Hein v. Freedom from Religion Foundation (2007)

Hein v. Freedom from Religion Foundation (2007)

551 U.S. 587

President George W. Bush, by executive orders, established a Faith-Based and Community Initiatives program. It provided for a White House office and several centers within federal agencies to ensure that faith-based community groups would be eligible to compete for federal financial support. No congressional legislation specifically authorized these entities (they were created entirely within the executive branch), nor did Congress enact any law specifically appropriating money to their activities (they are funded through general executive-branch appropriations). The Freedom from Religion Foundation, an organization opposed to government endorsement of religion, along with three of its members, brought this suit alleging that Jay F. Hein, director of the White House Office of Faith-Based and Community Initiatives, and others working with him violated the Establishment Clause of the First Amendment by organizing conferences that were designed to promote religious community groups over secular ones. The only asserted basis for standing was that the individual respondents were federal taxpayers opposed to executive-branch use of congressional appropriations for these conferences. The United States District Court for the Western District of Wisconsin dismissed the claims for lack of standing, concluding that under Flast v. Cohen (1968), federal taxpayer standing is limited to Establishment Clause challenges to the constitutionality of exercises of congressional power under the taxing and spending clause of Article I, Section 8. Because petitioners acted on the president’s behalf and were not charged with administering a congressional ­program, the court held that the challenged activities did not authorize taxpayer standing under Flast. The Seventh Circuit reversed; it read Flast as granting federal taxpayers standing to challenge executive-branch programs on Establishment Clause grounds so long as the activities are financed by a congressional appropriation, even where there is no statutory program and the funds are from appropriations for general administrative expenses. According to the court, a taxpayer has standing to challenge anything done by a federal agency so long as the marginal or incremental cost to the public of the alleged Establishment Clause violation is greater than zero.

Judgment of the Court: Alito, Roberts, Kennedy.

Concurring opinion: Kennedy.

Concurring in the judgment: Scalia, Thomas.

Dissenting opinion: Souter, Stevens, Ginsburg, Breyer.

JUSTICE ALITO announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE and JUSTICE KENNEDY join.

This is a lawsuit in which it was claimed that conferences held as part of the President’s Faith-Based and Community Initiatives program violated the Establishment Clause of the First Amendment because, among other things, President Bush and former Secretary of Education Paige gave speeches that used “religious imagery” and praised the efficacy of faith-based programs in delivering social services. The plaintiffs contend that they meet the standing requirements of Article III of the Constitution because they pay federal taxes.

It has long been established, however, that the payment of taxes is generally not enough to establish standing to challenge an action taken by the Federal Government. In light of the size of the federal budget, it is a complete fiction to argue that an unconstitutional federal expenditure causes an individual federal taxpayer any measurable economic harm. And 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.

In Flast v. Cohen (1968), we recognized a narrow exception to the general rule against federal taxpayer standing. Under Flast, a plaintiff asserting an Establishment Clause claim has standing to challenge a law authorizing the use of federal funds in a way that allegedly violates the Establishment Clause. In the present case, Congress did not specifically authorize the use of federal funds to pay for the conferences or speeches that the plaintiffs challenged. Instead, the conferences and speeches were paid for out of general Executive Branch appropriations. The Court of Appeals, however, held that the plaintiffs have standing as taxpayers because the conferences were paid for with money appropriated by Congress.

The question that is presented here is whether this broad reading of Flast is correct. We hold that it is not. We therefore reverse the decision of the Court of Appeals.

I

In 2001, the President issued an executive order creating the White House Office of Faith-Based and Community Initiatives within the Executive Office of the President. The purpose of this new office was to ensure that “private and charitable community groups, including religious ones . . . have the fullest opportunity permitted by law to compete on a level playing field, so long as they achieve valid public purposes” and adhere to “the bedrock principles of pluralism, nondiscrimination, evenhandedness, and neutrality.” The office was specifically charged with the task of eliminating unnecessary bureaucratic, legislative, and regulatory barriers that could impede such organizations’ effectiveness and ability to compete equally for federal assistance.

By separate executive orders, the President also created Executive Department Centers for Faith-Based and Community Initiatives within several federal agencies and departments. These centers were given the job of ensuring that faith-based community groups would be eligible to compete for federal financial support without impairing their independence or autonomy, as long as they did “not use direct Federal financial assistance to support any inherently religious activities, such as worship, religious instruction, or proselytization.” To this end, the President directed that “no organization should be discriminated against on the basis of religion or religious belief in the administration or distribution of Federal financial assistance under social service programs,” and that “all organizations that receive Federal financial assistance under social services programs should be prohibited from discriminating against beneficiaries or potential beneficiaries of the social services programs on the basis of religion or religious belief.” Petitioners, who have been sued in their official capacities, are the directors of the White House Office and various Executive Department Centers.

No congressional legislation specifically authorized the creation of the White House Office or the Executive Department Centers. Rather, they were “created entirely within the executive branch . . . by Presidential executive order.” Nor has Congress enacted any law specifically appropriating money for these entities’ activities. Instead, their activities are funded through general Executive Branch appropriations. For example, the Department of Education’s Center is funded from money appropriated for the Office of the Secretary of Education, while the Department of Housing and Urban Development’s Center is funded through that Department’s salaries and expenses account.

The respondents are Freedom From Religion Foundation, Inc., a nonstock corporation “opposed to government endorsement of religion,” and three of its members. Respondents brought suit . . . alleging that petitioners violated the Establishment Clause by organizing conferences at which faith-based organizations allegedly “are singled out as being particularly worthy of federal funding . . . , and the belief in God is extolled as distinguishing the claimed effectiveness of faith-based social services.” Respondents further alleged that the content of these conferences sent a message to religious believers “that they are insiders and favored members of the political community” and that the conferences sent the message to nonbelievers “that they are outsiders” and “not full members of the political community.” In short, respondents alleged that the conferences were designed to promote, and had the effect of promoting, religious community groups over secular ones.

The only asserted basis for standing was that the individual respondents are federal taxpayers who are “opposed to the use of Congressional taxpayer appropriations to advance and promote religion.” In their capacity as federal taxpayers, respondents sought to challenge Executive Branch expenditures for these conferences, which, they contended, violated the Establishment Clause.

The District Court dismissed the claims against petitioners for lack of standing. . . . A divided panel of the United States Court of Appeals for the Seventh Circuit reversed. . . . In dissent, Judge Ripple opined that the majority’s decision reflected a “dramatic expansion of current standing doctrine” that “cuts the concept of taxpayer standing loose from its moorings.” Noting that “the executive can do nothing without general budget appropriations from Congress,” he criticized the majority for overstepping Flast’s requirement that a “plaintiff must bring an attack against a disbursement of public funds made in the exercise of Congress’ taxing and spending power.”

II

Article III of the Constitution limits the judicial power of the United States to the resolution of “Cases” and “Controversies,” and “‘Article III standing . . . enforces the Constitution’s case-or-controversy requirement.’” . . .

The constitutionally mandated standing inquiry is especially important in a case like this one, in which taxpayers seek “to challenge laws of general application where their own injury is not distinct from that suffered in general by other taxpayers or citizens.” This is because “the judicial power of the United States defined by Article III is not an unconditioned authority to determine the constitutionality of legislative or executive acts.” The federal courts are not empowered to seek out and strike down any governmental act that they deem to be repugnant to the Constitution. Rather, federal courts sit “solely, to decide on the rights of individuals,” Marbury v. Madison (1803), and must “‘refrain from passing upon the constitutionality of an act . . . unless obliged to do so in the proper performance of our judicial function, when the question is raised by a party whose interests entitle him to raise it.’” . . .

In Flast, the Court carved out a narrow exception to the general constitutional prohibition against taxpayer standing. The ­taxpayer-plaintiff in that case challenged the distribution of federal funds to religious schools under the Elementary and Secondary Education Act of 1965, alleging that such aid violated the Establishment Clause. The Court set out a two-part test for determining whether a federal taxpayer has standing to challenge an allegedly unconstitutional ­expenditure:

First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, §8, of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute. . . . Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, §8.

The Court held that the taxpayer-plaintiff in Flast had satisfied both prongs of this test: The plaintiff’s “constitutional challenge [was] made to an exercise by Congress of its power under Art. I, §8, to spend for the general welfare,” and she alleged a violation of the Establishment Clause, which “operates as a specific constitutional limitation upon the exercise by Congress of the taxing and spending power conferred by Art. I, §8.”

III

Respondents argue that this case falls within the Flast exception, which they read to cover any “expenditure of government funds in violation of the Establishment Clause.” But this broad reading fails to observe “the rigor with which the Flast exception to the Frothingham [v. Mellon (1923)] principle ought to be applied.”

The expenditures at issue in Flast were made pursuant to an express congressional mandate and a specific congressional appropriation. The plaintiff in that case challenged disbursements made under the Elementary and Secondary Education Act of 1965. That Act expressly appropriated the sum of $100 million for fiscal year 1966, and authorized the disbursement of those funds to local educational agencies for the education of ­low-income students. The Act mandated that local educational agencies receiving such funds “make provision for including special educational services and arrangements (such as dual enrollment, educational radio and television, and mobile educational services and equipment)” in which students enrolled in private elementary and secondary schools could participate. In addition, recipient agencies were required to ensure that “library resources, textbooks, and other instructional materials” funded through the grants “be provided on an equitable basis for the use of children and teachers in private elementary and secondary schools.”

The expenditures challenged in Flast, then, were funded by a specific congressional appropriation and were disbursed to private schools (including religiously affiliated schools) pursuant to a direct and unambiguous congressional mandate. Indeed, the Flast taxpayer-plaintiff’s constitutional claim was premised on the contention that if the Government’s actions were “‘within the authority and intent of the Act, the Act is to that extent unconstitutional and void.’” And the judgment reviewed by this Court in Flast solely concerned the question whether “if [the ­challenged] expenditures are authorized by the Act the statute constitutes a ‘law respecting an establishment of religion’ and law ‘prohibiting the free exercise thereof’” under the First Amendment.

Given that the alleged Establishment Clause violation in Flast was funded by a specific congressional appropriation and was undertaken pursuant to an express congressional mandate, the Court concluded that the taxpayer-plaintiffs had established the requisite “logical link between [their taxpayer] status and the type of legislative enactment attacked.” In the Court’s words, “their constitutional challenge [was] made to an exercise by Congress of its power under Art. I, §8, to spend for the general welfare.” But as this Court later noted, Flast “limited taxpayer standing to challenges directed ‘only [at] exercises of congressional power’” under the Taxing and Spending Clause.

The link between congressional action and constitutional violation that supported taxpayer standing in Flast is missing here. Respondents do not challenge any specific congressional action or appropriation; nor do they ask the Court to invalidate any congressional enactment or legislatively created program as unconstitutional. That is because the expenditures at issue here were not made pursuant to any Act of Congress. Rather, Congress provided general appropriations to the Executive Branch to fund its day-to-day activities. These appropriations did not expressly authorize, direct, or even mention the expenditures of which respondents complain. Those expenditures resulted from executive discretion, not congressional action. . . .

In short, this case falls outside the “the narrow exception” that Flast “created to the general rule against taxpayer standing established in Frothingham.” Because the expenditures that respondents challenge were not expressly authorized or mandated by any specific congressional enactment, respondents’ lawsuit 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.”

IV

Respondents argue that it is “arbitrary” to distinguish between money spent pursuant to congressional mandate and expenditures made in the course of executive discretion, because “the injury to taxpayers in both situations is the very injury targeted by the Establishment Clause and Flast—the expenditure for the support of religion of funds exacted from taxpayers.” The panel majority below agreed, based on its observation that “there is so much that executive officials could do to promote religion in ways forbidden by the establishment clause.”

But Flast focused on congressional action, and we must decline this invitation to extend its holding to encompass discretionary Executive Branch expenditures. . . .

While respondents argue that Executive Branch expenditures in support of religion are no different from legislative extractions, Flast itself rejected this equivalence: “It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute.”

Because almost all Executive Branch activity is ultimately funded by some congressional appropriation, extending the Flast exception to purely executive expenditures would effectively subject every federal action—be it a conference, proclamation or speech—to Establishment Clause challenge by any taxpayer in federal court. To see the wide swathe of activity that respondents’ proposed rule would cover, one need look no further than the amended complaint in this action, which focuses largely on speeches and presentations made by Executive Branch officials. Such a broad reading would ignore the first prong of Flast’s standing test, which requires “a logical link between [taxpayer] status and the type of legislative enactment attacked.”

It would also raise serious separation-of-powers concerns. . . . The constitutional requirements for federal-court jurisdiction— including the standing requirements and Article III—“are an essential ingredient of separation and equilibration of powers.” “Relaxation of standing requirements is directly related to the expansion of judicial power,” and lowering the taxpayer standing bar to permit challenges of purely executive actions “would significantly alter the allocation of power at the national level, with a shift away from a democratic form of government.” The rule respondents propose would enlist the federal courts to superintend, at the behest of any federal taxpayer, the speeches, statements, and myriad daily activities of the President, his staff, and other Executive Branch officials. This . . . would “open the Judiciary to an arguable charge of providing ‘government by injunction.’” It would deputize federal courts as “‘virtually continuing monitors of the wisdom and soundness of Executive action,’” and that, most emphatically, “is not the role of the ­judiciary.”

Both the Court of Appeals and respondents implicitly recognize that unqualified federal taxpayer standing to assert Establishment Clause claims would go too far, but neither the Court of Appeals nor respondents has identified a workable limitation. The Court of Appeals, as noted, conceded only that a taxpayer would lack standing where “the marginal or incremental cost to the taxpaying public of the alleged violation of the establishment clause” is “zero.” . . . [I]f we take the Court of Appeals’ test literally—i.e., that any marginal cost greater than zero suffices—taxpayers might well have standing to challenge some (and perhaps many) speeches. As Judge Easterbrook observed: “The total cost of presidential proclamations and speeches by Cabinet officers that touch on religion (Thanksgiving and several other holidays) surely exceeds $500,000 annually; it may cost that much to use Air Force One and send a Secret Service detail to a single speaking engagement.” At a minimum, the Court of Appeals’ approach (asking whether the marginal cost exceeded zero) would surely create difficult and uncomfortable line-drawing problems. Suppose that it is alleged that a speech writer or other staff member spent extra time doing research for the purpose of including “religious imagery” in a speech. Suppose that a President or a Cabinet officer attends or speaks at a prayer breakfast and that the time spent was time that would have otherwise been spent on secular work.

Respondents take a somewhat different approach, contending that their proposed expansion of Flast would be manageable because they would require that a challenged expenditure be “fairly traceable to the conduct alleged to violate the Establishment Clause.” Applying this test, they argue, would “screen out . . . challenge[s to] the content of one particular speech, for example the State of the Union address, as an Establishment Clause violation.”

We find little comfort in this vague and ill-defined test. As an initial matter, respondents fail to explain why the (often substantial) costs that attend, for example, a Presidential address are any less “traceable” than the expenses related to the Executive Branch statements and conferences at issue here. Indeed, respondents concede that even lawsuits involving de minimis amounts of taxpayer money can pass their proposed “traceability” test.

Moreover, the “traceability” inquiry, depending on how it is framed, would appear to prove either too little or too much. If the question is whether an allegedly unconstitutional executive action can somehow be traced to taxpayer funds in general, the answer will always be yes: Almost all Executive Branch activities are ultimately funded by some congressional appropriation, whether general or specific, which is in turn financed by tax receipts. If, on the other hand, the question is whether the challenged action can be traced to the contributions of a particular taxpayer-plaintiff, the answer will almost always be no: As we recognized in Frothingham, the interest of any individual taxpayer in a particular federal expenditure “is comparatively minute and indeterminable . . . and constantly changing.”

Respondents set out a parade of horribles that they claim could occur if Flast is not extended to discretionary Executive Branch expenditures. For example, they say, a federal agency could use its discretionary funds to build a house of worship or to hire clergy of one denomination and send them out to spread their faith. Or an agency could use its funds to make bulk purchases of Stars of David, crucifixes, or depictions of the star and crescent for use in its offices or for distribution to the employees or the general public. Of course, none of these things has happened, even though Flast has not previously been expanded in the way that respondents urge. In the unlikely event that any of these executive actions did take place, Congress could quickly step in. And respondents make no effort to show that these improbable abuses could not be challenged in federal court by plaintiffs who would possess standing based on grounds other than taxpayer standing.

Over the years, Flast has been defended by some and criticized by others. But the present case does not require us to reconsider that precedent. The Court of Appeals did not apply Flast; it extended Flast. It is a necessary concomitant of the doctrine of stare decisis that a precedent is not always expanded to the limit of its logic. That . . . is the approach we take here. We do not extend Flast, but we also do not overrule it. We leave Flast as we found it.

JUSTICE SCALIA says that we must either overrule Flast or extend it to the limits of its logic. His position is not “insane,” inconsistent with the “rule of law,” or “utterly meaningless.” But it is wrong. JUSTICE SCALIA does not seriously dispute either (1) that Flast itself spoke in terms of “legislative enactments” and “exercises of congressional power,” or (2) that in the four decades since Flast was decided, we have never extended its narrow exception to a purely discretionary Executive Branch expenditure. We need go no further to decide this case. Relying on the provision of the Constitution that limits our role to resolving the “Cases” and “Controversies” before us, we decide only the case at hand.

For these reasons, the judgment of the Court of Appeals for the Seventh Circuit is reversed.

JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in the judgment.

. . . If this Court is to decide cases by rule of law rather than show of hands, we must surrender to logic and choose sides: Either Flast v. Cohen should be applied to (at a minimum) all challenges to the governmental expenditure of general tax revenues in a manner alleged to violate a constitutional provision specifically limiting the taxing and spending power, or Flast should be repudiated. For me, the choice is easy. Flast is wholly irreconcilable with the Article III restrictions on federal-court jurisdiction that this Court has repeatedly confirmed are embodied in the doctrine of standing.

I

There is a simple reason why our taxpayer-standing cases involving Establishment Clause challenges to government expenditures are notoriously inconsistent: We have inconsistently described the first element of the “irreducible constitutional minimum of standing,” which minimum consists of (1) a “concrete and particularized” “‘injury in fact’” that is (2) fairly traceable to the defendant’s alleged unlawful conduct and (3) likely to be redressed by a favorable decision. See Lujan v. Defenders of Wildlife (1992). We have alternately relied on two entirely distinct conceptions of injury in fact, which for convenience I will call “Wallet Injury” and “Psychic Injury.”

Wallet Injury is the type of concrete and particularized injury one would expect to be asserted in a taxpayer suit, namely, a claim that the plaintiff’s tax liability is higher than it would be, but for the allegedly unlawful government action. The stumbling block for suits challenging government expenditures based on this conventional type of injury is quite predictable. The plaintiff cannot satisfy the traceability and redressability prongs of standing. It is uncertain what the plaintiff’s tax bill would have been had the allegedly forbidden expenditure not been made, and it is even more speculative whether the government will, in response to an adverse court decision, lower taxes rather than spend the funds in some other manner.

Psychic Injury, on the other hand, has nothing to do with the plaintiff’s tax liability. Instead, the injury consists of the ­taxpayer’s mental displeasure that money extracted from him is being spent in an ­unlawful manner. This shift in focus eliminates traceability and redressability problems. Psychic Injury is directly traceable to the improper use of taxpayer funds, and it is redressed when the improper use is enjoined, regardless of whether that injunction affects the taxpayer’s purse. Flast and the cases following its teaching have invoked a peculiarly restricted version of Psychic Injury, permitting taxpayer displeasure over unconstitutional spending to support standing only if the constitutional provision allegedly violated is a specific limitation on the taxing and spending power. Restricted or not, this conceptualizing of injury in fact in purely mental terms conflicts squarely with the familiar proposition that a plaintiff lacks a concrete and particularized injury when his only complaint is the generalized grievance that the law is being ­violated. . . .

As the following review of our cases demonstrates, we initially denied taxpayer standing based on Wallet Injury, but then found standing in some later cases based on the limited version of Psychic Injury described above. The basic logical flaw in our cases is thus twofold: We have never explained why Psychic Injury was insufficient in the cases in which standing was denied, and we have never explained why Psychic Injury, however limited, is cognizable under Article III.

Two pre-Flast cases are of critical importance. In Frothingham v. Mellon, decided with Massachusetts v. Mellon (1923), the taxpayer challenged the constitutionality of the Maternity Act of 1921, alleging in part that the federal funding provided by the Act was not authorized by any provision of the Constitution. The Court held that the taxpayer lacked standing. After emphasizing that “the effect upon future taxation . . . of any payment out of [Treasury] funds” was “remote, fluctuating and uncertain,” the Court concluded that “the party who invokes the power [of judicial review] 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.” The Court was thus ­describing the traceability and redressability problems with Wallet Injury, and rejecting Psychic Injury as a generalized grievance rather than concrete and particularized harm.

The second significant pre-Flast case is Doremus v. Board of Education of Hawthorne (1952). There the taxpayers challenged under the Establishment Clause a state law requiring public-school teachers to read the Bible at the beginning of each school day. Relying extensively on Frothingham, the Court denied standing. After first emphasizing that there was no allegation that the Bible reading increased the plaintiffs’ taxes or the cost of running the schools, and then reaffirming that taxpayers must allege more than an indefinite injury suffered in common with people generally, the Court concluded that the “grievance which [the plaintiffs] sought to litigate here is not a direct dollars-and-cents injury but is a religious difference.” In addition to reiterating Frothingham’s description of the unavoidable obstacles to recovery under a taxpayer theory of Wallet Injury, Doremus rejected Psychic Injury in unmistakable terms. The opinion’s deprecation of a mere “religious difference,” in contrast to a real “dollars-and-cents injury,” can only be understood as a flat denial of standing supported only by taxpayer disapproval of the unconstitutional use of tax funds. If the Court had thought that Psychic Injury was a permissible basis for standing, it should have sufficed that public employees were being paid in part to violate the Establishment Clause.

Sixteen years after Doremus, the Court took a pivotal turn. In Flast v. Cohen, taxpayers challenged the Elementary and Secondary Education Act of 1965, alleging that funds expended pursuant to the Act were being used to support parochial schools. . . . The Court held that the taxpayers had standing. Purportedly in order to determine whether taxpayers have the “personal stake and interest” necessary to satisfy Article III, a two-pronged nexus test was invented. The first prong required the taxpayer to “establish a logical link between [taxpayer] status and the type of legislative enactment.” . . . The second prong required the taxpayer to “establish a nexus between [taxpayer] status and the precise nature of the constitutional infringement alleged.” The Court elaborated that this required “the taxpayer [to] show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, §8.” The Court held that the Establishment Clause was the type of specific limitation on the taxing and spending power that it had in mind because “one of the specific evils feared by” the Framers of that Clause was that the taxing and spending power would be used to favor one religion over another or to support religion generally.

Because both prongs of its newly minted two-part test were satisfied, Flast held that the taxpayers had standing. Wallet Injury could not possibly have been the basis for this conclusion, since the taxpayers in Flast were no more able to prove that success on the merits would reduce their tax burden than was the taxpayer in Frothingham. Thus, Flast relied on Psychic Injury to support standing, describing the “injury” as the taxpayer’s allegation that “his tax money is being extracted and spent in violation of specific constitutional protections against such abuses of legislative power.”

But that created a problem: If the taxpayers in Flast had standing based on Psychic Injury, and without regard to the effect of the litigation on their ultimate tax liability, why did not the taxpayers in Doremus and Frothingham have standing on a similar basis? Enter the magical two-pronged nexus test. It has often been pointed out, and never refuted, that the criteria in Flast’s two-part test are entirely unrelated to the purported goal of ensuring that the plaintiff has a sufficient “stake in the outcome of the controversy.” In truth, the test was designed for a quite different goal. Each prong was meant to disqualify from standing one of the two prior cases that would otherwise contradict the holding of Flast. The first prong distinguished Doremus as involving a challenge to an “incidental expenditure of tax funds in the administration of an essentially regulatory statute,” rather than a challenge to a taxing and spending statute. Did the Court proffer any reason why a taxpayer’s Psychic Injury is less concrete and particularized, traceable, or redressable when the challenged expenditures are incidental to an essentially regulatory statute (whatever that means)? Not at all. Doremus had to be evaded, and so it was. In reality, of course, there is simply no material difference between Flast and Doremus as far as Psychic Injury is concerned: If taxpayers upset with the government’s giving money to parochial schools had standing to sue, so should the taxpayers who disapproved of the government’s paying public-school teachers to read the Bible.

Flast’s dispatching of Frothingham via the second prong of the nexus test was only marginally less disingenuous. Not only does the relationship of the allegedly violated provision to the taxing and spending power have no bearing upon the concreteness or particularity of the Psychic Injury, but the existence of that relationship does not even genuinely distinguish Flast from Frothingham. It is impossible to maintain that the Establishment Clause is a more direct limitation on the taxing and spending power than the constitutional limitation invoked in Frothingham, which is contained within the very provision creating the power to tax and spend. Article I, §8, cl. 1, provides: “The Congress shall have Power To lay and collect Taxes . . . , to pay the Debts and provide for the common Defence and general Welfare of the United States.” (Emphasis added.) Though unmentioned in Flast, it was precisely this limitation upon the permissible purposes of taxing and spending upon which Mrs. Frothingham relied. . . .

III

Is a taxpayer’s purely psychological displeasure that his funds are being spent in an allegedly unlawful manner ever sufficiently concrete and particularized to support Article III standing? The answer is plainly no. . . .

We twice have noted explicitly that Flast failed to recognize the vital separation-of-powers aspect of Article III standing. See Spencer v. Kemna (1998); Lewis v. Casey (1996). And once a proper understanding of the relationship of standing to the separation of powers is brought to bear, Psychic Injury, even as limited in Flast, is revealed for what it is: a contradiction of the basic propositions that the function of the judicial power “is, solely, to decide on the rights of individuals,” Marbury v. Madison (1803), and that generalized grievances affecting the public at large have their remedy in the political process.

Overruling prior precedents, even precedents as disreputable as Flast, is nevertheless a serious undertaking, and I understand the impulse to take a minimalist approach. But laying just claim to be honoring stare decisis requires more than beating Flast to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive. Even before the addition of the new meaningless distinction devised by today’s plurality, taxpayer standing in Establishment Clause cases has been a game of chance. In the proceedings below, well-respected federal judges declined to hear this case en banc, not because they thought the issue unimportant or the panel decision correct, but simply because they found our cases so lawless that there was no point in, quite literally, second-guessing the panel. We had an opportunity today to erase this blot on our jurisprudence, but instead have simply smudged it.

My call for the imposition of logic and order upon this chaotic set of precedents will perhaps be met with the snappy epigram that “the life of the law has not been logic: it has been experience.” O. Holmes, The Common Law 1 (1881). But what experience has shown is that Flast’s lack of a logical theoretical underpinning has rendered our taxpayer-standing doctrine such a jurisprudential disaster that our appellate judges do not know what to make of it. And of course the case has engendered no reliance interests, not only because one does not arrange his affairs with an eye to standing, but also because there is no relying on the random and irrational. I can think of few cases less warranting of stare decisis respect. It is time—it is past time—to call an end.

Flast should be overruled.

JUSTICE SOUTER, with whom JUSTICE STEVENS, JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting.

Flast v. Cohen (1968), held that plaintiffs with an Establishment Clause claim could “demonstrate the necessary stake as taxpayers in the outcome of the litigation to satisfy Article III requirements.” Here, the controlling, plurality opinion declares that Flast does not apply, but a search of that opinion for a suggestion that these taxpayers have any less stake in the outcome than the taxpayers in Flast will come up empty: the plurality makes no such finding, nor could it. Instead, the controlling opinion closes the door on these taxpayers because the Executive Branch, and not the Legislative Branch, caused their injury. I see no basis for this distinction in either logic or precedent, and respectfully ­dissent.

I

We held in Flast . . . that the “‘injury’ alleged in Establishment Clause challenges to federal spending” is “the very ‘extraction and spending’ of ‘tax money’ in aid of religion.” . . . Here, there is no dispute that taxpayer money in identifiable amounts is funding conferences, and these are alleged to have the purpose of promoting religion. The taxpayers therefore seek not to “extend” Flast, but merely to apply it. When executive agencies spend identifiable sums of tax money for religious purposes, no less than when Congress authorizes the same thing, taxpayers suffer injury. And once we recognize the injury as sufficient for Article III, there can be no serious question about the other elements of the standing enquiry:  the injury is indisputably “traceable” to the spending, and “likely to be redressed by” an injunction prohibiting it.

The plurality points to the separation of powers to explain its distinction between legislative and executive spending decisions, but there is no difference on that point of view between a Judicial Branch review of an executive decision and a judicial evaluation of a congressional one. We owe respect to each of the other branches, no more to the former than to the latter, and no one has suggested that the Establishment Clause lacks ­applicability to ­executive uses of money. It would surely violate the Establishment Clause for the Department of Health and Human Services to draw on a general appropriation to build a chapel for weekly church services (no less than if a statute required it), and for good reason: if the Executive could ­accomplish through the exercise of discretion exactly what Congress cannot do through legislation, Establishment Clause protection would melt away. . . .

Because the taxpayers in this case have alleged the type of injury this Court has seen as sufficient for standing, I would affirm.