Flast v. Cohen - Wikipedia

Flast v. Cohen
Argued March 12, 1968
Decided June 10, 1968
Full case nameFlast et al. v. Cohen, Secretary of Health, Education, and Welfare et al.
Citations392 U.S. 83 (more)
88 S. Ct. 1942; 20 L. Ed. 2d 947; 1968 U.S. LEXIS 1347
Case history
PriorDismissed for lack of standing, Flast v. Gardner, 267 F. Supp. 351 (S.D.N.Y. 1967); probable jurisdiction noted, 389 U.S. 895 (1967).
Taxpayers have standing to sue to prevent the disbursement of federal funds in contravention of the specific constitutional prohibition against government support of religion.
Court membership
Chief Justice
Earl Warren
Associate Justices
Hugo Black · William O. Douglas
John M. Harlan II · William J. Brennan Jr.
Potter Stewart · Byron White
Abe Fortas · Thurgood Marshall
Case opinions
MajorityWarren, joined by Black, Douglas, Brennan, Stewart, White, Marshall
Laws applied
U.S. Const. Art. I, Sec. 8, Art. III

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.[1]

The Supreme Court decided in Frothingham v. Mellon (1923), that a taxpayer did not have standing to sue the federal government to prevent expenditures if his only injury is an anticipated increase in taxes. Frothingham v. Mellon did not recognize a constitutional barrier against federal taxpayer lawsuits. Rather, it denied standing because the petitioner did not allege "a breach by Congress of the specific constitutional limitations imposed upon an exercise of the taxing and spending power." Because the purpose of standing is to avoid burdening the court with situations in which there is no real controversy, standing is used to ensure that the parties in the suit are properly adversarial, "not whether the issue itself is justiciable."

In 1968, Florance Flast joined several others in filing a lawsuit against Wilbur Cohen, the Secretary of Health, Education, and Welfare, contending that spending funds on religious schools violated the First Amendment's ban on the establishment of religion. The district court denied standing, and the Supreme Court heard the appeal.


Writing for the majority, Chief Justice Earl Warren established a "double nexus" test which a taxpayer must satisfy in order to have standing. First, he must "establish a logical link between [taxpayer] status and the type of legislative enactment attacked." Second, "show that the challenged enactment exceeds specific constitutional limitations upon the exercise of the taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Article I, Section 8." Only when both nexuses have been satisfied may the petitioner have standing to sue.[2]

Flast test[edit]

The Court developed a two-part test to determine whether the plaintiffs had standing to sue. First, because a taxpayer alleges injury only by virtue of his liability for taxes, the Court held that "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." *479 Id., at 102, 88 S.Ct., at 1954. Second, the Court required the taxpayer to "show that the challenged enactment exceeds specific constitutional limitations upon 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." Id., at 102-103, 88 S.Ct., at 1954."


The Court ruled that petitioners had satisfied both nexuses and therefore had standing to sue as taxpayers. First, their Constitutional challenge concerned expenditures contained within a law passed pursuant to Congress's Article I, Section 8 power to spend for the general welfare. Second, the law at issue allocated funds to parochial schools and therefore violated the Establishment Clause of the First Amendment. The Court, however, expressed "no view at all on the merits of appellants' claims in this case."

Concurring opinion[edit]

Justice William O. Douglas advocated dealing with the seeming contradiction by overturning Frothingham completely.

See also[edit]


  1. ^ Flast v. Cohen, 392 U.S. 83 (1968).
  2. ^ Kahan, R.L (1968). "Federal Taxpayers and Standing: Flast v. Cohen". UCLA Law Review. 16: 444.


External links[edit]