HEIN v. FREEDOM FROM RELIGION FOUNDATION

Legal Principle at Issue

Whether federal taxpayers have standing to challenge the constitutionality of expenditures by the Executive Branch — specifically, the White House Office of Faith-Based and Community Initiatives — under the Establishment Clause of the First Amendment.

Action

Reversed. Petitioning party received a favorable disposition.

Facts/Syllabus

The President, by executive orders, created a White House office and several centers within federal agencies to ensure that faith-based community groups are eligible to compete for federal financial support. No congressional legislation specifically authorized these entities, which were created entirely within the Executive Branch, nor has Congress enacted any law specifically appropriating money to their activities, which are funded through general Executive Branch appropriations. 

Respondents Freedom from Religion Foundation, an organization opposed to government endorsement of religion, brought this suit alleging that petitioners, the directors of the federal offices, violated the Establishment Clause by organizing conferences that were designed to promote, and had the effect of promoting, religious community groups over secular ones. The only asserted basis for standing was that the individual respondents are federal taxpayers opposed to Executive Branch use of congressional appropriations for these conferences. 

The District Court dismissed the claims for lack of standing, concluding that under Flast v. Cohen, federal taxpayer standing is limited to Establishment Clause challenges to the constitutionality of exercises of congressional power under the taxing and spending clause. Because petitioners acted on the president’s behalf and were not charged with administering a congressional program, the court held that the challenged activities did not authorize taxpayer standing under Flast. The U.S. Court of Appeals for the Seventh Circuit reversed, reading Flast as granting federal taxpayers standing to challenge Executive Branch programs on Establishment Clause grounds so long as the activities are financed by a congressional appropriation, even where there is no statutory program and the funds are from appropriations for general administrative expenses. According to the Seventh Circuit, a taxpayer has standing to challenge anything done by a federal agency so long as the marginal or incremental cost to the public of the alleged Establishment Clause violation is greater than zero.