Flast v. Cohen

392 U.S. 83 (1968), argued 12 Mar. 1968, decided 10 June 1968 by vote of 8 to 1; Warren for the Court, Douglas, Stewart, and Fortas concurring separately, Harlan in dissent. A group of taxpayers sued to enjoin the allegedly unconstitutional expenditure of federal funds for the teaching of secular subjects in parochial schools. A federal court decided that they lacked standing to sue as taxpayers under Frothingham v. Mellon (1923), but the Supreme Court reversed and held that, under certain limited circumstances, taxpayers could sue in federal courts to challenge federal expenditures.

Chief Justice Earl Warren's opinion rejected the contention that Frothingham articulated a constitutional requirement that absolutely barred taxpayer suits. Rather, he said, Frothingham was more deeply rooted in policy considerations that permitted greater discretion to federal judges to entertain such suits. Taxpayer suits would be permitted if the petitioner was a proper and appropriate party to invoke federal judicial power. Standing to sue would be measured by a two‐part test: first, a taxpayer could challenge the constitutionality only of the exercise of congressional power under the Taxing and Spending Clause of Article I, section 8. It would not be enough merely to challenge “incidental” expenditures under Congress's enumerated powers; second, the taxpayer must show that the challenged enactment is prohibited by a specific constitutional limitation on Congress's taxing and spending power and not merely by a general limitation on its powers, such as the Tenth Amendment.

Flast satisfied both requirements. She challenged an expenditure under the Taxing and Spending Clause alleging it violated the establishment and free exercise clauses of the First Amendment. Frothingham would have met the first nexus, but not the second. She had challenged the Maternity Act of 1921, which was enacted under the Taxing and Spending Clause; but she claimed only that it violated Congress's general legislative powers, the Due Process Clause of the Fifth Amendment, and the Tenth Amendment. Thus in Flast the Court was able to distinguish Frothingham without overruling it.

Justice William O. Douglas, urging the widest latitude for “private attorneys general” to sue (and thus broad taxpayer access to the courts), argued that Frothingham was incompatible with the spirit if not the holding in Flast, and should be overruled. In dissent, Justice John M. Harlan conceded that Frothingham was too rigid and should be modified but contended that Flast went too far and would open the courts to abuse that strained the judicial function.

Flast was central to the Warren Court's liberal activist philosophy of increasing public access to federal courts and making them more receptive to public law litigation. But it remained unclear how far the decision went in removing traditional barriers to such litigation. Warren formally declined to speculate on whether “the Constitution contains other specific limitations” on the taxing and spending power (p. 105). But Flast was widely seen as an invitation to litigants to seek redress of their constitutional grievances in the federal courts without having to demonstrate the traditional personal injury or harm. A flood of taxpayer lawsuits, many challenging the legality of the war in Vietnam, followed.

In United States v. *Richardson (1974), and Valley Forge Christian College v. *Americans United for Separation of Church and State (1982), the more conservative Burger Court closed the door again to taxpayer suits, at least for cases that did not meet Flast's specific test. Speaking in the latter case, Justice William H. *Rehnquist firmly rejected the Flast philosophy: “Implicit [in Flast] is the philosophy that the business of the federal courts is correcting constitutional errors, and that ‘cases and controversies’ [required by Article III] are at best merely convenient vehicles for doing so and at worst nuisances that may be dispensed with. … This philosophy has no place in our constitutional scheme” (p. 489).

See also Standing to Sue.

— Joel B. Grossman

Flast v. Cohen
Supreme Court of the United States
Argued March 12, 1968 Decided June 10, 1968
Full case name: Flast et al. v. Cohen, Secretary of Health, Education, and Welfare et al. Citations: 392 U.S. 83; 88 S. Ct. 1942; 20 L. Ed. 2d 947; 1968 U.S. LEXIS 1347 Prior history: Dismissed for lack of standing, 267 F. Supp. 351 (1967); probable jurisdiction noted, 389 U.S. 895 (1967)
Holding
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 membership
Chief Justice: Earl Warren Associate Justices: Hugo Black, William O. Douglas, John Marshall Harlan II, William J. Brennan, Potter Stewart, Byron White, Abe Fortas, Thurgood Marshall
Case opinions
Majority by: Warren Concurrence by: Douglas Concurrence by: Stewart Concurrence by: Fortas Dissent by: Harlan
Laws applied
U.S. Constitution, Art. I, Sec. 8, Art. III;

Flast v. Cohen, 392 U.S. 83 (1968)^[1], was a United States Supreme Court case holding that a taxpayer has standing to sue the government to prevent an unconstitutional use of taxpayer funds.

In 1923 the Supreme Court decided in Frothingham v. Mellon, 262 U.S. 447 (1923), that a taxpayer did not have "standing to sue the federal government to prevent expenditures if her only injury is an anticipated increase in taxes." In 1968 Florance Flast joined several others in filing suit against Wilbur Cohen, the Secretary of Health, Education, and Welfare, contending that spending funds on religious schools violated the First Amendment's ban on the establishment of religion. The district court denied standing, and the Supreme Court heard the appeal.

Majority Opinion (Chief Justice Earl Warren)

Frothingham v. Mellon did not recognize a constitutional barrier against federal taxpayer lawsuits. Rather, it denied standing because the petitioner did not allege "a breach by Congress of the specific constitutional limitations imposed upon an exercise of the taxing and spending power." Because the purpose of standing is to avoid burdening the court with situations in which there is no real controversy, standing is used to ensure that the parties in the suit are properly adversarial, "not whether the issue itself is justiciable."

In Flast, Warren established a "double nexus" test which a taxpayer must satisfy in order to have standing. First, he must "establish a logical link between [taxpayer] status and the type of legislative enactment attacked." Second, "the taxpayer must show the challenged enactment is generally beyond the powers delegated to Congress by Article I, Section 8." Only when both nexuses have been satisfied may the court have standing. Note: the above is incorrect, and although the editing party does not have time to fully bring the above statements into conformity to fact, the following quotation from Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. 454 U.S. 464 (1982) is informative: "The Court again visited the problem of taxpayer standing in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). The taxpayer plaintiffs in Flast sought to enjoin the expenditure of federal funds under the Elementary and Secondary Education Act of 1965, which they alleged were being used to support religious schools in violation of the Establishment Clause.

Flast Test

The Court developed a two-part test to determine whether the plaintiffs had standing to sue. First, because a taxpayer alleges injury only by virtue of his liability for taxes, the Court held that "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." *479 Id., at 102, 88 S.Ct., at 1954. Second, the Court required the taxpayer to "show that the challenged enactment exceeds specific constitutional limitations upon 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." Id., at 102-103, 88 S.Ct., at 1954."

Ruling

The Court ruled that petitioners have satisfied both nexuses as their Constitutional challenge to the law is under Article I, Section 8, to spend for the general welfare as the expenditure is of a large sum of funds. However, the Court expressed "no view at all on the merits of appellants' claims in this case".

Concurring Opinion (William O. Douglas)

Justice Douglas advocated dealing with the seeming contradiction by overturning Frothingham completely.

See also

• List of United States Supreme Court cases, volume 392

References

1. ^ 392 U.S. 83 (Full text of the decision courtesy of Findlaw.com)

External links

• Frothingham v. Mellon & Massachusetts v. Mellon

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