Flast v. Cohen,
392 U.S. 83 (1968)

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U.S. Supreme Court

Flast v. Cohen, 392 U.S. 83 (1968)

Flast v. Cohen

No. 416

Argued March 12, 1968

Decided June 10, 1968

392 U.S. 83


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.


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. 392 U. S. 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. 392 U. S. 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. Pp. 392 U. S. 102-103.

(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. 392 U. S. 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

Page 392 U. S. 84

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. 1 392 U. S. 02-103.

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. 392 U. S. 103-106.

271 F.Supp. 1, reversed.

Page 392 U. S. 85

Primary Holding

Although taxpayers generally lack standing to sue, they do have standing to sue when the federal government uses its revenue to violate the Establishment Clause because the federal government has exceeded its constitutional limitations on taxing and spending.


A group of individual taxpayers, including Florence Flast, brought a lawsuit against Secretary of Health, Education, and Welfare Wilbur Cohen. They claimed that allocating government funds to religious schools violated the Establishment Clause. The federal district court refused to hear their case because they failed to meet the standing requirements for bringing a suit. This appeal thus was brought on procedural grounds.

Procedural History

US District Court for the Southern District of New York - 267 F. Supp. 351 (1967)

Claim dismissed. The plaintiffs lack standing to have their case heard.



  • Earl Warren (Author)
  • Hugo Lafayette Black
  • William Orville Douglas
  • Potter Stewart
  • Byron Raymond White
  • William Joseph Brennan, Jr.
  • Thurgood Marshall

To gain taxpayer standing, there must be a logical connection linking that status to the law or other regulation that is challenged. The taxpayer also needs to show that the legislature exceeded specific limits on its taxing and spending power, rather than arguing that the law is generally beyond its authority. This is because a taxpayer suffers no concrete injury other than the financial burden of paying taxes. In the situation at hand, Warren felt that the taxpayers could meet both requirements because the expenditure law had been justified by Congress under its taxing and spending power. There also appeared to be a clear Establishment Clause violation in using government money for parochial schools. (While this sounds as though Warren essentially decided the merits of the case as well, he claimed that this decision affected only the procedural issue rather than the substance of the claim.)


  • William Orville Douglas (Author)

Douglas would have gone even further than the majority and allowed taxpayer standing more generally, overruling Court precedent in that area.


  • Potter Stewart (Author)


  • Abe Fortas (Author)


  • John Marshall Harlan II (Author)

Case Commentary

The two-part test that the Supreme Court established here was designed to open courts to taxpayers without imposing the same burdens on the system that justified the originally strict ban on such actions.

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