Money Laundering For Jesus

church and stateJuly, 2003

Most Americans learn the First Amendment in elementary school. For those who’ve forgotten, it begins: “Congress shall make no law respecting an establishment of religion.” What you probably didn’t learn in school was that establishing religion was the prerogative of the Executive Branch. But that’s the lesson the Supreme Court just handed us in the case of Hein v. Freedom From Religion Foundation (FFRF). In another trademark 5-4 decision the Court ruled that taxpayers cannot hold the Executive Branch accountable for how it spends our money, even if they violate the first clause of the Bill of Rights.

In 2004 the FFRF, a group that opposes government support of religion, tried to sue to keep the President from spending tax money on the White House Office of Faith-Based Initiatives (WHOFBI). The WHOFBI holds conferences encouraging Christian service groups to apply for federal money. The First Amendment issues here are clear. The Government has allocated our tax dollars to privilege faith-based charities over secular ones. But when the case hit the Supreme Court in February 2007 the White House, in the form of Jay Hein, director of the WHOFBI, claimed that those Constitutional issues were irrelevant. In fact, the government said, no taxpayer has the right to challenge any Executive expense at all.

This point is not entirely unfounded; the Supreme Court has traditionally denied standing to taxpayers who challenge government spending because the individual damage is too diffuse and uncertain to constitute a legitimate case. However, in the 1968 case Flast v. Cohen the Court made an exception to this policy. The Flast decision said that taxpayers could sue in questions of specific Constitutional limitations. In particular, it established that any spending of tax money in aid of religion could be considered a sufficient injury to taxpayers. As Justice Stevens wrote at the time, “every taxpayer can claim a personal constitutional right not to be taxed for the support of a religious institution.” Based on this precedent, the FFRF’s standing seemed clear. Then the White House found a loophole.

In Flast v. Cohen, taxpayers challenged money apportioned by an act of Congress. The decision gave standing to taxpayers whose cases involved “the congressional taxing and spending power.” For the WHOFBI, the White House used general funds, which Congress allows the Executive branch to spend at its own discretion. Since the President made the decision to fund the WHOFBI, neither the Flast precedent nor the Bill of Rights itself, which only says “Congress shall pass no law,” protects citizens from religious favoritism. Justice Samuel Alito, the author of the recent decision, seems to believe that while the Constitution bars Congress from establishing religion, it gives the President every right to do so, unhindered by taxpayer complaint. Can we assume the same for abridging freedom of speech, press, and assembly, Sam?

It’s true that the Constitution does not prohibit the President from making laws or spending money to establish religion. What our Supreme Court justices seem to have forgotten is that the Constitution doesn’t allow the President to make laws or spend money at all. Article 1, section 8 of the Constitution gives the power to spend exclusively to Congress. This is a cornerstone of the concept of separation of powers. The authors of the Bill of Rights saw no need to explicitly bar the Executive Branch from establishing religion because they never gave it the capacity to do so. The idea of untagged “general funds” would have been appalling to our founding fathers, whose Congress specifically apportioned every Executive expense down to paper and ink.

I understand that in a modern world, such scrutiny is impossible. But if we delegate part of Congress’s spending power to the President, we must subject his expenses to the same limits to which we hold Congress. Otherwise, we undermine our most fundamental constitutional protections. Any time that Congress wants to spend money in an unconstitutional manner it need only give that money to a complicit president, who can spend unchallenged. This is exactly what our government has done with the WHOFBI. Bush’s 2001 message to congress, titled “Rallying the Armies of Compassion,” called for the establishment of the WHOFBI, and his subsequent budget requests confirmed that our money was going to faith-based initiatives. Congress knew what they were paying for, but by giving the President general funds instead of apportioning the money themselves, they neatly sidestepped their Constitutional limits.

The cult classic film Office Space features a scene in which three computer technicians look up money laundering in the dictionary. After some confusion, they find: “To conceal the source of money by channeling it through an intermediary.” If the Supreme Court justices had had a dictionary on hand, the concept may have sounded familiar. They have just allowed the Executive branch to become Congress’s bank in the Caymans. And as Samir from Office Space would say, that makes you, Samuel Alito, a very bad man.

1 comment so far

  1. […] President Bush’s White House Office of Faith Based Initiatives (WHOFBI). Barely allowed in a criminal 5-4 Supreme Court decision, the WHOFBI directs federal money to help faith-based—and only faith-based—charities apply for […]

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