Caseflicks

Supreme Court of the United States • 1968

Flast v. Cohen

392 U.S. 83 | 88 S. Ct. 1942 | 20 L. Ed. 2d 947 | 1968 U.S. LEXIS 1347

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Takeaway

In short, Flast created a narrow exception to the general bar on federal taxpayer standing: taxpayers may challenge congressional spending that allegedly violates a specific constitutional limit on the taxing and spending power, most notably the Establishment Clause.

Background

Federal taxpayers sued federal education officials to enjoin expenditures under Titles I and II of the Elementary and Secondary Education Act of 1965. They alleged that federal funds were being used to provide instructional services, textbooks, and library materials to religious schools, in violation of the Establishment and Free Exercise Clauses. Their asserted basis for standing was solely their status as federal income taxpayers.

A single district judge convened a three-judge district court to address standing. The three-judge court dismissed under Frothingham v. Mellon, which had generally denied federal taxpayers standing to challenge federal spending. Judge Frankel dissented. The taxpayers appealed directly to the Supreme Court.

Issues

Issue #1

Whether the Supreme Court had direct appellate jurisdiction because the three-judge district court was properly convened.

Holding

Yes. The three-judge court was properly convened, so direct appeal under 28 U.S.C. § 1253 was proper.

Reasoning

Although the complaint referred specifically to New York City programs, the requested injunction was not confined to New York City. A ruling that those federally funded programs were unconstitutional could cast doubt on comparable programs nationwide and disrupt the statutory scheme. That potential effect served the purpose of the three-judge-court statute: preventing a single judge from effectively paralyzing a broad federal program.

The taxpayers also alleged, in the alternative, that if the officials' actions were authorized by the Act, the Act was unconstitutional to that extent. They were not required to abandon their statutory claim that officials exceeded their authority in order to present a substantial constitutional challenge. Thus, the action properly invoked the three-judge procedure.

Issue #2

Whether federal taxpayers had Article III standing to challenge congressional expenditures under the Elementary and Secondary Education Act as violating the religion clauses of the First Amendment.

Holding

Yes. Federal taxpayers have standing when they challenge an exercise of Congress's taxing and spending power as violating a specific constitutional limitation on that power; the taxpayers' Establishment Clause claim met that test.

Reasoning

Article III restricts federal courts to cases and controversies, and standing asks whether the plaintiff has a sufficiently personal stake to ensure concrete adversarial presentation. The Court rejected the Government's proposed absolute rule that a taxpayer can never challenge a federal spending program. A taxpayer's status does not itself create a separation-of-powers problem; the relevant question is whether the taxpayer is an appropriate party to litigate the particular claim.

The Court treated Frothingham as denying standing in its particular setting, not as creating an unqualified constitutional prohibition on taxpayer suits. In Frothingham, the taxpayer objected generally that Congress had exceeded its Article I authority and invaded powers reserved to the States. Her claimed interest in a possible future tax increase was remote, and her claim did not assert a taxpayer's interest in enforcing a particular constitutional restriction on spending.

The Court established a two-part nexus test. First, a taxpayer must show a logical connection between taxpayer status and the type of enactment challenged: the challenged law must be an exercise of Congress's Article I taxing and spending power, rather than a regulatory statute involving only incidental expenditures. Second, the taxpayer must show a nexus between taxpayer status and the constitutional claim: the alleged violation must be of a specific constitutional limitation on the taxing and spending power, not merely a claim that Congress acted beyond its general enumerated powers.

The taxpayers satisfied the first nexus because Titles I and II were congressional spending programs involving substantial federal appropriations. They satisfied the second because the Establishment Clause specifically limits the use of taxing and spending power to support religion. The historical objection to compelled financial support for religion—captured in Madison's objection even to a contribution of “three pence”—made the claimed injury appropriate for judicial resolution.

The Court did not decide the merits of whether the particular educational expenditures actually violated the Establishment or Free Exercise Clauses. It held only that the complaint alleged enough to permit the taxpayers to seek an adjudication on the merits.

Concurrences

Justice Douglas

Reasoning

Justice Douglas joined the Court's opinion but regarded its two-nexus test as unstable. He predicted that the test would erode and ultimately lead to the abandonment of Frothingham, so he would have overruled Frothingham directly rather than preserve it through a narrow exception.

In his view, taxpayers may serve as private attorneys general when government violates specific constitutional guarantees. A taxpayer's financial stake may be small, but the constitutional injury can be grave; state support for religion, even in a small amount, can threaten religious liberty.

Douglas rejected the fear that broader taxpayer standing would turn courts into super-legislatures or flood them with cases. Courts can use ordinary tools—such as ripeness, substantiality, and the distinction between frivolous and genuine disputes—to control their dockets. Where government infringes individual rights, denying access to court can leave persons without effective relief against an increasingly powerful bureaucracy.

Justice Stewart

Reasoning

Justice Stewart understood the decision narrowly. In his view, a taxpayer has standing specifically to challenge an expenditure alleged to violate the Establishment Clause because that Clause directly prohibits taxing and spending in aid of religion.

The case differed from Frothingham because the taxpayer there challenged Congress's general Article I authority rather than invoking an explicit constitutional prohibition on compelled support for religion. The decision therefore did not authorize taxpayers to bring generalized grievances about government spending or the allocation of governmental powers.

Justice Fortas

Reasoning

Justice Fortas would limit the ruling to Establishment Clause challenges to federal expenditures. The history of that Clause supplied a distinctive connection between tax collection, public spending, and the prohibition against using government power to establish religion.

He cautioned against implying that taxpayer status permits attacks on other categories of federal expenditures. The church-state question was exceptionally fundamental and warranted judicial review, but the case did not require opening federal courts to general taxpayer challenges to the spending power.

Dissents

Justice Harlan

Reasoning

Justice Harlan agreed that the Court had direct appellate jurisdiction, but he would have affirmed the dismissal for lack of standing. In his view, taxpayers challenging public expenditures do not seek to vindicate personal or proprietary interests. Their tax payments enter the general treasury, and their claimed right is shared equally by citizens generally; they are therefore bringing public actions as private attorneys general.

Harlan argued that the majority's two-nexus test did not actually measure a plaintiff's personal stake. A taxpayer's interest does not become stronger merely because an expenditure is characterized as a spending program rather than as an incidental cost of regulation, nor does it vary sensibly according to which constitutional provision is invoked.

He also rejected the majority's conclusion that the Establishment Clause creates a uniquely personal taxpayer right. The Clause does not expressly address expenditures, its historical purposes are complex, and other constitutional provisions also constrain Congress's spending power. Treating the Establishment Clause as a special category rested on an uncertain and unprincipled distinction.

Public-interest suits can threaten the proper role of the federal judiciary by inviting courts to supervise broad questions of governmental policy. Harlan would generally permit such suits only when Congress has authorized them. Congress had considered but had not enacted authorization for taxpayer suits challenging federal aid to religious schools; that legislative choice, in his view, counseled judicial restraint.