutes an establishment of religion is a complex and difficult matter.

For example, we have always had --

Justice William O. Douglas: I didn't ask you to define that, I just put you one simple question.

Mr. Griswold: We have always had and still have in this country and I hope we will retain tax exemption for religious bodies and that is certainly a substantial financial aid to a religion which until very recently was never questioned in any way and I simply suggest that this is a far more complex question.

Justice John M. Harlan: [Indiscernible]

Mr. Griswold: I would welcome a chance to get that as the thread of my argument.

Justice Potter Stewart: Arguments you were relying on Frothingham and I was simply suggesting a possible distinction and one not original with me was mentioned by Senator Ervin and by Judge Frankel --

Mr. Griswold: Yes, and frankly, I do not myself place much stock as a citizen and lawyer in the preferred status of the First Amendment I like all of the Constitution.

I like the Fifth Amendment and the prohibition against titles and mobility and it seems to me that it's hard to say and hard to find any historical or other basis for saying that because this is a First Amendment case, it should be treated in a different way.

This Court’s great moments come when it deals with people, people who are directly affected by Government or the law.

I think of Frank against Magnum and the Scottsboro Boys and Shuffling Sam.

The Court did not do so well with Dred Scott, largely because it lost sight of Scott and used his case as a vehicle for seeking to dispose of a large question which was then rending the country and which need not have been decided in order to dispose of his case.

When the Court has considered broad and general questions in the abstract more or less, it has not always found the results lastingly valid.

The decision holding in New York Workman's Compensation Act unconstitutional might be cited as an example and if I may say so with great respect to Your Honor's predecessors, the decision which might have been rendered if Frothingham v. Mellon had gone the other way.

The genius of the common law and in large measure, the talisman of constitutional adjudication is the concrete case with real and specific facts.

We common lawyers do not do so well in the abstract.

The present litigation is utterly abstract.

There are no real facts alleged in the complaint.

The complaint is entirely in general terms.

It could be applicable to over 22,000 local projects which had been financed by the Office of Education under this statute all over the country in every state with many types of projects and almost limitless local variations.

It is true that in this Court, the appellant say that they limit their complaint to practices in New York City.

Even as to that though, no facts whatever are alleged.

Everything is in general terms.

The appellants do not like what is being done under the Act, but was is being done has left to speculation.

It is not enough to say I suggest that some things are being done in the sectarian or parochial schools because even the appellants concede that medical and dental services may be provided in sectarian schools.

I suppose this would apply to psychiatric services, remedial programs for retarded or disturbed children are not much different and the record in the court below included in an assertion that such children will be better reached if instruction is given to them in their own familiar surroundings, but we have no facts about such matters, not because the court below cut off proof but because they were never alleged.

Justice Hugo L. Black: I don't understand how you can say that, in basis of Section 13 of the Bill?

Mr. Griswold: At what school and on what page Mr. Justice is something alleged to have been done?

Justice Hugo L. Black: 8 (a) in the appendix.

Mr. Griswold: I read it Mr. Justice.

I --

Justice Hugo L. Black: (Voice Overlap) the meticulous details about where the money was spent.

I do not understand how you can say that they do not charge, an ambiguous language.

The money was being used in this Bill to finance the construction of sectarian schools.

Mr. Griswold: I say Mr. Justice that they do not allege tax which say that at a particular place at a particular time, something can be done.

Justice Hugo L. Black: So why do they have to alleged the facts about a particular thing when they alleged it in general.

That's the general rule.

Mr. Griswold: Because the point I am trying to make Mr. Justice is that issues of this sort ought to be decided in specific concrete cases and not in perfectly general terms and why we're --

Justice Hugo L. Black: Do you want to get back to Commonwealth treaty?

Mr. Griswold: No, Mr. Justice [Attempt to Laughter] but I would like to add some facts upon which this case in stand.

Now, why our facts not alleged?

Because I submit --

Justice Thurgood Marshall: Mr. Solicitor General was this question was raised in the District Court that it wasn't specific, or was it merely the one point that they did not having the standing to sue.

I made a question because it would have been a possibility of amendment in the District Court.

Mr. Griswold: Well, Mr. Justice this is all what -- this all bears on standing to sue.

They would have standing if they have alleged a specific concrete case and facts which showed that they were hurt by something.

The reason that they didn't allege facts it seems to me is what they are seeking here is a broad general declaration of the statutes or about the administration of the statute of theoretical determination divorced from any concrete impact on any party in the case.

That's why I think it's relevant to this point.

Some citizens, who happen to be taxpayers too, though I don't think that's important, do not like what the Government is doing.

Though as near as I can tell, the things they don't like are being done by officials of New York State and City Governments and so they sue two high officers of the government for what?

For a declaration and injunction that the very general things they assert without ever putting down the single concrete fact are unauthorized or unconstitutional.

Now, this I submit is essentially a prayer for an advisory opinion, an opinion which is to be rendered in broad, general, and essentially abstract terms.

Let me see if I can test that statement.

Suppose this case came here the other way around.

Let me suppose that Secretary Gardner and Commissioner Howe were doubtful and uncertain about their powers and responsibilities under the Act.

Of course they could ask their general counsel or the Secretary of the Department of Health, Education and Welfare could request the Attorney General to give an opinion, but such opinions would be advisory only.

They would not bind anyone outside the Government, but Secretary Gardner and Commissioner Howe wanted a decision.

So they filed a suit in the United States District Court for the Southern District of New York asking for a binding declaration.

Against whom do they file the suit?

Well, that's a nice question.

They've heard that Mr. Pfeffer and know that he has long given thoughtful consideration to these matters so they named him as the defendant and then there’s Mr. Brownell, he knows his way around the Government and they name him as the defendant.

It really doesn't matter who they named since no one has any direct personal interest in the question and it doesn't make any difference since all points of view will be presented as briefs filed by friends of the Court.

In the abstract though, let me observe and in the absence of any concrete facts.

I might point out that we have a full court of amicus briefs here and when I counted them last, there were nine and I've lost six to three.

Can it be imagined for a moment that the suit by Secretary Gardner and Commissioner Howe would be entertained by any Court.

I don't think so and why not, because it would be seeking an essentially advisory opinion, a decision in the case which does not really have adverse parties and which did not arise on specific concrete facts.

Justice Abe Fortas: Well, I guess I don't understand the complaint or your point.

As I understand it what they are in effect asking for is an injunction against the Secretary of HEW and the Commissioner of Education of the United States to prevent them from approving a program of the Department of Education of New York, to the extent that that program provides for the payment of money to religious schools for these -- for the purposes that are clearly stated in here.

Mr. Griswold: And Mr. Justice they do not -- they do not allege a single program.

They do not allege a single fact, a single school, a single specific situation where anything is done and if something is being done in the sectarian school has become quite relevant to know what is being done and what are the circumstances of that and none of those facts are alleged in anyway.

Everything here is in completely --

Justice Thurgood Marshall: Where the complaint not dismissed, wouldn't it be possible to find some of those facts by discovery one way or the other which might help everybody?

Mr. Griswold: I still think we would have the same problem with respect to taxpayers suits on the one hand in that they would not be affected by what was done in their -- either in their pecuniary or in their personal interest.

I also think we have a real problem here in that Commissioner Gardner -- Secretary Gardner and Commissioner Howe have no direct supervisory or administrative responsibility here and indeed a section of the statute not quoted in our brief expressly prevents them from undertaking to operate the programs of the schools.

Justice Thurgood Marshall: Don't we have to approve the plan?

Mr. Griswold: They -- there is nothing in the plans which states that something will be unconstitutional or illegal.

Justice Thurgood Marshall: We in fact, we don't know what the plans are.

Mr. Griswold: We don't know what the plans are.

I agree.

They are not here.

Justice Thurgood Marshall: But if the Court keeps jurisdiction to the District Court, we would find out, wouldn't we?

Mr. Griswold: Assuming that there were allegations which raise it and that there were -- this was the type of case in view of the essentially abstract nature of the claim that is made which is proper for the Courts to decide under what I would call a fair application of well established principles of separation of powers.

Justice Hugo L. Black: Why aren't you making the same argument that's made in Doremus everyday to the sufficiency of the claim, but it's not a sufficient cause to deny a jurisdiction of court?

Mr. Griswold: No, Mr. Justice, I think I'm not because here the absence of a concrete case is what keeps this from being a suit to use Madison's raised of a judiciary nature.

It is of course proper for this Court to pass -- to consider and pass upon the constitutionality of an Act of Congress when that issue is presented to it in an actual controversy involving specific facts, I suggest that in this case, what is sought is a simply general abstract declaration and that Frothingham against Mellon is a great exemplar of the application of the doctrine of separation against powers that this Court will not enter into such an undertaking.

Justice Hugo L. Black: How could you get any more vigorous?

He's in this controversy.

It's a dispute between two people charged by one that the taxpayer's money is being spent to aid sectarian schools and teaching -- teachers in those schools.

Mr. Griswold: I think that maybe -- may be a part of the trouble.

People are talking in general terms.

Justice Hugo L. Black: But the charge is that the Government has been spending money in this Act for that purpose.

Mr. Griswold: And if the charge related to specific facts and if it were brought by people who were hurt by what has been done of course the Court ought to consider and decide the case.

In the hypothetical suit that I referred to brought by Secretary Gardner and Commissioner Howe and it's an obviously impossible suit, the issues would be exactly the same and the interest of the parties would be exactly the same as those sought to be raised here.

The defendants would be taxpayers and citizens as the appellants are here.

The fact is that it would make it unwise and inappropriate to decide that case are equally applicable here.

They are the factors which lay behind this Court’s decision in the Frothingham case and they remain equally valid today.

Few days ago, we celebrated the 127th Anniversary of the birth of Justice Holmes.

In 1904, shortly after he came on this Court, he wrote the Court's opinion in Missouri, Kansas and Texas Railway Company against May, in which he said “great constitutional provisions must be administered with caution.

Some play must be allowed for the joints of the machine and it must be remembered that legislatures are ultimate guardians of the liberty and the welfare of the people and quite as great the degree as the courts.”

This is a case I submit where it's appropriate in the proper application of the constitutionally established separation or divisions of powers in this country for this Court to refrain from rendering a decision until a case of a truly judiciary nature arises and is properly presented to the Court.

Not an abstract general case seeking a sweeping declaration about everybody's rights, but a case raising a specific question by someone who was hurt.

That will present a proper case for a judicial action.

This is a peculiarly a situation where there should be room for play in the joints.

The questions involved here are not ones of black and white.

Justice William O. Douglas: Well, we're -- are you assuming that we withhold one way or the other on the merits, aren't you, and that’s not here, is it?

If the Court would sit in a shattering theory --

Mr. Griswold: And this is a --

Justice William O. Douglas: -- that this will call all Act of Congress unconstitutional.

Mr. Griswold: Because this is a problem filled with so many uncertainties, Mr. Justice, so many variables, so many problems and difficulties, it is not wise and fitting it seems to me for the Court to enter into it in a general and abstract way.

But it is wise for the Court to wait until its rule is called for, that of deciding a case between parties of where the people have themselves a genuine personal interest in the matter.

Justice William J. Brennan: Well, you're going to meet the argument I understand both of the Senator and Mr. Pfeffer have made, it's just never going to have a case like that.

Mr. Griswold: Mr. Justice, the Court has a case like that on its docket now which will be heard either later this term or early next term, the case involving a City in New York which came up through the New York Court of Appeals.

I've already pointed out to two provisions in this statute itself containing provision for judicial review and that if a plan was disapproved by the Secretary or the Commissioner on these grounds, the state school authorities could directly go to a Court of Appeals to get the question raised.

There are many ways in which the question can be raised and in which if it is raised it will be raised in a specific concrete context.

Here the appellants have conceded that medical and dental services may be rendered to children in sectarian schools.

They agree that inspection may be given in the public schools to children from the sectarian schools and that library services could be given to all children on publicly owned neutral ground.

Their complaint is against remedial and guidance services note not some --

Justice William J. Brennan: May I ask Mr. Solicitor General, will -- suppose Massachusetts and Mellon will have some bearing on this lawsuit that you mentioned or on these provisions for judicial review?

Mr. Griswold: I -- I'm not prepared to state exactly what the issue will be there, but I do know that the New York Court of Appeals passed on them it is the basis of the appeal from that decision which is before the Court.

Justice Abe Fortas: If the Government moved to dismiss in the District Court on the grounds that the complaint has failed to state a justiciable cause.

Mr. Griswold: They moved to dismiss but --

Justice Abe Fortas: On the grounds that you're now urging.

Mr. Griswold: They had moved to dismiss on the ground that the plaintiff do not have standing to maintain this act --

Justice Abe Fortas: That's a different --

Mr. Griswold: -- and for such other and further relief, is the Court.

Justice Abe Fortas: I know, that's not the argument you are addressing.

Mr. Griswold: I appreciate it Mr. Justice but if the complaint should have been dismissed on any ground I believe that that's appropriate to raise here.

Justice Abe Fortas: But another part of argument is that if it should have been dismissed on that ground, it should have been dismissed by a motion in the District Court.

I'm not suggesting that the Government should stop.

What I am suggesting that if you're right about that, it's -- I'm suggesting that may be if the Government moved below on this ground that there is a substantial ground, it’s at least unfortunate.

Mr. Griswold: Mr. Justice, I don't understand that I'm making a separate ground.

I'm trying to make an argument in terms of Frothingham against Mellon that this is not the kind of a case which ought to be decided by this Court.

Justice Abe Fortas: Would you say that that's true of all taxpayer suits?

Mr. Griswold: Yes, that would be true of the taxpayer suits and the federal --

Justice Abe Fortas: I see, I did misunderstand you then.

What you're saying, what you're doing then is not attacking this complaint especially but saying that all taxpayer suits are by their nature, by their nature present abstract questions.

Mr. Griswold: And that that is exemplified in a rather striking way by this particular complaint.

Justice Abe Fortas: I see.

Mr. Griswold: Congress and President are as much want to uphold the Constitution as are the courts or Government lawyers.

The statute involved in this case was long before Congress, thoroughly debated there, carefully drawn with the precise issue here presented well in line and finally resolved by the action of Congress and the approval of the President.

It should be remembered that the problem before Congress involved not merely the question of church and state, but also another great constitutional principle, the equal protection of the laws provided as to the states by the Fourteenth Amendment and perhaps made applicable to the United States by the Fifth Amendment.

This Court now has before its certain welfare cases where it is contended that if welfare is to be given by a state, it must be made available on a basis of equality to all persons with similar needs without the irrelevant or arbitrary qualifications.

Summarily, Congress could well have concluded that if aid was to be given to needy children, or if books were to be provided for children in school, these things should be available to all children and that anything else would be an inadmissible denial of equal protection.

All that I say now is that these questions are real ones.

They are difficult ones.

They were wrestled out by Congress in a way that it's entitled to a certain amount of admiration as well as respect.

In due course, this Court will have to come to its own conclusion and I do not for a moment suggest that the action of Congress or the President though they were aware of their constitutional duties is binding on this Court.

But it is entitled to respect and in this situation to weight.

This is, I submit one of the places where there is some small room for freedom in the joints in our great constitutional structure.

This Court will of course not shrink its judicial duty when a truly concrete cases presented by someone who is hurt in one way or another by the application of the statute.

Until such a case is presented, proper deference to the coordinate branches of the Government, proper regard to the great principles of separation of powers requires, I submit, that the Court withhold its hand.

A great predecessor of mine John W. Davis, when president of the American Bar Association referred in his presidential address to this Court's power to pass on the constitutionality of statutes and the criticisms which had been made of the use of that power and the certain proposals to curb it.

In discussing this matter, he said, there is a curious misconception underlying much that is said and written on this subject as to the duties that the Court is called upon the discharge.

One might suppose from some of these outgivings that the Court sat at the outer gate of Congress waiting to visit the zealous censorship on the laws that issue from that port and that over then it had a general power of life and death or of approval or of veto.

But all thus, as are the functions of the Court, surely they do not go one step beyond the administration of justice to individual litigants.

Chief Justice Earl Warren: Mr. Pfeffer.

Rebuttal of Leo Pfeffer

Mr. Leo Pfeffer: First, a brief comment on hypothetical case of Gardner against [Indiscernible] and how it's distinguished from the very real case, Flast against Gardner.

If the -- if the Secretary of Health Education and Welfare were to bring this type of suit, that the Solicitor General referred to, the only consummation could be a judgment declaring that the law is or is not constitutional.

That would indeed be an advisory opinion.

Now, perhaps that is a case of controversy although that is not 100% certain.

But Flast against Gardner does not call for an advisory opinion.

It calls for specific injunction against Mr. Gardner, that's hardly is an advisory opinion and certainly is a case of controversy.

Justice Potter Stewart: It's all -- you've got another problem haven't you as suggested by the Solicitor General?

Mr. Leo Pfeffer: Well, we ought to -- the declaratory judgment and an injunction, injunctive relief or both.

Secondly, I think I also ought to be called the Court's attention that since this suit was started, and since there's a good deal of discussion of the issue, and the question, the facts of governmental expenditure, the expenditure of funds to finance the construction of sectarian schools have been brought to the attention of Congress had only in the past two months, extended the Bill for another -- the law for another three or four years which at this point may very well be held to be a legislative acceptance of the department's determination, that indeed the Act does authorize the expenditures which we are challenging in this case, so that they very well be even in that basis, in that basis that the Act has now have been in effect legislatively construed and therefore would declared to be unconstitutional but the thrust, the crux of our complaint is that the whole act is not unconstitutional.

This entire program is not unconstitutional but unconstitutional at most is one -- two sets of them.

One of type and one type of two which we say, we say that at best gives the administrator an option.

You can do -- you can enforce this one of two ways.

You can enforce it in the way which we suggest through giving these special services in nonsectarian auspices, open to all children that would raise no constitutional issue.

Or you can -- you can enforce in a different way which does raise a constitutional issue.

The administration has taken the line of approach and we assert that if this is what is authorized by the Act, it is constitutional.

Justice John M. Harlan: Do you – in your view is that [Indiscernible] sort of class action [indiscernible] attacks the application of this Act or of the United States in one suit?

Mr. Leo Pfeffer: I don't know.

Justice John M. Harlan: Why?

Mr. Leo Pfeffer: Because it would be completely impossible.

We'd have to prove, we have to prove and would be impossible to prove it.

Now, all we can do is in all cases --

Justice John M. Harlan: [Indiscernible]

Mr. Leo Pfeffer: As far as I would say, we are attacking -- we are attacking the Secretary's determination, the Secretary's determination that it is constitutional all over the United States to use federal funds to finance the teaching in sectarian schools.

Now we prove our case -- we prove our case especially (a) that that is being done at least in one place and (b) that the Secretary has so approved it.

This is our case.

Now, as we point out in our brief, it's been done in Massachusetts, in Pennsylvania where a similar suit is pending.

The New York Times reported just the other day that's being done in New Jersey and certainly under the direction of [Indiscernible] and I'm certain its being done in other places as well.

But to get the constitutional issue before the Court, we have to establish at least one place where it's truly, else that it's truly an advisory opinion and no case of controversy.

I want to make one more point about the three-judge court and direct appeal here being a matter of jurisdiction.

I don't think it is.

This Court has taken cases from a one-judge court and bypassed the Court of Appeals where it felt it to be in the public interest, in the national interest, it made -- this Court could very well hold.

Now even if this work, decided by Judge Frankel alone, the issue is of such great significance required an expedition determination that the Court could bypass the Court of Appeals.

It's not a question of jurisdiction.

Now, I want to assure --

Justice Potter Stewart: I didn't quite understand your last point.

Mr. Leo Pfeffer: The point I'm making is that the case which I put my reply brief that bypassing the Court of Appeals is not a jurisdictional matter that even if this were not a three-judge court, even this case had been decided by one judge, it would have been within the power of this Court to say (Voice Overlap)

Justice Potter Stewart: To grant certiorari to this Court --

Justice Abe Fortas: You rather that we proceed on the assumption that it was -- that Judge Frankel was the only judge vested in jurisdiction.[Laughter]

Mr. Leo Pfeffer: Well, I would like to believe that, but whenever that it's still within the power of the Court, I think that the Court has the power to do it and therefore, it cannot be accepted as a matter of jurisdiction.

The New York State suit which referred to (a) does not -- that raises – does not raise Title II which is raised in this case, (b) it raises issue which are not --

Justice William J. Brennan: Is that not what the statute --

Mr. Leo Pfeffer: I beg your pardon?

Justice William J. Brennan: Does that the case that you've taken, that doesn't come up under the statute, does it?

Mr. Leo Pfeffer: The case which was taken in the New York courts?

Justice William J. Brennan: Yes.

Mr. Leo Pfeffer: Yes, that comes up partly under this -- it partly comes up under the statute.

Justice William J. Brennan: Not under Title II.

Mr. Leo Pfeffer: Not under Title II but even under Title I.

That case allegedly could not apply with the reply brief.

Certain conduct which are not authorized by the Commissioner of Education and the Secretary of Health, Education and Welfare.

For example, we allege there that the Board of Education has allowed discretion on public school teachers to go into the parochial schools and teach them and be paid off from the fund.

This we contend at all.

It's authorized either by the statute or by the health -- by the Secretary's determination.

How could we bring such suit in the federal court?

We certainly would be told you go to the state court and exhaust your state's remedies.

For that reason, not for any other reasons that that suit is brought here.

Finally, the theoretical, completely theoretical idea that there is a remedy elsewhere, there isn't.

There is no more remedy here than there was in Baker against Carr.

Baker against Carr, as Mr. Justice Frankfurter stated in a dissenting opinion he stated in Colegrove against Green or you can go to the legislature -- to state legislature, They'll remedy, whatever grievance you have, but of course it didn't because they have the state in the maintenance of the status quo.

Every single state has a spec as the maintenance of the status quo.

It warranted the federal court and the easiest thing in the world is to let it go with the proper court and to find the rationalization for it as New York has done by saying, “Well, we're just a conduit, we don't really exercise determination” and therefore any grievance you have should go to the federal government.

We have called it the game of [Indiscernible] where everybody hit the [Indiscernible] to get the ball to the other side, because you're responsiblity.

Now, between that the Constitution falls to the ground and nobody has responsibility for it.

Chief Justice Earl Warren: I think we'll take -- we have to take the rest of your argument in your brief Mr. Pfeffer.

Mr. Leo Pfeffer: Thank you Mr. Chief Justice, thank you.

Attribution:

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