Taxpayer standing and the Establishment Clause, James Madison's little known legacy.

Author:Perry, Clifton

The concept of standing, derived from Article III of the Constitution, is proclaimed to be a safeguard of the implied provision of separation oh powers. Assuming this statement is correct and standing does indeed ensure that the judiciary does not trespass upon the other branches of the federal government, it would not follow that the other branches could not thereby transgress the boundaries of the judiciary. Because standing does not restrain either of the two political branches, by restricting the judicial branch only, standing influences the scope of authority of the other two branches. If standing is not satisfied, then the resolution of any alleged constitutional problem will fall within the domain of either of the remaining branches.

It is indeed correct that standing is a function of the parties bringing the complaint and is not like a political question, which is a problem not amendable to judicial resolution. Nevertheless, there are certain constitutional issues appropriate for judicial resolution but for which no one could satisfy the general constitutional re Tore for standing. It might additionally be noted that to therefore leave the resolution of an alleged constitutional problem to a non-judicial branch simply allows a democratic arm of the government to address a problem that the same arm bears responsibility for creating.

An alleged violation of the Establishment Clause of the First Amendment to the United States Constitution would clearly be an issue appropriate for judicial evaluation. Yet for many violations of the Establishment Clause, no one would constitutionally satisfy the requirement of standing. The Establishment Clause, unlike the other provisions of the First Amendment and most other guarantees of the Bill of Rights, specifies what the government cannot do without expressly or implicitly indicating individual reference. The other provisions of the First Amendment, e.g., the Free Exercise Clause, the Free Speech Clause, a ply distributively to each member of the class. The Establishment Cause, because it seems not to suggest an individual referent, appears to apply collectively. Yet, collective injury is antithetical to the constitutional requirements of standing. Government violation of the Constitution by inappropriately abridging freedom of speech affects individual behavior. But individual behavior is not obviously affected in the same fashion if the government were to non-coercively establish or otherwise support religion or a particular religious endeavor.

If a violation of the Establishment Clause harms an individual, the harm is likely intrinsic. That is, the harm is associated with the mere violation, not necessarily in some further injury to the particular individual. Such harm would be common to all individuals protected by the clause, but neither of these harms supports the constitutional requirement of standing and may indeed gainsay it. Thus, the constitutional enigma of possessing a constitutional right, the breach of which is justifiable, if but only if the party alleging the breach possesses standing. But standing in such a case frequently can only be established on grounds that fail to satisfy the requisites for standing. The latest incantation of this almost self-nugatory concept was issued at the end of United States Supreme Court's 2006-2007 terms.

On 25 June 2007, (1) the United State Supreme Court decided Hein v. Freedom From Religion Foundation, Inc. (hereinafter Hein). (2) Although the substantive issue in the case concerned an alleged violation of the United States Constitution's First Amendment's Establishment Clause, the resolution of the case rested not upon the merits of the allegation but upon grounds of justiciability. The Court reversed the federal appellate court and held that the complaining party did not enjoy standing. Specifically, the petitioner was denied taxpayer standing.

The purpose of the essay shall be to present the legal foundation upon which the Court arrived at its decision, the two concurring opinions and the dissenting opinion. It shall be argued that the foundational case of Flast v. Cohen (hereinafter Flast) (3) might reasonably be read to yield a quite different holding in the Hein case. To that end, Section I is devoted to briefly explaining the concept and the importance of standing to Article III adjudication. Section II covers the major relevant case law involving taxpayer standing from Frothingham v. Mellon (hereinafter Frothingham) (4) up to but excluding Hein. Section III constitutes an endeavor to present clearly the material positions explicated in Hein. In section IV, a critical analysis of taxpayer standing will be presented.


The federal government is a government of limited powers. The limitations are a predicate distributed among the three branches. As manifest in the judicial branch, federal courts may adjudicate only certain types of cases and only live cases or controversies raised by adverse parties who have a stake in the outcome of the litigation. That is, unlike state courts, federal courts have limited subject matter jurisdictions (5) and the case must concern a legal not a political issue, (6) must be ripe for litigation (7) and not be moot. (8) Moreover, the parties must have standing.

The requirement that there be an actual and live dispute between adverse parties who suffer a real interest in the outcome of litigation serves multifarious purposes. First, without a live controversy between adverse parties with vested interests in the outcome of the litigation, the federal court would be in a danger of transgressing separation of powers and performing in much the same manner as Congress. (9) The federal government, created by the United States Constitution, divides the powers delegated to it into three branches, each with specified powers covered by one of the first three articles of the Constitution. Following the perspicacious insights of Montesquieu and Locke, the Framers noted that divided powers are less likely to be corrupting powers. If the federal courts might adjudicate non disputes between non adverse parties, a dangerous conflation of federal powers would obtain.

It is generally thought that although standing is not a logical guarantee, it is likely to ensure more proper and effective judicial decision making.First, a real interest in the outcome of the litigation likely arouses the best measured arguments by the respective parties. By hearing the presentation of the best arguments for each side, the federal court will likewise make the best considered decision. If a party is not adverse to the other party or is without a personal stake in the outcome of the litigation, the arguments before the court would likely not be as well considered as if the adverse parties possessed real interests. (10)

Additionally, the principle of Stare Decisis counsels a court to follow its own holding in future cases dealing with similar claims upon the same set of facts. If standing were not required, then a litigant with a passing interest might litigate an issue before the court presenting weak arguments, potentially resulting in an under argued rule of law. Parties, with a real interest in the outcome of the litigation and possessed thereby with stronger arguments might, because of Stare Decisis, fail to extract from the court the best judgment, short of distinguishing the latter case from the former or overruling the former. (11)

Irrespective of plausible counter-arguments to the necessity of standing, it is a prescriptive requirement wrought from the "Case and Controversy" provision of Article III. (12) The requirements of standing are satisfied if the litigating party contends that he or she has suffered a legally recognized particular and concrete harm or is in immediate danger of such suffering. The party must also maintain that the defendant's conduct caused that harm and shows that the federal court can remedy the harm, should the party prevail upon the merits of the case.

These conditions are considered constitutional requirements for standing and therefore cannot be altered by Congress or the Court, but only through a constitutional amendment to Article III. There are, however, other conditions for standing, so called, prudential conditions, that may be altered, modified or waived by Congress, (13) which are based upon prudent, judicial administration. (14)

There are three general prudential conditions for standing that Congress may amend or waive and the United States Supreme Court may construe Congress as so doing. The first, with exceptions, restricts parties to raising their own claims, not the claims of others. (15) Also with exceptions, a party must raise his or her claim within the "zone of interest" protected by the law. (16) Finally, while there is specific taxpayer standing, there is no general taxpayer standing, save one exception.


The prudential proscription against general taxpayer standing does not address a particular taxpayer's complaint that the Internal Revenue Service somehow improperly taxed him or her. Rather the prohibition concerns the standing sought by a taxpayer as a taxpayer. Generally, one does not have standing to challenge how the government is spending tax monies, save through electing new members to the Legislative and Executive branches. In Frothingham v. Mellon, (17) the plaintiff challenged the Federal Maturity Act of 1921. The Act provided federal grants to states to ameliorate material and infant survival rates and health. The plaintiff argued that was a misuse of the government's taxing authority because the Act violated the Tenth Amendment. Since the Tenth Amendment reserves all powers not delegated to the federal government to the states and to the people, and the care of mothers and infants was not a delegated power, the Act was argued to be "Ultra Vires" (18) and in violation of the Tenth Amendment. (19)

The United States Supreme Court...

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