Nobody Could have Foreseen Waste

John raises an interesting point that I'm not sure he's even aware of in his most recent post on what "Katrina money" could have bought.

But before I get into the substance, I should point this out:

I am not a lawyer. I don't play one on TV, I'm not licensed to practice law in any jurisdiction in the United States or elsewhere, and I cannot dispense legal advice. Any legal analysis I offer is strictly my own thoughts, and anyone who relies on it is, well, dumb. When in doubt, talk to a *real* lawyer.

Anyway, here's my point - John (and the Sun Herald) point out that there's a lot that we could have done with the money wasted in Katrina fraud and abuse. So, the question is begged, what can we do?

And unfortunately, the answer is, "not much." The federal government can go after alleged fraudfeasors (that's people who commit fraud, for those who don't speak Lawyer), and the state can probably go after them as well. But you and me? Not so much. We don't have "standing."

"Standing," in the United States, means that we have to be able to stand up in court and explain how we've been hurt in order to start the gears of justice moving. And (sucks for us!), the Supreme Court has repeatedly held that taxpayers (that's you and me) have no standing to pursue claims against poor spending choices by the government.

There is one exception, and that is if the spending is claimed to violate the Establishment Clause. But in a recent case (whose name I can't remember, dammit), the Court held that Executive disposition of monies for which the Executive has Congressionally granted discretion cannot be challenged under Establishment Clause taxpayer standing. Thus, to make it perfectly clear, if Congress appropriates $1B for, say, a missile defense program, and the Pentagon awards the contract to a church that promises to pray missiles out of the sky, you and I? No standing.

So, for waste and fraud in Katrina, even if the government awarded the contract to people who literally promised to take the money and run - you and I have no standing to challenge as taxpayers.

But all is not lost! As Katrina survivors, we may have standing. In another case, the Court held that a hospital that was due to receive appropriated money had standing to sue when that money was taken out via the line-item veto. Incidentally, this is also the case where the line-item veto was held unconstitutional. So, as the beneficiaries of Katrina appropriations, we have at least a colorable claim to standing to sue the government for lack of oversight in permitting fraud and waste.

I don't know how it would come out. But there are lots of smart members of the plaintiff's bar in Mississippi. Let's get some ambitious young lawyer looking to make his name sniffing after this one.