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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Monday, June 25, 2007 ::
    "Flast in his first book wrote about, wrote about..."

    The Hein plurality opinion contains some good language on the separation-of-powers importance of standing. It goes on to distinguish Flast v. Cohen by -- well, do you remember the Monty Python sketch about the "Summarizing Proust" competition? Well, as Justice Scalia's scathing concurrence (a type of opinion that I believe he invented) in this case shows, the years since Flast have seen a number of "Distinguishing Flast" competitions, won by a bewildering variety of contestants -- so bewildering that, as Scalia discusses, Judges Flaum and Easterbrook declined to take this case en banc, not because they agreed with the panel's expansion of Flast, but because Higher Authority was too inconsistent to be worth the full circuit's time in trying to apply it.

    The distinction that wins today's Distinguishing Flast contest is the distinction between a specific and directive line-item in an appropriations bill, and an executive actions funded out of more general appropriations to the executive branch. Thus, I suppose, a line-item that says "the Secretary of Education shall give a speech praising religion" would give rise to Flast standing, but the speech itself, funded by an appropriation that merely allows him a salary, does not.

    Interestingly, this distinction could have been based on a strict, Thomas-esque reading of the constitutional clause allegly violated: it is directed at Congress, which is told to "make no law respecting an establishment of religion." It does not prohibit executive officers from praising religion in their speeches; in fact by its terms it is not directed to executive (or judicial, or state) officers at all.

    But this cannot be the plurality's meaning, because it goes on to list several hypothetical violations of the Establishment Clause by the President, so as to assure us that such conduct would not go unredressed even after today's ruling.

    Scalia's concurrence is a comprehensive tour of the wanderings of the standing issue, leading to the conclusion that it would be better -- and more consistent with post-Flast cases -- to overrule Flast than to "beat[] [it] to a pulp" and then "send it out to the lower courts...more incomprehensible than ever."

    Has Flast been weakened, or is it now in a "whatever doesn't kill me makes me stronger" position? Of course, Roe could be sustituted for Flast in much of the Scalia concurrence....

    Final note: in quoting Tocqueville, Scalia uses the Mansfield translation, which is -- wait for it! -- Straussssssssssssian!! Watch for exposes in the New York Review of Books, impeachment demands from the Larouchies -- the works!

    :: David M. Wagner 11:55 AM [+] ::

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