Taxpayer Suits.

Save for a narrow exception, standing is also lacking when a litigant attempts to sue to contest governmental action that he claims injures him as a taxpayer. In Frothingham v. Mellon,404 the Court denied standing to a taxpayer suing to restrain disbursements of federal money to those states that chose to participate in a program to reduce maternal and infant mortality; her claim was that Congress lacked power to appropriate funds for those purposes and that the appropriations would increase her taxes in future years in an unconstitutional manner. Noting that a federal taxpayer’s “interest in the moneys of the Treasury . . . is comparatively minute and indeterminate” and that “the effect upon future taxation, of any payment out of the funds . . . [is] remote, fluctuating and uncertain,” the Court ruled that plaintiff had failed to allege the type of “direct injury” necessary to confer standing.405

Taxpayers were found to have standing, however, in Flast v. Cohen,406 to contest the expenditure of federal moneys to assist religious-affiliated organizations. The Court asserted that the answer to the question whether taxpayers have standing depends on whether the circumstances of each case demonstrate that there is a logical nexus between the status asserted and the claim sought to be adjudicated. First, there must be a logical link between the status of taxpayer and the type of legislative enactment attacked; this means that a taxpayer must allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Article I, § 8, rather than also of incidental expenditure of funds in the administration of an essentially regulatory statute. Second, there must be a logical nexus between the status of taxpayer and the precise nature of the constitutional infringement alleged; this means that the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the taxing and spending power, rather than simply arguing that the enactment is generally beyond the powers delegated to Congress. Both Frothingham and Flast met the first test, because they attacked a spending program. Flast met the second test, because the Establishment Clause of the First Amendment operates as a specific limitation upon the exercise of the taxing and spending power, but Frothingham did not, having alleged only that the Tenth Amendment had been exceeded. The Court reserved the question whether other specific limitations constrain the Taxing and Spending Clause in the same manner as the Establishment Clause.407

Since Flast, the Court has refused to expand taxpayer standing. Litigants seeking standing as taxpayers to challenge legislation permitting the CIA to withhold from the public detailed information about its expenditures as a violation of Article I, § 9, cl. 7, and to challenge certain Members of Congress from holding commissions in the reserves as a violation of Article I, § 6, cl. 2, were denied standing, in the former cases because their challenge was not to an exercise of the taxing and spending power and in the latter because their challenge was not to legislation enacted under Article I, § 8, but rather was to executive action in permitting Members to maintain their reserve status.408 An organization promoting church-state separation was denied standing to challenge an executive decision to donate surplus federal property to a church-related college, both because the contest was to executive action under valid legislation and because the property transfer was not pursuant to a Taxing and Spending Clause exercise but was taken under the Property Clause of Article IV, § 3, cl. 2.409 The Court also refused to create an exception for Commerce Clause violations to the general prohibition on taxpayer standing.410

Most recently, a Court plurality held that, even in Establishment Clause cases, there is no taxpayer standing where the expenditure of funds that is challenged was not specifically authorized by Congress, but came from general executive branch appropriations.411

Where expenditures “were not expressly authorized or mandated by any specific congressional enactment,” a lawsuit challenging them “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.’ ”412

Local taxpayers attacking local expenditures have generally been permitted more leeway than federal taxpayers insofar as standing is concerned. Thus, in Everson v. Board of Education,413 a municipal taxpayer was found to have standing to challenge the use of public funds for transportation of pupils to parochial schools.414 But, in Doremus v. Board of Education,415 the Court refused an appeal from a state court for lack of standing of a taxpayer challenging Bible reading in the classroom. The taxpayer’s action in Doremus, the Court wrote, “is not a direct dollars-and-cents injury but is a religious difference.”416 This rationale was similar to the spending program-regulatory program distinction of Flast. But, even a dollar-and-cents injury resulting from a state spending program will apparently not constitute a direct dollars-and-cents injury. The Court in Doremus wrote that a taxpayer challenging either a federal or a state statute “must be able to show not only that the statute is invalid but that he has sustained or is in immediate danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.”417

Footnotes

404
Usually cited as Massachusetts v. Mellon, 262 U.S. 447 (1923), the two suits having been consolidated. [Back to text]
405
262 U.S. at 487, 488. In Hein v. Freedom from Religion Foundation, Inc., 127 S. Ct. 2553, 2559 (2007), the Court added that, “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.” [Back to text]
406
392 U.S. 83 (1968). [Back to text]
407
392 U.S. at 105. [Back to text]
408
United States v. Richardson, 418 U.S. 166 (1974); Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227–28 (1974). Richardson in its generalized grievance constriction does not apply when Congress confers standing on litigants. FEC v. Akins, 524 U.S. 11 (1998). When Congress confers standing on “any person aggrieved” by the denial of information required to be furnished them, it matters not that most people will be entitled and will thus suffer a “generalized grievance,” the statutory entitlement is sufficient. Id. at 21–25. [Back to text]
409
Valley Forge Christian College v. Americans United, 454 U.S. 464 (1982). In Lewis v. Casey, 518 U.S. 343, 353 n.3 (1996), the Court played down the “serious and adversarial treatment” prong of standing and strongly reasserted the separation-of-powers value of keeping courts within traditional bounds. The Court again took this approach in Hein v. Freedom From Religion Foundation, Inc., 127 S. Ct. 2553, 2569 (2007), finding that “Flast itself gave too little weight to [separation-of-powers] concerns.” [Back to text]
410
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 347–49 (2006) (standing denied to taxpayer claim that state tax credit given to vehicle manufacturer violated the Commerce Clause). [Back to text]
411
Hein v. Freedom From Religion Foundation, Inc., 127 S. Ct. 2553, 2559 (2007). This decision does not affect Establishment Clause cases in which the plaintiff can allege a personal injury. A plaintiff who challenges a government display of a religious object, for example, need not sue as a taxpayer but may have standing “by alleging that he has undertaken a ‘special burden’ or has altered his behavior to avoid the object that gives him offense. . . . [I]t is enough for standing purposes that a plaintiff allege that he ‘must come into direct and unwelcome contact with the religious display to participate fully as [a] citizen[ ] . . . and to fulfill . . . legal obligations.’ ” Books v. Elkhart County, 401 F.3d 857, 861 (7th Cir. 2005). In Van Orden v. Perry, 545 U.S. 677, 682 (2005), the Court, without mentioning standing, noted that the plaintiff “has encountered the Ten Commandments monument during his frequent visits to the [Texas State] Capitol grounds. His visits are typically for the purpose of using the law library in the Supreme Court building, which is located just northwest of the Capitol building.” [Back to text]
412
127 S. Ct. at 2568 (citations omitted). Justices Scalia and Thomas concurred in the judgment but would have overruled Flast. Justice Souter, joined by three other justices, dissented because he saw no logic in the distinction the plurality drew, as the plurality did not and could not have suggested that the taxpayers in Hein “have any less stake in the outcome than the taxpayers in Flast.” Id. at 2584. [Back to text]
413
330 U.S. 1 (1947). In DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 349 (2006), the Court held that a plaintiff ’s status as a municipal taxpayer does not give him standing to challenge a state tax credit. [Back to text]
414
See Bradfield v. Roberts, 175 U.S. 291, 295 (1899); Crampton v. Zabriskie, 101 U.S. 601 (1880); Heim v. McCall, 239 U.S. 175 (1915). See also Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203 (1948); Zorach v. Clauson, 343 U.S. 306 (1952); Engel v. Vitale, 370 U.S. 421 (1962) (plaintiffs suing as parents and taxpayers). [Back to text]
415
342 U.S. 429 (1952). Compare Alder v. Board of Education, 342 U.S. 485 (1952). See also Richardson v. Ramirez, 418 U.S. 24 (1974). [Back to text]
416
342 U.S. at 434. [Back to text]
417
342 U.S. at 434, quoting Massachusetts v. Mellon, 262 U.S. 447, 488 (1923); quoted with approval in DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 345 (2006). [Back to text]