Flast v. Cohen, 392 U.S. 83; 88 S. Ct. 1942; 20 L. Ed. 2d 947 (1968)

Facts—Taxpayers in New York challenged the expenditures of federal funds under the Elementary and Secondary Education Act of 1965 as conflicting with the establishment clause of the First Amendment. A divided three-judge U.S. district court ruled that such a suit was barred under the Court’s decision in Frothingham v. Mellon (1923).

Questions—(a) Are taxpayers, qua taxpayers, barred from bringing suit in federal courts?

(b) If not, what standards govern such suits?

Decisions—(a) No;

(b) Taxpayers may bring suit only under the taxing and spending clause of Article I, Section 8 and must show that the expenditures they question specifically exceed a specified constitutional mandate such as the establishment clause of the First Amendment.

Reasons—C.J. Warren (8–1). Frothingham had been ambiguous as to whether it was based on constitutional grounds or prudential considerations of judicial self-restraint. The “case and controversy” requirement involved complex issues of “justiciability” and “standing.” Justiciability has traditionally prevented U.S. courts from issuing “advisory opinions.” Standing is designed to assure that the parties before the Court have a personal stake in the outcome of its decision. Circumstances make it possible that individual taxpayers could have standing in some circumstances; thus Frothingham does not pose an absolute bar to such suits. To secure standing, a taxpayer must es- tablish two nexuses. The taxpayer must first “establish a logical link between that [taxpayer] status and the type of legislative enactment attacked.” Taxpayers are proper parties “to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, [sec.] 8” and not simply of “an incidental expenditure of tax funds in the administra- tion of an essentially regulatory statute.” Second, a “taxpayer must establish a nexus between that status and the precise nature of the constitutional infringe ment alleged.” A taxpayer must thus demonstrate “that the challenged enact-ment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enact- ment is generally beyond the powers delegated to Congress.” In this case, the taxpayers were challenging a direct expenditure of federal funds, and the establishment clause of the First Amendment was specifically designed to limit the taxing and spending power. Thus, taxpayers did have the right to bring suit in this case.

J. Douglas’s concurrence argued that the two nexuses that the Court established were not “durable,” and he would have further opened up the judicial process so that “Taxpayers can be vigilant private attorneys general.”

J. Stewart’s concurrence focused on the specific purpose of the establishment clause, and J. Fortas would specifically limit the Court’s acceptance of taxpayer suits to such cases. J. Harlan dissented, rejecting both tests that the Court established as untenable and suggesting that the Court should only accept taxpayer suits when Congress specifically authorized them.