# Flast v. Cohen

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Flast v. Cohen, 392 U.S. 83 (1968), was a United States Supreme Court case holding that a taxpayer has standing to sue the government to prevent an unconstitutional use of taxpayer funds. Warning: template has been deprecated.

## Concurring Opinions

    Douglas
    Stewart
    Fortas

## Dissenting Opinion

    Harlan
United States Supreme Court
392 U.S. 83
Flast et al. v. Cohen, Secretary of Health, Education, and Welfare, et al.
Appeal from the United States District Court for the Southern District of New York
No. 416. Argued: March 12, 1968 --- Decided: June 10, 1968
Appellant taxpayers allege that federal funds have been disbursed by appellee federal officials under the Elementary and Secondary Education Act of 1965 to finance instruction and the purchase of educational materials for use in religious and sectarian schools, in violation of the Establishment and Free Exercise Clauses of the First Amendment. Appellants sought a declaration that the expenditures were not authorized by the Act or, in the alternative, that the Act is to that extent unconstitutional, and requested the convening of a three-judge court. A three-judge court ruled, on the authority of Frothingham v. Mellon, 262 U.S. 447 (1923), that appellants lacked standing to maintain the action.
Held:
    1. The three-judge court was properly convened, as the constitutional attack, even though focused on the program's operations in New York City, would if successful affect the entire regulatory scheme of the statute, and the complaint alleged a constitutional ground for relief, albeit one coupled with an alternative nonconstitutional ground. Pp. 88-91.
    2. There is no absolute bar in Art. III of the Constitution to suits by federal taxpayers challenging allegedly unconstitutional federal taxing and spending programs since the taxpayers may or may not have the requisite personal stake in the outcome. Pp. 91-101.
    3. To maintain an action challenging the constitutionality of a federal spending program, individuals must demonstrate the necessary stake as taxpayers in the outcome of the litigation to satisfy Art. III requirements.
       (a) Taxpayers must establish a logical link between that status and the type of legislative enactment attacked, as it will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute. P. 102.
       (b) Taxpayers must also establish a nexus between that status and the precise nature of the constitutional infringement alleged. They must show that the statute exceeds specific constitutional limitations on the exercise of the taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8. Pp. 102-103.
    4. The taxpayer-appellants here have standing consistent with Art. III to invoke federal judicial power since they have alleged that tax money is being spent in violation of a specific constitutional protection against the abuse of legislative power, i.e., the Establishment Clause of the First Amendment. Frothingham v. Mellon, supra, distinguished. Pp. 103-106.
271 F. Supp. 1, reversed.
Leo Pfeffer argued the cause for appellants. With him on the briefs were David I. Ashe, Ernest Fleischman, and Alan H. Levine.
Solicitor General Griswold argued the cause for appellees. With him on the brief were Assistant Attorney General Weisl, Alan S. Rosenthal, and Robert V. Zener.
Sam J. Ervin, Jr., argued the cause and filed a brief for Americans for Public Schools et al., as amici curiae, urging reversal.
Briefs of amici curiae, urging reversal, were filed by Melvin J. Sykes and Sanford Jay Rosen for the Council of Chief State School Officers et al.; by Henry C. Clausen for United Americans for Public Schools; by Norman Dorsen and Charles H. Tuttle for the National Council of Churches; by Franklin C. Salisbury for Protestants and Other Americans United for Separation of Church and State, and by Arnold Forster, Edwin J. Lukas, Joseph B. Robison, Paul Hartman, and Sol Rabkin for the American Jewish Committee et al.
Briefs of amici curiae, urging affirmance, were filed by J. Albert Woll, Laurence Gold, and Thomas E. Harris for the American Federation of Labor and Congress of Industrial Organizations; by Julius Berman and Reuben E. Gross for the National Jewish Commission on Law and Public Affairs, and by Herbert Brownell, Thomas F. Daly, and William E. McCurdy, Jr., for Spira et al.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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