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No. 06-157

In the Supreme Court of the United States

JAY F. HEIN, DIRECTOR, WHITE HOUSE OFFICE OF FAITH-BASED AND COMMUNITY INITIATIVES, ET AL., PETITIONERS

v.

FREEDOM FROM RELIGION FOUNDATION, INC., ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

BRIEF FOR THE PETITIONERS

PAUL D. CLEMENT
Solicitor General
Counsel of Record

PETER D. KEISLER
Assistant Attorney General

GREGORY G. GARRE
Deputy Solicitor General

PATRICIA A. MILLETT
Assistant to the Solicitor
General

ROBERT M. LOEB
LOWELL V. STURGILL JR.
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether taxpayers have standing under Article III of the Constitution to challenge, on Establishment Clause grounds, the actions of Executive Branch offi cials pursuant to an Executive Order, where the conduct at issue is financed only indirectly through general appropriations legislation and no funds are disbursed to any institutions or individuals outside the government.

PARTIES TO THE PROCEEDINGS The petitioners, who were sued in their official capacity as defendants-appellees below, are Jay F. Hein, Director of the White House Office of Faith-Based and Community Initiatives; Steven McFarland, Director of the Department of Justice Task Force for Faith-Based and Community Initiatives; Jedd Medefind, Director of the Department of Labor Center for Faith-Based and Community Initiatives; C. Gregory Morris, Director of the Department of Health and Human Services Center for Faith-Based and Community Initiatives; Robert Bogart, Director of the Department of Housing and Ur ban Development Center for Faith-Based and Com munity Initiatives; Shayam K. Menon, Director of the Department of Education Center for Faith-Based and Community Initiatives; Therese Lyons, Director of the Department of Agriculture Center for Faith-Based and Community Initiatives; and Terri Hasdorff, Director of the Agency for International Development Center for Faith-Based and Community Initiatives.1

Rod Paige, the former Secretary of the United States Department of Education, was a defendant- appellee below, but is not a petitioner in this Court. Elaine L. Chao, Secretary of the United States Depart ment of Labor, Tommy G. Thompson, the former Secre tary of the United States Department of Health and Human Services, Alberto R. Gonzales, Attorney General of the United States, Dr. Julie Gerberding, Director of the Centers for Disease Control and Prevention, and David Caprara, the former Director of Faith-Based and Community Initiatives at the Corporation for National and Community Service, were originally named as defendants, but were dismissed from the case in district court and were not parties to the appeal. Neither they nor their successors are parties before this Court.

The respondents, who were plaintiffs-appellants below, are Anne Nicol Gaylor, Annie Laurie Gaylor, Dan Barker, and the Freedom from Religion Foundation, Inc., a non-stock corporation.

In the Supreme Court of the United States

No. 06-157

JAY F. HEIN, DIRECTOR, WHITE HOUSE OFFICE OF FAITH-BASED AND COMMUNITY INITIATIVES, ET AL., PETITIONERS

v.

FREEDOM FROM RELIGION FOUNDATION, INC., ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

BRIEF FOR THE PETITIONERS

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-26a) is reported at 433 F.3d 989. The order of the court of appeals denying the government's petition for rehearing and rehearing en banc (Pet. App. 58a-66a), with the ac companying opinions concurring in and dissenting from the denial of rehearing en banc, is reported at 447 F.3d 988. The opinion of the district court denying in part the government's motion to dismiss the complaint (Pet. App. 27a-35a), and the final judgment of the district court (Pet. App. 36a-57a), are unreported.

JURISDICTION

The court of appeals entered its judgment on Janu ary 13, 2006. A petition for rehearing was denied on May 3, 2006 (Pet. App. 59a). The petition for a writ of certiorari was filed on August 1, 2006, and the petition was granted on December 1, 2006. The jurisdiction of this Court rests on 28 U.S.C. 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

Article III, Section 2, of the United States Constitu tion provides, in relevant part:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority; * * * [and] to Controversies to which the United States shall be a Party.

The First Amendment to the United States Constitu tion provides, in relevant part, that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

STATEMENT

1. Pursuant to Executive Order 13,199, the Presi dent created the White House Office of Faith-Based and Community Initiatives (White House Office) within the Executive Office of the President. Exec. Order No. 13,199, 3 C.F.R. § 2, at 752 (2002). The President recog nized that "[f]aith-based and other community organiza tions are indispensable in meeting the needs of poor Americans and distressed neighborhoods." Id. § 1, at 752. The President created the White House Office to ensure that "private and charitable community groups, including religious ones, should have the fullest opportu nity permitted by law to compete on a level playing field, so long as they achieve valid public purposes" and ad here to "the bedrock principles of pluralism, nondiscrim ination, evenhandedness, and neutrality." Ibid. In par ticular, the President charged the White House Office "to eliminate unnecessary legislative, regulatory, and other bureaucratic barriers that impede effective faith- based and other community efforts to solve social prob lems." Id. § 3(j), at 753.

In addition to the White House Office, the President created Executive Department Centers for Faith-Based and Community Initiatives (agency Centers) in a num ber of federal agencies.2 The purpose of those Centers is "to coordinate department efforts to eliminate regula tory, contracting, and other programmatic obstacles to the participation of faith-based and other community organizations in the provision of social services." Exec. Order No. 13,198, 3 C.F.R. § 2, at 750 (2002).

The President undertook that initiative to ensure that faith-based organizations "[w]ould be eligible to compete for Federal financial assistance used to support social service programs and to participate fully in the social service programs supported with Federal finan cial assistance without impairing their independence, autonomy, expression, or religious character," as long as they "do[] not use direct Federal financial assistance to support any inherently religious activities, such as wor ship, religious instruction, or proselytization." Exec. Order No. 13,279, 3 C.F.R. § 2(f), at 260 (2003). At the same time, the President directed that "[n]o organiza tion should be discriminated against on the basis of reli gion or religious belief in the administration of Federal financial assistance under social service programs," id. § 2(c), at 260, and that "[a]ll organizations that receive Federal financial assistance under social services pro grams should be prohibited from discrimination against beneficiaries or potential beneficiaries of the social ser vices programs on the basis of religion or religious be lief," id. § 2(d), at 260.

2. Respondents, the Freedom from Religion Foun dation and three of its members, filed this action against the Director of the White House Office and the Direc tors of agency Centers at the Departments of Justice, Labor, Health and Human Services, Housing and Urban Development, Education, and Agriculture, as well as the Director of the Center at the Agency for International Development. Pet. App. 67a-80a.3 Respondents con tended that petitioners violated the Establishment Clause by organizing national and regional conferences at which, according to the allegations of the complaint, faith-based organizations "are singled out as being par ticularly worthy of federal funding" and "the belief in God is extolled as distinguishing the claimed effective ness of faith-based social services." Id. at 73a para. 32. Respondents further alleged that petitioners "engage in myriad activities, such as making public appearances and giving speeches, throughout the United States, in tended to promote and advocate for funding for faith- based organizations," id. at 77a para. 41, and that "Con gressional appropriations [are] used to support the ac tivities of the defendants," id. at 79a para. 45.

Respondents' complaint sought a declaratory judg ment that petitioners' activities violate the Establish ment Clause, an injunction prohibiting further "use [of] appropriations in violation of the Establishment Clause," and "an order requiring the defendants to es tablish rules, regulations, prohibitions, standards and oversight to ensure that future appropriations" comport with the Establishment Clause. Pet. App. 80a. Respon dents asserted standing based solely on their status as federal taxpayers. Id. at 68a-69a paras. 4-10.4

The district court dismissed the claims against peti tioners for lack of standing. Pet. App. 27a-35a. The dis trict court held that federal taxpayer standing is limited to Establishment Clause challenges to the constitution ality of "exercises of congressional power under the tax ing and spending clause of Art. I, § 8," id. at 31a (quot ing Flast v. Cohen, 392 U.S. 83, 102 (1968)), and that the challenged activities of the petitioners-organizing con ferences and making speeches-"are not 'exercises of congressional power,'" id. at 34a. More specifically, the court found that the Director of the White House Office acts "at the President's request and on the President's behalf," and that none of the petitioners is "charged with the administration of a congressional program." Id. at 33a-34a. "The view that federal taxpayers as such should be permitted to bring Establishment Clause chal lenges to all Executive Branch actions on the grounds that those actions are funded by congressional appropri ations," the district court concluded, "has never been accepted by a majority of the Supreme Court." Id. at 33a.5

3. A divided court of appeals vacated the district court's order of dismissal and remanded. Pet. App. 1a-26a.

a. The majority held that "[t]axpayers have standing to challenge an executive-branch program, alleged to promote religion, * * * even if the program was cre ated entirely within the executive branch, as by Presi dential executive order," as long as the actions of Execu tive Branch officials are "financed by a congressional appropriation." Pet. App. 16a. In the majority's view, taxpayer standing extends beyond legislative programs that allocate federal funding to third parties, and in cludes challenges to any Executive Branch activity funded "from appropriations for the general administra tive expenses, over which the President and other execu tive branch officials have a degree of discretionary power," as opposed to funding "from, say, voluntary do nations by private citizens." Id. at 11a.

The court accordingly held that taxpayers have standing even if "there is no statutory program" enacted by Congress under its taxing and spending power, Pet. App. 11a, and even if the taxpayer is "unable to identify the appropriations that fund the [challenged activity]," id. at 10a. In the majority's view, taxpayer standing requires only that the plaintiff's "objection [be] to a pro gram for which money undoubtedly is 'appropriated,' albeit by executive officials from discretionary funds handed them by Congress, rather than by Congress di rectly." Id. at 12a. Extending taxpayer standing in that manner was appropriate, the court reasoned, because "there is so much that executive officials could do to pro mote religion in ways forbidden by the establishment clause." Id. at 13a.

b. Judge Ripple dissented. Pet. App. 16a-26a. In his view, allowing a taxpayer to challenge the conduct of Executive Branch officials "so long as that conduct was financed in some manner by a congressional appropria tion" reflects a "dramatic expansion of current standing doctrine," id. at 16a, and "cuts the concept of taxpayer standing loose from its moorings," id. at 19a. Judge Ripple criticized the majority for abandoning the "nar row terms" on which this Court had recognized taxpayer standing, id. at 19a, which had required that a "plaintiff must bring an attack against a disbursement of public funds made in the exercise of Congress' taxing and spending power," id. at 22a. The majority's approach, Judge Ripple observed, now "makes virtually any execu tive action subject to taxpayer suit" because "[t]he exec utive can do nothing without general budget appropria tions from Congress." Id. at 24a.

4. By a vote of 7-4, the court of appeals denied the government's petition for rehearing en banc. The four judges who dissented from the denial of rehearing en banc noted that the panel's decision to extend taxpayer standing to suits that "challenge[] executive action," Pet. App. 64a, "has serious implications for judicial gover nance," and "departs significantly from established Su preme Court precedent." Id. at 63a (Ripple, J., joined by Manion, Kanne, and Sykes, JJ.). In the dissent's view, "the Supreme Court, in making an exception to usual standing rules for taxpayers has drawn a very clean line in order to avoid making the federal courts a forum for all sorts of complaints about the conduct of governmental affairs on no basis other than citizen standing." Id. at 65a. The majority's decision contra vened that "very clear line," the dissent concluded, be cause "[s]ome expenditure of governmental funds is nec essary for every executive action." Ibid.

Chief Judge Flaum concurred in the denial of rehear ing en banc. Pet. App. 59a. He explained that his vote "is not premised upon a conclusion that the taxpayer standing issue * * * is free from doubt," but from his conviction that "the obvious tension which has evolved in this area of jurisprudence * * * can only be resolved by the Supreme Court." Ibid.

Judge Easterbrook also concurred in the denial of rehearing en banc. Pet. App. 59a-62a. While he ac knowledged "considerable force in Judge Ripple's dis sent," id. at 59a, Judge Easterbrook shared Chief Judge Flaum's view that only this Court can resolve the exist ing "tension" in the law governing taxpayer standing, id. at 62a.

SUMMARY OF ARGUMENT

The court of appeals erred in holding that taxpayer standing extends to challenges to Executive Branch ac tivities that are the product of the President's exercise of his Article II power, not Congress's exercise of its taxing and spending power, and that do not themselves entail the disbursement of any federal funds outside the government. That decision-which equates the mere presence of appropriated federal funds with taxpayer standing-defies this Court's precedent, fundamentally alters the constitutional allocation of powers, and, if al lowed to stand, would unravel this Court's taxpayer- standing doctrine.

In Frothingham v. Mellon, 262 U.S. 447 (1923), this Court held that Article III and the separation of powers generally prohibit taxpayer standing. In the forty years since the Court recognized a narrow exception to that prohibition in Flast v. Cohen, 392 U.S. 83 (1968), this Court's cases have consistently cabined taxpayer stand ing, permitting only Establishment Clause challenges to Congress's exercise of its legislative taxing and spending power through direct appropriations to fund the activi ties of churches and other sectarian institutions. Three times, taxpayers have asked this Court to expand their standing to include challenges to executive officials' con duct of the Executive Branch's business. Three times, this Court has refused. See Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982); Schlesinger v. Reserv ists Comm. to Stop the War, 418 U.S. 208 (1974); United States v. Richardson, 418 U.S. 166 (1974).

This Court should reverse the court of appeals' deci sion for the same reason that it rebuffed those efforts. Article III requires plaintiffs to have suffered an indi vidualized and concrete injury-in-fact. A taxpayer's in terest in the disposition of funds in the Treasury gener ally does not satisfy that test. In Flast, this Court carved out a narrow and rigidly defined exception under the Establishment Clause to that general prohibition on taxpayer standing. But the Court did so not because the Establishment Clause writ large demanded peculiar enforcement mechanisms. The Court did so because it discerned in the history of the Establishment Clause a distinct and individualized Article III injury to religious liberty when Congress uses its taxing and spending power to move money from the pockets of taxpayers into the pockets of sectarian entities for their religious use. Thus, even in the Establishment Clause context, the Court has made clear that taxpayers have standing only to challenge congressional action that inflicts "a direct dollars-and-cents injury," and not simply to assert "a religious difference" with governmental policies. Doremus v. Board of Educ., 342 U.S. 429, 434 (1952)

Flast represents the high-water mark of this Court's modern taxpayer-standing jurisprudence, and this Court has repeatedly refused to extend Flast beyond its four corners. The court of appeals' decision, if allowed to stand, would fundamentally distend Flast by unmooring the doctrine from its historic roots and constitutional justification. Rather than reflect a particularized and historically sensitive application of Article III, the court of appeals would transform the doctrine of taxpayer standing into a roving license for any one of the more than 180 million taxpayers in the United States to chal lenge any action of the Executive Branch that offends that individual's own view of the Establishment Clause's proscription.

Fundamental separation of powers principles pre clude that dramatic expansion of the judicial power to sit in judgment on the constitutionality of the actions of a coordinate Branch of government based on a single tax payer's undifferentiated interest, shared in common with the public at large, in having the Executive Branch comport its Article II activities with the Establishment Clause. Such a retooling of Flast could not be squared with the precedents of this Court both before and after Flast. Further, by eliminating the boundaries set on Flast, the Court would call into question the validity, workability, and, thus, sustainability of any exception to the general constitutional prohibition on taxpayer stand ing. The Court, however, need not revisit Flast in this case if it hews to the original and carefully demarcated boundaries of the taxpayer-standing doctrine and over turns the court of appeals' impermissible enlargement of the narrow Flast exception.

ARGUMENT

UNDER ARTICLE III OF THE CONSTITUTION AND SEPA RATION OF POWERS PRINCIPLES, TAXPAYER STANDING IS NARROWLY LIMITED TO CHALLENGES TO CON GRESS'S EXERCISE OF ITS TAXING AND SPENDING POWER TO DISBURSE FUNDS OUTSIDE OF THE GOVERN MENT

As this Court underscored just last Term, "[n]o prin ciple is more fundamental to the judiciary's proper role in our federal system of government than the constitu tional limitation of federal-court jurisdiction to actual cases or controversies." DaimlerChrysler Corp. v. Cuno, 126 S. Ct. 1854, 1861 (2006) (brackets in original) (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)). Arti cle III's standing requirement enforces that case-or- controversy requirement, ibid., and thus is key to main taining the proper constitutional balance of powers. In adherence to the Constitution's standing requirement, this Court has held for more than 80 years, and it reiter ated as recently as last Term in DaimlerChrysler, that an individual's status as a taxpayer alone generally pro vides an insufficient basis to confer Article III standing. Ibid.; see Frothingham v. Mellon, 262 U.S. 447 (1923).

In Flast v. Cohen, 392 U.S. 83 (1968), this Court con cluded that the Establishment Clause's unique history supported carving out a narrow exception to the general rule against taxpayer standing for plaintiffs who chal lenge Congress's use of its taxing and spending power to subsidize with taxpayer funds the religious practices of private parties, in alleged violation of the Establishment Clause. Id. at 102-106. In the nearly four decades since Flast, this Court repeatedly has confirmed the narrow scope of that exception and has declined invitations to enlarge it. The court of appeals' decision in this case, however, significantly expands the Flast exception by opening Article III standing to any taxpayer's Estab lishment Clause objection to any governmental activity that entails the expenditure of budget funds-which is virtually everything the government does. That decision cannot be reconciled with this Court's precedent and is foreclosed by the constitutional limitations on standing embodied in Article III and separation of powers princi ples.

A. Article III's Case-Or-Controversy Requirement Gener ally Prohibits Taxpayer Standing To Challenge How Federal Funds Are Expended

The Constitution does not vest the federal judiciary with "an unconditioned authority to determine the con stitutionality of legislative or executive acts." Valley Forge Christian Coll. v. Americans United for Separa tion of Church & State, Inc., 454 U.S. 464, 471 (1982). Rather, Article III of the Constitution confines the judi cial power to the resolution of actual "Cases" and "Con troversies." U.S. Const. Art. III, § 2. That limitation is an indispensable "ingredient of [the] separation and equilibration of powers, restraining the courts from acting at certain times," Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101 (1998), and "confin[ing] federal courts to a role consistent with a system of separate- ed powers," Valley Forge, 454 U.S. at 472. See Daimler Chrysler, 126 S. Ct. at 1861 ("[T]he case-or-controversy limitation is crucial in maintaining the tripartite alloca tion of power set forth in the Constitution.") (internal quotation marks and citation omitted).

An "essential and unchanging" component of the case-or-controversy requirement is the rule that a plain tiff invoking the jurisdiction of the federal courts must have standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). That doctrine confines the judiciary's role to the resolution of disputes "of the sort tradition ally amenable to, and resolved by, the judicial process," Steel Co., 523 U.S. at 102, and thereby "ensur[es] that the Federal Judiciary respects the proper-and prop erly limited-role of the courts in a democratic society," DaimlerChrysler, 126 S. Ct. at 1860 (quoting Allen v. Wright, 468 U.S. 737, 750 (1984)). See also United States v. Richardson, 418 U.S. 166, 192-194 (1974) (Powell, J., concurring). If a party lacks standing-and thus if the case "is not a proper case or controversy" -the federal "courts have no business deciding it, or ex pounding the law in the course of doing so." Daimler Chrysler, 126 S. Ct. at 1860-1861. The burden is on the party asserting federal jurisdiction to establish stand ing. Id. at 1861 n.3; see Warth v. Seldin, 422 U.S. 490, 518 (1975).

When standing rests on nothing more than the plain tiff's status as a taxpayer, that burden is usually insur mountable. That is because the "irreducible constitu tional minimum of standing" requires that the plaintiff "have suffered an 'injury in fact'" in the form of the "in vasion of a legally protected interest," that is both "con crete and particularized" and "actual or imminent, not conjectural or hypothetical." Lujan, 504 U.S. at 560 (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)).6 Taxpayers, for example, have standing to chal lenge the individualized assessment of taxes against them because collection of the tax has a direct, immedi ate, and concrete impact on their personal finances. See, e.g., Commissioner v. Banks, 543 U.S. 426 (2005) (dispute over definition of taxable income); Follett v. Town of McCormick, 321 U.S. 573, 575-577 (1944) (inval idating tax on the activity of preaching); Murdock v. Pennsylvania, 319 U.S. 105, 109-112 (1943) (invalidating tax on soliciting as applied to religious adherents).

By contrast, it is well established that taxpayers gen erally lack standing to challenge how tax dollars that were lawfully collected from them are used by the gov ernment. This Court has repeatedly held that "the 'al leged deprivation of the fair and constitutional use of [a federal taxpayer's] tax dollar'" does not constitute an injury-in-fact that would support Article III standing. DaimlerChrysler, 126 S. Ct. at 1862 (brackets in origi nal) (quoting Valley Forge, 454 U.S. at 476). That is because a taxpayer's interest in the money that he has contributed to the federal Treasury is shared with millions of others; is comparatively minute and indeterminable; and the effect upon fu ture taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity.

Frothingham, 262 U.S. at 487. The alleged injury of misused tax dollars "is not 'concrete and particularized,' but instead a grievance the taxpayer 'suffers in some indefinite way in common with people generally.'" DaimlerChrysler, 126 S. Ct. at 1862 (quoting Lujan, 504 U.S. at 560, and Frothingham, 262 U.S. at 488); see Val ley Forge, 454 U.S. at 477 ("[T]he expenditure of public funds in an allegedly unconstitutional manner is not an injury sufficient to confer standing, even though the plaintiff contributes to the public coffers as a tax payer.").

The injury associated with misspent tax dollars, moreover, "is not 'actual or imminent,' but instead 'con jectural or hypothetical,'" DaimlerChrysler, 126 S. Ct. at 1862, since "it is pure speculation whether the lawsuit would result in any actual tax relief" for the plaintiff, ASARCO Inc. v. Kadish, 490 U.S. 605, 614 (1989) (opin ion of Kennedy, J.). Indeed, because any additional tax ation caused by the operation of a law would be visited "upon a vast number of taxpayers," that consequence or "injury" "is essentially a matter of public and not of indi vidual concern." Frothingham, 262 U.S. at 487; see ASARCO, 490 U.S. at 613. Article III standing requires that the plaintiff be "immediately in danger of sustain ing some direct injury" as a result of the law's enforce ment, and "not merely that he suffers in some indefinite way in common with people generally." Frothingham, 262 U.S. at 488. For courts to intervene in disputes based on such intangible and generalized-indeed, virtu ally universal-allegations of harm "would be not to de cide a judicial controversy," as required by Article III's case-or-controversy requirement, but "to assume a posi tion of authority over the governmental acts of another and coequal department, an authority which plainly [courts] do not possess." Id. at 489.

B. By Its Terms, Flast Represents A Narrow Exception To The General Rule Against Taxpayer Standing

1. Taxpayer standing under Flast rests upon a unique and narrow historical concern about legislatively compelled subsidization of private religious exercise

In Flast v. Cohen, supra, this Court recognized a narrow exception to that general prohibition on tax payer standing to challenge the government's expendi ture of tax revenues. Flast held that a taxpayer could bring an Establishment Clause challenge to Congress's exercise of its taxing and spending power to provide federal funding to private religious schools. 392 U.S. at 102-104. The Court underscored, however, that tax payer standing would extend "only [to] exercises of con gressional power under the taxing and spending clause of Art. I, § 8, of the Constitution." Id. at 102 (emphasis added). Challenges aimed not at congressional action but at the "incidental expenditure of tax funds in the administration of an essentially regulatory statute" by the Executive Branch, the Court emphasized, will not support taxpayer standing. Ibid.

Flast held not only that the taxpayer's challenge must target congressional taxing and spending, but also that there must be "a nexus between that [taxpayer] status and the precise nature of the constitutional in fringement alleged." 392 U.S. at 102. In particular, the taxpayer must allege that Congress's exercise of its spending power under Article I, Section 8 of the Consti tution "exceed[ed] specific constitutional limitations im posed upon the exercise of the congressional taxing and spending power," rather than simply asserting "that the enactment is generally beyond the powers delegated to Congress." Flast, 392 U.S. at 102-103. Surveying the history of the Establishment Clause and the Framers' particular concern "that the taxing and spending power would be used to favor one religion over another or to support religion in general," the Court reasoned that the Establishment Clause "operates as a specific constitu tional limitation upon the exercise by Congress of the taxing and spending power." Id. at 103-104. The Court has never held that any other constitutional constraint on Congress's taxing and spending power supports tax payer standing. See DaimlerChrysler, 126 S. Ct. at 1864.

Flast was not conceived as an exception to Article III's requirement of an individualized and concrete injury-in-fact. Courts have no authority to craft excep tions to the Constitution's limitations on judicial power. For a court to attempt to adjudicate cases that fall be yond the jurisdiction vested by Article III would "of fend[] fundamental principles of separation of powers," Steel Co., 523 U.S. at 94, and would be the "very defini tion" of a court "act[ing] ultra vires," id. at 102.

Rather, in explaining the exception carved out by Flast, the Court discerned in the history of the Estab lishment Clause a unique and particularized injury di rectly tied to Congress's extraction and spending of tax payers' dollars to subsidize churches, ministers, and similar forms of religious exercise by other individuals and entities outside the government. The Flast Court emphasized that "one of the specific evils feared by those who drafted the Establishment Clause and fought for its adoption was that the taxing and spending power would be used to favor one religion over another or to support religion in general." Flast, 392 U.S. at 103.

The Court cited, in particular, James Madison's Memorial and Remonstrance Against Religious Assess ments, which Madison published in response to a pro posed tax in Virginia "for the support of Christian teachers." Everson v. Board of Educ., 330 U.S. 1, 72-74 (1947) (reproducing the proposed tax bill); see James Madison, Memorial and Remonstrance Against Reli gious Assessments (1785), in 5 The Founders' Consti tution 82 (Philip B. Kurland & Ralph Lerner eds., 1987). Madison argued and ultimately persuaded his fellow Virginians that no citizen should be "force[d] * * * to contribute three pence only of his property for the support of any one establishment," and that to permit such an incursion on religious liberty would allow gov ernment to "force [a citizen] to conform to any other establishment in all cases whatsoever." 5 The Founders' Constitution para. 3, at 82; see Flast, 392 U.S. at 103; see also Mitchell v. Helms, 530 U.S. 793, 856 (2000) (O'Connor, J., concurring) ("[T]he most important rea son for according special treatment to direct money grants is that this form of aid falls precariously close to the original object of the Establishment Clause's prohibition.").

The Flast Court thus sought to carve out a narrow exception to the general rule against taxpayer standing to permit taxpayer challenges to congressional appropri ations that took the form of legislatively directed grants in aid of religion. See 392 U.S. at 114 (Stewart, J., con curring) (citing historical Establishment Clause con cerns and stating that "[t]oday's decision no more than recognizes that the appellants have a clear status as tax payers in assuring that they not be compelled to contrib ute 'three pence . . . of [their] property for the support of any one establishment'"). While the Establishment Clause was the product of many historical forces,7 Flast determined that one-and only one-of those forces was uniquely and inextricably tied to an individual's status as a taxpayer-the individual's right not to have Con gress take money out of his pocket and put it into the coffers of a church or other private sectarian entity for their religious use. Flast concluded that the injury caused by the extracting and spending of a taxpayer's money to subsidize or fund the religious exercise of oth ers was sufficiently direct and particularized to satisfy Article III's standing requirements. See 392 U.S. at 94.

In so holding, the Court stressed that it would not suffice "to allege an insubstantial expenditure of tax funds in the administration of an essentially regulatory statute," and cited as an example the complaint in Doremus v. Board of Education, 342 U.S. 429 (1952), that publicly funded school teachers violated the Estab lishment Clause by reading the Bible in public school classrooms. Flast, 392 U.S. at 102. Doremus rejected the taxpayers' assertion of standing because "[i]t is ap parent that the grievance which it is sought to litigate here is not a direct dollars-and-cents injury but is a reli gious difference." 342 U.S. at 434. Flast likewise per mits taxpayer standing only where the complaint states "a direct dollars-and-cents injury" based on Congress's exercise of its taxing and spending power in a manner that implicates the unique historical concerns that ani mated the Flast decision.

2. This Court's precedents confirm the narrow ambit of taxpayer standing under Flast

The court of appeals' decision adopts an "unusually broad and novel view of [taxpayer] standing to litigate" the constitutionality of any Executive Branch action, Valley Forge, 454 U.S. at 470, as long as the officials' salaries or activities are funded by the federal Treasury. That holding has no foothold in this Court's precedent. Quite the opposite, in the four decades since Flast was decided, this Court has consistently reaffirmed that tax payer standing is narrowly restricted to cases that fit Flast's historic rationale, and that the doctrine "does not provide a special license" for taxpayers "to roam the country in search of governmental wrongdoing and to reveal their discoveries in federal court." Id. at 487.

In Flast itself, the Court stressed that taxpayer standing would apply "only [to] exercises of congressio nal power under the taxing and spending clause of Art. I, § 8, of the Constitution." 392 U.S. at 102 (emphasis added). Underscoring that taxpayer standing would be limited to challenges to congressional power, the Court stressed in the very next sentence that taxpayer stand ing would not extend to challenges to the Executive Branch's "incidental expenditure of tax funds in the ad ministration of an essentially regulatory statute." Ibid. Indeed, the Court explained at the beginning of the opinion that the jurisdiction of the three-judge Court -and thus of the Supreme Court itself, id. at 88 n.2- was premised on the plaintiffs' challenge to the constitu tionality of federal law, rather than the Executive Branch's "administration" of the law, id. at 90. The Court then reiterated at the end of the Flast decision that the particular form of taxpayer standing it had rec ognized was designed to protect against "abuses of legis lative power," and in particular the spending power. Id. at 106 (emphasis added).

Six years later, the Court underscored the narrow scope of taxpayer standing in Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974). In that case, the Court rejected taxpayer standing because the plaintiffs "did not challenge an enactment under Art. I, § 8, but rather the action of the Executive Branch in permitting Members of Congress to maintain their Reserve status," in alleged violation of the Ineligibility and Incompatibility Clauses of the Constitution, Art. I, § 6, Cl. 2. The Court held that taxpayer standing under Flast was limited to "challeng[ing] an enactment under Art. I, § 8," rather than contesting the alleged "invalidity of Executive action in paying" out taxpayer funds. Schlesinger, 418 U.S. at 228 & n.17.8 See also Richardson, 418 U.S. at 175 (holding that a taxpayer lacks standing to compel the Secretary of the Treasury to publish an accounting of the receipts and expendi tures of the CIA, because that challenge was "not ad dressed to the taxing or spending power, but to the stat utes regulating the CIA"); id. at 173 (Flast only "slightly lowered" the general bar to taxpayer standing and did so only for "suits against Acts of Congress.") (quoting Flast, 392 U.S. at 85).

Likewise, in Valley Forge, the Court emphasized that the Flast exception must be applied with "rigor," 454 U.S. at 481, and rejected taxpayer standing where the plaintiffs challenged "not a congressional action, but a decision by [a federal agency] to transfer a parcel of federal property" to a religious college. Id. at 479. The Court explained that, while the agency's actions in transferring the property necessarily entailed the use of tax money from general appropriations, the Executive Branch's "expenditure of public funds in an allegedly unconstitutional manner is not an injury sufficient to confer standing." Id. at 477. Rather, the Court reaf firmed, taxpayer standing is confined to "challenges directed only [at] exercises of congressional power." Id. at 479 (emphasis added). A constitutional objection to "a particular Executive Branch action arguably authorized by [an] Act [of Congress]" will not suffice. Id. at 479 n.15 (quoting Flast, 392 U.S. at 102).

That pattern continued unbroken in Bowen v. Ken drick, 487 U.S. 589 (1988), where the Court repeated that Flast is a "narrow exception * * * to the general rule against taxpayer standing established in Froth ingham." Id. at 618. The Court held that the Flast ex ception permitted the plaintiffs to challenge on its face a statute permitting the distribution of federal grant money to private entities, including religious organiza tions. See ibid. The Court also held that the taxpayers had standing to challenge the constitutionality of the statute as applied to particular grants made by the Sec retary of Health and Human Services pursuant to the law, explaining that the authorizing statute "is at heart a program of disbursement of funds pursuant to Con gress' taxing and spending powers, and appellees' claims call into question how the funds authorized by Congress are being disbursed pursuant to the [Act]'s statutory mandate." Id. at 619-620. In so holding, however, the Court distinguished a challenge aimed not at the consti tutionality of a federal spending statute, but at the Ex ecutive Branch's expenditure of funds in the course of administering or executing "an essentially regulatory statute." Id. at 619 (quoting Flast, 392 U.S. at 102).

Finally, just last Term, the Court reiterated that Flast has a "narrow application in our precedent," and must not be applied so broadly as to "transform federal courts into forums for taxpayers' generalized griev ances." DaimlerChrysler, 126 S. Ct. at 1865. Rather, taxpayer standing is strictly limited to a claim that "con gressional action under the taxing and spending clause is in derogation of the Establishment Clause," id. at 1864 (emphasis added) (quoting Flast, 392 U.S. at 105- 106). The Court stressed that taxpayer standing has been recognized in that particular context-and no other -because Congress's "extract[ion] and spen[ding] of tax money in aid of religion," is "fundamentally unlike" an alleged violation of "almost any [other] constitutional constraint on government power," given the historical constitutional imperative of protecting citizens against "contribut[ing] three pence . . . for the support of any one [religious] establishment." Id. at 1864-1865. Thus, "the 'injury' alleged in Establishment Clause challenges to federal spending" that may give rise to standing is "the very 'extract[ion] and spend[ing]' of 'tax money' in aid of religion alleged by a plaintiff." Id. at 1865.

C. Respondents' Challenge To The Speeches, Meetings, And Other Operational Activities Of Executive Branch Offi cials That Do Not Entail The Disbursement Of Federal Funds Outside The Government Do Not Support Tax payer Standing

The court of appeals' holding that taxpayer standing extends to respondents' challenge to the allegedly un constitutional conduct of Executive Branch officials solely because their salaries and supplies are paid for through appropriations departs dramatically from Flast and "cuts the concept of taxpayer standing loose from its [constitutional] moorings," Pet. App. 19a (Ripple, J., dissenting), because the claim does not entail a chal lenge to Congress's exercise of its taxing and spending power to subsidize the religious activities of persons or entities outside the government.

1. Respondents' objection to the constitutionality of the Executive Branch's activities is not a challenge to Congress's taxing and spending power

The court of appeals held that "[t]axpayers have standing to challenge an executive-branch program, al leged to promote religion, * * * even if the program was created entirely within the executive branch, as by Presidential executive order," Pet. App. 16a, even if "there is no statutory program" enacted by Congress under its taxing and spending power, id. at 11a, and even if the taxpayer is "unable to identify the appropria tions that fund the [challenged activity]," id. at 10a. This Court's cases, however, have been quite explicit that an essential prerequisite to taxpayer standing un der Flast is a "challenge[] directed only [at] exercises of congressional power" under the Taxing and Spending Clause. Valley Forge, 454 U.S. at 479 (quoting Flast, 392 U.S. at 105); see DaimlerChrysler, 126 S. Ct. at 1864 (taxpayer standing under Flast applies when the tax payer challenges "congressional action under the taxing and spending clause"); Schlesinger, 418 U.S. at 225 n.15 ("[T]he Flast nexus test is not applicable where the tax ing and spending power is not challenged."); Flast, 392 U.S. at 106 (challenge must be to "congressional action under the taxing and spending clause").

Respondents do not challenge any specific congres sional action or appropriation, and respondents do not ask the Court to invalidate any Act of Congress, on its face or as applied. Respondents also do not question Congress's power to tax and spend to finance the sala ries and day-to-day activities of Executive Branch offi cials, including paying them to give speeches or to con duct meetings. Nor do they challenge or seek to enforce any conditions imposed by Congress on federal spend ing. The funds at issue, in fact, were appropriated with out attached conditions or programmatic directives for the President's discretionary use within the Executive Office of the President and federal agencies. And those funds would be spent on salaries, meetings, and other day-to-day activities whether or not those activities take a form to which respondents object. Respondents, in short, do not allege that Congress exceeded its taxing and spending authority in any respect and, thus, they do not allege the type of "direct dollars-and-cents injury," Doremus, 342 U.S. at 434, that could support taxpayer standing under Flast. See Pet. App. 64a (Ripple, J., dis senting from the denial of rehearing en banc) ("Here, as in Valley Forge, the plaintiffs do not complain of any action taken by Congress.").

Instead, the heart of respondents' complaint is that Executive Branch officials have made improper deci sions about the particular subject matter of certain day- to-day operations, such as the allegedly religious content of their speeches and meetings.9 Respondents thus chal lenge Executive Branch activities, not a congressional program and not any financial disbursements to outside entities. But what Executive Branch officials say and what meetings they conduct in doing the President's business are quintessentially Executive actions. They are no more congressional exercises of the taxing and spending power than a Presidential decision to host a summit of foreign leaders or the President's delivery of a State of the Union address.

2. The mere presence of federal funding is insufficient to create taxpayer standing

The court of appeals reasoned that taxpayer standing requires nothing more than Congress's passage of a funding law that makes it possible for Executive Branch officials to run afoul of the Establishment Clause. Pet. App. 8a (statute must "ha[ve] been necessary for the violation to occur-it did not have to be sufficient"); see id. at 11a-12a. That is incorrect, for four reasons.

First, this Court has never adopted such a sweeping "funding ergo standing" test for taxpayer standing. In deed, that rationale is fundamentally at odds with the general rule that taxpayer status does not confer stand ing to challenge how federally financed "officials of the executive department of the government are executing" their duties. Frothingham, 262 U.S. at 488.

Moreover, even with Flast's narrow exception to that rule, this Court has never suggested that the mere pres ence of federal funding is sufficient. To the contrary, the Court has repeatedly required plaintiffs to articulate a specific challenge to "congressional action under the taxing and spending clause," DaimlerChrysler, 126 S. Ct. at 1864; Flast, 392 U.S. at 106. Under Flast, it is only when the congressional spending decision itself causes the alleged injury that the unique historic con cern about Congress's abuse of its taxing and spending power to compel religious subsidization is implicated.

Indeed, this Court's decisions in Valley Forge and Doremus foreclose the court of appeals' funding-equals- standing rule. In Valley Forge, as here, federal funds paid the salaries of federal officials while they processed applications for property. Compare 454 U.S. at 466-467, with Pet. App. 69a-73a. In addition, federal funds fi nanced the determination by Executive Branch officials in Valley Forge that a religious group had a unique "program of utilization which provides * * * the great est public benefit" for the use of surplus government property. 454 U.S. at 467 & n.4.

That is no different from respondents' allegation here that federal funds financed Executive Branch offi cials' determination that faith-based groups have a "unique capacity * * * to provide effective social ser vices." Pet. App. 75a para. 34. The use of taxpayer funds thus was as "necessary for the violation to occur" (Pet. App. 8a) in Valley Forge as in this case, and ac cordingly the Valley Forge complaint would have satis fied the court of appeals' test for standing. But it did not satisfy this Court's test. The Court held that those allegations were insufficient and that the plaintiffs in Valley Forge lacked standing because the object or "source of their complaint is not a congressional action, but a decision by [a federal agency]." 454 U.S. at 479. While federal funds were unquestionably employed and expended, that was not enough. "[T]he expenditure of public funds in an allegedly unconstitutional manner is not an injury sufficient to confer standing." Id. at 477. And even though in Valley Forge, unlike here, the chal lenged Executive Branch activity resulted in the distri bution of property to an outside religious entity, the Court still found standing lacking.

In fact, the Court expressly rejected the contention that the taxpayers' right "extends to the Government as a whole, regardless of which branch is at work in a par ticular instance, and regardless of whether the chal lenged action was an exercise of the spending power." Valley Forge, 454 U.S. at 484 n.20 (emphasis added; cita tion omitted). That argument, the Court explained, was "premised on a revisionist reading of our precedents" and lacked any "[l]ogical[]" limitation. Ibid. Given that evaluating and publicly certifying the comparative "public benefit" offered by a religious group and then transferring 77 acres of land to it, Valley Forge, 454 U.S. at 468, does not support standing, then it necessar ily follows that discussing religious groups in speeches and inviting them to conferences does not confer Article III standing either.

Likewise, in Doremus, taxpayers alleged standing to challenge public schoolteachers' reading of passages from the Bible in the classroom each day. Although tax payer funds paid those teachers' salaries while they read from the Bible, just as here taxpayer funds paid federal officials' salaries as they allegedly spoke about religious groups in speeches and at conferences, this Court held that the plaintiffs lacked standing. 342 U.S. at 434. The Court explained that the plaintiffs could not identify any particular statutory provision-a "separate tax" or a "particular appropriation," id. at 433-that funded the Bible reading. The fact that taxpayer funds made it pos sible for the teachers to be in the classroom reading the Bible to students was not enough. Id. at 434 (noting the absence of "a measurable appropriation or disbursement of school-district funds occasioned solely by the activi ties complained of"). The problem for the taxpayers in Doremus was that their real complaint was not the ex penditure for teachers' salaries, but the essentially "reg ulatory" decision to read the Bible. Likewise here, re spondents' real complaint is not the dollar-and-cents injury from expenditures on Executive Branch salaries and supplies, but the essentially "regulatory" decision of Executive Branch officials (allegedly) to emphasize the benefits of religion and religiously affiliated organiza tions in their speeches and meetings. See also Schle singer, 418 U.S. at 211, 228 (taxpayer standing denied where taxpayers "did not challenge an enactment under Art. I, § 8, but rather the action of the Executive Branch," even where that action involved the use of tax payer funds to pay Members of Congress their Reserve salaries).

In short, when the statutory direction is for the Ex ecutive to do something other than disburse funds, nei ther that direction nor the Executive Branch's subse quent actions or expenditures in carrying it out gives rise to taxpayer standing. And that remains true even if the legislature's non-spending direction, see, e.g., Doremus, or the executive action, see, e.g., Valley Forge, arguably violates the Establishment Clause.

Second, the court of appeals' approach provides no principled basis for determining when the disposition of federal funds stops being an exercise of congressional power and becomes Executive action. In the court's view, any activity funded by a congressional appropria tion-which means virtually everything the Executive and Judicial Branches do-is a sufficient exercise of the taxing and spending power to trigger the Flast excep tion.10

But Congress's taxing and spending power is not self-perpetuating after an appropriation is made. Basic separation of powers principles recognize limits to Con gress's role and reach. Once an appropriations law, whether general or targeted, is passed by both Houses of Congress and signed into law by the President, imple mentation and execution of that law is Executive Branch action. More specifically, when Congress provides funds to the Executive Branch to be used in the Executive's discretion and outside of a congressional spending pro gram, Congress's taxing and spending role ends when the funds are appropriated-that is, when the funds are delivered into the control of the Executive Branch. A taxpayer does not have a "continuing stake * * * in the disposition of the Treasury to which he has contributed his taxes, and [a] right to have those funds put to lawful uses." Valley Forge, 454 U.S. at 484 n.20. The disburse ment of funds for Congress's purpose-which in this case was to fund the operations of the Executive Branch itself, without further condition and outside of a con gressional spending program-is the circuit breaker. The use of non-earmarked funds after this point be comes a matter of Executive discretion, not the exercise of Congress's taxing and spending power.11 And while there may be any number of plaintiffs who have stand ing to challenge the more particularized Executive Branch implementation of a congressional appropria tion, their standing must rest on something other (and more particularized) than taxpayer standing under Flast.

The court of appeals reasoned that Kendrick sup ported taxpayer standing here because it permitted a challenge to a congressional spending program as ap plied or administered by the Department of Health and Human Services. Pet. App. 8a. But this Court found standing in Kendrick because the agency disbursed funds at Congress's behest pursuant to a congressional taxing and spending program. The object of the plain tiffs' complaint was "a program of disbursement of funds pursuant to Congress' taxing and spending powers, and [their] claims call[ed] into question how the funds autho rized by Congress are being disbursed pursuant to the [Act]'s statutory mandate," not the Executive's discre tionary judgment. 487 U.S. at 619-620 (emphasis added). The explicit decision to permit funds to be dis bursed to religious groups was Congress's, not the Exec utive's. See id. at 595-596 (quoting statute's numerous references to "religious * * * organizations"). This Court's decision simply recognized that the fact that the funding authorized by Congress "ha[d] flowed through and been administered by the Secretary [of Health and Human Services]" did not absolve Congress of responsi bility for that judgment and adoption of that spending program. Id. at 619.

Here, there is no congressional taxing and spending program under challenge. Respondents have pointed to no law that directs that funds be used for any allegedly unconstitutional purpose, and respondents are not suing any Executive Branch official who disburses or distrib utes federal funds. To the contrary, the court of ap peals' acknowledged that "[t]his is a program that the President," not Congress, "has created by a series of executive orders," not exercises of the legislative taxing and spending power. Pet. App. 8a.

Third, because the Executive Branch depends upon general appropriations to function, the court of appeals reasoned that the difference between congressionally directed spending programs and federally financed ex ecutive action "cannot be controlling." Pet. App. 11a. But the distinction between the Legislature's taxing and spending power and Executive action makes all the dif ference under this Court's cases for purposes of Article III's standing requirement. That is what Valley Forge, Richardson, Schlesinger, and Doremus held. Indeed, Valley Forge rejected in terms the argument that tax payer standing applies "regardless of which branch is at work in a particular instance." 454 U.S. at 484 n.20. Yet, under the Seventh Circuit's decision, the result in Valley Forge was a product of pleading error, not consti tutional limitation. Had the plaintiffs simply asserted a taxpayer injury based on the use of "appropriations for the general administrative expenses" (Pet. App. 11a) involved in evaluating the public benefit of the religious group's proposed use of the property and transferring the property to the group, the plaintiffs would have had standing.

This Court repudiated that approach in Valley Forge, Richardson, Schlesinger, and Doremus for good reason. The Court in Flast explained that its exception to the general rule against taxpayer standing rested on dis tinct historical forces directly tied to concerns about Congress's abuse of its "unlimited power of taxation," An Old Whig, No. 5 (1787), in 5 The Founders' Constitu tion 86 (emphasis omitted), to fund the religious exer cise of a church or other religious entity. Under Flast, the Article III injury that supports standing is the indi vidual taxpayer's loss of religious liberty when the legis lature extracts money from his pocket and puts it into a church's or someone else's coffers to fund religious exer cise. See, e.g., DaimlerChrysler, 126 S. Ct. 1865. Those are harms that the Executive Branch, which lacks the power to levy taxes and to spend "for the * * * general Welfare," see U.S. Const. Art. 1, § 8, Cl. 1, cannot inflict. See also id. Art. I, § 9, Cl. 7 ("No Money shall be drawn from the Treasury, but in consequence of Appropria tions made by Law.").

The court of appeals reasoned that taxpayer standing was nonetheless appropriate because "there is so much that executive officials could do to promote religion in ways forbidden by the establishment clause." Pet. App. 13a. That rationale is seriously flawed. Courts have no license to expand their own authority beyond the limits set by Article III based on nothing more than unsub stantiated speculation that a coordinate branch of gov ernment will flout the Constitution's commands. In deed, the presumption is that Executive officials will faithfully discharge their constitutional obligations, see United States v. Armstrong, 517 U.S. 456, 464 (1996), and, in fact, there is no history of the kind of general abuse hypothesized by the court of appeals.

More to the point, what is relevant to the question of taxpayer standing is that there is not so much that Ex ecutive officials could do to promote religion (were they so inclined) that inflicts the specific type of taxpayer injury that was of unique concern to the Framers and that provided the foundation for the particular Article III injury recognized in Flast. Only Congress can "ex tract[] and spen[d]" "tax money" in aid of religion, Flast, 392 U.S. at 106, and "only" challenges to such "exercises of congressional power" will support taxpayer standing, id. at 102. See DaimlerChrysler, 126 S. Ct. at 1865.

In any event, the court of appeals' concern is un founded. This Court's cases demonstrate that violations of the Establishment Clause by executive officials need not go unchecked. While Doremus denied taxpayer standing to challenge Bible reading in public school classrooms, later cases in which plaintiffs had standing in a more particularized capacity than as mere taxpay ers provided the opportunity for plaintiffs to demon strate that such conduct "promote[s] religion in ways forbidden by the establishment clause" (Pet. App. 13a). See School Dist. of Abington Township v. Schempp, 374 U.S. 203, 224 n.9 (1963) (standing to challenge Bible reading in class as parents of school children).

Fourth, if the first criterion for taxpayer standing under Flast were to require nothing more than proof that governmental action was financed through taxpayer funds, it would be an empty test. As the court of appeals recognized, "almost all executive branch activity is funded by appropriations." Pet. App. 12a. Requiring nothing more than the presence of federal funding would, for all intents and purposes, reduce the test for taxpayer standing into a pleading question that turns solely on whether the plaintiffs raise an Establishment Clause challenge.

And even that line might not hold since the rationale for limiting taxpayer standing to Establishment Clause challenges has been that Clause's unique historical nexus to "the exercise of the congressional taxing and spending power." Flast, 392 U.S. at 103; see Richard son, 418 U.S. at 173. The second prong of Flast requires taxpayer-plaintiffs to invoke a "specific constitutional limitation[] imposed" not upon the Executive Branch or the federal government generally, but upon "congres sional" power. 392 U.S. at 103 (emphasis added). The taxpayer must allege that the "congressional action" under challenge "is in derogation of those constitutional provisions which operate to restrict the exercise of the taxing and spending power." Richardson, 418 U.S. at 173. Identifying a constitutional constraint on the exer cise of Executive power-whether the Ineligibility and Incompatibility Clauses of the Constitution, Art. I, § 6, cl. 2, or the Establishment Clause as it applies to the Executive Branch-does not suffice to support tax payer standing under Flast. See Valley Forge, supra; Schlesinger, supra. But jettisoning the requirement that the plaintiffs challenge a congressional action in the first place might well lead to a parallel dilution of the constitutional nexus requirement of the second prong of Flast, as it would be difficult to justify requiring the plaintiff's constitutional objection to specifically con strain congressional power if no exercise of congressio nal power needs to be challenged in the first place.

Furthermore, once the focus on congressional taxing and spending is breached, there is no historic rationale for limiting taxpayer standing to Establishment Clause challenges. While Flast explained that the Framers had a distinct taxpayer-based concern about Congress's abuse of its legislative taxing and spending power to establish a religion, there is no evidence that the Fram ers were any more concerned that the government would adopt measures "respecting an establishment of religion," writ large, than measures "abridging the free dom of speech, or of the press," or measures respecting the separation of powers or principles of federalism, or would engage in "unreasonable searches and seizures," would compel defendants to be witnesses against them selves, or would deny criminal defendants a trial by jury. U.S. Const. Arts. I, II, III; id. Amends. I, IV, V, VI, IX, X.

Noting this Court's statement that the "incidental expenditure of tax funds in the administration of an es sentially regulatory statute" by the Executive Branch will not support taxpayer standing, Kendrick, 487 U.S. at 619; Flast, 392 U.S. at 102, the court of appeals at tempted to rewrite the first prong of Flast into a test of whether "the marginal or incremental cost to the tax paying public of the alleged violation of the establish ment clause would be zero." Pet. App. 12a. That ap proach misunderstands the Establishment Clause, mis reads this Court's precedent, and is unworkable.

To begin with, the Establishment Clause is no place for a jurisprudence of incremental cost. The Framers' objection to legislative taxing and spending to subsidize private churches and the religious exercise of others was one of principle, not degree. The concern was not that such a tax could be too big, but that as small amount as even three pence was too much. Memorial and Remon strance Against Religious Assessments, in 5 The Found ers' Constitution 82; see also DaimlerChrysler, 126 S. Ct. at 1857; Thomas Jefferson, Act for Establishing Re ligious Freedom, in 5 The Founders' Constitution 84- 85. "Their objection was not to small tithes. It was to any tithes whatsoever. * * * Not the amount but 'the principle of assessment was wrong.'" Everson, 330 U.S. at 41 (Rutledge, J., dissenting).12

Furthermore, the court of appeals misunderstands what an "incidental expenditure of tax funds in the ad ministration of an essentially regulatory statute" means. Kendrick, 487 U.S. at 619; Flast, 392 U.S. at 102. "Inci dental" does not mean incremental. See Webster's Third New Int'l Dictionary 1142 (1993). It means an expendi ture that is an adjunct or byproduct of a legislative pro gram aimed at some end other than taxing and spend ing, such that the injury-whether large or small-is not a dollars-and-cents injury. Thus, this Court has repeat edly held that the Executive Branch's routine use of federal funds for such things as salaries and resources in the course of conducting the government's busi ness-outside the context of a congressional taxing and spending program-do not support taxpayer standing. See Valley Forge, supra; Schlesinger, supra; Richard son, supra; Doremus, supra.

Finally, as Judge Easterbrook explained, the court's "incremental cost" test is inadministrable. "If money from the Treasury is to supply the identifiable trifle for standing, then the only tenable line is between $0 (no cost to taxpayers as a whole) and $1 (some cost, however dilute)." Pet. App. 61a-62a. There is no sound basis for deciding, as the court of appeals did, that the cost to taxpayers of petitioners' references to religious groups in speeches and conferences is sufficient to support tax payer standing, but that the cost of the President's or the Secretary of Education's delivery and reproduction of a speech discussing religion is not. See id. at 14a-15a; see also id. at 62a (Easterbrook, J., concurring in the denial of rehearing en banc) ("[T]he panel draws a line between $500,000 and $50,000 or $5,000 (even if there are lots of speeches or proclamations at $5,000 or $50,000 apiece). Where is the coherence in such a doc trine?"). Indeed, the whole doctrine of taxpayer stand ing is built on the premise that is it not enough to allege injury based simply on the theory that taxpayers have incurred "some cost" (ibid.) due to the government ac tion at issue. See DaimlerChrysler, 126 S. Ct. at 1862.

3. Under Flast, taxpayer standing extends only to objec tions to Congress's disbursement of federal funds out side the government

The court of appeals erred in finding taxpayer stand ing not only because of the absence of a challenge to Con gress's taxing and spending power, but also because the Court in Flast limited its exception to a particular mani festation of the taxing and spending power-the dis bursement of funds outside of the government to subsi dize the religious activities of churches and other private entities. The distinct taxing concern that Flast found had influenced the adoption of the Establishment Clause was not simply that Congress would exercise its power to support religion, but that it would do so in a particu lar way-through the provision of funds to churches or other institutions outside the government to subsidize their own religious exercise.

The problem against which Madison remonstrated and Thomas Jefferson inveighed was not that Executive Branch officials, with their taxpayer-funded salaries, would speak favorably about religion or that they would meet with representatives of religious groups. Quite the opposite, religious themes appear frequently in the Na tion's founding documents and the speeches and letters of the Framers.13 The Continental Congress itself an nounced in 1778 that the Nation's success in the Revolu tionary War had been "so peculiarly marked, almost by the direct interposition of Providence, that not to feel and acknowledge his protection would be the height of impious ingratitude." 11 Journals of the Continental Congress 477 (Worthington Chauncy Ford ed., 1908). Likewise, President Washington-on the taxpayers' dime-issued the first Thanksgiving Day proclamation to "recommend to the people of the United States a day of public thanksgiving and prayer" for "the many and signal favors of Almighty God." Van Orden v. Perry, 125 S. Ct. 2854, 2861 (2005) (plurality opinion) (citation omitted). The taxpayers also paid the salary of Presi dent Lincoln when he delivered the Gettysburg Address, with its "extensive acknowledgments of God." Id. at 2863 n.9.14 There is no evidence that the Framers con sidered the taxpayers' religious liberty to be distinctly infringed by funding such references or religious con tacts.

Rather, the particular taxing concern that troubled the Framers was, as explained in Flast and other deci sions of this Court, focused narrowly on the fear that Congress would use its power forcibly to transfer funds from taxpayers into the coffers of churches or other institutions-institutions that were external to the gov ernment and staffed by religious, not governmental, officials-which would then use the funds for inherently religious activities.15 The tax against which Madison protested aimed to provide funds not for the govern ment's internal operations, but to churches for the train ing of Christian ministers.16 That was also a common aspect of established religion in the States around the time the Constitution and the First Amendment were adopted.17

Accordingly, the unique and historic injury to reli gious liberty upon which this Court focused in Flast was not that tax funds would be used within the government to reference or even to promote religion. Instead, the animating concern was that private funds would be ex tracted from individual taxpayers and handed over to churches and other religious institutions external to the Branches of government in order to subsidize their religious exercise. That was "the right not to con tribute three pence . . . for the support of any one [re ligious] establishment" that Madison sought to vindi cate. DaimlerChrysler, 126 S. Ct. at 1864 (quoting Flast, 392 U.S. at 103); see Flast, 392 U.S. at 114 (Stew art, J., concurring) ("[E]very taxpayer can claim a per sonal constitutional right not to be taxed for the support of a religious institution.").

The history of the Establishment Clause, however, does not support recognition of a distinct injury-in-fact -uniquely traceable to a taxpayer's status as such-in not supporting the speeches and day-to-day activities of Executive Branch officials. Cf. Bowen v. Roy, 476 U.S. 693, 700 (1986) (individuals have no First Amendment right "to dictate the content of the Government's inter nal procedures"). Under the Constitution, such "reli gious difference[s]," Doremus, 342 U.S. at 434, or policy disagreements are to be addressed not through the courts, but through "political safeguards" and "demo cratic accountability." Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550, 563 (2005); see Giles v. Harris, 189 U.S. 475, 488 (1903) ("[R]elief from a great political wrong * * * must be given by * * * the legislative and political department of the government of the United States."). They are not Article III "cases" or "contro versies."

Confining taxpayer standing to challenges to the con gressionally authorized disbursement of funds outside the government hews not only to that history, but also to this Court's precedent. In both Flast and Kendrick- the only two cases in which this Court has upheld tax payer standing-the taxpayers challenged congressional programs that, by their terms, authorized the disburse ment of federal funds to outside entities, including reli gious organizations. In Flast, the Court observed that "[t]he gravamen of the appellants' complaint was that federal funds appropriated under the Act were being used to finance instruction in * * * religious schools." 392 U.S. at 85.

Likewise, in Kendrick, the Court stressed that the plaintiffs' constitutional objections were to the "dis bursement of funds" and "how the funds authorized by Congress are being disbursed" to sectarian grantees. 487 U.S. at 619-620. Reinforcing that point, the Court noted that the challenged funds "flowed through" a fed eral agency en route to an alleged religious use. Id. at 619 (emphasis added). Kendrick did not hold that tax payer standing exists whenever federal funds have flowed to a federal agency and stopped there.

To establish the requisite taxpayer injury to support standing under Flast, a plaintiff therefore must chal lenge congressional action directly authorizing the dis bursement of funds to entities outside the government in alleged derogation of the Establishment Clause. As serting nothing more than a link between the challenged government activity and funding stemming from appro priations legislation has no historic or precedential ante cedent from which to discern that individualized injury- in-fact required by Article III. Cf. Valley Forge, 454 U.S. at 480 n.17 ("[A]ny connection between the chal lenged property transfer and respondents' tax burden is at best speculative and at worst nonexistent.").

To be sure, continuing to adhere to the historic and precedential limitations on taxpayer standing in this manner would leave areas of governmental activity that are not susceptible to suit by taxpayers, as such. But this Court has never suggested that taxpayer standing should be a universal panacea for every taxpayers' Es tablishment Clause qualms. Quite the opposite, the Court has consistently underscored the narrow and his torically measured scope of the Flast doctrine, see, e.g., DaimlerChrysler, 126 S. Ct. at 1865, and has made clear that taxpayer standing does not exist to challenge "reli gious difference[s]," Doremus, 342 U.S. at 434, or every alleged Establishment Clause transgression, see Valley Forge. Moreover, the absence of standing as a taxpayer to challenge an Executive Branch action on Establish ment Clause grounds does not mean that no one will be able to challenge the action. Compare Doremus (no tax payer standing to challenge Bible reading in public school classrooms), with Schempp, 374 U.S. at 224 n.9 (parents of students have standing to challenge teacher- led Bible reading in public school classrooms) .

In any event, "[t]he assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing." Valley Forge, 454 U.S. at 489 (citation omitted). That approach "would convert standing into a requirement that must be observed only when satisfied." Ibid.

4. Separation of powers principles require that the Flast exception for taxpayer standing remain nar rowly cabined

Fundamental separation of powers concerns preclude enlarging the Flast exception beyond the particular ex ercise of Congress's taxing and spending power at issue in Flast-that is, the extraction and spending of tax payer dollars to subsidize or fund the religious activities of others.

First, Article III requires an injury in fact. To the extent that requirement can be satisfied under Flast based solely on taxpayer status, the alleged injury must hew to the one historical paradigm that, at the time of the Establishment Clause's adoption, pertained directly to an individual's taxpayer status and that, under Flast, amounted to a distinct and personalized injury to indi vidual religious liberty.

Second, because taxpayer standing cases involve, by definition, challenges to the constitutionality of the ac tions of a coordinate branch of government, see Flast, 392 U.S. at 103, the standing inquiry must be "especially rigorous," Raines, 521 U.S. at 819, and "observe[d] fas tidiously," Coleman v. Miller, 307 U.S. 433, 464 (1939) (opinion of Frankfurter, J.) . Declaring unconstitutional "an act of the Legislative or Executive Branch * * * is a formidable means of vindicating individual rights," and "when employed unwisely or unnecessarily it is also the ultimate threat to the continued effectiveness of the fed eral courts in performing" the "ultimate and supreme function" of interpreting the Constitution. Valley Forge, 454 U.S. at 473. Indeed, "[r]elaxation of standing re quirements is directly related to the expansion of judi cial power," such that loosening the constraints on tax payer standing "would significantly alter the allocation of power at the national level, with a shift away from a democratic form of government." Richardson, 418 U.S. at 188 (Powell, J., concurring). The requirement of con crete injury, in particular, "insur[es] that such adjudica tion does not take place unnecessarily." Schlesinger, 418 U.S. at 221.

Proper respect for the separation of powers thus re quires that the Judicial Branch not "hospitably accept for adjudication claims of constitutional violation by other branches of government where the claimant has not suffered cognizable injury." Valley Forge, 454 U.S. at 474. Because constitutional challenges to the acts of the Executive Branch "affect[] relationships between the coequal arms of the National Government," id. at 473, claims like respondents' should only be entertained as a "last resort," id. at 474, and upon the firmest con viction that the constitutional requirements for judicial intervention under Article III have been satisfied.

To permit a complainant who has no concrete in jury to require a court to rule on important constitu tional issues in the abstract would create the poten tial for abuse of the judicial process, distort the role of the Judiciary in its relationship to the Executive and the Legislature and open the Judiciary to an ar guable charge of providing "government by injunc tion."

Schlesinger, 418 U.S. at 222. That principle applies with particular force when, as here, taxpayers seek judicial superintendence of the speeches and daily activities not just of agency officials, but also of presidential staff within the Executive Office of the President acting pur suant to a presidential directive.

To require, as the court of appeals did, only the pres ence of federal funding within the government paired with an Establishment Clause objection not only would loose taxpayer standing from its constitutional, historic, and precedential moorings, but also would disregard those constitutional constraints and would go far to wards establishing the courts, at the behest of any one of the more than 180 million taxpayers in the United States, as a standing Council of Revision for every gov ernmental encounter with religion. See Richardson, 418 U.S. at 189 (Powell, J., concurring). "[S]uch a broad application of Flast's exception to the general prohibi tion on taxpayer standing would be quite at odds with its narrow application in [this Court's] precedent and Flast's own promise that it would not transform federal courts into forums for taxpayers' 'generalized griev ances.'" DaimlerChrysler, 126 S. Ct. at 1865 (quoting Flast, 392 U.S. at 106). Indeed, if interpreted in that open-ended fashion, Flast could not stand with the pre cedents of this Court-both before and after Flast-that hew to Article III's limits on taxpayer standing.

In addition, such a dramatic expansion of taxpayer standing would likely sow additional confusion in courts that already struggle with the scope and application of this Court's taxpayer standing jurisprudence. As Judge Easterbrook explained, the court of appeals' decision in this case creates line-drawing problems that not only suggest that the court's conception of taxpayer standing lacks "coherence," but also-if deemed to be a proper reading of Flast-"suggest[] problems in Flast's under pinning and application." Pet. App. 62a (Easterbrook, J., concurring in the denial of rehearing en banc). In deed, within three months of the court of appeals' deci sion in this case, the Seventh Circuit loosened the reins on taxpayer standing even further, holding that tax payer standing supports suits for equitable restitution against private entities. See Laskowski v. Spellings, 443 F.3d 930 (7th Cir.), as amended on reh'g, 456 F.3d 702 (2006), petition for cert. pending, No. 06-582 (filed Oct. 24, 2006). Accordingly, adopting the court of appeals' reading of Flast could require the Court to revisit Flast and the doctrine of taxpayer standing altogether. If something has to give way to make the law in this area administrable, it should be the narrow anomaly of Flast, not Article III and its bedrock requirement of particu larized injury.18

While itself the subject of judicial and scholarly criti cism, Flast has survived as a "stringently limited" ex ception to the general prohibition against taxpayer standing. Richardson, 418 U.S. at 194 (Powell, J., con curring). Eliminating the concrete boundaries estab lished by Flast-in particular, the unique historical con cern about imposing taxes to subsidize the religious ex ercise of churches and similar entities-would call into question the legitimacy of Flast itself. The Court need not undertake that examination in this case, however, if it retains its view of Flast as a narrow exception and reverses the court of appeals' holding that taxpayer standing extends to challenges to Executive Branch ac tivities that are financed only indirectly through general appropriations and that do not entail the congressionally directed disbursement of federal funds to institutions or individuals outside the government.

CONCLUSION

The judgment of the court of appeals should be re versed.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General

PETER D. KEISLER
Assistant Attorney General

GREGORY G. GARRE
Deputy Solicitor General

PATRICIA A. MILLETT
Assistant to the Solicitor
General

ROBERT M. LOEB
LOWELL V. STURGILL JR.
Attorneys

JANUARY 2007

1 Pursuant to Supreme Court Rule 35(3), each of the petitioners has been substituted for their predecessors in office, who were the originally named defendants.

2 See, e.g., Exec. Order No. 13,198, 3 C.F.R. at 750 (2002); Exec. Order No. 13,280, 3 C.F.R. at 262 (2003); Exec. Order No. 13,342, 3 C.F.R. at 180 (2005); Exec. Order No. 13,397, 71 Fed. Reg. 12,275 (2006).

3 Initially, respondents also sued David Caprara, the former Director of Faith-Based and Community Initiatives at the Corporation for National and Community Service, as well as the Director of the Center for Disease Control and Prevention, but they subsequently voluntarily dismissed the claims against those defendants. Pet. App. 37a.

4 The Freedom from Religion Foundation itself is a non-profit entity that is exempt from paying federal income taxes under 26 U.S.C. 501(c)(3), but it may assert standing on behalf of its taxpaying mem bers. See Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 40 (1976).

5 The district court dismissed respondents' claim against former Secretary of Education Rod Paige, and the court of appeals affirmed that dismissal. Pet. App. 14a-15a, 35a. Respondents' amended com plaint also asserted claims that the heads of certain federal agencies had violated the Establishment Clause by "directly and preferentially fund[ing]" particular programs that allegedly "integrate religion as a substantive and integral component" of their activities. Id. at 77a-79a paras. 42, 43. Respondents voluntarily dismissed all of those claims with the exception of two programs administered by the Secretary of Health and Human Services. The district court subsequently granted summary judgment for the Secretary with respect to one of those claims, and for respondents with respect to the other. Id. at 56a-57a. Neither of those decisions was appealed, and they are not at issue before this Court. Id. at 14a-15a.

6 To establish standing, a plaintiff also must identify a "causal connection between the injury and the conduct" of which he complains, such that the alleged injury is "fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court," and must demonstrate that it is "likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Lujan, 504 U.S. at 560-561 (brackets in original) (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38, 41-42, 43 (1976)).

7 See generally Sanford H. Cobb, The Rise of Religious Liberty in America (1902).

8 Because the absence of any challenge to an exercise of Congress's taxing and spending power failed the first prong of the Flast test, the Court did not address whether the Incompatibility and Ineligibility Clauses impose specific constitutional constraints on Congress's taxing and spending power for purposes of the second Flast requirement.

9 See Pet. App. 77a para. 40 (challenging the "actions and/or words" of Executive Branch officials); id. at 75a-76a paras. 34, 35 (challenging the content of presidential speeches); id. at 77a para. 41 (challenging Executive Branch officials' "myriad activities, such as making public appearances and giving speeches"); id. at 73a para. 32 (challenging Executive Branch officials' "support of national and regional confer ences"); id. at 76a-77a paras. 36, 39 (challenging Executive Branch officials' organization and conduct of conferences).

10 While the court of appeals would apparently treat differently official activity that is funded by "voluntary donations by private citi zens," Pet. App. 11a, that would appear to be a null set. See Anti-Defi ciency Act, 31 U.S.C. 1341, 1342.

11 See Lincoln v. Vigil, 508 U.S. 182, 192 (1993) ("The allocation of funds from a lump-sum appropriation is an[] administrative decision traditionally regarded as committed to agency discretion."); see also Clinton v. City of New York, 524 U.S. 417, 446 (1998); id. at 466-469 (Scalia, J., concurring in part and dissenting in part); id. at 480 (Breyer, J., dissenting); INS v. Chadha, 462 U.S. 919, 952-959 & n.16 (1983) (defining constitutional limits on the scope of the legislative role).

12 At the time of Madison's Remonstrance, such references to "pence" were understood to refer to a very small amount of money. See 2 Samuel Johnson, A Dictionary of the English Language (1755) (defining "pence" as the "plural of penny," and "penny"" as " [a] small coin, of which twelve make a shilling * * * a subordinate species of coin," and "[p]roverbially[] A small sum").

13 See, e.g., Van Orden v. Perry, 125 S. Ct. 2854, 2859 (2005) (plu rality opinion) ("The fact that the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him is clearly evidenced in their writings, from the Mayflower Compact to the Constitution itself.") (quoting Schempp, 374 U.S. at 213); id. at 2861-2862 (citing additional examples).

14 See also Alexander Hamilton, The Farmer Refuted (1775) ("[T]he Supreme Being gave existence to man, together with the means of preserving and beautifying that existence. He endowed him with rational faculties, by the help of which to discern and pursue such things as were consistent with his duty and interest; and invested him with an inviolable right to personal liberty and personal safety."), in The Republic of Reason: The Personal Philosophies of the Founding Fathers 333 (Norman Cousins ed., 1988) (internal quotation marks omitted); Richard Vetterli & Gary C. Bryner, In Search of the Republic: Public Virtue and the Roots of American Government 59 (rev. ed. 1996) ("The Founders, as a whole, were deeply religious men. * * * The foundation of their modern republican philosophy was based on a belief in God."); Chester James Antieau, The Higher Laws: Origins of Modern Constitutional Law 124 (1994); Samuel Adams, The Rights of the Colonists (1772), in 5 The Founders' Constitution 60 ("'Just and true liberty, equal and impartial liberty' in matters spiritual and temporal, is a thing that all Men are clearly entitled to, by the eternal and immutable laws Of God and nature."); Samuel Adams, Oration on the Steps of the Continental State House (Phila., Pa., Aug. 1, 1776) ("[T]he hand of heaven appears to have led us on to be, perhaps, humble instruments and means in the great providential dispensation which is completing.") (quoted in Derek H. Davis, Religion and the Continental Congress, 1774-1789: Contributions to Original Intent 60 & n.15 (2000)). For the similar sentiments of many other Founders, see id. at 60-69 (quoting Oliver Wolcott, Samuel Chase, John Adams, Elbridge Gerry, John Witherspoon, and William Williams); In Search of the Republic, supra, at 66-68 (quoting James Madison, John Adams, Thomas Jefferson, John Jay, Alexander Hamilton, and Benjamin Franklin); see generally Edmund Fuller & David Eliot Green, God in the White House: The Faiths of American Presidents (1968).

15 See Locke v. Davey, 540 U.S. 712, 722 (2004) ("Since the founding of our country, there have been popular uprisings against procuring taxpayer funds to support church leaders, which was one of the hallmarks of an 'established' religion."); id. at 722-723 (discussing other historical examples); Flast, 392 U.S. at 103-104; Everson, 330 U.S. at 11 ("The imposition of taxes to pay ministers' salaries and to build and maintain churches and church property aroused [the Framers'] indigna tion. It was these feelings which found expression in the First Amend ment."); see id. at 10-11 & nn.8-10.

16 See Memorial and Remonstrance Against Religious Assessments, in 5 The Founders' Constitution 82-84; see also id. at 84-85 (reproduc ing Jefferson's Act for Establishing Religious Freedom); id. at 58-59 (letter from Benjamin Franklin protesting forced taxation for "main taining the Presbyterian or independent worship"); id. at 65 (repro ducing Isaac Backus, A History of New England 1774-75) (asserting "an entire freedom from being taxed by civil rulers to religious wor ship"); id. at 71 (quoting N.C. Const. of 1776, art. XXXIV) (no person shall "be obliged to pay, for the purchase of any glebe, or the building of any house of worship, or for the maintenance of any minister or mini stry"); ibid. (quoting similar provision from the Pennsylvania Constitu tion of 1776); id. at 85 (quoting similar provision from the Vermont Constitution of 1786).

17 See, e.g., Laura Underkuffler-Freund, The Separation of the Reli gious and the Secular: A Foundational Challenge to First-Amend ment Theory, 36 Wm. & Mary L. Rev. 837, 874 (1995) (discussing taxa tion to support the Dutch Reformed Church in New York); Md. Const. of 1776, Decl. of Rights, para. XXXIII, in 3 Francis N. Thorpe, The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies, Now or Here tofore Forming the United States of America 1689 (1909) (discussing Maryland tax "for the support of the Christian religion"); John K. Wilson, Religion Under the State Constitutions 1776-1880, 32 J. Church & St. 753, 755 (1990) (noting that, before the American Revo lution, nine of the thirteen colonies provided direct tax aid to churches, but five of those nine states "disestablished immediately, and with little discussion" after the Revolution); id. at 756 (discussing a Georgia constitutional provision that provided for the imposition of a general assessment upon each person to support his own church); id. at 758 (discussing Massachusetts' constitutional provision directing that "[t]he legislature shall, from time to time, authorize and require, the several towns, parishes, precincts, and other bodies-politic or religious societies to make suitable provision, at their expense, for the institution of the public worship of God and for the support and maintenance [of] public Protestant teachers of piety, religion, and morality in all cases where such provision shall not be made voluntary"); id. at 759 ("Some Baptist churches even sued their own members in court, and had property seized when 'dissenters' refused to pay."); ibid. (quoting Article 6 of the New Hampshire Constitution (amended 1968), which allowed towns to impose a tax to support Protestant teachers, as long as no person "shall ever be compelled to pay towards the support of the teacher or teachers of another persuasion, sect or denomination").

18 Many jurists and scholars-beginning with Justice Harlan in his dissent in Flast-have questioned whether the Flast exception can be squared with the fundamental separation of powers principles that compel the general rule against taxpayer standing. See, e.g., Richard son, 418 U.S. at 180-197 (Powell, J., concurring); id. at 183 n.2 ("Mr. Justice Harlan's criticisms of the Court's analysis in Flast have been echoed by several commentators.") (citing articles); Flast, 392 U.S. at 116-133 (Harlan, J., dissenting); see generally Antonin Scalia, The Doc trine of Standing as an Essential Element of the Separation of Powers, 17 Suff. U. L. Rev. 881 (1983); Kenneth E. Scott, Standing in the Supreme Court-A Functional Analysis, 86 Harv. L. Rev. 645 (1973); Boris I. Bittker, The Case of the Fictitious Taxpayer: The Federal Taxpayer's Suit Twenty Years After Flast v. Cohen, 36 U. Chi. L. Rev. 364 (1969).