FLAST VS.

COHEN Facts of the Case Florence Flast and a group of taxpayers challenged federal legislation that financed the purchase of secular textbooks for use in religious schools. Flast argued that such use of tax money violated the Establishment Clause of the First Amendment. A district court held that the federal courts should defer when confronted with taxpayer suits directed against federal spending programs. Question Did Flast, as a taxpayer, have standing to sue the government's spending program? Conclusion Decision: 8 votes for Flast, 1 vote(s) against Legal provision: Article 3, Section 2, Paragraph 1: Case or Controversy Requirement In an 8-to-1 decision, the Court rejected the government's argument that the constitutional scheme of separation of powers barred taxpayer suits against federal taxing and spending programs. In order to prove a "requisite personal stake" in such cases, taxpayers had to 1) establish a logical link between their status as taxpayers and the type of legislative enactment attacked, and 2) show the challenged enactment exceeded specific constitutional limitations imposed upon the exercise of Congressional taxing and spending power. The Court held that Flast had met both parts of the test.

Summary:
In an 81 decision by Justice Warren, the Supreme Court granted standing to federal taxpayers challenging the constitutionality of the Elementary and Secondary Education Act of 1965. The taxpayers believed that the Act, which provided federal funding for textbooks and instructional materials for public and parochial schools, violated both the Establishment and Free Exercise Clauses in the First Amendment; they sought to enjoin the expenditures. Forty-five years prior to Flast, the Court held that federal taxpayers had no standing with which to challenge a federal statute. Frothingham v. Mellon, 262 U.S. 447 (1923). The Court in Flast dutifully noted that this barrier ha[d] never been breached. However, the Court found that Establishment and Free Exercise challenges require special consideration and subsequently allowed the taxpayer army to scale the Frothingham wall. Justice Warren even created the ladder with which to do it: a two-part taxpayer standing test. First, the taxpayer must establish a logical link between his status as a federal taxpayer and the type of legislative enactment being attacked. Second, he must establish the nexus between his status and the exact nature of the alleged constitutional infringement.

Analysis:
This case is activist because the Court created a federal taxpayer standing test so that taxpayers who did not want their tax dollars to support the education of children in religious schools could challenge the funding statute. This new test allowed the justices to play legislator, weighing their policy considerations above the requirements of the law. The justices also demonstrate judicial imperialism. Under Article III of the Constitution, the far-reaching arm of the Supreme Court may only extend to cases and controversies, making advisory opinions a jurisdictional cookie jar into which the Supreme arm cannot reach. Frothingham established that federal taxpayers contesting tax money spent on a federal statute do not have a case or controversy because they have no injury. A federal taxpayers interest in the moneys of the treasury is comparatively minute and indeterminable and that 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. Frothingham, 262 U.S. at 601. The test created by the Court to overcome Frothingham not only demonstrates judicial activism at work, but it also allows taxpayers to retain different rights under the Establishment Clause than they do under any other constitutional provision. Justice Harlan noted this startling phenomenon, in addition to the Courts implication that the Establishment Clause must then fashion a more specific limitation upon Congress powers than [do] the various other constitutional commands, in his dissent. Finally, the case demonstrates activist judicial policy preference because granting federal taxpayers standing to challenge the constitutionality of a federal statute seriously harms the separation of powers doctrine. Each separate but equal branch in the government owes a degree of deference to the others that the decisions each makes are

constitutional. Here, the Court assumes that it will be a better judge of a statutes constitutionality than will the Congress who enacted it.