The Supreme Court ruled today in the case of Hein v. Freedom From Religion Foundation Inc. that the Bush administration’s Faith Based Initiatives program can not be challenged in court. Writing for the majority in the 5-4 decision Justice Alito said, that President Bush’s program could not be challenged because there was no specific congressional action that brought about an injury to taxpayers through the use of federal funds for the promotion of religion.

Alito wrote, “Respondents neither challenge any specific congressional action or appropriation nor ask the Court to invalidate any congressional enactment or legislatively created program as unconstitutional. That is because the expenditures at issue were not made pursuant to any Act of Congress, but under general appropriations to the Executive Branch to fund day-to-day activities. These appropriations did not expressly authorize, direct, or even mention the expenditures in question, which resulted from executive discretion, not congressional action. The Court has never found taxpayer standing under such circumstances.” The court based its reasoning on an interpretation of a 1968 decision in the case of Flast v. Cohen. Today, the Court reinterpreted Flast v. Cohen to be limited to congressional spending and use of tax payer funds.

The Supreme Court reversed a decision by the 7th Circuit Court of Appeals that Flast had a broader definition that gave plaintiffs the right to bring suit if, “the activities are financed by a congressional appropriation, even where there is no statutory program and the funds are from appropriations for general administrative expenses. According to the court, a taxpayer has standing to challenge anything done by a federal agency so long as the marginal or incremental cost to the public of the alleged Establishment Clause violation is greater than zero.” Thus, the president has the power to use discretionary funds any way he pleases. The majority in this case argued that if the president goes too far with this power it is up to congress to step in and limit him.

Freedom From Religion argued that if the executive branch has this power, then there would be nothing to stop them from building a house of worship, or to hire clergy of one denomination to go spread the faith, “Or an agency could use its funds to make bulk purchases of Stars of David, crucifixes, or depictions of the star and crescent for use in its offices or for distribution to the employees or the general public.”

The majority rejected this argument and said, “None of the parade of horribles respondents claim could occur if Flast is not extended to discretionary Executive Branch expenditures has happened. In the unlikely event any do take place, Congress can quickly step in. And respondents make no effort to show that these improbable abuses could not be challenged in federal court by plaintiffs possessed of standing based on grounds other than their taxpayer status.” Essentially they said that if this does happen, it’s not our problem.

While many are likely to view this decision today in term of what it means in the timeless battle that defines the separation of church and state, I argue that the real danger in this decision is the expansion of executive powers that comes with it. This decision essentially says that it is OK for a president to create programs that are not statutorily or congressionally mandated, and the there is nothing the taxpayers can do about it, so long as the funds are not specifically appropriated by Congress, and are taken from the general fund. This decision is nothing more than an invitation for future presidents to continue and expand the kind of “off the books” programs that President Bush has begun.

Remember, President Bush didn’t choose his two court appointees because they shared a social conservative doctrine. He appointed them because they both shared his administration’s views on presidential power. This case is important because it is the first domestic decision that uses those beliefs to limit a previous decision. I think the Court would be wise to remember that the powers they grant a Republican president will also belong to a Democrat someday too.

The Court’s decision 

Jason Easley is the editor of the politics zone at  His news column The Political Universe appears on Tuesdays and Fridays at

Jason can also be heard every Sunday at 6:30 pm (ET) as the host of The Political Universe Radio Show at
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