Flast v Cohen

8/20/2019 Flast v Cohen

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Case Summary

A federal court ruled that Flast and the other plaintiffs did not have standing as taxpayersto challenge the use of federal funds for religious schools. “Standing” is a legalrequirement under which a person can only file suit if he or she has a personal stake in

the outcome of the case. The plaintiffs then appealed to the Supreme ourt.

The Courts !e"#s#o$

!n an "#$ decision% the Supreme ourt held that the taxpayers who &rought suit tochallenge the constitutionality of federal taxing and spending programs do have thenecessary legal standing to o&tain federal court review. hief 'ustice (arl )arren wrotefor the ma*ority% citing the earlier case of Frothingham v. Mellon, $+,-. !n that case%)arren wrote% “this ourt ruled that a federal taxpayer is without standing to challengethe constitutionality of a federal statute. !n this case% we must decide whether theFrothingham &arrier should &e lowered when a taxpayer attacks a federal statute on the

ground that it violates the (sta&lishment and Free (xercise lauses of the First Amendment.” hief 'ustice )arren noted that% in contrast to Frothingham, the currentcase of Flast was a&out a violation of the (sta&lishment lause of the First Amendment%which prohi&its any government action leading to the “esta&lishment of religion.” Theourt concluded that the plaintiffs were appropriate plaintiffs &ecause they had sufficientpersonal interest in preventing the use of their tax money for this purpose.'ustice 'ohn /arlan dissented. /e argued that a taxpayer may refuse to pay a tax ormay sue for return of a tax wrongfully collected% &ut may not sue to “challenge theconstitutionality of the uses for which ongress has authori0ed the expenditure of pu&licfunds.”

%ore o$ the Case

The Supreme ourt revisited the issues in Flast in $+",% when the ourt decided ValleyForge College v. Americans United for Separation of Church and State. ongress hadauthori0ed the Secretary of /ealth% (ducation% and )elfare 1/()2 to dispose of federal“surplus property.” /() transferred a former military hospital to a church#related college.

Americans 3nited and several individuals &rought suit in federal court% claiming that thetransfer violated the (sta&lishment lause and made unconstitutional use of their taxdollars. !n a 4#5 decision% the Supreme ourt ruled that these plaintiffs did not havestanding to sue. 'ustice )illiam 6ehnquist noted that the plaintiffs o&*ected to a decision

&y /() and not an action &y ongress% and that they alleged no concrete personalin*ury.!n his dissent% 'ustice )illiam 7rennan wrote that “!t may &e that ongress can tax foralmost any reason% or for no reason at all. There is% so far as ! have &een a&le to discern%&ut one constitutionally imposed limit on that authority. ongress cannot use tax moneyto support a church% or to encourage religion.” 'ustice 7rennan argued that there is nopractical way for a taxpayer to challenge an unconstitutional expenditure when the tax iscollected. “Surely% then% a taxpayer must have standing at the time that he learns of the8overnment9s alleged (sta&lishment lause violation to seek equita&le relief in order tohalt the continuing and intolera&le &urden on his pocket&ook% his conscience% and hisconstitutional rights.”

E&eme$ts 'or the E(er"#se o' )u*#"#a& Po+er , STAN!-N.




U/S/ Su0reme CourtF&ast / Cohe$ 392 U/S/ 83 19485F&ast / Cohe$No/ 614

Argue* %ar"h 12 1948!e"#*e* )u$e 17 1948392 U/S/ 83

APPEAL F!M "#E U$%"E& S"A"ES &%S"%C" C!U" F! "#E S!U"#E$ &%S"%C" !F $E' (!)

Sylla*us Appellant taxpayers allege that federal funds have &een dis&ursed &y appellee federalofficials under the (lementary and Secondary (ducation Act of $+:4 to finance

instruction and the purchase of educational materials for use in religious and sectarianschools% in violation of the (sta&lishment and Free (xercise lauses of the First Amendment. Appellants sought a declaration that the expenditures were not authori0ed&y the Act or% in the alternative% that the Act is to that extent unconstitutional% andrequested the convening of a three#*udge court. A three#*udge court ruled% on theauthority of Frothingham +. Mellon, ,:, 3. S. 55; 1$+,-2% that appellants lacked standingto maintain the action.

#eld$. The three#*udge court was properly convened% as the constitutional attack% even

though focused on the program9s operations in <ew =ork ity% would% if successful% affectthe entire regulatory scheme of the statute% and the complaint alleged a constitutionalground for relief% al&eit one coupled with an alternative nonconstitutional ground. >p. -+,3. S. ""#+$.

,. There is no a&solute &ar in Art. !!! of the onstitution to suits &y federal taxpayerschallenging allegedly unconstitutional federal taxing and spending programs% since thetaxpayers may or may not have the requisite personal stake in the outcome. >p. -+, 3.S. +$#$?$.

-. To maintain an action challenging the constitutionality of a federal spending program%individuals must demonstrate the necessary stake as taxpayers in the outcome of thelitigation to satisfy Art. !!! requirements. >p. -+, 3. S. $?,#$?-.1a2 Taxpayers must esta&lish a logical link &etween that status and the type of legislativeenactment attacked% as it will not &e sufficient to allege an incidental expenditure of taxfunds in the administration of an essentially regulatory statute. >. -+, 3. S. $?,.1&2 Taxpayers must also esta&lish a nexus &etween that status and the precise nature of the constitutional infringement alleged. They must show that the statute exceeds specificconstitutional>age -+, 3. S. "5limitations on the exercise of the taxing and spending power% and not simply that the

enactment is generally &eyond the powers delegated to ongress &y Art. !% @ ". >p.$ -+, 3. S. ?,#$?-.


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5. The taxpayer appellants here have standing consistent with Art. !!! to invoke federal *udicial power% since they have alleged that tax money is &eing spent in violation of aspecific constitutional protection against the a&use of legislative power% i.e., the(sta&lishment lause of the First Amendment. Frothingham +. Mellon,

supra, distinguished. >p. -+, 3. S. $?-#$?:.,;$ F.Supp. $% reversed.

6. /!(F '3ST!( )A66(< delivered the opinion of the ourt.!n Frothingham +. Mellon, ,:, 3. S. 55; 1$+,-2% this ourt ruled that a federal taxpayer iswithout standing to challenge the constitutionality of a federal statute. That ruling hasstood for 54 years as an impenetra&le &arrier to suits against Acts of ongress &rought&y individuals who can assert only the interest of federal taxpayers. !n this case% we mustdecide whether the Frothingham&arrier should &e lowered when a taxpayer attacks afederal statute on the ground that it violates the (sta&lishment and Free (xercise

lauses of the First Amendment.

Appellants filed suit in the 3nited States Bistrict ourt for the Southern Bistrict of <ew=ork to en*oin the allegedly unconstitutional expenditure of federal funds under Titles !and !! of the (lementary and Secondary (ducation Act of $+:4% ;+ Stat. ,;% ,? 3.S.. @@,5$a et se-., ",$ et se-. 1$+:5 ed.% Supp. !!2. The complaint alleged that the sevenappellants had as a common attri&ute that Ceach payDsE income taxes of the 3nitedStates%C and it is clear from the complaint that the appellants were resting their standingto maintain the action solely on their status as federal taxpayers. DFootnote $E Theappellees% who are charged &y ongress with administering the (lementary and

Secondary (ducation Act of $+:4% were sued in their official capacities.The gravamen of the appellants9 complaint was that federal funds appropriated under the Act were &eing used to finance instruction in reading% arithmetic% and other su&*ects inreligious schools% and to purchase text&ooks and other instructional materials for use insuch schools. Such expenditures were alleged to &e in contravention of the(sta&lishment and Free (xercise lauses of the First Amendment. Appellants9constitutional attack focused on the statutory criteria which state and local authoritiesmust meet to &e eligi&le for federal grants under the Act. Title ! of the Act esta&lishes aprogram for financial assistance to local educational agencies for the education of lowincome families. Federal payments are made to state educational agencies% which passthe payments on in the form of grants to local educational agencies. 3nder @ ,?4 of the

Act% ,? 3.S.. @ ,5$e% a local educational agency wishing to have a plan or programfunded &y a grant must su&mit the plan or program to the appropriate state educationalagency for approval. The plan or program must &e Cconsistent with such &asic criteria asthe Dappellee 3nited States ommissioner of (ducationE may esta&lish.C The specificcriterion of that section attacked &y the appellants is the requirement Cthat% to the extentconsistent with the num&er of educationally deprived children in the school district of thelocal educational agency who are enrolled in private elementary and secondary schools%such agency has made provision for including special educational services andarrangements 1such as dual enrollment% educational radio and television% and mo&ileeducational services and equipment2 in which such children can participate. . . .C






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,? 3.S.. @ ,5$e1a21,2. 3nder @ ,?: of the Act% ,? 3.S.. @ ,5$f% the ommissioner of (ducation is given &road powers to supervise a State9s participation in Title ! programsand grants. Title !! of the Act esta&lishes a program of federal grants for the acquisition of school li&rary resources% text&ooks%

>age -+, 3. S. ";and other printed and pu&lished instructional materials Cfor the use of children andteachers in pu&lic and private elementary and secondary schools.C ,? 3.S.. @ ",$. AState wishing to participate in the program must su&mit a plan to the ommissioner for approval% and the plan must Cprovide assurance that% to the extent consistent with law%such li&rary resources% text&ooks% and other instructional materials will &e provided on anequita&le &asis for the use of children and teachers in private elementary and secondaryschools in the State. . . .C

,? 3.S.. @ ",-1a21-21&2. )hile disclaiming any intent to challenge as unconstitutional allprograms under Title ! of the Act% the complaint alleges that federal funds have &eendis&ursed under the Act% Cwith the consent and approval of the DappelleesE%C and thatsuch funds have &een used and will continue to &e used to finance Cinstruction inreading% arithmetic and other su&*ects and for guidance in religious and sectarianschoolsC and Cthe purchase of text&ooks and instructional and li&rary materials for use inreligious and sectarian schools.C Such expenditures of federal tax funds% appellantsalleged% violate the First Amendment &ecause Cthey constitute a law respecting anesta&lishment of religionC and &ecause Cthey prohi&it the free exercise of religion on thepart of the DappellantsE . . . &y reason of the fact that they constitute compulsory taxation

for religious purposes.CThe complaint asked for a declaration that appellees9 actions in approving theexpenditure of federal funds for the alleged purposes were not authori0ed &y the Act or%in the alternative% that% if appellees9 actions are deemed within the authority and intent of the Act% Cthe Act is to that extent unconstitutional and void.C The complaint also prayedfor an in*unction to en*oin appellees from approving any expenditure of federal funds for the allegedly unconstitutional purposes. The complaint further requested that a three#

*udge court &e convened as provided in ," 3.S.. @@ ,,",% ,,"5.

The 8overnment moved to dismiss the complaint on the ground that appellants lackedstanding to maintain the action. Bistrict 'udge Frankel% who considered the motion%recogni0ed that Frothingham +. Mellon, supra, provided CpowerfulC support for the8overnment9s position% &ut he ruled that the standing question was of sufficientsu&stance to warrant the convening of a three#*udge court to decide the question. ,:;F.Supp. -4$ 1$+:;2. The three#*udge court received &riefs and heard arguments limitedto the standing question% and the court ruled on the authority of Frothingham thatappellants lacked standing. 'udge Frankel dissented. ,;$ F.Supp. $ 1$+:;2. From thedismissal of their complaint on that ground% appellants appealed directly to this ourt% ,"3.S.. @ $,4-% and we noted pro&a&le *urisdiction. -"+ 3.S. "+4 1$+:;2. For reasonsexplained at length &elow% we hold that appellants do have standing as federal taxpayersto maintain this action% and the *udgment &elow must &e reversed.

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)e must deal first with the 8overnment9s contention that this ourt lacks *urisdiction ondirect appeal &ecause a three#*udge court was improperly convened &elow. DFootnote ,E3nder ," 3.S.. @ $,4-% direct appeal to this ourt from a district court lies onlyCfrom an order granting or denying . . . an interlocutory or permanent in*unction in any

civil action% suit or proceeding required &y any Act of ongress to &e heard anddetermined &y a district court of three *udges.C

Thus% if the 8overnment is correct% we lack *urisdiction over this direct appeal.The 8overnment9s argument on this question is two#pronged. First% noting that appellantshave conceded that the case should &e deemed one limited to the practices of the <ew=ork ity 7oard of (ducation% the 8overnment contends that appellants wish only tofor&id specific local programs which they find o&*ectiona&le% and not to en*oin theoperation of the &road range of programs under the statutory scheme. nly if the latter relief is sought% the 8overnment argues% can a three#*udge court properly &e convened

under ," 3.S.. @ ,,",. )e cannot accept the 8overnment9s argument in the context of this case. !t is true that the appellants9 complaint makes specific reference to the <ew=ork ity 7oard of (ducation9s programs which are funded under the challenged statute%and we can assume that appellants9 proof at trial would focus on those <ew =ork ityprograms. /owever% we view these allegations of the complaint as imparting specificityand focus to the issues in the lawsuit% and not as limiting the impact of the constitutionalchallenge made in this case. The in*unctive relief sought &y appellants is not limited toprograms in operation in <ew =ork ity% &ut extends to any program that would have theunconstitutional features alleged in the complaint. ongress enacted @ ,,",Cto prevent a single federal *udge from &eing a&le to paraly0e totally the operation of an

entire regulatory scheme . . . &y issuance of a &road in*unctive order.C

)ennedy +. Mendoa/Martine, -;, 3. S. $55% -;, 3. S. $45 1$+:-2. !f the Bistrict ourtin this case were to rule for appellants on the merits of their constitutional attack on <ew=ork ity9s federally funded programs% that decision would cast sufficient dou&t on similar programs elsewhere as to cause confusion approaching paralysis to surround thechallenged statute. Therefore% even if the in*unction which might issue in this case werenarrower than that sought &y appellants% we are satisfied that the legislative policyunderlying @ ,,", was served &y the convening of a three#*udge court% despiteappellants9 focus on <ew =ork ity9s programs.Secondly% the 8overnment argues that a three#*udge court should not have &eenconvened% &ecause appellants question not the constitutionality of the (lementary andSecondary (ducation Act of $+:4% &ut its administration. DFootnote -E The decisionin 0emel +. us1, -"$ 3. S. $ 1$+:42% is dispositive on this issue. !t is true that appellants9complaint states a nonconstitutional ground for relief% namely% that appellees9 actions inapproving the expenditure of federal funds for allegedly unconstitutional programs are inexcess of their authority under the Act. /owever% the complaint also requests analternative and constitutional ground for relief% namely% a declaration that% if appellees9actions Care within the authority and intent of the Act% the Act is% to that extent%unconstitutional and void.C The ourt noted in 0emel +. us1, supra,CD)Ee have often held that a litigant need not a&andon his nonconstitutional arguments in

order to o&tain a three#*udge court.C





















-"$ 3.S. at -"$ 3. S. :. See also Florida Lime 2ro3ers +. 4aco*sen, -:, 3. S.;- 1$+:?2G Allen +. 2rand Central Aircraft Co., -5; 3. S. 4-4 1$+452. The complaint in thiscase falls within that rule.Thus% since the three#*udge court was properly convened &elow% DFootnote 5E direct

appeal to this ourt is proper. )e turn now to the standing question presented &y thiscase.

--This ourt first faced squarely DFootnote 4E the question whether a litigant asserting onlyhis status as a taxpayer has standing to maintain a suit in a federal court in Frothingham+. Mellon, supra, and that decision must &e the starting point for analysis in this case.The taxpayer in Frothingham attacked as unconstitutional the aternity Act of $+,$% 5,Stat. ,,5% which esta&lished a federal program of grants to those States which wouldundertake programs to reduce maternal and infant mortality. The taxpayer alleged that

ongress% in enacting the challenged statute% had exceeded the powers delegated to itunder Article ! of the onstitution and had invaded the legislative province reserved tothe several States &y the Tenth Amendment. The taxpayer complained that the result of the allegedly unconstitutional enactment would &e to increase her future federal taxlia&ility% and Cthere&y take her property without due process of law.C ,:, 3.S. at ,:, 3. S.5":. The ourt noted that a federal taxpayer9s Cinterest in the moneys of the Treasury . . .is comparatively minute and indetermina&le%C and that Cthe effect upon future taxation% of any payment out of the DTreasury9sE funds% . . . DisE remote% fluctuating anduncertain.C %d. at ,:, 3. S. 5";. As a result% the ourt ruled that the taxpayer had failedto allege the type of Cdirect in*uryC necessary to confer standing. %d. at ,:, 3. S. 5"".

Although the &arrier Frothingham erected against federal taxpayer suits has never &een&reached% the decision has &een the source of some confusion% and the o&*ect of considera&le criticism. The confusion has developed as commentators have tried todetermine whether Frothingham esta&lishes a constitutional &ar to taxpayer suits or whether the ourt was simply imposing a rule of self#restraint which was notconstitutionally compelled. DFootnote :E The conflicting viewpoints are reflected in thearguments made to this ourt &y the parties in this case. The 8overnment has pressedupon us the view that Frothingham announced a constitutional rule% compelled &y the

Article !!! limitations on federal court *urisdiction and grounded in considerations of thedoctrine of separation of powers. Appellants% however% insist that Frothingham expressedno more than a policy of *udicial self#restraint which can &e disregarded when compellingreasons for assuming *urisdiction over a taxpayer9s suit exist. The opinion deliveredin Frothingham can &e read to support either position. DFootnote ;E The concludingsentence of the opinion states that to take *urisdiction of the taxpayer9s suit Cwould &e notto decide a *udicial controversy% &ut to assume a position of authority over thegovernmental acts of another and coequal department% an authority which plainly we donot possess.C

,:, 3.S. at ,:, 3. S. 5"+. =et the concrete reasons given for denying standing to afederal taxpayer suggest that the ourt9s holding rests on something less than aconstitutional foundation. For example% the ourt conceded that standing had previously

&een conferred on municipal taxpayers to sue in that capacity. /owever% the ourtviewed the interest of a federal taxpayer in total federal tax revenues as Ccomparatively










































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minute and indetermina&leC when measured against a municipal taxpayer9s interest in asmaller city treasury. %d. at ,:, 3. S. 5":#5";. This suggests that the petitioner in Frothingham was denied standing not &ecause she was a taxpayer% &ut &ecause her tax &ill was not large enough. !n addition% the ourt spoke of the Cattendant

inconveniencesC of entertaining that taxpayer9s suit &ecause it might open the door of federal courts to countless such suits Cin respect of every other appropriation act andstatute whose administration requires the outlay of pu&lic money% and whose validity may&e questioned.C

%d. at ,:, 3. S. 5";. Such a statement suggests pure policy considerations. To the extentthat Frothingham has &een viewed as resting on policy considerations% it has &eencritici0ed as depending on assumptions not consistent with modern conditions. For example% some commentators have pointed out that a num&er of corporate taxpayerstoday have a federal tax lia&ility running into hundreds of millions of dollars% and such

taxpayers have a far greater monetary stake in the Federal Treasury than they do in anymunicipal treasury. DFootnote "E To some degree% the fear expressed in Frothinghamthatallowing one taxpayer to sue would inundate the federal courts with countless similar suits has &een mitigated &y the ready availa&ility of the devices of class actions and

*oinder under the Federal 6ules of ivil >rocedure% adopted su&sequent to the decisionin Frothingham. DFootnote +E )hatever the merits of the current de&ateover Frothingham, its very existence suggests that we should undertake a freshexamination of the limitations upon standing to sue in a federal court and the applicationof those limitations to taxpayer suits.

---The *urisdiction of federal courts is defined and limited &y Article !!! of the onstitution. !nterms relevant to the question for decision in this case% the *udicial power of federalcourts is constitutionally restricted to CcasesC and Ccontroversies.C As is so often thesituation in constitutional ad*udication% those two words have an ice&erg quality%containing &eneath their surface simplicity su&merged complexities which go to the veryheart of our constitutional form of government. (m&odied in the words CcasesC andCcontroversiesC are two complementary &ut somewhat different limitations. !n part% thosewords limit the &usiness of federal courts to questions presented in an adversary contextand in a form historically viewed as capa&le of resolution through the *udicial process.

And in part those words define the role assigned to the *udiciary in a tripartite allocationof power to assure that the federal courts will not intrude into areas committed to theother &ranches of government. 'usticia&ility is the term of art employed to giveexpression to this dual limitation placed upon federal courts &y the Ccase andcontroversyC doctrine.

'usticia&ility is itself a concept of uncertain meaning and scope. !ts reach is illustrated &y

the various grounds upon which questions sought to &e ad*udicated in federal courtshave &een held not to &e *usticia&le. Thus% no *usticia&le controversy is presented when

















the parties seek ad*udication of only a political question% DFootnote $?E when the partiesare asking for an advisory opinion% DFootnote $$E when the question sought to &ead*udicated has &een mooted &y su&sequent developments% DFootnote $,E and whenthere is no standing to maintain the action. DFootnote $-E =et it remains true that

CD*Eusticia&ility is . . . not a legal concept with a fixed content or suscepti&le of scientificverification. !ts utili0ation is the resultant of many su&tle pressures. . . .CPoe +. Ullman, -:; 3. S. 5+;% -:; 3. S. 4?" 1$+:$2.

>art of the difficulty in giving precise meaning and form to the concept of *usticia&ilitystems from the uncertain historical antecedents of the Ccase and controversyC doctrine.For example% r. 'ustice Frankfurter twice suggested that historical meaning could &eimparted to the concepts of *usticia&ility and case and controversy &y reference to thepractices of the courts of )estminster when the onstitution was adopted. 4oint Anti/Fascist Committee +. Mc2rath, -5$ 3. S. $,-% -5$ 3. S. $4? 1$+4$2 1concurring

opinion2G Coleman +. Miller, -?; 3. S. 5--% -?; 3. S. 5:? 1$+-+2 1separate opinion2./owever% the power of (nglish *udges to deliver advisory opinions was well esta&lishedat the time the onstitution was drafted. - H. Bavis% Administrative Iaw Treatise $,;#$,"1$+4"2. And it is quite clear that Cthe oldest and most consistent thread in the federal lawof *usticia&ility is that the federal courts will not give advisory opinions.C . )right%Federal ourts -5 1$+:-2. DFootnote $5E Thus% the implicit policies em&odied in Article !!!%and not history alone% impose the rule against advisory opinions on federal courts. )henthe federal *udicial power is invoked to pass upon the validity of actions &y the Iegislativeand (xecutive 7ranches of the 8overnment% the rule against advisory opinionsimplements the separation of powers prescri&ed &y the onstitution and confines federal

courts to the role assigned them &y Article !!!.See Mus1rat +. United States, ,$+ 3. S.-5: 1$+$$2G - /. 'ohnston% orrespondence and >u&lic >apers of 'ohn 'ay 5":#5"+1$"+$2 1correspondence &etween Secretary of State 'efferson and hief 'ustice 'ay2./owever% the rule against advisory opinions also recogni0es that such suits oftenCare not pressed &efore the ourt with that clear concreteness provided when a questionemerges precisely framed and necessary for decision from a clash of adversaryargument exploring every aspect of a multi#faced situation em&racing conflicting anddemanding interests.CUnited States +. Fruehauf, -:4 3. S. $5:% -:4 3. S. $4; 1$+:$2. onsequently% the Article!!! prohi&ition against advisory opinions reflects the complementary constitutionalconsiderations expressed &y the *usticia&ility doctrineJ federal *udicial power is limited tothose disputes which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to &e capa&le of resolution throughthe *udicial process.

Additional uncertainty exists in the doctrine of *usticia&ility &ecause that doctrine has&ecome a &lend of constitutional requirements and policy considerations. And a policylimitation is Cnot always clearly distinguished from the constitutional limitation.C 5arro3s+. 4ac1son,-5: 3. S. ,5+% -5: 3. S. ,44 1$+4-2. For example% in his concurring opinionin Ash3ander +. "ennessee Valley Authority, ,+; 3. S. ,""% ,+; 3. S. -54#-5" 1$+-:2%r. 'ustice 7randeis listed seven rules developed &y this ourt Cfor its own governanceC

to avoid passing prematurely on constitutional questions. 7ecause the rules operate inCcases confessedly within Dthe ourt9sE *urisdiction%C id. at,+; 3. S. -5:% they find their

























































source in policy% rather than purely constitutional% considerations. /owever% several of thecases cited &y r. 'ustice 7randeis in illustrating the rules of self#governance articulatedpurely constitutional grounds for decision. See, e.g., Massachusetts +. Mellon, ,:, 3. S.55; 1$+,-2G Fairchild +. #ughes, ,4" 3. S. $,: 1$+,,2G Chicago 6 2rand "run1 . Co. +.

'ellman, $5- 3. S. --+ 1$"+,2. The Cmany su&tle pressuresC DFootnote $4E which causepolicy considerations to &lend into the constitutional limitations of Article !!! make the

*usticia&ility doctrine one of uncertain and shifting contours.

!t is in this context that the standing question presented &y this case must &e viewed andthat the 8overnment9s argument on that question must &e evaluated. As we understandit% the 8overnment9s position is that the constitutional scheme of separation of powers%and the deference owed &y the federal *udiciary to the other two &ranches of governmentwithin that scheme% present an a&solute &ar to taxpayer suits challenging the validity of federal spending programs. The 8overnment views such suits as involving no more than

the mere disagreement &y the taxpayer Cwith the uses to which tax money is put.CDFootnote $:E According to the 8overnment% the resolution of such disagreements iscommitted to other &ranches of the Federal 8overnment% and not to the *udiciary.onsequently% the 8overnment contends that under no circumstances should standing&e conferred on federal taxpayers to challenge a federal taxing or spending program.DFootnote $;E An analysis of the function served &y standing limitations compels are*ection of the 8overnment9s position.Standing is an aspect of *usticia&ility% and% as such% the pro&lem of standing issurrounded &y the same complexities and vagaries that inhere in *usticia&ility.

Standing has &een called one of Cthe most amorphous DconceptsE in the entire domain of pu&lic law.C DFootnote $"E Some of the complexities peculiar to standing pro&lems result&ecause standing Cserves% on occasion% as a shorthand expression for all the variouselements of *usticia&ility.C DFootnote $+E !n addition% there are at work in the standingdoctrine the many su&tle pressures which tend to cause policy considerations to &lendinto constitutional limitations. DFootnote ,?E

Bespite the complexities and uncertainties% some meaningful form can &e given to the *urisdictional limitations placed on federal court power &y the concept of standing. Thefundamental aspect of standing is that it focuses on the party seeking to get hiscomplaint &efore a federal court% and not on the issues he wishes to have ad*udicated.The Cgist of the question of standingC is whether the party seeking relief hasCalleged such a personal stake in the outcome of the controversy as to assure thatconcrete adverseness which sharpens the presentation of issues upon which the courtso largely depends for illumination of difficult constitutional questions.C

5a1er +. Carr, -:+ 3. S. $":% -:+ 3. S. ,?5 1$+:,2. !n other words% when standing isplaced in issue in a case% the question is whether the person whose standing ischallenged is a proper party to request an ad*udication of a particular issue% and notwhether the issue itself is *usticia&le. DFootnote ,$E Thus% a party may have standing in aparticular case% &ut the federal court may nevertheless decline to pass on the merits of

the case &ecause% for example% it presents a political question. DFootnote ,,E A proper party is demanded so that federal courts will not &e asked to decide Cill#defined









































controversies over constitutional issues%C United Pu*lic 'or1ers +. Mitchell, --? 3. S.;4% --? 3. S. +? 1$+5;2% or a case which is of Ca hypothetical or a&stractcharacter%C Aetna Life %nsurance Co. +. #a3orth, -?? 3. S. ,,;% -?? 3. S. ,5? 1$+-;2. Sostated% the standing requirement is closely related to% although more general than% the

rule that federal courts will not entertain friendly suits% Chicago 6 2rand "run1 . Co. +.'ellman, supra, or those which are feigned or collusive in nature% United States +.4ohnson,-$+ 3. S. -?, 1$+5-2G Lord +. Veaie, " /ow. ,4$ 1$"4?2.)hen the emphasis in the standing pro&lem is placed on whether the person invoking afederal court9s *urisdiction is a proper party to maintain the action% the weakness of the8overnment9s argument in this case &ecomes apparent. The question whether aparticular person is a proper party to maintain the action does not% &y its own force% raiseseparation of powers pro&lems related to improper *udicial interference in areascommitted to other &ranches of the Federal 8overnment. Such pro&lems arise% if at all%only from the su&stantive issues the individual seeks to have ad*udicated. Thus% in terms

of Article !!! limitations on federal court *urisdiction% the question of standing is relatedonly to whether the dispute sought to &e ad*udicated will &e presented in an adversarycontext and in a form historically viewed as capa&le of *udicial resolution. !t is for thatreason that the emphasis in standing pro&lems is on whether the party invoking federalcourt *urisdiction has Ca personal stake in the outcome of the controversy%C 5a1er +. Carr,supra, at -:+ 3. S. ,?5% and whether the dispute touches upon Cthe legal relations of parties having adverse legal interests.C Aetna Life %nsurance Co. +. #a3orth,supra, at -?? 3. S. ,5?#,5$. A taxpayer may or may not have the requisite personalstake in the outcome% depending upon the circumstances of the particular case.Therefore% we find no a&solute &ar in Article !!! to suits &y federal taxpayers challenging

allegedly unconstitutional federal taxing and spending programs. There remains%however% the pro&lem of determining the circumstances under which a federal taxpayer will &e deemed to have the personal stake and interest that impart the necessaryconcrete adverseness to such litigation so that standing can &e conferred on thetaxpayer -ua taxpayer consistent with the constitutional limitations of Article !!!.

-VThe various rules of standing applied &y federal courts have not &een developed in thea&stract. 6ather% they have &een fashioned with specific reference to the status asserted&y the party whose standing is challenged and to the type of question he wishes to havead*udicated. )e have noted that% in deciding the question of standing% it is not relevantthat the su&stantive issues in the litigation might &e non*usticia&le. /owever% our decisions esta&lish that% in ruling on standing% it is &oth appropriate and necessary tolook to the su&stantive issues for another purpose% namely% to determine whether there isa logical nexus &etween the status asserted and the claim sought to &e ad*udicated. For example% standing requirements will vary in First Amendment religion cases dependingupon whether the party raises an (sta&lishment lause claim or a claim under the Free(xercise lause. See Mc2o3an +. Maryland, -:: 3. S. 5,?% -:: 3. S. 5,+#5-? 1$+:$2.Such inquiries into the nexus &etween the status asserted &y the litigant and the claim hepresents are essential to assure that he is a proper and appropriate party to invokefederal *udicial power. Thus% our point of reference in this case is the standing of

individuals who assert only the status of federal taxpayers and who challenge theconstitutionality of a federal spending program. )hether such individuals have standing









































to maintain that form of action turns on whether they can demonstrate the necessarystake as taxpayers in the outcome of the litigation to satisfy Article !!! requirements.The nexus demanded of federal taxpayers has two aspects to it. First% the taxpayer mustesta&lish a logical link &etween that status and the type of legislative enactment

attacked. Thus% a taxpayer will &e a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. !% @ "% of the onstitution. !t will not &e sufficient to allege an incidental expenditure of tax funds inthe administration of an essentially regulatory statute. This requirement is consistent withthe limitation imposed upon state#taxpayer standing in federal courts in &oremus +.5oard of Education, -5, 3. S. 5,+ 1$+4,2. Secondly% the taxpayer must esta&lish anexus &etween that status and the precise nature of the constitutional infringementalleged. 3nder this requirement% the taxpayer must show that the challenged enactmentexceeds specific constitutional limitations imposed upon the exercise of thecongressional taxing and spending power% and not simply that the enactment is generally

&eyond the powers delegated to ongress &y Art. !% @ ". )hen &oth nexuses areesta&lished% the litigant will have shown a taxpayer9s stake in the outcome of thecontroversy% and will &e a proper and appropriate party to invoke a federal court9s

*urisdiction.

The taxpayer appellants in this case have satisfied &oth nexuses to support their claim of standing under the test we announce today. Their constitutional challenge is made to anexercise &y ongress of its power under Art. !% @ "% to spend for the general welfare% andthe challenged program involves a su&stantial expenditure of federal tax funds. DFootnote,-E !n addition% appellants have alleged that the challenged expenditures violate the

(sta&lishment and Free (xercise lauses of the First Amendment. ur history vividlyillustrates that one of the specific evils feared &y those who drafted the (sta&lishmentlause and fought for its adoption was that the taxing and spending power would &eused to favor one religion over another or to support religion in general. 'ames adison%who is generally recogni0ed as the leading architect of the religion clauses of the First

Amendment% o&served in his famous emorial and 6emonstrance Against 6eligious Assessments that Cthe same authority which can force a citi0en to contri&ute three penceonly of his property for the support of any one esta&lishment may force him to conform toany other esta&lishment in all cases whatsoever.C

, )ritings of 'ames adison $"-% $": 1/unt ed.$+?$2. The concern of adison and hissupporters was quite clearly that religious li&erty ultimately would &e the victim if government could employ its taxing and spending powers to aid one religion over another or to aid religion in general. DFootnote ,5E The (sta&lishment lause wasdesigned as a specific &ulwark against such potential a&uses of governmental power%and that clause of the First Amendment DFootnote ,4E operates as a specificconstitutional limitation upon the exercise &y ongress of the taxing and spending power conferred &y Art. !% @ ".

The allegations of the taxpayer in Frothingham +. Mellon, supra, were quite different fromthose made in this case% and the result inFrothingham is consistent with the test of

taxpayer standing announced today. The taxpayer in Frothingham attacked a federalspending program% and she% therefore% esta&lished the first nexus required. /owever%


















she lacked standing &ecause her constitutional attack was not &ased on an allegationthat ongress% in enacting the aternity Act of $+,$% had &reached a specific limitationupon its taxing and spending power. The taxpayer in Frothingham alleged essentially thatongress% &y enacting the challenged statute% had exceeded the general powers

delegated to it &y Art. !% @ "% and that ongress had there&y invaded the legislativeprovince reserved to the States &y the Tenth Amendment. To &e sure% rs. Frothinghammade the additional allegation that her tax lia&ility would &e increased as a result of theallegedly unconstitutional enactment% and she framed that allegation in terms of adeprivation of property without due process of law. /owever% the Bue >rocess lause of the Fifth Amendment does not protect taxpayers against increases in tax lia&ility% and thetaxpayer in Frothingham failed to make any additional claim that the harm she allegedresulted from a &reach &y ongress of the specific constitutional limitations imposedupon an exercise of the taxing and spending power. !n essence% rs. Frothingham wasattempting to assert the States9 interest in their legislative prerogatives% and not a federal

taxpayer9s interest in &eing free of taxing and spending in contravention of specificconstitutional limitations imposed upon ongress9 taxing and spending power.

)e have noted that the (sta&lishment lause of the First Amendment does specificallylimit the taxing and spending power conferred &y Art. !% @ ". )hether the onstitutioncontains other specific limitations can &e determined only in the context of future cases./owever% whenever such specific limitations are found% we &elieve a taxpayer will have aclear stake as a taxpayer in assuring that they are not &reached &y ongress.

onsequently% we hold that a taxpayer will have standing consistent with Article !!! to

invoke federal *udicial power when he alleges that congressional action under the taxingand spending clause is in derogation of those constitutional provisions which operate torestrict the exercise of the taxing and spending power. The taxpayer9s allegation in suchcases would &e that his tax money is &eing extracted and spent in violation of specificconstitutional protections against such a&uses of legislative power. Such an in*ury isappropriate for *udicial redress% and the taxpayer has esta&lished the necessary nexus&etween his status and the nature of the allegedly unconstitutional action to support hisclaim of standing to secure *udicial review. 3nder such circumstances% we feel confidentthat the questions will &e framed with the necessary specificity% that the issues will &econtested with the necessary adverseness% and that the litigation will &e pursued with thenecessary vigor to assure that the constitutional challenge will &e made in a formtraditionally thought to &e capa&le of *udicial resolution. )e lack that confidence in cases%such as Frothingham, where a taxpayer seeks to employ a federal court as a forum inwhich to air his generali0ed grievances a&out the conduct of government or theallocation of power in the Federal System.

)hile we express no view at all on the merits of appellants9 claims in this case% DFootnote,:E their complaint contains sufficient allegations under the criteria we have outlined togive them standing to invoke a federal court9s *urisdiction for an ad*udication on themerits.e+ersed.







Documents

Flast v Cohen