Summary of Flast v. Cohen, 392 U.S. 83 (1968) and other Taxpayer Standing Cases

The problem of widely diffused injuries is associated with that of taxpayer standing. The Court has rarely recognized such standing, but did so in Flast v. Cohen, 392 U.S. 83 (1968), which involved a taxpayer challenge to aid to religious schools. The Court said that taxpayer standing would be permitted in Flast because there was a "logical nexus between the status asserted and the claim thought to be adjudicated." According to the Court, the nexus demanded of federal taxpayers has two aspects to it.

First, the taxpayer must establish a logical link between the 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 measure. Secondly, the taxpayer must establish a nexus between the 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 powers.

The Court held that the requirement was satisfied in the case of a taxpayer challenging an expenditure of public funds as violative of the establishment clause.

In other cases, the Court has denied taxpayer standing. See Frothingham v. Mellon, 262 U.S. 447 (1923) (refusing to allow taxpayer to enjoin under the tenth amendment expenditures made to reduce maternal and infant mortality under federal statute), and Valley Forge Christian College v. Americans United, 454 U.S. 464 (1982), in which the Court refused to permit a taxpayer to challenge under the establishment clause a conveyance of property formerly used as a military hospital to the Valley Forge Christian College. In Valley Forge, the Court emphasized that the plaintiffs challenged a property transfer, not an expenditure of funds.

In Hein v. Freedom from Religion Foundation, 551 U.S. 587 (2007), the Court essentially confined Flast to its facts. Hein involved a challenge to President Bush’s Faith-Based and Community Initiatives Program. Taxpayers complained that the executive branch had used public money to fund conferences with the purpose and effect of promoting religion. They contended that the resulting expenditures violated the establishment clause. Justice Alito, writing for himself, Chief Justice Roberts, and Justice Kennedy, said that Flast meant only that taxpayers could challenge an explicit congressional decision to use taxpayer funds for arguably religious purposes. If the executive branch used a general appropriation to promote religion, taxpayers could not bring suit. Justice Scalia, writing for himself and Justice Thomas, contended that Flast was an anomaly and should be overruled. Justice Souter, joined by Justices Stevens, Ginsburg, and Breyer, contended that for purposes of standing, there was no relevant distinction between a specific congressional appropriation and the executive’s use of taxpayer funds for religious purposes.

Source: Mark V. Tushnet, Louis M. Seidman, Cass R. Sunstein, Geoffrey R. Stone:  Constitutional Law, 7th ed. Wolters Kluwer (2017).