Lawsuit Challenging Military Aid to Israel Thrown Out

From Rowley v. Finstad, decided Friday by Judge Eric Tostrud (D. Minn.); I think this is correct—if people disapprove of such military aid, or what Israel is doing with it, their remedy is through the political process, not by trying to get a federal court to stop such aid:

In April 2024, the United States Congress passed a bill providing military aid to Israel. Plaintiffs are Minnesota residents and federal taxpayers who object to the legislation because they believe the funds support genocide in Gaza. They sue members of Congress from Minnesota and the former and current Secretaries of Defense seeking a declaration that the challenged law violates the Constitution, international treaties, and other federal law. They also seek an order enjoining the law’s enforcement….. Because Plaintiffs have not plausibly alleged that they are directly injured by Defendants’ conduct, they do not have standing to sue …

The Complaint raises two causes of action under the Constitution…. [One], brought against the Congressional Defendants, arises under the Taxing and Spending Clause and the Ninth Amendment … (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”). [Another is asserted] against the Defense Secretary Defendants, citing the previous constitutional provisions as well as Article VI of the Constitution and the Administrative Procedure Act…. They seek a declaratory judgment that the Act violates the U.S. Constitution, customary international law, and federal common and statutory law, and they request an injunction preventing Secretary Hegseth and any successor Defense Secretary from enforcing the Act….

Article III of the Constitution limits the federal judicial power (or jurisdiction) to adjudicating “Cases” and “Controversies.” This provision keeps the federal courts out of the business of the legislative and executive branches, and the Supreme Court’s standing jurisprudence guides the federal courts in determining whether a litigant seeks adjudication of a genuine “Case” or “Controversy” or instead hopes to have the court act as if it were one of the political branches.

Plaintiffs assert three theories of standing. First, they have standing as taxpayers. Second, their mental distress caused by the Act amounts to a redressable injury-in-fact. Third, they are complicit in an ongoing genocide, which causes them a moral injury. None of these theories supports Article III standing, so there is no subject-matter jurisdiction.

Start with taxpayer standing. The Supreme Court has long held that, in general, mere federal taxpayer status is insufficient to confer standing…. [T]o “invoke[ ]” the judicial power a party must show “not only that the statute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.” Simply paying federal taxes is “too generalized and attenuated” a harm “to support Article III standing.”

The Supreme Court’s decision in Flast v. Cohen (1968), is a “narrow exception … to the general rule against taxpayer standing.” Flast held that taxpayers had standing where there was a “logical link between [taxpayer] status and the type of legislative enactment attacked,” and a “nexus between that status and the precise nature of the constitutional infringement alleged.” There, the plaintiffs met both requirements when they alleged “the Federal Government violated the Establishment Clause in the exercise of its legislative authority both to collect and spend tax dollars,” satisfying the first nexus, and “that Government funds had been spent on an outlay for religion in contravention of the Establishment Clause,” satisfying the second nexus. Outside “spending violations … invoking the Establishment Clause,” the Supreme Court and the Eighth Circuit have never applied the Flast exception. And the Supreme Court has “repeatedly emphasized that the Flast exception has a narrow application in our precedent, that only slightly lowered the bar on taxpayer standing, and that must be applied with rigor.”

This suit falls outside Flast‘s narrow exception, so there is no taxpayer standing….

The other theories of standing are also unavailing. Plaintiffs “fail to identify any personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees.” That psychological harm does not amount to an Article III injury…. “Article III standing screens out plaintiffs who have only a general legal, moral, ideological, or policy objection to a particular government action.” …

Plaintiffs argue the Supreme Court has not ruled that psychological harm is never an injury-in-fact, but the case law behind that claim is distinguishable. In TransUnion LLC v. Ramirez (2021), the Court declined to consider whether the emotional or psychological harm stemming from the “risk of future physical, monetary, or reputational harm” could be an injury-in-fact. That kind of emotional harm, if actionable, depends on impending direct harm to the plaintiff, and Plaintiffs have not advanced that theory.

Plaintiffs also argue they suffer a moral injury because their tax dollars have made them complicit in genocide. This theory is essentially a form of taxpayer standing and is not a recognized exception to the general prohibition. As Plaintiffs frame the injury, their moral complicity is a harm shared by all American taxpayers (or at least those taxpayers who agree with Plaintiffs), so it is not concrete and particularized…. “Article III does not contemplate a system where 330 million citizens can come to federal court whenever they believe that the government is acting contrary to the Constitution or other federal law.” …

Justin Merak Page (D. Minn. U.S. Attorney’s Office) represents defendants.