|Valley Forge Christian College v. Americans United for Separation of Church and State, Inc.
[ Rehnquist ]
[ Brennan ]
[ Stevens ]
Valley Forge Christian College v. Americans United for Separation of Church and State, Inc.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join, dissenting.
A plaintiff's standing is a jurisdictional matter for Art. III courts, and thus a "threshold question" to be resolved before turning attention to more "substantive" issues. See Linda R. S. v. Richard D., 410 U.S. 614, 616 (1973). But, in consequence, there is an impulse to decide difficult questions of substantive law obliquely in the course of opinions purporting to do nothing more than determine what the Court labels "standing"; this accounts for the phenomenon of opinions, such as the one today, that tend merely to obfuscate, rather than inform, our understanding of the meaning of rights under the law. The serious by-product of that practice is that the Court disregards its constitutional responsibility when, by failing to acknowledge the protections afforded by the Constitution, it uses "standing to slam the courthouse door against plaintiffs who are entitled to full consideration of their claims on the merits." [n1]
The opinion of the Court is a stark example of this unfortunate trend of resolving cases at the "threshold" while obscuring [p491] the nature of the underlying rights and interests at stake. The Court waxes eloquent on the blend of prudential and constitutional considerations that combine to create our misguided "standing" jurisprudence. But not one word is said about the Establishment Clause right that the plaintiff seeks to enforce. And despite its pat recitation of our standing decisions, the opinion utterly fails, except by the sheerest form of ipse dixit, to explain why this case is unlike Flast v. Cohen, 392 U.S. 83 (1968), and is controlled instead by Frothingham v. Mellon, 262 U.S. 447 (1923).
There is now much in the way of settled doctrine in our understanding of the injury-in-fact requirement of Art. III. At the core is the irreducible minimum that persons seeking judicial relief from an Art. III court have
such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends. . . .
Baker v. Carr, 369 U.S. 186, 204 (1962). See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72 (1978). Cases of this Court have identified the two essential components of this "personal stake" requirement. Plaintiff must have suffered, or be threatened with, some "distinct and palpable injury," Warth v. Seldin, 422 U.S. 490, 501 (1975). In addition, there must be some causal connection between plaintiff's asserted injury and defendant's challenged action. Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 41 (1976); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261 (1977). The Constitution requires an Art. III court to ascertain that both requirements are met before proceeding to exercise its authority on behalf of any plaintiff, whether the form of relief requested is equitable or monetary.
But the existence of Art. III injury "often turns on the nature and source of the claim asserted." Warth v. Seldin, [p492] supra, at 500. [n2] Neither "palpable injury" nor "causation" is a term of unvarying meaning. There is much in the way of "mutual understandings" and "common law traditions" that necessarily guides the definitional inquiry. [n3] In addition, the Constitution, and by legislation the Congress, may impart a new, and on occasion unique, meaning to the terms "injury" and "causation" in particular statutory or constitutional contexts. The Court makes a fundamental mistake when it determines that a plaintiff has failed to satisfy the two-pronged "injury-in-fact" test, or indeed any other test of "standing," without first determining whether the Constitution or a statute defines injury, and creates a cause of action for redress of that injury, in precisely the circumstance presented to the Court.
It may, of course, happen that a person believing himself injured in some obscure manner by government action will be held to have no legal right under the constitutional or statutory provision upon which he relies, and will not be permitted to complain of the invasion of another person's "rights." [n4] It [p493] is quite another matter to employ the rhetoric of "standing" to deprive a person, whose interest is clearly protected by the law, of the opportunity to prove that his own rights have been violated. It is in precisely that dissembling enterprise that the Court indulges today.
The "case and controversy" limitation of Art. III overrides no other provision of the Constitution. [n5] To construe that Article to deny standing "‘to the class for whose sake [a] constitutional protection is given,'" Jones v. United States, 362 U.S. 257, 261 (1960), quoting New York ex rel. Hatch v. Reardon, 204 U.S. 152, 160 (1907), simply turns the Constitution on its head. Article III was designed to provide a [p494] hospitable forum in which persons enjoying rights under the Constitution could assert those rights. How are we to discern whether a particular person is to be afforded a right of action in the courts? The Framers did not, of course, employ the modern vocabulary of standing. But this much is clear: the drafters of the Bill of Rights surely intended that the particular beneficiaries of their legacy should enjoy rights legally enforceable in courts of law. [n6] See West Virginia Bd. of Education v. Barnette, 319 U.S. 624, 638 (1943).
With these observations in mind, I turn to the problem of taxpayer standing in general, and this case in particular.
Frothingham v. Mellon, 262 U.S. 447 (1923), involved a challenge to the Maternity Act of 1921, 42 Stat. 224, which provided financial grants to States that agreed to cooperate in programs designed to reduce infant and maternal mortality. Appellant contended that Congress, in enacting the program, had exceeded its authority under Art. I, and had intruded on authority reserved to the States. The Court described Mrs. Frothingham's claim as follows:
[T]his plaintiff alleges . . . that she is a taxpayer of the United States; and her contention, though not clear, seems to be that the effect of the appropriations complained of will be to increase the burden of future taxation, and thereby take her property without due process of law. The right of a taxpayer to enjoin the execution [p495] of a federal appropriation act, on the ground that it is invalid and will result in taxation for illegal purposes, has never been passed upon by this Court.
262 U.S. at 486.
The Court conceded that it had historically treated the interest of a municipal taxpayer in the application of the municipality's funds as sufficiently direct and immediate to warrant injunctive relief to prevent misuse. Ibid. Bradfield v. Roberts, 175 U.S. 291 (1899), in which the Court permitted a federal taxpayer to present an Establishment Clause challenge to the use of federal money for the construction of hospital buildings in the District of Columbia, was held to fall within this rule, because it was appropriate to treat the District of Columbia as a municipality. [n7] But the Court distinguished Mrs. Frothingham's action against the United States:
[T]he relation of a taxpayer of the United States to the Federal Government is very different. His interest in the moneys of the Treasury -- partly realized from taxation and partly from other sources -- 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. [p496]
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.
262 U.S. at 487. After noting the importance of judicial restraint, the Court concluded:
The party who invokes the [judicial] 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.
Id. at 488.
Frothingham's reasoning remains obscure. [n8] The principal interpretive difficulty lies in the manner in which Frothingham chose to blend the language of policy with seemingly absolute statements about jurisdiction. For example, the Court commented with significance on the sheer number of taxpayers who might have raised a claim similar to that of Mrs. Frothingham. Id. at 487. Yet it can hardly be argued that the Constitution bars from federal court a plaintiff who has suffered injury merely because others are similarly aggrieved. "[S]tanding is not to be denied simply [p497] because many people suffer the same injury." United States v. SCRAP, 412 U.S. 669, 687 (1973). And it is equally clear that the Constitution draws no distinction between injuries that are large and those that are comparatively small. The line between more dollars and less is no valid constitutional measure. Cf. Everson v. Board of Education, 330 U.S. 1, 48-49 (1947) (Rutledge, J., dissenting). The only distinction that a Constitution guaranteeing justice to all can recognize is one between some injury and none at all. [n9]
Frothingham also stressed the indirectness of the taxpayer's injury. But, as a matter of Art. III standing, if the causal relationship is sufficiently certain, the length of the causal chain is irrelevant. [n10] See Warth v. Seldin, 422 U.S. at 505. The financial stake of a federal taxpayer in the outcome of a lawsuit challenging an allegedly unlawful federal expenditure is not qualitatively different from that of a state or a municipal taxpayer attacking a local expenditure. More importantly, the injury suffered by a taxpayer is not dependent on the extent of his tax payment. The concept of taxpayer injury necessarily recognizes the continuing stake of the taxpayer in the disposition of the Treasury to which he [p498] has contributed his taxes, and his right to have those funds put to lawful uses. Until Frothingham, there was nothing in our precedents to indicate that this concept, so comfortably applied to municipal taxpayers, was inconsistent with the framework of rights and remedies established by the Federal Constitution.
The explanation for the limit on federal taxpayer "standing" imposed by Frothingham must be sought in more substantive realms. Justice Harlan, dissenting in Flast, came close to identifying what I consider the unstated premise of the Frothingham rule:
[The] taxpayer's complaint can consist only of an allegation that public funds have been, or shortly will be, expended for purposes inconsistent with the Constitution. The taxpayer cannot ask the return of any portion of his previous tax payments, cannot prevent the collection of any existing tax debt, and cannot demand an adjudication of the propriety of any particular level of taxation. His tax payments are received for the general purposes of the United States, and are, upon proper receipt, lost in the general revenues.
392 U.S. at 128. [p499]
In a similar vein, the Government argued in Flast that taxpayer suits involve only a disagreement by the taxpayer with the uses to which tax revenues were committed, and that the resolution of such disagreements is entrusted to branches of the Federal Government other than the judiciary. Id. at 98. The arguments of both the Government and Justice Harlan are phrased, as they must be, not in the language of "standing," but of "legal rights" and "justiciable issues."
The Frothingham rule may be seen as founded solely on the prudential judgment by the Court that precipitate and unnecessary interference in the activities of a coequal branch of government should be avoided. Alternatively, Frothingham may be construed as resting upon an unarticulated, constitutionally established barrier between Congress' power to tax and its power to spend, which barrier makes it analytically impossible to mount an assault on the former through a challenge to the latter. But it is sufficient for present purposes to say that Frothingham held that the federal taxpayer has no continuing legal interest in the affairs of the Treasury analogous to a shareholder's continuing interest in the conduct of a corporation.
Whatever its provenance, the general rule of Frothingham displays sound judgment: courts must be circumspect in dealing with the taxing power in order to avoid unnecessary intrusion into the functions of the Legislative and Executive Branches. Congress' purpose in taxing will not ordinarily affect the validity of the tax. Unless the tax operates unconstitutionally, see, e.g., Murdock v. Pennsylvania, 319 U.S. 105 (1943), the taxpayer may not object to the use of his funds. Mrs. Frothingham's argument, that the use of tax funds for purposes unauthorized by the Constitution amounted to a violation of due process, did not provide her with the required legal interest because the Due Process Clause of the Fifth Amendment does not protect taxpayers against increases in tax liability. See Flast v. Cohen, 392 U.S. at 105. Mrs. Frothingham's claim was thus reduced [p500] to an assertion of "the States' interest in their legislative prerogatives," ibid., a third-party claim that could properly be barred. [n11] But in Flast, the Court faced a different sort of constitutional claim, and found itself compelled to retreat from the general assertion in Frothingham that taxpayers have no interest in the disposition of their tax payments. To understand why Frothingham's bar necessarily gave way in the face of an Establishment Clause claim, we must examine the right asserted by a taxpayer making such a claim.
In 1947, nine Justices of this Court recognized that the Establishment Clause does impose a very definite restriction on the power to tax. [n12] The Court held in Everson v. Board of Education, 330 U.S. at 15, that the "‘establishment of religion' clause of the First Amendment means at least this:" [p501]
No tax in any amount, large or small, can be levied to support any religious activities or instructions, whatever they may be called, or whatever form they may adopt, to teach or practice religion.
Id. at 16.
The Members of the Court could not have been more explicit.
One of our basic rights is to be free of taxation to support a transgression of the constitutional command that the authorities "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
Id. at 22 (Jackson, J., dissenting).
[A]part from efforts to inject religious training or exercises and sectarian issues into the public schools, the only serious threat to maintaining that complete and permanent separation of religion and civil power which the First Amendment commands is through the use of the taxing power to support religion, religious establishments, or establishments having a religious foundation whatever their form or special religious function. . . . [M]oney taken by taxation from one is not to be used or given to support another's religious training of belief, or indeed one's own.
Id. at 44 (Rutledge, J., dissenting).
In determining whether the law challenged in Everson was one "respecting an establishment of religion," the Court did not fail to examine the historic meaning of the constitutional language, "particularly with respect to the imposition of taxes." Id. at 8. For as Justice Rutledge pointed out in his dissent:
No provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment. It is at once the refined product and the terse summation of that history.
Id. at 33. That history bears a brief repetition in the present context.
Many of the early settlers of this Nation came here to escape the tyranny of laws that compelled the support of government-sponsored churches and that inflicted punishments for the failure to pay establishment taxes and tithes. Id. at 8-9. But the inhabitants of the various Colonies soon displayed [p502] a capacity to recreate the oppressive practices of the countries that they had fled. Once again persons of minority faiths were persecuted, and again such persons were subjected -- this time by the colonial governments -- to tithes and taxes for support of religion. Id. at 10, and n. 8; Reynolds v. United States, 98 U.S. 145, 162-163 (1879).
These practices became so commonplace as to shock the freedom-loving colonials into a feeling of abhorrence. The imposition of taxes to pay ministers' salaries and to build and maintain churches and church property aroused their indignation. It was these feelings which found expression in the First Amendment.
Everson, supra, at 11 (footnotes omitted).
In 1784-1785, before the adoption of the Constitution, the continuing conflict between those who saw state aid to religion as but the natural expression of "commonly shared" religious sentiments and those who saw such support as a threat to the very notion of civil government culminated in the battle fought in the Virginia House of Delegates over "a bill establishing provision for teachers of the Christian religion." [n13] Reynolds, supra, at 162-163. The introduction of that bill in the state assembly prompted James Madison to prepare and circulate his famous "Memorial and Remonstrance Against Religious Assessments," imploring the legislature to establish and maintain the complete separation of religion and civil authority, and thus to reject the bill. In the end, the bill was rejected by the Virginia Legislature, and, in its place, Madison succeeded in securing the enactment of "A Bill for Establishing Religious Freedom," first introduced in the Virginia General Assembly seven years earlier by Thomas Jefferson. 98 U.S. at 163; Everson, 330 U.S. [p503] at 11-13 (majority opinion); id. at 35-40 (Rutledge, J., dissenting). Because Madison and Jefferson played such leading roles in the events leading to the adoption of the First Amendment, the Everson opinions did not hesitate to reproduce the partial text of their Virginia bill as a primary source for understanding the objectives, and protections, afforded by the more concise phrasing of the Establishment Clause. Everson, supra, at 12-13, 28; see Reynolds, supra, at 163-164. Extracts from that bill also bear repeating in the present context. The preamble provided, in part:
[T]o compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern.
12 Hening's Stat. 85. Its operative language emphatically stated:
That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief. . . .
Id. at 86. [n14]
Justice Rutledge summed up Madison's views in the following terms:
In no phase was he more unrelentingly absolute than in opposing state support or aid by taxation. Not even "three pence" contribution was thus to be exacted from [p504] any citizen for such a purpose. Tithes had been the lifeblood of establishment before and after other compulsions disappeared. Madison and his coworkers made no exceptions or abridgments to the complete separation [between church and state] they created. Their objection was not to small tithes. It was to any tithes whatsoever. "If it were lawful to impose a small tax for religion, the admission would pave the way for oppressive levies." Not the amount, but "the principle of the assessment was wrong."
Everson, supra, at 401 (citation omitted).
It is clear, in the light of this history, that one of the primary purposes of the Establishment Clause was to prevent the use of tax moneys for religious purposes. The taxpayer was the direct and intended beneficiary of the prohibition on financial aid to religion. [n15] This basic understanding of the meaning of the Establishment Clause explains why the Court in Everson, while rejecting appellant's claim on the merits, [p505] perceived the issue presented there as it did. The appellant sued "in his capacity as a district taxpayer," 330 U.S. at 3, challenging the actions of the Board of Education in passing a resolution providing reimbursement to parents for the cost of transporting their children to parochial schools, and seeking to have that resolution "set aside." Appellant's Establishment Clause claim was precisely that the "statute . . . forced inhabitants to pay taxes to help support and maintain" church schools. Id. at 5. It seems obvious that all the Justices who participated in Everson would have agreed with Justice Jackson's succinct statement of the question presented: "Is it constitutional to tax this complainant to pay the cost of carrying pupils to Church schools of one specified denomination?" Id. at 21 (dissenting opinion). Given this view of the issues, could it fairly be doubted that this taxpayer alleged injury in precisely the form that the Establishment Clause sought to make actionable? [n16]
In Flast v. Cohen, 392 U.S. 83 (1968), federal taxpayers sought to challenge the Department of Health, Education, and Welfare's administration of the Elementary and Secondary [p506] Education Act of 1965: specifically, the Department's practice of allowing funds distributed under that Act to be used to finance instruction in religious schools. Appellants urged that the use of federal funds for such a purpose violated the Establishment and Free Exercise Clauses of the First Amendment, and sought a declaration that this use of federal funds was not authorized by the Act, or that, to the extent the use was authorized, the Act was "unconstitutional and void." Appellants further sought an injunction to bar appellees from approving any expenditure of funds for the allegedly unconstitutional purposes. Id. at 86-88. The Frothingham rule stood as a seemingly absolute barrier to the maintenance of the claim. The Court held, however, that the Frothingham barrier could be overcome by any claim that met both requirements of a two-part "nexus" test. The Justices who participated in Flast were not unaware of the Court's continued recognition of a federally cognizable "case or controversy" when a local taxpayer seeks to challenge as unconstitutional the use of a municipality's funds -- [p507] the propriety of which had, of course, gone unquestioned in Everson. [n17] The Court was aware as well of the rule stated in Doremus v. Board of Education, 342 U.S. 429 (1952), that the interest of a taxpayer, even one raising an Establishment Clause claim, was limited to the actions of a government involving the expenditure of funds. But in reaching its holding, it is also quite clear that the Court was responding, not only to Everson's continued acceptance of municipal taxpayer actions, but also to Everson's exposition of the history and meaning of the Establishment Clause. See Flast, supra, at 103-104.
It is at once apparent that the test of standing formulated by the Court in Flast sought to reconcile the developing doctrine of taxpayer "standing" with the Court's historical understanding that the Establishment Clause was intended to prohibit the Federal Government from using tax funds for the advancement of religion, and thus the constitutional imperative of taxpayer standing in certain cases brought pursuant to the Establishment Clause. The two-pronged "nexus" test offered by the Court, despite its general language, [n18] is [p508] best understood as
a determinant of standing of plaintiffs alleging only injury as taxpayers who challenge alleged violations of the Establishment and Free Exercise Clauses of the First Amendment,
and not as a general statement of standing principles. Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 238 (1974) (BRENNAN, J., dissenting); Flast, 392 U.S. at 102. The test explains what forms of governmental action may be attacked by someone alleging only taxpayer status, and, without ruling out the possibility that history might reveal another similarly founded provision, explains why an Establishment Clause claim is treated differently from any other assertion that the Federal Government has exceeded the bounds of the law in allocating its largesse. Thus, consistent with Doremus, Flast required, as the first prong of its test, that the taxpayer demonstrate a logical connection between his taxpayer status and the type of legislation attacked. Flast, supra, at 102. Appellants' challenge to a program of grants to educational institutions clearly satisfied this first requirement. 392 U.S. at 103. As the second prong, consistent with the prohibition of taxpayer claims of the kind advanced in Frothingham, appellants were required to show a connection between their status and the precise nature of the infringement alleged. Flast, 392 U.S. at 102. They had no difficulty meeting this requirement: the Court agreed that the Establishment Clause jealously protects taxpayers from diversion of their funds to the support of religion through the offices of the Federal Government. Id. at 103-104. [p509]
The nexus test that the Court "announced," id. at 102-103, sought to maintain necessary continuity with prior cases, and set forth principles to guide future cases involving taxpayer standing. But Flast did not depart from the principle that no judgment about standing should be made without a fundamental understanding of the rights at issue. Id. at 102. The two-part Flast test did not supply the rationale for the Court's decision, but rather its exposition: that rationale was supplied by an understanding of the nature of the restrictions on government power imposed by the Constitution, and the intended beneficiaries of those restrictions.
It may be that Congress can tax for almost any reason, or for no reason at all. There is, so far as I have been able to discern, but one constitutionally imposed limit on that authority. Congress cannot use tax money to support a church, or to encourage religion. That is "the forbidden exaction." Everson v. Board of Education, 330 U.S. at 45 (Rutledge, J., dissenting) (emphasis added). See Flast, supra, at 115-116 (Fortas, J., concurring). In absolute terms, the history of the Establishment Clause of the First Amendment makes this clear. History also makes it clear that the federal taxpayer is a singularly "proper and appropriate party to invoke a federal court's jurisdiction" to challenge a federal bestowal of largesse as a violation of the Establishment Clause. Each, and indeed every, federal taxpayer suffers precisely the injury that the Establishment Clause guards against when the Federal Government directs that funds be taken from the pocketbooks of the citizenry and placed into the coffers of the ministry.
A taxpayer cannot be asked to raise his objection to such use of his funds at the time he pays his tax. Apart from the unlikely circumstance in which the Government announced in advance that a particular levy would be used for religious subsidies, taxpayers could hardly assert that they were being injured until the Government actually lent its support to a religious venture. Nor would it be reasonable to require him to address his claim to those officials charged with the collection [p510] of federal taxes. Those officials would be without the means to provide appropriate redress -- there is no practical way to segregate the complaining taxpayer's money from that being devoted to the religious purpose. Surely, then, a taxpayer must have standing at the time that he learns of the Government's alleged Establishment Clause violation to seek equitable relief in order to halt the continuing and intolerable burden on his pocketbook, his conscience, and his constitutional rights.
Blind to history, the Court attempts to distinguish this case from Flast by wrenching snippets of language from our opinions and by perfunctorily applying that language under color of the first prong of Flast's two-part nexus test. The tortuous distinctions thus produced are specious, at best: at worst, they are pernicious to our constitutional heritage.
First, the Court finds this case different from Flast because here, the "source of [plaintiffs'] complaint is not a congressional action, but a decision by HEW to transfer a parcel of federal property." Ante, at 479 (emphasis added). This attempt at distinction cannot withstand scrutiny. Flast involved a challenge to the actions of the Commissioner of Education, and other officials of HEW, in disbursing funds under the Elementary and Secondary Education Act of 1965 to "religious and sectarian" schools. Plaintiffs disclaimed "any intent[ion] to challenge . . . all programs under . . . the Act." Flast, supra, at 87. Rather, they claimed that defendant administrators' approval of such expenditures was not authorized by the Act, or alternatively, to the extent the expenditures were authorized, the Act was "unconstitutional and void." Ibid. In the present case, respondents challenge HEW's grant of property pursuant to the Federal Property and Administrative Services Act of 1949, seeking to enjoin HEW "from making a grant of this and other property to the [defendant] so long as such a grant will violate the Establishment Clause." App. 12. It may be that the Court is concerned with the adequacy of respondents' pleading; respondents [p511] have not, in so many words, asked for a declaration that the "Federal Property and Administrative Services Act is unconstitutional and void to the extent that it authorizes HEW's actions." I would not construe their complaint so narrowly.
More fundamentally, no clear division can be drawn in this context between actions of the Legislative Branch and those of the Executive Branch. To be sure, the First Amendment is phrased as a restriction on Congress' legislative authority; this is only natural, since the Constitution assigns the authority to legislate and appropriate only to the Congress. But it is difficult to conceive of an expenditure for which the last governmental actor, either implementing directly the legislative will or acting within the scope of legislatively delegated authority, is not an Executive Branch official. The First Amendment binds the Government as a whole, regardless of which branch is at work in a particular instance.
The Court's second purported distinction between this case and Flast is equally unavailing. The majority finds it "decisive" that the Federal Property and Administrative Services Act of 1949 "was an evident exercise of Congress' power under the Property Clause, Art. IV, § 3, cl. 2," ante at 480, while the Government action in Flast was taken under Art. I, § 8. The Court relies on United States v. Richardson, 418 U.S. 166 (1974), and Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974), to support the distinction between the two Clauses, noting that those cases involved alleged deviations from the requirements of Art. I, § 9, cl. 7, and Art. I, § 6, cl. 2, respectively. The standing defect in each case was not, however, the failure to allege a violation of the Spending Clause; rather, the taxpayers in those cases had not complained of the distribution of Government largesse, and thus failed to meet the essential requirement of taxpayer standing recognized in Doremus.
It can make no constitutional difference in the case before us whether the donation to the petitioner here was in the form of a cash grant to build a facility, see Tilton v. Richardson, [p512] 403 U.S. 672 (1971), or in the nature of a gift of property including a facility already built. That this is a meaningless distinction is illustrated by Tilton. In that case, taxpayers were afforded standing to object to the fact that the Government had not received adequate assurance that, if the property that it financed for use as an educational facility was later converted to religious use, it would receive full value for the property, as the Constitution requires. The complaint here is precisely that, although the property at issue is actually being used for a sectarian purpose, the Government has not received, nor demanded, full value payment. [n19] Whether undertaken pursuant to the Property Clause or the Spending Clause, the breach of the Establishment Clause, and the relationship of the taxpayer to that breach, is precisely the same. [n20] [p513]
Plainly hostile to the Framers' understanding of the Establishment Clause and Flast's enforcement of that understanding, the Court vents that hostility, under the guise of standing,
to slam the courthouse door against plaintiffs who [as the Framers intended] are entitled to full consideration of their [Establishment Clause] claims on the merits.
Barlow v. Collins, 397 U.S. 159, 178 (1970) (BRENNAN, J., concurring in result and dissenting). Therefore, I dissent.
1. Barlow v. Collins, 397 U.S. 159, 178 (1970) (BRENNAN, J., concurring in result and dissenting).
Congress may enact statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute.
Linda R. S. v. Richard D., 410 U.S. 614, 617, n. 3 (1973). The Framers of the Constitution, of course could, and did, exercise the same power.
3. Justice Frankfurter identified two sources to assist in the definitional inquiry concerning injury:
A litigant ordinarily has standing to challenge a governmental action of a sort that, if taken by a private person, would create a right of action cognizable by the courts. Or standing may be based on an interest created by the Constitution or a statute.
Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 162 (1961) (concurring opinion) (citations omitted). In identifying the types of injuries that might be recognized in private law actions as a basis for suits against the Government, Justice Frankfurter felt free to draw on principles of "common law." Id. at 162-163, 167-160.
4. Of course, we generally permit persons to press federal suits even when the injury complained of is not obviously within the realm of injuries that a particular statutory or constitutional provision was designed to guard against. We term that circumstance one of "third-party standing." In such situations, the Constitution requires us to determine whether the injury alleged is sufficiently "palpable" to fall within the contemplation of Art. III. If plaintiff has suffered injury in fact within the contemplation of Art. III, but is not obviously within the reach of the particular statutory or constitutional provision upon which the plaintiff founds his claim, we then bring prudential considerations to bear to determine whether the plaintiff should be allowed to maintain his action. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 80-81 (1978). In evaluating a claim of "third-party standing," we are, by definition, without specific constitutional or congressional direction, and are thus free to draw upon a wisdom peculiarly judicial in character -- to elaborate upon the meaning of constitutionally cognizable injury, and then to weigh considerations of policy along with gleanings of legislative and constitutional intent, in order to determine whether the plaintiff should be permitted to maintain his claim.
With the understanding that "the basic practical and prudential concerns underlying the standing doctrine are generally satisfied when the constitutional requisites are met," id. at 81, we have only rarely interposed a bar to "third-party standing," particularly when constitutional violations are alleged. Indeed, the only firm exception to this generally permissive attitude toward third-party suits is the restriction on taxpayer suits. Id. at 79-81.
5. When the Constitution makes it clear that a particular person is to be protected from a particular form of government action, then that person has a "right" to be free of that action; when that right is infringed, then there is injury, and a personal take, within the meaning of Art. III.
6. As James Madison noted, if a bill of rights were
incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.
1 Annals of Cong. 439 (1789).
7. As an attempt to afford a taxpayer living in the District of Columbia with the same rights as a taxpayer living in a municipality, the Court's treatment of Bradfield has some persuasive force. But if the ban on federal taxpayer standing had been considered to be of constitutional origin, no analogy could have sufficed to cure the jurisdictional defect. Appellant had not alleged that he was a taxpayer of the District of Columbia, but rather that he was a "citizen and taxpayer of the United States and a resident of the District of Columbia." 175 U.S. at 295 (emphasis added). Although the court below deemed the suit to be against Ellis H. Roberts, not as Treasurer of the United States but as Treasurer of the District of Columbia, Roberts v. Bradfield, 12 App.D.C. 453, 459-460 (1898), standing plainly rested on appellant's federal taxpayer status.
8. The question apparently remains open whether Frothingham stated a prudential limitation or identified an Art. III barrier. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. at 79, n. 25; United States v. Richardson, 418 U.S. 166, 181, 196, n. 18 (1974) (POWELL, J., concurring). It was generally agreed at the time of Flast v. Cohen, 392 U.S. 83, 92, n. 6, 101 (1968), and clearly the view of Justice Harlan in dissent, id. at 130, that the rule stated reflected prudential and policy considerations, not constitutional limitations. Perhaps the case is most usefully understood as a "substantive" declaration of the legal rights of a taxpayer with respect to Government spending, coupled with a prudential restriction on the taxpayer's ability to raise the claims of third parties. Under any construction, however, Frothingham must give way to a taxpayer's suit brought under the Establishment Clause.
9. Indeed, as noted in Flast, supra, the stake in the federal Treasury of major corporate taxpayers was not in any sense trivial. Indeed, there was a time when a federal program involving an expenditure from the Treasury of $10 billion would very likely result in an increase of $150 million in the tax bill of a major corporation such as General Motors. See Hearings on S. 2097 before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 89th Cong., 2nd Sess., pt. 2, p. 493 (1966) (letter from K. C. Davis to Sen. Sam Ervin); Note, 69 Yale L.J. 895, 917, n. 127 (1960).
10. Even if actual impact on the taxpayer's pocketbook were deemed the test of taxpayer standing, the cases in which a tenuous causal connection between the injury alleged and the challenged action formed the basis for denying plaintiffs standing do not control the case of a taxpayer challenging a Government expenditure. Compare Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976); Warth v. Seldin, 422 U.S. 490 (1975); Linda R. S. v. Richard D., 410 U.S. 614 (1973); with Duke Power Co. v. Carolina Environmental Study Group, Inc., supra; and United States v. SCRAP, 412 U.S. 669 (1973). Frothingham's obstacle was not an inability to show that the alleged injury was "likely to be redressed by a favorable decision." Simon, supra, at 38.
In each of the above-cited cases in which standing was denied, the difficulty was that an intermediate link in the causal chain -- a third party beyond the control of the court -- might serve to bar effective relief. Even if the court acceded to plaintiffs' view of the law, the court's decree might prove ineffectual to relieve plaintiffs' injury because of the independent action of some third party. See 426 U.S. at 41-42; Warth v. Seldin, supra, at 505-507. The situation of the taxpayer is not comparable, because there is no problem of intervening cause. The defendant has the full power to correct the plaintiff's difficulty and, if the court concludes that, as a matter of law and fact, plaintiff is indeed required to provide defendant redress, it has the power to provide relief. The factual aspect of the causal connection is sure.
11. With respect to the enforcement of constitutional restrictions, we have not been overly elegant in defining the class of persons who may object to particular forms of government action. Only the constitutional minimum of injury in fact has been required. As the Court recently noted:
We . . . cannot accept the contention that, outside the context of taxpayers' suits, a litigant must demonstrate something more than injury in fact and a substantial likelihood that the judicial relief requested will prevent or redress the claimed injury.
Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. at 79. See Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 225, n. 15 (1974). Nevertheless, I do not suggest that the Frothingham limitation on federal taxpayer suits should be abandoned. The barrier it evinces between the taxing power and the spending power, whether it be deemed one of constitutional construction or judicial prudence, reflects fundamental conceptions about the nature of the legislative process, and is, in any event, now firmly embedded in our cases. That barrier is necessarily pierced, however, by an Establishment Clause claim.
12. Justice Black, joined by Chief Justice Vinson, and Justices Reed, Douglas, and Murphy, wrote for the majority and concluded that the challenged activity was not a support of religion; Justice Jackson wrote one dissent joined in by Justice Frankfurter; Justice Rutledge also authored a dissent, in which Justices Jackson, Frankfurter, and Burton joined. Both dissents clearly affirmed this constitutional restriction on the power to tax. 330 U.S. at 22, 33.
13. The bill, and Madison's Remonstrance, are both appended to the dissenting opinion of Justice Rutledge in Everson. Id. at 63-74.
14. Although the bill is, in some sense, merely the pronouncement of a small legislative body, its proscription was intended to transcend temporal bounds. The enactment concludes:
And though we well know that this Assembly, enacted by the people for the ordinary purposes of legislation only, have no power to restrain the acts of succeeding assemblies, constituted with powers equal to our own and that therefore to declare this act to be irrevocable would be of no effect in law; yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that, if any act shall be hereafter passed to repeal the present, or to narrow its operation, such act will be an infringement of natural right.
12 Hening's Stat. 86. By incorporation of its principles in the Bill of Rights, the bill was transformed from mere hortatory expression into a guarantee of lasting and binding rights against the Government.
15. The position of a taxpayer with respect to a Government grant of a tax exemption to a religious institution is qualitatively different from the position of a taxpayer objecting to a subsidy.
A subsidy involves the direct transfer of public monies to the subsidized enterprise, and uses resources exacted from taxpayers as a whole. An exemption, on the other hand, involves no such transfer. It assists the exempted enterprise only passively, by relieving a privately funded venture of the burden of paying taxes. In other words, "[i]n the case of direct subsidy, the state forcibly diverts the income of both believers and nonbelievers to churches," while
[i]n the case of an exemption, the state merely refrains from diverting to its own uses income independently generated by the churches through voluntary contributions.
Walz v. Tax Comm'n of New York City, 397 U.S. 664, 690-691 (1970) (BRENNAN, J., concurring) (footnote omitted), quoting Gianella, Religious Liberty, Nonestablishment, and Doctrinal Development, pt. 2, 81 Harv.L.Rev. 513, 533 (1968). Of course, irrespective of the taxpayers' stake in the controversy, in terms of the prohibition on government action imposed by the Establishment Clause, there is also a qualitative difference between a subsidy and an exemption. Ibid.
16. Justice Jackson, writing for the Court in Doremus v. Board of Education, 342 U.S. 429 (1952), explored the limitations of taxpayer standing under the Establishment Clause. In that case, two New Jersey taxpayers challenged a New Jersey law that directed public school teachers to read selected passages from the Bible, seeking a declaratory judgment that such a law violated the Establishment Clause. The Court concluded that the taxpayer lacked standing:
There is no allegation that this activity is supported by any separate tax or paid for from any particular appropriation, or that it adds any sum whatever to the cost of conducting the school. No information is given as to what kind of taxes are paid by appellants, and there is no averment that the Bible reading increases any tax they do pay, or that, as taxpayers, they are, will, or possibly can be out of pocket because of it.
Id. at 433. The Court had no difficulty distinguishing Everson:
Everson showed a measurable appropriation or disbursement of school district funds occasioned solely by the activities complained of. This complaint does not.
342 U.S. at 434.
The difference between the two cases is relevant to the "standing" of taxpayers generally, and most especially to taxpayers asserting claims under the Establishment Clause, for it is clear that, even under the Establishment Clause, the taxpayer's protection was against the use of his funds, and not against the conduct of the government generally. The distinction between Doremus and Everson may be phrased alternatively: Everson was injured in a manner comprehended by the Establishment Clause, and Doremus was not.
17. The anomaly of allowing a municipality's actions to be challenged by a local taxpayer in federal court as a violation of the Establishment Clause, made applicable to the States by virtue of the Fourteenth Amendment, while exempting the Federal Government, whose use of the taxing power in aid of religion was the target of the Framers' adoption of the Establishment Clause, also must have been apparent to the Court.
18. The test was formulated with the Establishment Clause in mind, but the Court wisely sought to phrase the principle it stood for in general terms:
We have noted that the Establishment Clause of the First Amendment does specifically limit the taxing and spending power conferred by Art. 1, 8. Whether the Constitution contains other specific limitations can be determined only in the context of future cases. However, whenever such specific limitations are found, we believe a taxpayer will have a clear stake as a taxpayer in assuring that they are not breached by Congress. Consequently, we hold that a taxpayer will have standing consistent with Article III to invoke federal judicial power when he alleges that congressional action under the taxing and spending clause is in derogation of those constitutional provisions which operate to restrict the exercise of the taxing and spending power. The taxpayer's allegation in such cases would be 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 105-106.
In the years since the announcement of the Flast test, we have yet to recognize a similar restriction on Congress' power to tax, and I know of none. Nevertheless, like the Justices who joined in the Court opinion in Flast, I remain reluctant to rule out the possibility.
19. It is uncontested here that the property at issue was initially purchased with tax funds, and bears the mark of $10 million in federal improvements. At the time of its transfer to the petitioner, its fair market value was approximately $1.3 million. Americans United v. U.S. Dept. of HEW, 619 F.2d 252, 253 (CA3 1980).
The Federal Property and Administrative Services Act of 1949 clearly requires that, whenever possible, fair market value is to be received for property transferred pursuant to its provisions. See 40 U.S.C. § 484(e)(1), 484(e)(3)(G). Proceeds "from any sale, lease, or other disposition of surplus property, shall be covered into the Treasury as miscellaneous receipts. . . ." 40 U.S.C. § 485(a).
The Act provides, however, that "surplus real property, including buildings, fixtures and equipment situated thereon" may be designated by HEW as necessary for "school, classroom, or other educational use." 40 U.S.C. § 484(k)(1). Such property may be transferred to a "nonprofit educational institution." 40 U.S.C. § 484(k)(1)(A). In fixing the price of such property, the Secretary is required to consider any benefit that may accrue to the United States from the use of the property. 40 U.S.C. § 484(k)(1)(C). By failing to require any payment from petitioner college, the Secretary apparently determined that the benefit to the United States exceeded the fair market value. But it is entirely clear from Tilton that, if the facility is and was used for sectarian purposes, the Government was required to obtain full market value at the time such use commences.
20. The Framers of the First Amendment could not have viewed it as less objectionable to the taxpayer to learn that his tax funds were used by his Government to purchase property, construct a church, and deed the property to a religious order, than to find his Government providing the funds to a church to undertake its own construction. So far as the Establishment Clause and the position of the taxpayer are concerned, the situations are interchangeable. Surely James Madison perceived no nice distinction between a grant of land and a grant of funds when he vetoed a bill providing certain land to a church:
[T]he bill, in reserving a certain parcel of land of the United States for the use of said [church], comprises a principle and precedent for the appropriation of funds of the United States for the use and support of religious societies, contrary to the article of the Constitution which declares that "Congress shall make no law respecting a religious establishment."
J. Richardson, Messages and Papers of the Presidents 490 (1897).
Nor has Congress perceived a distinction between an appropriation of money and an appropriation of property. For example, in 1896 Congress included in its Appropriation Act for the District of Columbia a statement declaring it
to be the policy of the Government of the United States to make no appropriation of money or property for the purpose of founding, maintaining, or aiding by payment for services, expenses, or otherwise, any church or religious denomination, or any institution or society which is under sectarian or ecclesiastical control.403 U.S. 602, 648 (1971) (opinion of BRENNAN, J.).