SAN FRANCISCO (CN) – A Justice Department attorney told a federal judge on Monday that the American Civil Liberties Union can’t sue the government for funding a Catholic charity that cares for unaccompanied immigrant minors but denies them access to birth control and abortion.
The ACLU sued U.S. Health and Human Services in June, claiming its allocation of millions in taxpayer dollars to faith-based groups like the U.S. Conference of Catholic Bishops violates the separation of church and state by “subsidizing religious beliefs.”
According to the group, the funding scheme forces vulnerable immigrant minors, some of whom are raped during their journeys to the United States, to get uprooted from their support networks, face unnecessary delays in getting abortions, and in some cases, be denied access to abortion altogether.
At issue is whether the allocation of funds to religious groups is an act of Congress or the executive branch.
During a hearing Monday, government attorney Peter Phipps argued the Supreme Court has held taxpayers, such as ACLU members, can’t sue the government over how it spends money unless Congress “expressly contemplates” how the funding will be allocated.
“When you give a blank check to an agency like Health and Human Services, there’s no challenge to a specific statute,” Phipps told U.S. Magistrate Judge Laurel Beeler.
Phipps described the distribution of $1.6 billion that Congress authorized for the Office of Refugee Resettlement (ORR) to dole out through grants as an “executive action” that cannot be challenged by taxpayers in federal court.
In 2007, the Supreme Court ruled in Hein v. Freedom From Religion Foundation that taxpayers could not sue over federal grants to religious groups through President George W. Bush’s White House Office of Faith-Based Initiatives because the respondents “did not challenge any specific congressional action or appropriation.”
However, ACLU attorney Brigitte Amiri argued that 5-4 decision in 2007 did not overturn previous Supreme Court precedent established by the 1968 ruling Flast v. Cohen, which held taxpayers could sue the government for subsidizing secular textbooks for use in private religious schools.
Another Supreme Court ruling, Bowen v. Kendrick, held in 1988 that taxpayers had standing to sue over government grants to religious groups that provided counseling and education to adolescents about premarital sex and teen pregnancy.
But Phipps called those rulings “false comparables,” arguing that because Congress never explicitly stated how funds should be allocated to groups that aid refugees, there is no congressional mandate for the ACLU to challenge.
Still, the ACLU contends it has standing to sue because Congress knew that money would go to religious groups that oppose abortion when it authorized the funding.
“We don’t believe that congressional knowledge is required, but even if it is, we feel we meet that here,” Amiri told the judge.
Early on in the hearing, Judge Beeler called the jurisdictional question “tricky,” saying she was initially inclined to dismiss the suit for lack of standing but saw merit in arguments that the funding is “wrapped up” in congressional appropriations and not purely a product of executive decisions.
Beeler took the arguments under advisement.
The U.S. Conference of Catholic Bishops received nearly $10 million in tax dollars to assist immigrants in 2014, according to the ACLU’s complaint.
Congress funded the ORR’s Refugee and Entrant Assistance Programs with $1.6 billion in fiscal year 2016. With that funding, the U.S. Department of Health and Human Services awarded 56 grants to more than 30 care providers, including the U.S. Conference of Catholic Bishops.
Since the department took over caring for unaccompanied immigrant minors in 2002, the number of young, solo immigrants in the program has risen from 13,625 children in fiscal year 2012 to 57,496 in fiscal year 2014. The number dropped to 33,726 referrals last fiscal year, according to ORR data.