Flast v. Cohen

392 U.S. 83 (1968)

(Taxpayers and Unconstitutional use of Taxpayer Funds)

 

Context

The plaintiff, Florence Flast and a group of taxpayers, claimed that federal taxpayer money that was being used to finance the purchase of secular textbooks for use in religious schools constituted the establishment of religion through taxpayer funds and was a violation of the Establishment Clause of the First Amendment, and sued the Secretary of Health, Education, and Welfare at the time, Wilbur Cohen. Upon hearing the case, the District Court denied the standing to sue, but the Supreme Court agreed to hear the appeal. The government argued that the separation of powers precluded taxpayers from filing suit over federal taxing and spending programs. In such cases, taxpayer plaintiffs had to satisfy two criteria: clearly establish a connection between their standing as taxpayers and the type of legislation that they are filing suit over, and show that the legislation that they are challenging exceeded the limitations placed on the powers of Congress to tax and spend and not just beyond the general powers given to Congress in Article I Section 8 of the Constitution. The Court ruled 8-1 that the plaintiffs did indeed have the proper standing to sue the federal government over its spending program, as they satisfied both criteria that they had laid out.

Facts:

Appellants filed suit in the United States District Court for the Southern District of New York to enjoin the allegedly unconstitutional expenditure of federal funds under Titles I and II of the Elementary and Secondary Education Act of 1965. The complaint alleged that the seven appellants had as a common attribute that "each pay[s] income taxes of the United States," and it is clear from the complaint that the appellants were resting their standing to maintain the action solely on their status as federal taxpayers. The appellees, who are charged by Congress with administering the Elementary and Secondary Education Act of 1965, were sued in their official capacities.

The gravamen of the appellants' complaint was that federal funds appropriated under the Act were being used to finance instruction in reading, arithmetic, and other subjects in religious schools, and to purchase textbooks and other instructional materials for use in such schools. Such expenditures were alleged to be in contravention of the Establishment and Free Exercise Clauses of the First Amendment. Appellants' constitutional attack focused on the statutory criteria which state and local authorities must meet to be eligible for federal grants under the Act. Title I of the Act establishes a program for financial assistance to local educational agencies for the education of low-income families. Federal payments are made to state educational agencies, which pass the payments on in the form of grants to local educational agencies. Under § 205 of the Act, a local educational agency wishing to have a plan or program funded by a grant must submit the plan or program to the appropriate state educational agency for approval. The plan or program must be "consistent with such basic criteria as the [appellee United States Commissioner of Education] may establish." The specific criterion of that section attacked by the appellants is the requirement

"that, to the extent consistent with the number of educationally deprived children in the school district of the local educational agency who are enrolled in private elementary and secondary schools, such agency has made provision for including special educational services and arrangements (such as dual enrollment, educational radio and television, and mobile educational services and equipment) in which such children can participate . . .."

Under § 206 of the Act, the Commissioner of Education is given broad powers to supervise a State's participation in Title I programs and grants. Title II of the Act establishes a program of federal grants for the acquisition of school library resources, textbooks, and other printed and published instructional materials "for the use of children and teachers in public and private elementary and secondary schools." A State wishing to participate in the program must submit a plan to the Commissioner for approval, and the plan must

"provide assurance that to the extent consistent with law such library resources, textbooks, and other instructional materials will be provided on an equitable basis for the use of children and teachers in private elementary and secondary schools in the State . . .." 

While disclaiming any intent to challenge as unconstitutional all programs under Title I of the Act, the complaint alleges that federal funds have been disbursed under the Act, "with the consent and approval of the [appellees]," and that such funds have been used and will continue to be used to finance "instruction in reading, arithmetic and other subjects and for guidance in religious and sectarian schools" and "the purchase of textbooks and instructional and library materials for use in religious and sectarian schools." Such expenditures of federal tax funds, appellants alleged, violate the First Amendment because "they constitute a law respecting an establishment of religion" and because "they prohibit the free exercise of religion on the part of the [appellants] . . . by reason of the fact that they constitute compulsory taxation for religious purposes." The complaint asked for a declaration that appellees' actions in approving the expenditure of federal funds for the alleged purposes were not authorized by the Act or, in the alternative, that if appellees' actions are deemed within the authority and intent of the Act, "the Act is to that extent unconstitutional and void." The complaint also prayed for an injunction to enjoin appellees from approving any expenditure of federal funds for the allegedly unconstitutional purposes. The complaint further requested that a three-judge court be convened as provided in 28 U. S. C. §§ 2282, 2284.

The Government moved to dismiss the complaint on the ground that appellants lacked standing to maintain the action. District Judge Frankel, who considered the motion, recognized that Frothingham v. Mellon, provided "powerful" support for the Government's position, but he ruled that the standing question was of sufficient substance to warrant the convening of a three-judge court to decide the question. The three-judge court received briefs and heard arguments limited to the standing question, and the court ruled on the authority of Frothingham that appellants lacked standing. Judge Frankel dissented. From the dismissal of their complaint on that ground, appellants appealed directly to this Court, and we noted probable jurisdiction. For reasons explained at length below, we hold that appellants do have standing as federal taxpayers to maintain this action, and the judgment below must be reversed.

Issue:

Do individuals as tax payers have standing to challenge the constitutionality of the government spending money on religious schools under Title I and Title II?

Reasoning:

In Frothingham v. Mellon, this Court ruled that a federal taxpayer is without standing to challenge the constitutionality of a federal statute. That ruling has stood for 45 years as an impenetrable barrier to suits against Acts of Congress brought by individuals who can assert only the interest of federal taxpayers. In this case, we must decide whether the Frothingham barrier should be lowered when a taxpayer attacks a federal statute on the ground that it violates the Establishment and Free Exercise Clauses of the First Amendment.

I.

We must deal first with the Government's contention that this Court lacks jurisdiction on direct appeal because a three-judge court was improperly convened below. 

The Government's argument on this question is two-pronged. First, noting that appellants have conceded that the case should be deemed one limited to the practices of the New York City Board of Education, the Government contends that appellants wish only to forbid specific local programs which they find objectionable and not to enjoin the operation of the broad range of programs under the statutory scheme. Only if the latter relief is sought, the Government argues, can a three-judge court properly be convened under 28 U. S. C. § 2282. We cannot accept the Government's argument in the context of this case. We view these allegations of the complaint as imparting specificity and focus to the issues in the lawsuit and not as limiting the impact of the constitutional challenge made in this case. The injunctive relief sought by appellants is not limited to programs in operation in New York City but extends to any program that would have the unconstitutional features alleged in the complaint. If the District Court in this case were to rule for appellants on the merits of their constitutional attack on New York City's federally funded programs, that decision would cast sufficient doubt on similar programs elsewhere as to cause confusion approaching paralysis to surround the challenged statute. Therefore, even if the injunction which might issue in this case were narrower than that sought by appellants, we are satisfied that the legislative policy underlying § 2282 was served by the convening of a three-judge court, despite appellants' focus on New York City's programs.

Secondly, the Government argues that a three-judge court should not have been convened because appellants question not the constitutionality of the Elementary and Secondary Education Act of 1965 but its administration. It is true that appellants' complaint states a nonconstitutional ground for relief, namely, that appellees' actions in approving the expenditure of federal funds for allegedly unconstitutional programs are in excess of their authority under the Act. However, the complaint also requests an alternative and constitutional ground for relief, namely, a declaration that, if appellees' actions "are within the authority and intent of the Act, the Act is to that extent unconstitutional and void." The Court noted in Zemel v. Rusk, "We have often held that a litigant need not abandon his nonconstitutional arguments in order to obtain a three-judge court."  The complaint in this case falls within that rule.

Thus, since the three-judge court was properly convened below, direct appeal to this Court is proper. We turn now to the standing question presented by this case.
 

II.

Although the barrier Frothingham erected against federal taxpayer suits has never been breached, the decision has been the source of some confusion and the object of considerable criticism. The confusion has developed as commentators have tried to determine whether Frothingham establishes a constitutional bar to taxpayer suits or whether the Court was simply imposing a rule of self-restraint which was not constitutionally compelled.

To the extent that Frothingham has been viewed as resting on policy considerations, it has been criticized as depending on assumptions not consistent with modern conditions. To some degree, the fear expressed in Frothingham that allowing one taxpayer to sue would inundate the federal courts with countless similar suits has been mitigated by the ready availability of the devices of class actions and joinder under the Federal Rules of Civil Procedure, adopted subsequent to the decision in Frothingham

III.

The jurisdiction of federal courts is defined and limited by Article III of the Constitution. In terms relevant to the question for decision in this case, the judicial power of federal courts is constitutionally restricted to "cases" and "controversies." Embodied in the words "cases" and "controversies" are two complementary but somewhat different limitations. In part those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government. Justiciability is the term of art employed to give expression to this dual limitation placed upon federal courts by the case-and-controversy doctrine.

Justiciability is itself a concept of uncertain meaning and scope. Its reach is illustrated by the various grounds upon which questions sought to be adjudicated in federal courts have been held not to be justiciable. Thus, no justiciable controversy is presented when the parties seek adjudication of only a political question, when the parties are asking for an advisory opinion, when the question sought to be adjudicated has been mooted by subsequent developments, and when there is no standing to maintain the action.

Part of the difficulty in giving precise meaning and form to the concept of justiciability stems from the uncertain historical antecedents of the case-and-controversy doctrine. Thus, the implicit policies embodied in Article III, and not history alone, impose the rule against advisory opinions on federal courts. However, the rule against advisory opinions also recognizes that such suits often "are not pressed before the Court with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multifaced situation embracing conflicting and demanding interests." Consequently, the Article III prohibition against advisory opinions reflects the complementary constitutional considerations expressed by the justiciability doctrine:  Federal judicial power is limited to those disputes which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process.

Additional uncertainty exists in the doctrine of justiciability because that doctrine has become a blend of constitutional requirements and policy considerations. Anda policy limitation is "not always clearly distinguished from the constitutional limitation."

It is in this context that the standing question presented by this case must be viewed and that the Government's argument on that question must be evaluated. Standing is an aspect of justiciability and, as such, the problem of standing is surrounded by the same complexities and vagaries that inhere in justiciability. 

The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated. When standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable. Thus, a party may have standing in a particular case, but the federal court may nevertheless decline to pass on the merits of the case because, for example, it presents a political question. So stated, the standing requirement is closely related to, although more general than, the rule that federal courts will not entertain friendly suits, or those which are feigned or collusive in nature.

When the emphasis in the standing problem is placed on whether the person invoking a federal court's jurisdiction is a proper party to maintain the action, the weakness of the Government's argument in this case becomes apparent. The question whether a particular person is a proper party to maintain the action does not, by its own force, raise separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government. Such problems arise, if at all, only from the substantive issues the individual seeks to have adjudicated. Thus, in terms of Article III limitations on federal court jurisdiction, the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution. It is for that reason that the emphasis in standing problems is on whether the party invoking federal court jurisdiction has "a personal stake in the outcome of the controversy," and whether the dispute touches upon "the legal relations of parties having adverse legal interests." Therefore, we find no absolute bar in Article III to suits by federal taxpayers challenging allegedly unconstitutional federal taxing and spending programs. There remains, however, the problem of determining the circumstances under which a federal taxpayer will be deemed to have the personal stake and interest that impart the necessary concrete adverseness to such litigation so that standing can be conferred on the taxpayer qua taxpayer consistent with the constitutional limitations of Article III.

IV.

We have noted that, in deciding the question of standing, it is not relevant that the substantive issues in the litigation might be nonjusticiable. However, our decisions establish that, in ruling on standing, it is both appropriate and necessary to look to the substantive issues for another purpose, namely, to determine whether there is a logical nexus between the status asserted and the claim sought to be adjudicated. For example, standing requirements will vary in First Amendment religion cases depending upon whether the party raises an Establishment Clause claim or a claim under the Free Exercise Clause.

The nexus demanded of federal taxpayers has two aspects to it. First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, § 8, of the Constitution. This requirement is consistent with the limitation imposed upon state-taxpayer standing in federal courts in Doremus v. Board of Education. Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8. When both nexuses are established, the litigant will have shown a taxpayer's stake in the outcome of the controversy and will be a proper and appropriate party to invoke a federal court's jurisdiction.

The taxpayer-appellants in this case have satisfied both nexuses to support their claim of standing under the test we announce today. Their constitutional challenge is made to an exercise by Congress of its power under Art. I, § 8, to spend for the general welfare, and the challenged program involves a substantial expenditure of federal tax funds. In addition, appellants have alleged that the challenged expenditures violate the Establishment and Free Exercise Clauses of the First Amendment. Our history vividly illustrates that one of the specific evils feared by those who drafted the Establishment Clause and fought for its adoption was that the taxing and spending power would be used to favor one religion over another or to support religion in general. The Establishment Clause was designed as a specific bulwark against such potential abuses of governmental power, and that clause of the First Amendment operates as a specific constitutional limitation upon the exercise by Congress of the taxing and spending power conferred by Art. I, § 8.

We have noted that the Establishment Clause of the First Amendment does specifically limit the taxing and spending power conferred by Art. I, § 8. Whether the Constitution contains other specific limitations can be determined only in the context of future cases. However, whenever such specific limitations are found, we believe a taxpayer will have a clear stake as a taxpayer in assuring that they are not breached by Congress. Consequently, we hold that a taxpayer will have standing consistent with Article III to invoke federal judicial power when he alleges that congressional action under the taxing and spending clause is in derogation of those constitutional provisions which operate to restrict the exercise of the taxing and spending power. The taxpayer's allegation in such cases would be that his tax money is being extracted and spent in violation of specific constitutional protections against such abuses of legislative power. Such an injury is appropriate for judicial redress, and the taxpayer has established the necessary nexus between his status and the nature of the allegedly unconstitutional action to support his claim of standing to secure judicial review. Under such circumstances, we feel confident that the questions will be framed with the necessary specificity, that the issues will be contested with the necessary adverseness and that the litigation will be pursued with the necessary vigor to assure that the constitutional challenge will be made in a form traditionally thought to be capable of judicial resolution. We lack that confidence in cases such as Frothingham where a taxpayer seeks to employ a federal court as a forum in which to air his generalized grievances about the conduct of government or the allocation of power in the Federal System.

Holding:

While we express no view at all on the merits of appellants' claims in this case, their complaint contains sufficient allegations under the criteria we have outlined to give them standing to invoke a federal court's jurisdiction for an adjudication on the merits.

 

Key Takeaway

Taxpayers have standing to sue to prevent the disbursement of federal funds in contravention of the specific constitutional prohibition against government support of religion.


Court Syllabus

Appellant taxpayers allege that federal funds have been disbursed by appellee federal officials under the Elementary and Secondary Education Act of 1965 to finance instruction and the purchase of educational materials for use in religious and sectarian schools, in violation of the Establishment and Free Exercise Clauses of the First Amendment. Appellants sought a declaration that the expenditures were not authorized by the Act or, in the alternative, that the Act is to that extent unconstitutional, and requested the convening of a three-judge court. A three-judge court ruled, on the authority of Frothingham v. Mellon, that appellants lacked standing to maintain the action. 

Held:

1. The three-judge court was properly convened, as the constitutional attack, even though focused on the program's operations in New York City, would if successful affect the entire regulatory scheme of the statute, and the complaint alleged a constitutional ground for relief, albeit one coupled with an alternative nonconstitutional ground.

2. There is no absolute bar in Art. III of the Constitution to suits by federal taxpayers challenging allegedly unconstitutional federal taxing and spending programs since the taxpayers may or may not have the requisite personal stake in the outcome.

3. To maintain an action challenging the constitutionality of a federal spending program, individuals must demonstrate the necessary stake as taxpayers in the outcome of the litigation to satisfy Art. III requirements. 

(a) Taxpayers must establish a logical link between that status and the type of legislative enactment attacked, as it will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute.

(b) Taxpayers must also establish a nexus between that status and the precise nature of the constitutional infringement alleged. They must show that the statute exceeds specific constitutional limitations on the exercise of the taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8.

4. The taxpayer-appellants here have standing consistent with Art. III to invoke federal judicial power since they have alleged that tax money is being spent in violation of a specific constitutional protection against the abuse of legislative power, i. e., the Establishment Clause of the First Amendment.


How the Justices Voted

Majority: Warren, joined by Black, Douglas, Brennan, Stewart, White, Marshall

Concurrence: Douglas

Concurrence: Stewart

Concurrence: Fortas

Dissent: Harlan