FLAST v. COHEN 392 U.S. 83 (1968)

awarrencourt landmark regarding the judicial power of the United States, Flast upheld taxpayer standing to complain that disbursements of federal funds to religious schools violate the first amendment prohibition of an establishment of religion. The decision carved an exception from, but did not overturn, the rule of frothingham v. mellon (1923) that federal taxpayers lack a sufficiently individual or direct interest in spending programs to be allowed to attack them in federal court. To Justice john marshall harlan's dissenting chagrin, the Court so ruled knowing that Congress, cognizant of Frothingham, had decided against granting taxpayers a right to judicial review of federal support for religious education.

The Court was unanimous on one fundamental point: the taxpayers in Flast presented an Article III "case." (See cases and controversies.) For the majority, Chief Justice earl warren reaffirmed the traditional Article III requirement of a "personal stake in the outcome of the controversy," but deemed that requirement satisfied whenever a taxpayer claims that Congress exercised its taxing and spending power in derogation of specific constitutional limits on that power. The Court found the establishment clause a specific limit, because, historically, the clause was designed to block taxation to support religion.

Dissenting, Justice Harlan could not agree that taxpayers challenging spending, rather than their tax liability, had a personal stake. They had no financial stake, because victory would only change how the government's general revenues are spent—not their tax bill. Nor was the Court's exception tailored to the requirement of a personal stake. A taxpayer's interests did not vary with the power Congress exercised in appropriating funds or with the constitutional provision ("specific" or not) invoked to oppose the expenditures. For Harlan, the taxpayer's interest in government spending was not personal but public—a citizen's concern that official behavior be constitutional. Nonetheless, he thought the "public action" would satisfy Article III, apparently because the parties were sufficiently adversary. But because "public actions" would press judicial authority vis-à-vis the representative branches to the limit, he concluded the Court should not entertain them without congressional authorization.

The bearing of separation of powers on taxpayer standing was the pivotal dividing point in Flast. Justice william o. douglas, too, thought Flast a public action, the attempt to distinguish Frothingham a failure, and the requirements of Article III met. But he found Frothingham deficient, not Flast, for he perceived the judicial role as enforcement of basic rights against majoritarian control without awaiting congressional authorization—even in "public actions." Chief Justice Warren's view fell between the Harlan and Douglas poles by disavowing the connection between standing and the separation of powers. Justiciability requires that a suit be appropriate in form for judicial resolution and implicates separation of powers, said Warren, but standing, with its focus on the party suing, not the issues raised, looks only to form.

Under the burger court, separation of powers considerations have resurfaced in taxpayer suits, stunting the potential growth of Flast into the mature "public action." Typical of the Burger Court approach was valley forge christian college v. americans united for separation of church and state (1982). The Flast landmark has become a historical marker.

Jonathan D. Varat
(1986)