Flast v. Cohen (1968)

392 U.S. 83 (1968)

Decision: Reversed
Vote: 8-1
Majority: Warren, Black, Douglas, Brennan, Stewart, White, Marshall
Concurrence: Stewart
Concurrence: Fortas
Concurrence: Douglas
Dissent: Harlan

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

In Frothingham v. Mellon, (1923), 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 …

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 …

While disclaiming any intent to challenge as unconstitutional all programs under Title I of the [Elementary and Secondary Education Act of 1965], 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 lees from approving any expenditure of federal funds for the allegedly unconstitutional purposes …

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, (1923), 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 …

This Court first faced squarely the question whether a litigant asserting only his status as a taxpayer has standing to maintain a suit in a federal court in Frothingham v. Mellon, and that decision must be the starting point for analysis in this case. The taxpayer in Frothingham attacked as unconstitutional the Maternity Act of 1921 …

The taxpayer alleged that Congress, in enacting the challenged statute, had exceeded the powers delegated to it under Article I of the Constitution and had invaded the legislative province reserved to the several States by the Tenth Amendment. The taxpayer complained that the result of the allegedly unconstitutional enactment would be to increase her future federal tax liability and “thereby take her property without due process of law … ” The Court noted that a federal taxpayer’s “interest in the moneys of the Treasury … is comparatively minute and indeterminable” and that “the effect upon future taxation, of any payment out of the [Treasury’s] funds, … [is] remote, fluctuating and uncertain.” … As a result the Court ruled that the taxpayer had failed to allege the type of “direct injury” necessary to confer standing …

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 … [I]ts very existence suggests that we should undertake a fresh examination of the limitations upon standing to sue in a federal court and the application of those limitations to taxpayer suits …

In terms relevant to the question for decision in this case, the judicial power of federal courts is constitutionally restricted to “cases” and “controversies.” As is so often the situation in constitutional adjudication, those two words have an iceberg quality, containing beneath their surface simplicity submerged complexities which go to the very heart of our constitutional form of government … 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 … 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 …

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. Yet it remains true that “[j]usticiability is … not a legal concept with a fixed content or susceptible of scientific verification. Its utilization is the resultant of many subtle pressures … ”

Additional uncertainty exists in the doctrine of justiciability because that doctrine has become a blend of constitutional requirements and policy considerations. And a policy limitation is “not always clearly distinguished from the constitutional limitation.” Barrows v. Jackson (1953) … For example, in his concurring opinion in Ashwander v. Tennessee Valley Authority (1936), Mr. Justice Brandeis listed seven rules developed by this Court “for its own governance” to avoid passing prematurely on constitutional questions. Because the rules operate in “cases confessedly within [the Court’s] jurisdiction,” … they find their source in policy, rather than purely constitutional, considerations … The “many subtle pressures” which cause policy considerations to blend into the constitutional limitations of Article III make the justiciability doctrine one of uncertain and shifting contours …

Despite the complexities and uncertainties, some meaningful form can be given to the jurisdictional limitations placed on federal court power by the concept of standing. The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and notion the issues he wishes to have adjudicated. The “gist of the question of standing” is whether the party seeking relief has “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” …

Thus, our point of reference in this case is the standing of individuals who assert only the status of federal taxpayers and who challenge the constitutionality of a federal spending program. Whether such individuals have standing to maintain that form of action turns on whether they can demonstrate the necessary stake as taxpayers in the outcome of the litigation to satisfy Article III requirements.

The nexus demanded of federal taxpayers has two aspects to it. First, the taxpayer must establish a logical link between that [federal taxpayer] status and the type of legislative enactment attacked … It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute. This requirement is consistent with the limitation imposed upon state-taxpayer standing in federal courts in Doremus v. Board of Education, (1952). 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 …

[W]e 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.

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.


Lujan v. Defenders of Wildlife (1992)

504 U.S. 555, 560-61 (1992)

Decision: Reversed
Vote: 6-3
Majority: Scalia (Parts I, II, III-A, IV), joined by Rehnquist, White, Kennedy, Souter, and Thomas
Plurality: Scalia (Part III-B), joined by Rehnquist, White, and Thomas
Concur: Kennedy, joined by Souter
Concur: Stevens
Dissent: Blackmun, joined by O’Connor

JUSTICE SCALIA delivered the opinion of the Court.

This case involves a challenge to a rule promulgated by the Secretary of the Interior interpreting § 7 of the Endangered Species Act of 1973 (ESA), 87 Stat. 892, as amended, 16 U. S. C. § 1536, in such fashion as to render it applicable only to actions within the United States or on the high seas. The preliminary issue, and the only one we reach, is whether respondents here, plaintiffs below, have standing to seek judicial review of the rule.

The ESA, 87 Stat. 884, as amended … seeks to protect species of animals against threats to their continuing existence caused by man … The ESA instructs the Secretary of the Interior to promulgate by regulation a list of those species which are either endangered or threatened under enumerated criteria, and to define the critical habitat of these species. Section 7(a)(2) of the Act then provides, in pertinent part:

“Each Federal agency shall, in consultation with and with the assistance of the Secretary [of the Interior], insure that any action authorized, funded, or carried out by such agency … is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical.”

In 1978, the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) … promulgated a joint regulation stating that the obligations imposed by § 7(a)(2) extend to actions taken in foreign nations. The next year, however, the Interior Department began to reexamine its position. A revised joint regulation reinterpreting § 7(a)(2) to require consultation only for actions taken in the United States or on the high seas, was … promulgated in 1986.

Shortly thereafter, respondents … filed this action against the Secretary of the Interior, seeking a declaratory judgment that the new regulation is in error as to the geographic scope of § 7(a)(2) and an injunction requiring the Secretary to promulgate a new regulation restoring the initial interpretation …

While the Constitution of the United States divides all power conferred upon the Federal Government into “legislative Powers,” Art. I, § 1, “[t]he executive Power,” Art. II, § 1, and “[t]he judicial Power,” Art. III, § 1, it does not attempt to define those terms. To be sure, it limits the jurisdiction of federal courts to “Cases” and “Controversies,” but an executive inquiry can bear the name “case” (the Hoffa case) and a legislative dispute can bear the name “controversy” (the Smoot-Hawley controversy). Obviously, then, the Constitution’s central mechanism of separation of powers depends largely upon common understanding of what activities are appropriate to legislatures, to executives, and to courts. In The Federalist No. 48, Madison expressed the view that “[i]t is not infrequently a question of real nicety in legislative bodies whether the operation of a particular measure will, or will not, extend beyond the legislative sphere,” whereas “the executive power [is] restrained within a narrower compass and … more simple in its nature,” and “the judiciary [is] described by landmarks still less uncertain … ” One of those landmarks, setting apart the “Cases” and “Controversies” that are of the justiciable sort referred to in Article III–“serv[ing] to identify those disputes which are appropriately resolved through the judicial process,” Whitmore v. Arkansas, (1990)-is the doctrine of standing. Though some of its elements express merely prudential considerations that are part of judicial self-government, the core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III …

Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an “injury in fact”-an invasion of a legally protected interest which is (a) concrete and particularized … and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical,”‘ Whitmore. Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be “fairly … trace[able] to the challenged action of the defendant, and not … th[e] result [of] the independent action of some third party not before the court.” Simon v. Eastern Ky. Welfare Rights Organization, (1976). Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision … ”

The existence of one or more of the essential elements of standing “depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict,” ASARCO Inc. v. Kadish, (1989), and it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redressability of injury. Thus, when the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily “substantially more difficult” to establish …

We think the Court of Appeals failed to apply the foregoing principles in denying the Secretary’s motion for summary judgment. Respondents had not made the requisite demonstration of (at least) injury and redressability …

And the affiants’ profession of an “inten[t]” to return to the places they had visited before-where they will presumably, this time, be deprived of the opportunity to observe animals of the endangered species-is simply not enough. Such “some day” intentions-without any description of concrete plans, or indeed even any specification of when the some day will be-do not support a finding of the “actual or imminent” injury that our cases require.

Respondents’ other theories are called, alas, the “animal nexus” approach, whereby anyone who has an interest in studying or seeing the endangered animals anywhere on the globe has standing; and the “vocational nexus” approach, under which anyone with a professional interest in such animals can sue. Under these theories, anyone who goes to see Asian elephants in the Bronx Zoo, and anyone who is a keeper of Asian elephants in the Bronx Zoo, has standing to sue because the Director of the Agency for International Development (AID) did not consult with the Secretary regarding the AID-funded project in Sri Lanka. This is beyond all reason. Standing is not “an ingenious academic exercise in the conceivable,” United States v. Students Challenging Regulatory Agency Procedures (SCRAP), (1973), but as we have said requires, at the summary judgment stage, a factual showing of perceptible harm …

Besides failing to show injury, respondents failed to demonstrate redressability. Instead of attacking the separate decisions to fund particular projects allegedly causing them harm, respondents chose to challenge a more generalized level of Government action (rules regarding consultation), the invalidation of which would affect all overseas projects. This programmatic approach has obvious practical advantages, but also obvious difficulties insofar as proof of causation or redressability is concerned. As we have said in another context, “suits challenging, not specifically identifiable Government violations of law, but the particular programs agencies establish to carry out their legal obligations … [are]wst , even when premised on allegations of several instances of violations of law … rarely if ever appropriate for federal court adjudication.”

The most obvious problem in the present case is redressability. Since the agencies funding the projects were not parties to the case, the District Court could accord relief only against the Secretary: He could be ordered to revise his regulation to require consultation for foreign projects. But this would not remedy respondents’ alleged injury unless the funding agencies were bound by the Secretary’s regulation, which is very much an open question. Whereas in other contexts the ESA is quite explicit as to the Secretary’s controlling authority …

We have consistently held that a plaintiff raising only a generally available grievance about government- claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large-does not state an Article III case or controversy. For example, in Fairchild v. Hughes, (1922), we dismissed a suit challenging the propriety of the process by which the Nineteenth Amendment was ratified …

We hold that respondents lack standing to bring this action and that the Court of Appeals erred in denying the summary judgment motion filed by the United States. The opinion of the Court of Appeals is hereby reversed, and the cause is remanded for proceedings consistent with this opinion.

It is so ordered.


Icon for the Creative Commons Attribution 4.0 International License

Government Powers and Limitations Copyright © 2024 by Rorie Spill Solberg is licensed under a Creative Commons Attribution 4.0 International License, except where otherwise noted.

Share This Book