HEIN, DIRECTOR, WHITE HOUSE OFFICE OF FAITH-BASED AND COMMUNITY INITIATIVES, ET AL. v. FREEDOM FROM RELIGION FOUNDATION, INC., ET AL.
No. 06-157
SUPREME COURT OF THE UNITED STATES
Argued February 28, 2007—Decided June 25, 2007
551 U.S. 587
Solicitor General Clement argued the cause for petitioners. With him on the briefs were Assistant Attorney General Keisler, Deputy Solicitor General Garre, Patricia A. Millett, Robert M. Loeb, and Lowell V. Sturgill, Jr.
JUSTICE ALITO announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE and JUSTICE KENNEDY join.
This is a lawsuit in which it was claimed that conferences held as part of the President‘s Faith-Based and Community Initiatives program violated the Establishment Clause of the First Amendment because, among other things, President Bush and former Secretary of Education Paige gave speeches that used “religious imagery” and praised the efficacy of faith-based programs in delivering social services.
It has long been established, however, that the payment of taxes is generally not enough to establish standing to challenge an action taken by the Federal Government. In light of the size of the federal budget, it is a complete fiction to argue that an unconstitutional federal expenditure causes an individual federal taxpayer any measurable economic harm. And if every federal taxpayer could sue to challenge any Government expenditure, the federal courts would cease to function as courts of law and would be cast in the role of general complaint bureaus.
In Flast v. Cohen, 392 U. S. 83 (1968), we recognized a narrow exception to the general rule against federal taxpayer standing. Under Flast, a plaintiff asserting an Establishment Clause claim has standing to challenge a law authorizing the use of federal funds in a way that allegedly violates the Establishment Clause. In the present case, Congress did not specifically authorize the use of federal funds to pay for the conferences or speeches that the plaintiffs challenged. Instead, the conferences and speeches were paid for out of general Executive Branch appropriations. The Court of Appeals, however, held that the plaintiffs have standing as taxpayers because the conferences were paid for with money appropriated by Congress.
The question that is presented here is whether this broad reading of Flast is correct. We hold that it is not. We therefore reverse the decision of the Court of Appeals.
I
A
In 2001, the President issued an executive order creating the White House Office of Faith-Based and Community Initiatives within the Executive Office of the President. Exec. Order No. 13199, 3 CFR 752 (2001 Comp.). The purpose of
By separate executive orders, the President also created Executive Department Centers for Faith-Based and Community Initiatives within several federal agencies and departments.1 These centers were given the job of ensuring that faith-based community groups would be eligible to compete for federal financial support without impairing their independence or autonomy, as long as they did “not use direct Federal financial assistance to support any inherently religious activities, such as worship, religious instruction, or proselytization.” Exec. Order No. 13279, 3 CFR § 2(f), p. 260 (2002 Comp.). To this end, the President directed that “[n]o organization should be discriminated against on the basis of religion or religious belief in the administration or distribution of Federal financial assistance under social service programs,” id., § 2(c), at 260, and that “[a]ll organizations that receive Federal financial assistance under social services programs should be prohibited from discriminating against beneficiaries or potential beneficiaries of the social services programs on the basis of religion or religious belief,” id., § 2(d), at 260. Petitioners, who have been sued in their official capacities, are the directors of the White House Office and various Executive Department Centers.
B
The respondents are Freedom From Religion Foundation, Inc., a nonstock corporation “opposed to government endorsement of religion,” id., ¶ 5, App. to Pet. for Cert. 68a, and three of its members. Respondents brought suit in the United States District Court for the Western District of Wisconsin, alleging that petitioners violated the Establishment Clause by organizing conferences at which faith-based organizations allegedly “are singled out as being particularly worthy of federal funding..., and the belief in God is extolled as distinguishing the claimed effectiveness of faith-based social services.” Id., ¶ 32, App. to Pet. for Cert. 73a. Respondents further alleged that the content of these conferences sent a message to religious believers “that they are insiders and favored members of the political community”
The only asserted basis for standing was that the individual respondents are federal taxpayers who are “opposed to the use of Congressional taxpayer appropriations to advance and promote religion.” Id., ¶ 10, App. to Pet. for Cert. 69a; see also id., ¶¶ 7-9, App. to Pet. for Cert. 68a-69a. In their capacity as federal taxpayers, respondents sought to challenge Executive Branch expenditures for these conferences, which, they contended, violated the Establishment Clause.
C
The District Court dismissed the claims against petitioners for lack of standing. See Freedom From Religion Foundation, Inc. v. Towey, No. 04-C-381-S (WD Wis., Nov. 15, 2004), App. to Pet. for Cert. 27a-35a. It concluded that under Flast, 392 U. S. 83, federal taxpayer standing is limited to Establishment Clause challenges to the constitutionality of “exercises of congressional power under the taxing and spending clause of
A divided panel of the United States Court of Appeals for the Seventh Circuit reversed. 433 F. 3d 989. The majority read Flast as granting federal taxpayers standing to challenge Executive Branch programs on Establishment Clause grounds so long as the activities are “financed by a congres-
In dissent, Judge Ripple opined that the majority‘s decision reflected a ” dramatic expansion of current standing doctrine,” id., at 997, that “cuts the concept of taxpayer standing loose from its moorings,” id., at 998. Noting that “[t]he executive can do nothing without general budget appropriations from Congress,” id., at 1000, he criticized the majority for overstepping Flast‘s requirement that a “plaintiff must bring an attack against a disbursement of public funds made in the exercise of Congress’ taxing and spending power,” 433 F. 3d, at 1000 (emphasis in original).
The Court of Appeals denied en banc review by a vote of 7 to 4. Freedom From Religion Foundation, Inc. v. Chao, 447 F. 3d 988 (CA7 2006). Concurring in the denial of rehearing, Chief Judge Flaum expressed doubt about the panel decision, but noted that “the obvious tension which has evolved in this area of jurisprudence... can only be resolved by the Supreme Court.” Ibid. We granted certiorari to resolve this question, 549 U. S. 1074 (2006), and we now reverse.
II
A
“[O]ne of the controlling elements in the definition of a case or controversy under Article III” is standing. ASARCO Inc. v. Kadish, 490 U. S. 605, 613 (1989) (opinion of KENNEDY, J.). The requisite elements of Article III standing are well established: “A plaintiff must allege personal injury fairly traceable to the defendant‘s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U. S. 737, 751 (1984).
The constitutionally mandated standing inquiry is especially important in a case like this one, in which taxpayers seek “to challenge laws of general application where their own injury is not distinct from that suffered in general by other taxpayers or citizens.” ASARCO, supra, at 613 (opinion of KENNEDY, J.). This is because “[t]he judicial power of the United States defined by
“We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional. That question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act.... The party who invokes the power must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.” Frothingham v. Mellon, decided with Massachusetts v. Mellon, 262 U. S. 447, 488 (1923).
B
As a general matter, the interest of a federal taxpayer in seeing that Treasury funds are spent in accordance with the Constitution does not give rise to the kind of redressable “personal injury” required for Article III standing. Of course, a taxpayer has standing to challenge the collection of a specific tax assessment as unconstitutional; being forced to pay such a tax causes a real and immediate economic injury to the individual taxpayer. See, e. g., Follett v. Town of McCormick, 321 U. S. 573 (1944) (invalidating tax on preaching on First Amendment grounds). But that is not the interest on which respondents assert standing here. Rather, their claim is that, having paid lawfully collected taxes into the Federal Treasury at some point, they have a continuing, legally cognizable interest in ensuring that those funds are not used by the Government in a way that violates the Constitution.
We have consistently held that this type of interest is too generalized and attenuated to support Article III standing.
“[I]nterest in the moneys of the Treasury... is shared with millions of others; is comparatively minute and indeterminable; and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity.
“The administration of any statute, likely to produce additional taxation to be imposed upon a vast number of taxpayers, the extent of whose several liability is indefinite and constantly changing, is essentially a matter of public and not of individual concern.” Id., at 487.
Because the interests of the taxpayer are, in essence, the interests of the public at large, deciding a constitutional claim based solely on taxpayer standing “would be[,] not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and co-equal department, an authority which plainly we do not possess.” Id., at 489; see also Alabama Power Co. v. Ickes, 302 U. S. 464, 478-479 (1938).
In Doremus v. Board of Ed. of Hawthorne, 342 U. S. 429, 433 (1952), we reaffirmed this principle, explaining that “the interests of a taxpayer in the moneys of the federal treasury are too indeterminable, remote, uncertain and indirect to furnish a basis for an appeal to the preventive powers of the Court over their manner of expenditure.” We therefore rejected a state taxpayer‘s claim of standing to challenge a
“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.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 573-574 (1992).2
In Flast, the Court carved out a narrow exception to the general constitutional prohibition against taxpayer standing. The taxpayer-plaintiffs in that case challenged the distribution of federal funds to religious schools under the
“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 . It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute.... 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 byArt. I, § 8 .” 392 U. S., at 102-103.
The Court held that the taxpayer-plaintiffs in Flast had satisfied both prongs of this test: The plaintiff‘s “constitutional challenge [was] made to an exercise by Congress of its
III
A
Respondents argue that this case falls within the Flast exception, which they read to cover any “expenditure of government funds in violation of the Establishment Clause.” Brief for Respondents 12. But this broad reading fails to observe “the rigor with which the Flast exception to the Frothingham principle ought to be applied.” Valley Forge, 454 U. S., at 481.
The expenditures at issue in Flast were made pursuant to an express congressional mandate and a specific congressional appropriation. The plaintiff in that case challenged disbursements made under the
Given that the alleged Establishment Clause violation in Flast was funded by a specific congressional appropriation and was undertaken pursuant to an express congressional mandate, the Court concluded that the taxpayer-plaintiffs had established the requisite “logical link between [their taxpayer] status and the type of legislative enactment attacked.” In the Court‘s words, “[t]heir constitutional challenge [was] made to an exercise by Congress of its power under
The link between congressional action and constitutional violation that supported taxpayer standing in Flast is missing here. Respondents do not challenge any specific congressional action or appropriation; nor do they ask the Court to invalidate any congressional enactment or legislatively created program as unconstitutional. That is because the expenditures at issue here were not made pursuant to any Act of Congress. Rather, Congress provided general appropriations to the Executive Branch to fund its day-to-day activities.4 These appropriations did not expressly authorize, direct, or even mention the expenditures of which respondents complain. Those expenditures resulted from executive discretion, not congressional action.
We have never found taxpayer standing under such circumstances. In Valley Forge, we held that a taxpayer lacked standing to challenge “a decision by [the federal Department of Health, Education and Welfare] to transfer a parcel of federal property” to a religious college because this transfer was “not a congressional action.” 454 U. S., at 479. In fact, the connection to congressional action was closer in Valley Forge than it is here, because in that case, the “particular Executive Branch action” being challenged was at least “arguably authorized” by the
Bowen v. Kendrick, 487 U. S. 589 (1988), on which respondents rely heavily, is not to the contrary. In that case, we held that the taxpayer-plaintiffs had standing to mount an as-applied challenge to the
But the key to that conclusion was the Court‘s recognition that AFLA was “at heart a program of disbursement of funds pursuant to Congress’ taxing and spending powers,” and that the plaintiffs’ claims “call[ed] into question how the funds authorized by Congress [were] being disbursed pursuant to the AFLA‘s statutory mandate.” Id., at 619-620 (emphasis added). AFLA not only expressly authorized and appropriated specific funds for grantmaking, it also expressly contemplated that some of those moneys might go to projects involving religious groups. See id., at 595-596; see also id., at 623 (O‘Connor, J., concurring) (noting the “partnership between governmental and religious institutions contemplated by the AFLA“).6 Unlike this case, Kendrick involved a “program of disbursement of funds pursuant to Congress’ taxing and spending powers” that “Congress had created,” “authorized,” and “mandate[d].” Id., at 619-620.
Respondents attempt to paint their lawsuit as a Kendrick-style as-applied challenge, but this effort is unavailing for the simple reason that they can cite no statute whose application they challenge. The best they can do is to point to unspecified, lump-sum “Congressional budget appropriations” for the general use of the Executive Branch—the allocation of which “is a[n] administrative decision
In short, this case falls outside “the narrow exception” that Flast “created to the general rule against taxpayer standing established in Frothingham.” Kendrick, supra, at 618. Because the expenditures that respondents challenge were not expressly authorized or mandated by any specific congressional enactment, respondents’ lawsuit is not directed at an exercise of congressional power, see Valley Forge, 454 U. S., at 479, and thus lacks the requisite “logical nexus” be-
IV
A
1
Respondents argue that it is “arbitrary” to distinguish between money spent pursuant to congressional mandate and expenditures made in the course of executive discretion, because “the injury to taxpayers in both situations is the very injury targeted by the Establishment Clause and Flast—the expenditure for the support of religion of funds exacted from taxpayers.” Brief for Respondents 13. The panel majority below agreed, based on its observation that “there is so much that executive officials could do to promote religion in ways forbidden by the establishment clause.” 433 F. 3d, at 995.
But Flast focused on congressional action, and we must decline this invitation to extend its holding to encompass discretionary Executive Branch expenditures. Flast itself distinguished the “incidental expenditure of tax funds in the administration of an essentially regulatory statute,” 392 U. S., at 102, and we have subsequently rejected the view that taxpayer standing “extends to ‘the Government as a whole, regardless of which branch is at work in a particular instance,‘” Valley Forge, supra, at 484, n. 20. Moreover, we have repeatedly emphasized that the Flast exception has a “narrow application in our precedent,” Cuno, 547 U. S., at 348, that only “slightly lowered” the bar on taxpayer standing, Richardson, 418 U. S., at 173, and that must be applied with “rigor,” Valley Forge, supra, at 481.
It is significant that, in the four decades since its creation, the Flast exception has largely been confined to its facts. We have declined to lower the taxpayer standing bar in suits alleging violations of any constitutional provision apart from the Establishment Clause. See Tilton v. Richardson, 403 U. S. 672 (1971) (no taxpayer standing to sue under Free Ex-
2
While respondents argue that Executive Branch expenditures in support of religion are no different from legislative extractions, Flast itself rejected this equivalence: “It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute.” 392 U. S., at 102.
Because almost all Executive Branch activity is ultimately funded by some congressional appropriation, extending the Flast exception to purely executive expenditures would effectively subject every federal action—be it a conference, proclamation, or speech—to Establishment Clause challenge by any taxpayer in federal court. To see the wide swathe of activity that respondents’ proposed rule would cover, one need look no further than the amended complaint in this action, which focuses largely on speeches and presentations
It would also raise serious separation-of-powers concerns. As we have recognized, Flast itself gave too little weight to these concerns. By framing the standing question solely in terms of whether the dispute would be presented in an adversary context and in a form traditionally viewed as capable of judicial resolution, Flast “failed to recognize that this doctrine has a separation-of-powers component, which keeps courts within certain traditional bounds vis-à-vis the other branches, concrete adverseness or not.” Lewis v. Casey, 518 U. S. 343, 353, n. 3 (1996); see also Valley Forge, 454 U. S., at 471. Respondents’ position, if adopted, would repeat and compound this mistake.
The constitutional requirements for federal-court jurisdiction—including the standing requirements and Article III—“are an essential ingredient of separation and equilibration of powers.” Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 101 (1998). “Relaxation of standing requirements is directly related to the expansion of judicial power,” and lowering the taxpayer standing bar to permit challenges of purely executive actions “would significantly alter the allocation of power at the national level, with a shift away from a democratic form of government.” Richardson, supra, at 188 (Powell, J., concurring). The rule respondents propose would enlist the federal courts to superintend, at the behest
3
Both the Court of Appeals and respondents implicitly recognize that unqualified federal taxpayer standing to assert Establishment Clause claims would go too far, but neither the Court of Appeals nor respondents has identified a workable limitation. The Court of Appeals, as noted, conceded only that a taxpayer would lack standing where “the marginal or incremental cost to the taxpaying public of the alleged violation of the establishment clause” is “zero.” 433 F. 3d, at 995. Applying this rule, the Court of Appeals opined that a taxpayer would not have standing to challenge a President‘s favorable reference to religion in a State of the Union address because the costs associated with the speech “would be no greater merely because the President had mentioned Moses rather than John Stuart Mill.” Ibid.
There is reason to question whether the Court of Appeals intended for its zero-marginal-cost test to be taken literally, because the court, without any apparent inquiry into the costs of Secretary Paige‘s speech, went on to agree that the plaintiffs lacked standing to challenge that speech. Id., at 996. But if we take the Court of Appeals’ test literally—i. e., that any marginal cost greater than zero suffices—tax-
Respondents take a somewhat different approach, contending that their proposed expansion of Flast would be manageable because they would require that a challenged expenditure be “fairly traceable to the conduct alleged to violate the Establishment Clause.” Brief for Respondents 17. Applying this test, they argue, would “scree[n] out . . . challenge[s to] the content of one particular speech, for example the State of the Union address, as an Establishment Clause violation.” Id., at 21.
We find little comfort in this vague and ill-defined test. As an initial matter, respondents fail to explain why the (often substantial) costs that attend, for example, a Presidential address are any less “traceable” than the expenses related to the Executive Branch statements and conferences at issue here. Indeed, respondents concede that even lawsuits involving de minimis amounts of taxpayer money can pass their proposed “traceability” test. Id., at 20, n. 6.
Moreover, the “traceability” inquiry, depending on how it is framed, would appear to prove either too little or too
B
Respondents set out a parade of horribles that they claim could occur if Flast is not extended to discretionary Executive Branch expenditures. For example, they say, a federal agency could use its discretionary funds to build a house of worship or to hire clergy of one denomination and send them out to spread their faith. Or an agency could use its funds to make bulk purchases of Stars of David, crucifixes, or depictions of the star and crescent for use in its offices or for distribution to the employees or the general public. Of course, none of these things has happened, even though Flast has not previously been expanded in the way that respondents urge. In the unlikely event that any of these executive actions did take place, Congress could quickly step in. And respondents make no effort to show that these improbable abuses could not be challenged in federal court by plaintiffs who would possess standing based on grounds other than taxpayer standing.
C
Over the years, Flast has been defended by some and criticized by others. But the present case does not require us to reconsider that precedent. The Court of Appeals did not
JUSTICE SCALIA says that we must either overrule Flast or extend it to the limits of its logic. His position is not “[in]sane,” inconsistent with the “rule of law,” or “utterly meaningless.” Post, at 618 (opinion concurring in judgment). But it is wrong. JUSTICE SCALIA does not seriously dispute either (1) that Flast itself spoke in terms of “legislative enactment[s]” and “exercises of congressional power,” 392 U. S., at 102, or (2) that in the four decades since Flast was decided, we have never extended its narrow exception to a purely discretionary Executive Branch expenditure. We need go no further to decide this case. Relying on the provision of the Constitution that limits our role to resolving the “Cases” and “Controversies” before us, we decide only the case at hand.
*
For these reasons, the judgment of the Court of Appeals for the Seventh Circuit is reversed.
It is so ordered.
JUSTICE KENNEDY, concurring.
The separation-of-powers design in the Constitution is implemented, among other means, by Article III‘s case-or-controversy limitation and the resulting requirement of standing. See, e. g., Lujan v. Defenders of Wildlife, 504 U. S. 555, 559-560 (1992). The Court‘s decision in Flast v. Cohen, 392 U. S. 83 (1968), and in later cases applying it, must be interpreted as respecting separation-of-powers principles but acknowledging as well that these principles, in some cases, must accommodate the First Amendment‘s Es-
Respondents’ amended complaint challenged the religious nature of national and regional conferences that promoted President Bush‘s Faith-Based and Community Initiatives. See App. to Pet. for Cert. 73a-77a. To support the allegation respondents pointed to speeches given by the President and other executive officers, speeches with religious references. Id., at 73a-76a. The complaint relies on respondents’ taxpayer status as the sole basis for standing to maintain the suit but points to no specific use of Congress’ taxing and spending power other than general appropriations to fund the administration of the Executive Branch. Id., at 71a-73a.
Flast established a “narrow exception” to the rule against taxpayer standing. Bowen v. Kendrick, 487 U. S. 589, 618 (1988). To find standing in the circumstances of this case would make the narrow exception boundless. The public events and public speeches respondents seek to call in question are part of the open discussion essential to democratic self-government. The Executive Branch should be free, as a general matter, to discover new ideas, to understand pressing public demands, and to find creative responses to address governmental concerns. The exchange of ideas between and among the State and Federal Governments and their manifold, diverse constituencies sustains a free society. Permitting any and all taxpayers to challenge the content of these prototypical executive operations and dialogues would lead to judicial intervention so far exceeding traditional boundaries on the Judiciary that there would arise a real
The courts must be reluctant to expand their authority by requiring intrusive and unremitting judicial management of the way the Executive Branch performs its duties. The Court has refused to establish a constitutional rule that would require or allow “permanent judicial intervention in the conduct of governmental operations to a degree inconsistent with sound principles of federalism and the separation of powers.” Garcetti v. Ceballos, 547 U. S. 410, 423 (2006); see also Cheney v. United States Dist. Court for D. C., 542 U. S. 367, 382 (2004) (noting that “separation-of-powers considerations should inform a court of appeals’ evaluation of a mandamus petition involving the President or the Vice President” and that “mandamus standards are broad enough . . . to prevent a lower court from interfering with a coequal branch‘s ability to discharge its constitutional responsibilities“). In the Article III context the Court explained that concerns based on separation of powers “counsel[ed] against recognizing standing in a case brought . . . to seek a restructuring of the apparatus established by the Executive Branch to fulfill its legal duties.” Allen v. Wright, 468 U. S. 737, 761 (1984).
The same principle applies here. The Court should not authorize the constant intrusion upon the executive realm that would result from granting taxpayer standing in the instant case. As JUSTICE ALITO explains in detail, the Court‘s precedents do not require it to do so. The separation-of-powers concerns implicated by intrusive judicial regulation of day-to-day executive operations reinforce his interpretation of Flast‘s framework. Cf. Allen, supra, at 761, n. 26 (relying “on separation of powers principles to interpret the ‘fairly traceable’ component of the standing requirement“).
It must be remembered that, even where parties have no standing to sue, members of the Legislative and Executive Branches are not excused from making constitutional determinations in the regular course of their duties. Government officials must make a conscious decision to obey the Constitution whether or not their acts can be challenged in a court of law and then must conform their actions to these principled determinations.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in the judgment.
Today‘s opinion is, in one significant respect, entirely consistent with our previous cases addressing taxpayer standing to raise Establishment Clause challenges to government expenditures. Unfortunately, the consistency lies in the creation of utterly meaningless distinctions which separate the case at hand from the precedents that have come out differently, but which cannot possibly be (in any sane world) the reason it comes out differently. If this Court is to decide cases by rule of law rather than show of hands, we must surrender to logic and choose sides: Either Flast v. Cohen, 392 U. S. 83 (1968), should be applied to (at a minimum) all challenges to the governmental expenditure of general tax revenues in a manner alleged to violate a constitutional provision specifically limiting the taxing and spending power, or Flast should be repudiated. For me, the choice is easy. Flast is wholly irreconcilable with the Article III restrictions on federal-court jurisdiction that this Court has repeatedly confirmed are embodied in the doctrine of standing.
I
A
There is a simple reason why our taxpayer-standing cases involving Establishment Clause challenges to government
Wallet Injury is the type of concrete and particularized injury one would expect to be asserted in a taxpayer suit, namely, a claim that the plaintiff‘s tax liability is higher than it would be, but for the allegedly unlawful government action. The stumbling block for suits challenging government expenditures based on this conventional type of injury is quite predictable. The plaintiff cannot satisfy the traceability and redressability prongs of standing. It is uncertain what the plaintiff‘s tax bill would have been had the allegedly forbidden expenditure not been made, and it is even more speculative whether the government will, in response to an adverse court decision, lower taxes rather than spend the funds in some other manner.
Psychic Injury, on the other hand, has nothing to do with the plaintiff‘s tax liability. Instead, the injury consists of the taxpayer‘s mental displeasure that money extracted from him is being spent in an unlawful manner. This shift in focus eliminates traceability and redressability problems. Psychic Injury is directly traceable to the improper use of taxpayer funds, and it is redressed when the improper use is enjoined, regardless of whether that injunction affects the taxpayer‘s purse. Flast and the cases following its teaching have invoked a peculiarly restricted version of Psychic Injury, permitting taxpayer displeasure over unconstitutional spending to support standing only if the constitutional provision allegedly violated is a specific limitation on the taxing and spending power. Restricted or not, this conceptualizing
As the following review of our cases demonstrates, we initially denied taxpayer standing based on Wallet Injury, but then found standing in some later cases based on the limited version of Psychic Injury described above. The basic logical flaw in our cases is thus twofold: We have never explained why Psychic Injury was insufficient in the cases in which standing was denied, and we have never explained why Psychic Injury, however limited, is cognizable under Article III.
B
1
Two pre-Flast cases are of critical importance. In Frothingham v. Mellon, decided with Massachusetts v. Mellon, 262 U. S. 447 (1923), the taxpayer challenged the constitutionality of the Maternity Act of 1921, alleging in part that the federal funding provided by the Act was not authorized by any provision of the Constitution. See id., at 476-477 (argument for Frothingham), 479-480 (opinion of the Court). The Court held that the taxpayer lacked standing. After emphasizing that “the effect upon future taxation . . . of any payment out of [Treasury] funds” was “remote, fluctuating and uncertain,” id., at 487, the Court concluded that “[t]he party who invokes the power [of judicial review] must be able
The second significant pre-Flast case is Doremus v. Board of Ed. of Hawthorne, 342 U. S. 429 (1952). There the taxpayers challenged under the Establishment Clause a state law requiring public-school teachers to read the Bible at the beginning of each schoolday. Id., at 430, 433.1 Relying extensively on Frothingham, the Court denied standing. After first emphasizing that there was no allegation that the Bible reading increased the plaintiffs’ taxes or the cost of running the schools, 342 U. S., at 433, and then reaffirming that taxpayers must allege more than an indefinite injury suffered in common with people generally, id., at 434, the Court concluded that the “grievance which [the plaintiffs] sought to litigate here is not a direct dollars-and-cents injury but is a religious difference,” ibid. In addition to reiterating Frothingham‘s description of the unavoidable obstacles to recovery under a taxpayer theory of Wallet Injury, Doremus rejected Psychic Injury in unmistakable terms. The opinion‘s deprecation of a mere “religious difference,” in contrast to a real “dollars-and-cents injury,” can only be understood as a flat denial of standing supported only by taxpayer disapproval of the unconstitutional use of tax funds. If the
2
Sixteen years after Doremus, the Court took a pivotal turn. In Flast v. Cohen, 392 U. S. 83 (1968), taxpayers challenged the Elementary and Secondary Education Act of 1965, alleging that funds expended pursuant to the Act were being used to support parochial schools. Id., at 85-87. They argued that either the Act itself proscribed such expenditures or that the Act violated the Establishment Clause. Id., at 87, 90. The Court held that the taxpayers had standing. Purportedly in order to determine whether taxpayers have the “personal stake and interest” necessary to satisfy Article III, a two-pronged nexus test was invented. Id., at 101-102.
The first prong required the taxpayer to “establish a logical link between [taxpayer] status and the type of legislative enactment.” Id., at 102. The Court described what that meant as follows:
“[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. 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 . . . .” Ibid.
The second prong required the taxpayer to “establish a nexus between [taxpayer] status and the precise nature of the constitutional infringement alleged.” Ibid. The Court elaborated that this required “the taxpayer [to] show that
Because both prongs of its newly minted two-part test were satisfied, Flast held that the taxpayers had standing. Wallet Injury could not possibly have been the basis for this conclusion, since the taxpayers in Flast were no more able to prove that success on the merits would reduce their tax burden than was the taxpayer in Frothingham. Thus, Flast relied on Psychic Injury to support standing, describing the “injury” as the taxpayer‘s allegation that “his tax money is being extracted and spent in violation of specific constitutional protections against such abuses of legislative power.” 392 U. S., at 106.
But that created a problem: If the taxpayers in Flast had standing based on Psychic Injury, and without regard to the effect of the litigation on their ultimate tax liability, why did not the taxpayers in Doremus and Frothingham have standing on a similar basis? Enter the magical two-pronged nexus test. It has often been pointed out, and never refuted, that the criteria in Flast‘s two-part test are entirely unrelated to the purported goal of ensuring that the plaintiff has a sufficient “stake in the outcome of the controversy,” 392 U. S., at 103. See id., at 121-124 (Harlan, J., dissenting); see also id., at 107 (Douglas, J., concurring); United States v. Richardson, 418 U. S. 166, 183 (1974) (Powell, J.,
Flast‘s dispatching of Frothingham via the second prong of the nexus test was only marginally less disingenuous. Not only does the relationship of the allegedly violated provision to the taxing and spending power have no bearing upon the concreteness or particularity of the Psychic Injury, see Part III, infra, but the existence of that relationship does
3
Coherence and candor have fared no better in our later taxpayer-standing cases. The three of them containing lengthy discussion of the Establishment Clause warrant analysis.
Flast was dismissively and unpersuasively distinguished just 13 years later in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464 (1982). The taxpayers there challenged the decision of the Department of Health, Education, and Welfare to give a 77-acre tract of Government property, worth over half a million dollars, to a religious organization. Id., at 468. The Court, adhering to the strict letter of Flast‘s two-pronged nexus test, held that the taxpayers lacked standing. Flast‘s first prong was not satisfied: Rather than challenging a congressional taxing and spending statute, the plaintiffs were attacking an agency decision to transfer federal property pursuant to Congress‘s power under the
While Valley Forge‘s application of the first prong to distinguish Flast was unpersuasive, the Court was at least not trying to hide the ball. Its holding was forthrightly based on a resounding rejection of the very concept of Psychic Injury:
“[Plaintiffs] fail to identify any personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees. That is not an injury sufficient to confer standing under Art. III, even though the disagreement is phrased in constitutional terms. It is evident that respondents are firmly committed to the constitutional principle of separation of church and State, but standing is not measured by the intensity of the litigant‘s interest or the fervor of his advocacy.” 454 U. S., at 485-486 (emphasis deleted).
Of course, in keeping with what was to become the shameful tradition of our taxpayer-standing cases, the Court‘s candor about the inadequacy of Psychic Injury was combined with a notable silence as to why Flast itself was not doomed.
A mere six years later, Flast was resuscitated in Bowen v. Kendrick, 487 U. S. 589 (1988). The taxpayers there
Kendrick, like Flast before it, was obviously based on Psychic Injury: The taxpayers could not possibly make, and did not attempt to make, the showing required for Wallet Injury. But by relying on Psychic Injury, Kendrick perfectly revealed the incompatibility of that concept with the outcome in Doremus. Just as Kendrick did not care whether the appropriated funds would have been spent anyway-given to a different, permissible recipient-so also Doremus should not have cared that the teachers would likely receive the same salary once their classroom activities were limited to secular conduct. Flast and Kendrick‘s acceptance of Psychic Injury is fundamentally at odds with Frothingham, Doremus, and Valley Forge.
Which brings me to the final case worthy of mention. Last Term, in DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006), we concisely confirmed that Flast was based on Psychic Injury. The taxpayers in that case sought to rely on
“The Court... understood the ‘injury’ alleged in Establishment Clause challenges to federal spending to be the very ‘extract[ion] and spen[ding]’ of ‘tax money’ in aid of religion alleged by a plaintiff. And an injunction against the spending would of course redress that injury, regardless of whether lawmakers would dispose of the savings in a way that would benefit the taxpayer-plaintiffs personally.” 547 U.S., at 348-349 (citation omitted; some alterations in original).
What Cuno‘s conceptualization of Flast reveals is that there are only two logical routes available to this Court. We must initially decide whether Psychic Injury is consistent with
II
A
The plurality today avails itself of neither principled option. Instead, essentially accepting the Solicitor General‘s primary submission, it limits Flast to challenges to expenditures that are “expressly authorized or mandated by... specific congressional enactment.” Ante, at 608. It offers no intellectual justification for this limitation, except that “[i]t is a necessary concomitant of the doctrine of stare decisis that a precedent is not always expanded to the limit of its logic.” Ante, at 615. That is true enough, but since courts purport to be engaged in reasoned decisionmaking, it is only true when (1) the precedent‘s logic is seen to require narrowing or readjustment in light of relevant distinctions that the new fact situation brings to the fore; or (2) its logic is funda
Yet the plurality is also unwilling to acknowledge that the logic of Flast (its Psychic Injury rationale) is simply wrong, and for that reason should not be extended to other cases. Despite the lack of acknowledgment, however, that is the only plausible explanation for the plurality‘s indifference to whether the “distinguishing” fact is legally material, and for its determination to limit Flast to its “resul[t],” ante, at 610.3 Why, then, pick a distinguishing fact that may breathe life into Flast in future cases, preserving the disreputable disarray of our Establishment Clause standing jurisprudence? Why not hold that only taxpayers raising Establishment Clause challenges to expenditures pursuant to the
Because the express-allocation line has no mooring to our tripartite test for
Any last pretense of minimalism-of adhering to prior law but merely declining to “extend” it-is swept away by the fact that the Court‘s holding flatly contradicts Kendrick. The whole point of the as-applied challenge in Kendrick was that the Secretary, not Congress, had chosen inappropriate grant recipients. 487 U.S., at 620-622. Both Kendrick and this case equally involve, in the relevant sense, attacks on executive discretion rather than congressional decision: Congress generally authorized the spending of tax funds for cer
B
While I have been critical of the Members of the plurality, I by no means wish to give the impression that respondents’ legal position is any more coherent. Respondents argue that Flast did not turn on whether Congress has expressly allocated the funds to the allegedly unconstitutional use, and their case plainly rests on Psychic Injury. They repeatedly emphasize that the injury in Flast was merely the governmental extraction and spending of tax money in aid of religion. See, e. g., Brief for Respondents 28. Respondents refuse to admit that their argument logically implies, for the reasons already discussed, that every expenditure of tax revenues that is alleged to violate the Establishment Clause is subject to suit under Flast.
Of course, such a concession would run headlong into the denial of standing in Doremus. Respondents’ only answer to Doremus is the cryptic assertion that the injury there was not fairly traceable to the unconstitutional conduct. Brief for Respondents 21, and n. 7. This makes no sense. On Flast‘s theory of Psychic Injury, the injury in Doremus was perfectly traceable and not in any way attenuated. It consisted of the psychic frustration that tax funds were being used in violation of the Establishment Clause, which was directly caused by the paying of teachers to read the Bible, and which would have been remedied by prohibition of that
The logical consequence of respondents’ position finds no support in this Court‘s precedents or our Nation‘s history. Any taxpayer would be able to sue whenever tax funds were used in alleged violation of the Establishment Clause. So, for example, any taxpayer could challenge the fact that the Marshal of our Court is paid, in part, to call the courtroom to order by proclaiming “God Save the United States and this Honorable Court.” As much as respondents wish to deny that this is what Flast logically entails, it blinks reality to conclude otherwise. If respondents are to prevail, they must endorse a future in which ideologically motivated taxpayers could “roam the country in search of governmental wrongdoing and... reveal their discoveries in federal court,” transforming those courts into “ombudsmen of the general welfare” with respect to Establishment Clause issues. Valley Forge, 454 U.S., at 487.
C
Ultimately, the arguments by the parties in this case and the opinions of my colleagues serve only to confirm that Flast‘s adoption of Psychic Injury has to be addressed head-
III
Is a taxpayer‘s purely psychological displeasure that his funds are being spent in an allegedly unlawful manner ever sufficiently concrete and particularized to support
As I noted at the outset, Lujan explained that the “consisten[t]” view of this Court has been 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.” 504 U.S., at 573-574. As evidence of the consistency with which we have affirmed that understanding, Lujan relied on the reasoning in Frothingham, and in several other cases, including Ex parte Levitt, 302 U.S. 633 (1937) (per curiam) (dismissing suit challenging Justice Black‘s appointment to this Court in alleged violation of the
Nor does Flast‘s limitation on Psychic Injury-the limitation that it suffices only when the two-pronged “nexus” test is met-cure the
Moreover, Flast is damaged goods, not only because its fanciful two-pronged “nexus” test has been demonstrated to be irrelevant to the test‘s supposed objective, but also be
“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.” 392 U.S., at 100-101.
A perceptive Frenchman, visiting the United States some 185 years before Chief Justice Warren wrote these words, perceived that they were false.
“It is true that... judicial censure, exercised by the courts on legislation, cannot extend without distinction to all laws, for there are some of them that can never give rise to the sort of clearly formulated dispute that one calls a case.” A. de Tocqueville, Democracy in America 97 (H. Mansfield & D. Winthrop transls. and eds. 2000) (emphasis added).
Flast‘s crabbed (and judge-empowering) understanding of the role
“To permit a complainant who has no concrete injury to require a court to rule on important constitutional issues in the abstract would create the potential for abuse of the judicial process, distort the role of the Judi
ciary in its relationship to the Executive and the Legislature and open the Judiciary to an arguable charge of providing ‘government by injunction.‘” Schlesinger, 418 U.S., at 222.
See also Richardson, 418 U.S., at 179-180; Valley Forge, 454 U.S., at 474; Lujan, supra, at 576-577. We twice have noted explicitly that Flast failed to recognize the vital separation-of-powers aspect of
Overruling prior precedents, even precedents as disreputable as Flast, is nevertheless a serious undertaking, and I understand the impulse to take a minimalist approach. But laying just claim to be honoring stare decisis requires more than beating Flast to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive. Even before the addition of the new meaningless distinction devised by today‘s plurality, taxpayer standing in Establishment Clause cases has been a game of chance. In the proceedings below, well-respected federal judges declined to hear this case en banc, not because they thought the issue unimportant or the panel decision correct, but simply because they found our cases so lawless that there was no point in, quite literally, second-guessing the panel. See Freedom From Religion Foundation, Inc. v. Chao, 447 F.3d 988 (CA7 2006) (Flaum, C. J., concurring in denial of rehearing en banc); id., at 989-
My call for the imposition of logic and order upon this chaotic set of precedents will perhaps be met with the snappy epigram that “[t]he life of the law has not been logic: it has been experience.” O. Holmes, The Common Law 1 (1881). But what experience has shown is that Flast‘s lack of a logical theoretical underpinning has rendered our taxpayer-standing doctrine such a jurisprudential disaster that our appellate judges do not know what to make of it. And of course the case has engendered no reliance interests, not only because one does not arrange his affairs with an eye to standing, but also because there is no relying on the random and irrational. I can think of few cases less warranting of stare decisis respect. It is time-it is past time-to call an end. Flast should be overruled.
JUSTICE SOUTER, with whom JUSTICE STEVENS, JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting.
Flast v. Cohen, 392 U.S. 83, 102 (1968), held that plaintiffs with an Establishment Clause claim could “demonstrate the necessary stake as taxpayers in the outcome of the litigation to satisfy Article III requirements.” Here, the controlling, plurality opinion declares that Flast does not apply, but a search of that opinion for a suggestion that these taxpayers have any less stake in the outcome than the taxpayers in Flast will come up empty: the plurality makes no such finding, nor could it. Instead, the controlling opinion closes the door on these taxpayers because the Executive Branch, and not the Legislative Branch, caused their injury. I see no basis for this distinction in either logic or precedent, and respectfully dissent.
We held in Flast, and repeated just last Term, that the “‘injury’ alleged in Establishment Clause challenges to federal spending” is “the very ‘extract[ion] and spen[ding]’ of ‘tax money’ in aid of religion.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 348 (2006) (quoting Flast, supra, at 106; alterations in original). As the Court said in Flast, the importance of that type of injury has deep historical roots going back to the ideal of religious liberty in James Madison‘s Memorial and Remonstrance Against Religious Assessments, that the government in a free society may not “force a citizen to contribute three pence only of his property for the support of any one establishment” of religion. 2 Writings of James Madison 183, 186 (G. Hunt ed. 1901) (hereinafter Madison), quoted in Flast, supra, at 103. Madison thus translated into practical terms the right of conscience described when he wrote that “[t]he Religion... of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.” Madison 184; see also Zelman v. Simmons-Harris, 536 U.S. 639, 711, n. 22 (2002) (SOUTER, J., dissenting) (“As a historical matter, the protection of liberty of conscience may well have been the central objective served by the Establishment Clause“); Locke v. Davey, 540 U.S. 712, 722 (2004) (“Since the founding of our country, there have been popular uprisings against procuring taxpayer funds to support church leaders, which was one of the hallmarks of an ‘established’ religion“); N. Feldman, Divided By God: America‘s Church-State Problem-And What We Should Do About It 48 (2005) (“The advocates of a constitutional ban on establishment were concerned about paying taxes to support religious purposes that their consciences told them not to support“).
The right of conscience and the expenditure of an identifiable three pence raised by taxes for the support of a religious cause are therefore not to be split off from one another.
Here, there is no dispute that taxpayer money in identifiable amounts is funding conferences, and these are alleged to have the purpose of promoting religion. Cf. Doremus v. Board of Ed. of Hawthorne, 342 U.S. 429, 434 (1952). The taxpayers therefore seek not to “extend” Flast, ante, at 615 (plurality opinion), but merely to apply it. When executive agencies spend identifiable sums of tax money for religious purposes, no less than when Congress authorizes the same thing, taxpayers suffer injury. And once we recognize the injury as sufficient for
The plurality points to the separation of powers to explain its distinction between legislative and executive spending decisions, see ante, at 611-612, but there is no difference on that point of view between a Judicial Branch review of an executive decision and a judicial evaluation of a congressional one. We owe respect to each of the other branches, no more to the former than to the latter, and no one has suggested that the Establishment Clause lacks applicability
So in Bowen v. Kendrick, 487 U.S. 589 (1988), we recognized the equivalence between a challenge to a congressional spending bill and a claim that the Executive Branch was spending an appropriation, each in violation of the Establishment Clause. We held that the “claim that... funds [were] being used improperly by individual grantees [was no] less a challenge to congressional taxing and spending power simply because the funding authorized by Congress has flowed through and been administered by the Secretary,” and we added that “we have not questioned the standing of taxpayer plaintiffs to raise Establishment Clause challenges, even when their claims raised questions about the administratively made grants.” Id., at 619.
The plurality points out that the statute in Bowen “expressly authorized and appropriated specific funds for grant-making” and “expressly contemplated that some of those moneys might go to projects involving religious groups.”
II
While Flast standing to assert the right of conscience is in a class by itself, it would be a mistake to think that case is unique in recognizing standing in a plaintiff without injury to flesh or purse. Cognizable harm takes account of the nature of the interest protected, which is the reason that “the constitutional component of standing doctrine incorporates concepts concededly not susceptible of precise definition,”
In the case of economic or physical harms, of course, the “injury in fact” question is straightforward. But once one strays from these obvious cases, the enquiry can turn subtle. Are esthetic harms sufficient for
Because the taxpayers in this case have alleged the type of injury this Court has seen as sufficient for standing, I would affirm.
Notes
Briefs of amici curiae urging affirmance were filed for American Atheists, Inc., by Robert Corn-Revere, Ronald G. London, David M. Shapiro, and Edwin F. Kagin; for the American Civil Liberties Union et al. by Anne Harkavy, Caroline Rogus, Judith E. Schaeffer, Howard W. Goldstein, Steven M. Freeman, Steven C. Sheinberg, Steven R. Shapiro, Daniel Mach, Ayesha N. Khan, Richard B. Katskee, and K. Hollyn Hollman; for the American Jewish Congress et al. by Marc D. Stern and Jeffrey Sinensky; for the Center for Inquiry et al. by Irvin B. Nathan, Daniel S. Pariser, and Ronald A. Lindsay; and for Legal and Religious Historians and Law Scholars by Matthew M. Shors and Steven K. Green.