Last month the Supreme Court (in Hein v. FFRF) decided that whether or not taxpayers get to enforce the Establishment Clause will depend on whether Congress appropriated the funds used or the money was funneled through the President’s office. One of the fears expressed by the plurality was that if the executive branch’s actions could be challenged by taxpayers, there would be too many lawsuits.

Surely these jurists know that if a lawsuit is frivolous, not only can the loser be liable for the other side’s costs, but the court can also impose penalties for such abuse of the legal process. Additionally, as the dissenting opinion points out, such frivolous lawsuits could be dismissed and the courts wouldn’t deal with trying these cases. Here’s the clincher: What if there are numerous REASONABLE claims of unconstitutional behavior on the part of the executive branch? The dissent (in a footnote) explains, “To the degree the claims are meritorious, fear that there will be many of them does not provide a compelling reason … to keep them from being heard.”

If we accept Justice Scalia’s reasoning that we simply can’t allow too many claims, then the government would have an incentive to violate the Establishment Clause of the Bill of Rights as much as possible. After all, we could secure our rights against a government that only violates them occasionally, but if they violate them numerous times, it’s too burdensome on the courts to do anything about it!