Hein v. Freedom from Religion Foundation, Inc.

551 U.S. 587

Case Year: 2007

Case Ruling: 5-4, Reversed

Opinion Justice: Alito

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Kennedy, Roberts, Scalia, Thomas


1st Concurring Opinion

Author: Kennedy


1st Dissenting Opinion

Author: Souter


2nd Concurring Opinion

Author: Scalia concurring in the judgment


2nd Dissenting Opinion



3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


In 2001, President George W. Bush issued an executive order creating the White House Office of Faith-Based and Community Initiatives and several related centers within federal agencies. The purpose of this new office and the center was to ensure that faith-based community groups are eligible to compete for federal financial support so long as they "achieve valid public purposes" and adhere to "the bedrock principles of pluralism, nondiscrimination, evenhandedness, and neutrality."

Congress did not specifically authorize the establishment of the Office or the centers, nor did it enact any law specifically appropriating money to their activities. They were created entirely within the Executive Branch, and they were funded through general Executive Branch appropriations.

Freedom from Religion Foundation, an organization opposed to Government endorsement of religion and several of its members brought this suit alleging that the directors of the federal offices violated the Establishment Clause by organizing conferences that were designed to promote, and had the effect of promoting, religious community groups over secular ones. The group argued that it had standing to bring suit because the individual members were federal taxpayers opposed to Executive Branch use of congressional appropriations for these conferences.

A U.S. District Court dismissed the case for lack of standing. It concluded that because the federal officials acted on the President's behalf and were not charged with administering a congressional program, the challenged activities did not authorize taxpayer standing under Flast v. Cohen (1968). The U.S. Court of Appeals for the Seventh Circuit reversed, reading Flast as granting federal taxpayers standing to challenge Executive Branch programs on Establishment Clause grounds so long as the activities are financed by a congressional appropriation, even where there is no statutory program and the funds are from appropriations for general administrative expenses. According to the Seventh Circuit, a taxpayer has standing to challenge anything done by a federal agency so long as the marginal or incremental cost to the public of the alleged Establishment Clause violation is greater than zero.



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. The plaintiffs contend that they meet the standing requirements of Article III of the Constitution because they pay federal taxes.

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 (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....

Article III of the Constitution limits the judicial power of the United States to the resolution of "Cases" and "Controversies," and " 'Article III standing ... enforces the Constitution's case-or-controversy requirement.' " ...

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." This is because "[t]he judicial power of the United States defined by Art. III is not an unconditioned authority to determine the constitutionality of legislative or executive acts." The federal courts are not empowered to seek out and strike down any governmental act that they deem to be repugnant to the Constitution. Rather, federal courts sit "solely, to decide on the rights of individuals," and must " 'refrai[n] from passing upon the constitutionality of an act ... unless obliged to do so in the proper performance of our judicial function, when the question is raised by a party whose interests entitle him to raise it.' " ...

In Flast, the Court carved out a narrow exception to the general constitutional prohibition against taxpayer standing. The taxpayer-plaintiff in that case challenged the distribution of federal funds to religious schools under the Elementary and Secondary Education Act of 1965, alleging that such aid violated the Establishment Clause. The Court set out a two-part test for determining whether a federal taxpayer has standing to challenge an allegedly unconstitutional expenditure:

"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 by Art. I, §8."

The Court held that the taxpayer-plaintiff in Flast had satisfied both prongs of this test: The plaintiff's "constitutional challenge [was] made to an exercise by Congress of its power under Art. I, §8, to spend for the general welfare," and she alleged a violation of the Establishment Clause, which "operates as a specific constitutional limitation upon the exercise by Congress of the taxing and spending power conferred by Art. I, §8."

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." But this broad reading fails to observe "the rigor with which the Flast exception to the Frothingham principle ought to be applied." ...

The expenditures challenged in Flast...were funded by a specific congressional appropriation and were disbursed to private schools (including religiously affiliated schools) pursuant to a direct and unambiguous congressional mandate. Indeed, the Flast taxpayer-plaintiff's constitutional claim was premised on the contention that if the Government's actions were " 'within the authority and intent of the Act, the Act is to that extent unconstitutional and void.' " And the judgment reviewed by this Court in Flast solely concerned the question whether "if [the challenged] expenditures are authorized by the Act the statute constitutes a 'law respecting an establishment of religion' and law 'prohibiting the free exercise thereof' " under the First Amendment .

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 Art. I, §8, to spend for the general welfare." But as this Court later noted, Flast " limited taxpayer standing to challenges directed 'only [at] exercises of congressional power' " under the Taxing and Spending Clause.

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. 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." 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 Federal Property and Administrative Services Act of 1949, which permitted federal agencies to transfer surplus property to private entities. Nevertheless, we found that the plaintiffs lacked standing because Flast "limited taxpayer standing to challenges directed 'only [at] exercises of congressional power' " under the Taxing and Spending Clause....

Bowen v. Kendrick 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 Adolescent Family Life Act (AFLA), which authorized federal grants to private community service groups including religious organizations. The Court found "a sufficient nexus between the taxpayer's standing as a taxpayer and the congressional exercise of taxing and spending power," notwithstanding the fact that the "the funding authorized by Congress ha[d] flowed through and been administered" by an Executive Branch official.

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." AFLA not only expressly authorized and appropriated specific funds for grant-making, it also expressly contemplated that some of those moneys might go to projects involving religious groups. 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]."

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 traditionally regarded as committed to agency discretion." Characterizing this case as an "as-applied challenge" to these general appropriations statutes would stretch the meaning of that term past its breaking point. It cannot be that every legal challenge to a discretionary Executive Branch action implicates the constitutionality of the underlying congressional appropriation. When a criminal defendant charges that a federal agent carried out an unreasonable search or seizure, we do not view that claim as an as-applied challenge to the constitutionality of the statute appropriating funds for the Federal Bureau of Investigation. Respondents have not established why the discretionary Executive Branch expenditures here, which are similarly funded by no-strings, lump-sum appropriations, should be viewed any differently.7

In short, this case falls outside the "the narrow exception" that Flast "created to the general rule against taxpayer standing established in Frothingham." 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, and thus lacks the requisite "logical nexus" between taxpayer status "and the type of legislative enactment attacked."

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." 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."

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," Flast, supra, 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.' " Moreover, we have repeatedly emphasized that the Flast exception has a "narrow application in our precedent," that only "slightly lowered" the bar on taxpayer standing, Richardson, and that must be applied with "rigor."

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 (1971) (no taxpayer standing to sue under Free Exercise Clause of First Amendment ); Richardson (no taxpayer standing to sue under Statement and Account Clause of Art. I); Schlesinger (no taxpayer standing to sue under Incompatibility Clause of Art. I). We have similarly refused to extend Flast to permit taxpayer standing for Establishment Clause challenges that do not implicate Congress' taxing and spending power. See Valley Forge (no taxpayer standing to challenge Executive Branch action taken pursuant to Property Clause of Art. IV). In effect, we have adopted the position set forth by Justice Powell in his concurrence in Richardson and have "limit[ed] the expansion of federal taxpayer and citizen standing in the absence of specific statutory authorization to an outer boundary drawn by the results in Flast ... ."


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." .

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....

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-a-vis the other branches, concrete adverseness or not." ...

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.

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 apply Flast; it extended Flast. It is a necessary concomitant of the doctrine of stare decisis that a precedent is not always expanded to the limit of its logic. That was the approach that then-Justice Rehnquist took in his opinion for the Court in Valley Forge, and it is the approach we take here. We do not extend Flast, but we also do not overrule it. We leave Flast as we found it.

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 1 (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," 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.


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, (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....

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 Article III standing? The answer is plainly no.

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." 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 Lévitt (1937) (dismissing suit challenging Justice Black's appointment to this Court in alleged violation of the Ineligibility Clause, Art. I, §6, cl. 2), United States v. Richardson (denying standing to challenge the Government's failure to disclose the CIA's expenditures in alleged violation of the Accounts Clause, Art. I, §9, cl. 7), and Schlesinger v. Reservists Comm. to Stop the War (1974) (rejecting challenge to Members of Congress holding commissions in the military Reserves in alleged violation of the Incompatibility Clause, Art. I, §6, cl. 2). ...

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 because its cavalier treatment of the standing requirement rested upon a fundamental underestimation of that requirement's importance. Flast was explicitly and erroneously premised on the idea that Article III standing does not perform a crucial separation-of-powers function....

Flast's crabbed (and judge-empowering) understanding of the role Article III standing plays in preserving our system of separated powers has been repudiated:

"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 Judiciary in its relationship to the Executive and the Legislature and open the Judiciary to an arguable charge of providing 'government by injunction.' " Schlesinger.

We twice have noted explicitly that Flast failed to recognize the vital separation-of-powers aspect of Article III standing. And once a proper understanding of the relationship of standing to the separation of powers is brought to bear, Psychic Injury, even as limited in Flast, is revealed for what it is: a contradiction of the basic propositions that the function of the judicial power "is, solely, to decide on the rights of individuals," Marbury v. Madison (1803), and that generalized grievances affecting the public at large have their remedy in the political process.

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 (CA7 2006) (Flaum, C. J., concurring in denial of rehearing en banc); (Easterbrook, J., concurring in denial of rehearing en banc) (describing our cases as "arbitrary," "illogical," and lacking in "comprehensiveness and rationality"). We had an opportunity today to erase this blot on our jurisprudence, but instead have simply smudged it.

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 (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.


Flast v. Cohen (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." 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....

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. The taxpayers therefore seek not to "extend" Flast, 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 Article III, there can be no serious question about the other elements of the standing enquiry: the injury is indisputably "traceable" to the spending, and "likely to be redressed by" an injunction prohibiting it.

The plurality points to the separation of powers to explain its distinction between legislative and executive spending decisions, 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 to executive uses of money. It would surely violate the Establishment Clause for the Department of Health and Human Services to draw on a general appropriation to build a chapel for weekly church services (no less than if a statute required it), and for good reason: if the Executive could accomplish through the exercise of discretion exactly what Congress cannot do through legislation, Establishment Clause protection would melt away...

Because the taxpayers in this case have alleged the type of injury this Court has seen as sufficient for standing, I would affirm.