HEIN, DIRECTOR, WHITE HOUSE OFFICE OF FAITH- BASED AND COMMUNITY INITIATIVES, et al. v. FREEDOM FROM RELIGION FOUNDATION, INC., et al.

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HEIN, DIRECTOR, WHITE HOUSE OFFICE OF FAITH-
BASED AND COMMUNITY INITIATIVES, et al. v.
FREEDOM FROM RELIGION FOUNDATION,
INC., et al.
certiorari to the united states court of appeals for
the seventh circuit
No. 06–157. Argued February 28, 2007—Decided June 25, 2007
The President, by executive orders, created a White House office and sev
eral centers within federal agencies to ensure that faith-based commu
nity 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, an organization opposed to Government endorsement of
religion and three of its members, brought this suit alleging that peti
tioners, 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 re
spondents 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, 392 U. S. 83, federal taxpayer standing is limited to Establish
ment Clause challenges to the constitutionality of exercises of congres
sional power under the taxing and spending clause of Art. I, § 8. Be
cause petitioners acted on the President’s behalf and were not charged
with administering a congressional program, the court held that the
challenged activities did not authorize taxpayer standing under Flast.
The Seventh Circuit reversed, reading Flast as granting federal taxpay
ers 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. Accord
ing to the court, a taxpayer has standing to challenge anything done by
a federal agency so long as the marginal or incremental cost to the
public of the alleged Establishment Clause violation is greater than
zero.

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588 HEIN v. FREEDOM FROM RELIGION FOUNDATION, INC.
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Held: The judgment is reversed.
433 F. 3d 989, reversed.
Justice Alito, joined by The Chief Justice and Justice Ken
nedy, concluded that because the Seventh Circuit’s broad reading of
Flast is incorrect, respondents lack standing. Pp. 597–615.
1. Federal-court jurisdiction is limited to actual “Cases” and “Contro
versies.” U. S. Const., Art. III. A controlling factor in the definition
of such a case or controversy is standing, ASARCO Inc. v. Kadish, 490
U. S. 605, 613, the requisite elements of which are well established:
“A plaintiff must allege personal injury fairly traceable to the defend
ant’s allegedly unlawful conduct and likely to be redressed by the re
quested relief.” Allen v. Wright, 468 U. S. 737, 751. Pp. 597–599.
2. Generally, a federal taxpayer’s interest in seeing that Treasury
funds are spent in accordance with the Constitution is too attenuated to
give rise to the kind of redressable “personal injury” required for
Article III standing. See, e. g., Frothingham v. Mellon, decided with
Massachusetts v. Mellon, 262 U. S. 447, 485–486. Pp. 599–601.
3. In Flast, the Court carved out a narrow exception to the general
constitutional prohibition against taxpayer standing. The taxpayer
plaintiffs there alleged that the distribution of federal funds to religious
schools under a federal statute violated the Establishment Clause. The
Court set out a two-part test for determining standing: “First, . . . a
taxpayer will be a proper party to allege the unconstitutionality only of
exercises of congressional power under the taxing and spending clause
of Art. I, § 8. . . . Secondly, the taxpayer must . . . show that the chal
lenged enactment exceeds specific constitutional limitations imposed
upon the exercise of the congressional taxing and spending power and
not simply that the enactment is generally beyond the powers delegated
to Congress by Art. I, § 8.” 392 U. S., at 102–103. The Court then held
that the particular taxpayer had satisfied both prongs of the test. Id.,
at 103–104. Pp. 602–603.
4. Respondents’ broad reading of the Flast exception to cover any
expenditure of Government funds in violation of the Establishment
Clause fails to observe “the rigor with which the Flast exception to the
Frothingham principle ought to be applied.” Valley Forge Christian
College v. Americans United for Separation of Church and State, Inc.,
454 U. S. 464, 481. Given that the alleged Establishment Clause viola
tion in Flast was funded by a specific congressional appropriation and
was undertaken pursuant to an express congressional mandate, the
Court concluded that the taxpayer-plaintiffs had established the requi
site “logical link between [their taxpayer] status and the type of legisla
tive enactment attacked.” 392 U. S., at 102. “Their constitutional

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challenge [was] made to an exercise by Congress of its power under
Art. I, § 8, to spend for the general welfare.” Id., at 103. But Flast
“limited taxpayer standing to challenges directed ‘only [at] exercises of
congressional power’ ” under the Taxing and Spending Clause. Valley
Forge, supra, at 479. Pp. 603–604.
5. The link between congressional action and constitutional violation
that supported taxpayer standing in Flast is missing here. Respond
ents neither challenge any specific congressional action or appropriation
nor ask the Court to invalidate any congressional enactment or legisla
tively created program as unconstitutional. That is because the ex
penditures at issue were not made pursuant to any Act of Congress, but
under general appropriations to the Executive Branch to fund day-to
day activities. These appropriations did not expressly authorize, di
rect, or even mention the expenditures in question, which resulted from
executive discretion, not congressional action. The Court has never
found taxpayer standing under such circumstances. Bowen v. Ken
drick, 487 U. S. 589, 619–620, distinguished. Pp. 605–609.
6. Respondents argue to no avail that distinguishing between money
spent pursuant to congressional mandate and expenditures made in the
course of executive discretion is arbitrary because the injury to taxpay
ers in both situations is the same as that targeted by the Establishment
Clause and Flast—the expenditure for the support of religion of funds
exacted from taxpayers. But Flast focused on congressional action,
and the invitation to extend its holding to encompass discretionary Ex
ecutive Branch expenditures must be declined. The Court has repeat
edly emphasized that the Flast exception has a “narrow application,”
DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 348, that only “slightly
lowered” the bar on taxpayer standing, United States v. Richardson,
418 U. S. 166, 173, and that must be applied with “rigor,” Valley Forge,
supra, at 481. Pp. 609–610.
7. Also rejected is respondents’ argument that Executive Branch ex
penditures in support of religion are no different from legislative extrac
tions. Flast itself rejected this equivalence. 392 U. S., at 102. Be
cause almost all Executive Branch activity is ultimately funded by some
congressional appropriation, extending the Flast exception to purely ex
ecutive expenditures would effectively subject every federal action—
be it a conference, proclamation, or speech—to Establishment Clause
challenge by any taxpayer in federal court. Respondents’ proposed
rule would also raise serious separation-of-powers concerns, enlisting
the federal courts to superintend, at the behest of any federal taxpayer,
the speeches, statements, and myriad daily activities of the President,
his staff, and other Executive Branch officials. Pp. 610–612.

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590 HEIN v. FREEDOM FROM RELIGION FOUNDATION, INC.
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8. Both the Seventh Circuit and respondents implicitly recognize that
unqualified federal taxpayer standing to assert Establishment Clause
claims would go too far, but neither has identified a workable limitation.
Taking the Circuit’s zero-marginal-cost test literally—i. e., that any mar
ginal cost greater than zero suffices—taxpayers might well have stand
ing to challenge some (and perhaps many) speeches by Government
officials. At a minimum, that approach would create difficult and
uncomfortable line-drawing problems. Respondents’ proposal to re
quire an expenditure to be fairly traceable to the conduct alleged to
violate the Establishment Clause, so that challenges to the content of
any particular speech would be screened out, is too vague and ill defined
to be accepted. Pp. 612–614.
9. None of the parade of horribles respondents claim could occur if
Flast is not extended to discretionary Executive Branch expenditures
has happened. In the unlikely event any do take place, Congress can
quickly step in. And respondents make no effort to show that these
improbable abuses could not be challenged in federal court by plaintiffs
possessed of standing based on grounds other than their taxpayer sta
tus. P. 614.
10. This case does not require the Court to reconsider Flast. The
Seventh Circuit did not apply Flast; it extended it. Valley Forge Chris
tian Academy illustrates that a necessary concomitant of stare decisis
is that a precedent is not always expanded to the limit of its logic. That
is the approach taken here. Flast is neither extended nor overruled.
It is simply left as it was. Pp. 614–615.
Justice Scalia, joined by Justice Thomas, concurred in the Court’s
judgment, concluding that Flast v. Cohen, 392 U. S. 83, should be over
ruled as wholly irreconcilable with the Article III restrictions on
federal-court jurisdiction that are embodied in the standing doctrine.
Pp. 618–637.
1. The Court’s taxpayer-standing cases involving Establishment
Clause challenges to government expenditures are notoriously inconsist
ent because they have inconsistently described the relevant “injury in
fact” that Article III requires. Some cases have focused on the finan
cial effect on the taxpayer’s wallet, whereas Flast and the cases that
follow its teaching have emphasized the mental displeasure the taxpayer
suffers when his funds are extracted and spent in aid of religion. There
are only two logical routes available with respect to taxpayer standing.
If the mental displeasure created by Establishment Clause violations is
concrete and particularized enough to constitute an Article III “injury
in fact,” then Flast should be applied to (at a minimum) all challenges
to government expenditures allegedly violating constitutional provi

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sions that specifically limit the taxing and spending power; if not, Flast
should be overturned. Pp. 618–628.
2. Today’s plurality avails itself of neither principled option, instead
accepting the Government’s submission that Flast should be limited to
challenges to expenditures that are expressly authorized or mandated
by specific congressional enactment. However, the plurality gives no
explanation as to why the factual differences between this case and
Flast are material. (Whether the challenged government expenditure
is expressly allocated by a specific congressional enactment is not rele
vant to the Article III criteria of injury in fact, traceability, and redress
ability.) Yet the plurality is also unwilling to acknowledge that Flast
erred by relying on purely mental injury. Pp. 628–631.
3. Respondents’ legal position is no more coherent than the plurality’s.
They refuse to admit that their argument logically implies that every
expenditure of tax revenues that is alleged to violate the Establishment
Clause is subject to suit under Flast. Of course, that position finds no
support in this Court’s precedents or this Nation’s history. Pp. 631–632.
4. A taxpayer’s purely psychological displeasure that his funds are
being spent in an allegedly unlawful manner is never sufficiently con
crete and particularized to support Article III standing. See Lujan
v. Defenders of Wildlife, 504 U. S. 555, 573–574. Although overruling
precedents is a serious undertaking, stare decisis should not prevent
the Court from doing so here. Flast was inconsistent with the cases
that came before it and undervalued the separation-of-powers function
of standing. Its lack of a logical theoretical underpinning has rendered
the Court’s taxpayer-standing doctrine so incomprehensible that appel
late judges do not know what to make of it. The case has engendered
no reliance interests. Few cases less warrant stare decisis effect. It
is past time to overturn Flast. Pp. 633–637.
Alito, J., announced the judgment of the Court and delivered an opin
ion, in which Roberts, C. J., and Kennedy, J., joined. Kennedy, J., filed
a concurring opinion, post, p. 615. Scalia, J., filed an opinion concurring
in the judgment, in which Thomas, J., joined, post, p. 618. Souter, J.,
filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ.,
joined, post, p. 637.
Solicitor General Clement argued the cause for petition
ers. With him on the briefs were Assistant Attorney Gen
eral Keisler, Deputy Solicitor General Garre, Patricia A.
Millett, Robert M. Loeb, and Lowell V. Sturgill, Jr.

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592 HEIN v. FREEDOM FROM RELIGION FOUNDATION, INC.
Opinion of Alito, J.
Andrew J. Pincus argued the cause for respondents.
With him on the brief were Charles A. Rothfeld, Richard L.
Bolton, and Giovanna Shay.*
Justice Alito announced the judgment of the Court and
delivered an opinion, in which The Chief Justice and Jus
tice Kennedy join.
This is a lawsuit in which it was claimed that conferences
held as part of the President’s Faith-Based and Community
Initiatives program violated the Establishment Clause of
the First Amendment because, among other things, Presi
dent Bush and former Secretary of Education Paige gave
speeches that used “religious imagery” and praised the effi
cacy of faith-based programs in delivering social services.
*Briefs of amici curiae urging reversal were filed for the State of Indi
ana et al. by Steve Carter, Attorney General of Indiana, Thomas M.
Fisher, Solicitor General, and Julie A. Hoffman, Deputy Attorney Gen
eral, and by the Attorneys General for their respective States as follows:
Troy King of Alabama, John Suthers of Colorado, Bill McCollum of Flor
ida, Michael A. Cox of Michigan, George J. Chanos of Nevada, Wayne
Stenehjem of North Dakota, W. A. Drew Edmondson of Oklahoma, Henry
McMaster of South Carolina, Greg Abbott of Texas, Robert F. McDonnell
of Virginia, and Rob McKenna of Washington; for the American Center
for Law and Justice by Jay Alan Sekulow, Walter M. Weber, Colby M.
May, Stuart J. Roth, John P. Tuskey, and Laura B. Hernandez; for the
Christian Legal Society by Gregory S. Baylor and Steven H. Aden; for the
Foundation for Moral Law, Inc., by Roy S. Moore, Gregory M. Jones, and
Benjamin D. DuPre´; and for We Care America by Benjamin W. Bull and
Jordan Lorence.
Briefs of amici curiae urging affirmance were filed for American Athe
ists, Inc., by Robert Corn-Revere, Ronald G. London, David M. Shapiro,
and Edwin F. Kagin; for the American Civil Liberties Union et al. by
Anne Harkavy, Caroline Rogus, Judith E. Schaeffer, Howard W. Gold
stein, Steven M. Freeman, Steven C. Sheinberg, Steven R. Shapiro, Daniel
Mach, Ayesha N. Khan, Richard B. Katskee, and K. Hollyn Hollman; for
the American Jewish Congress et al. by Marc D. Stern and Jeffrey Sinen
sky; for the Center for Inquiry et al. by Irvin B. Nathan, Daniel S. Pari
ser, and Ronald A. Lindsay; and for Legal and Religious Historians and
Law Scholars by Matthew M. Shors and Steven K. Green.

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Opinion of Alito, J.
The plaintiffs contend that they meet the standing require
ments of Article III of the Constitution because they pay
federal taxes.
It has long been established, however, that the payment of
taxes is generally not enough to establish standing to chal
lenge an action taken by the Federal Government. In light
of the size of the federal budget, it is a complete fiction to
argue that an unconstitutional federal expenditure causes an
individual federal taxpayer any measurable economic harm.
And if every federal taxpayer could sue to challenge any
Government expenditure, the federal courts would cease to
function as courts of law and would be cast in the role of
general complaint bureaus.
In Flast v. Cohen, 392 U. S. 83 (1968), we recognized a
narrow exception to the general rule against federal tax
payer standing. Under Flast, a plaintiff asserting an Estab
lishment Clause claim has standing to challenge a law au
thorizing the use of federal funds in a way that allegedly
violates the Establishment Clause. In the present case,
Congress did not specifically authorize the use of federal
funds to pay for the conferences or speeches that the plain
tiffs challenged. Instead, the conferences and speeches
were paid for out of general Executive Branch appropria
tions. The Court of Appeals, however, held that the plain
tiffs have standing as taxpayers because the conferences
were paid for with money appropriated by Congress.
The question that is presented here is whether this broad
reading of Flast is correct. We hold that it is not. We
therefore reverse the decision of the Court of Appeals.
I
A
In 2001, the President issued an executive order creating
the White House Office of Faith-Based and Community Ini
tiatives within the Executive Office of the President. Exec.
Order No. 13199, 3 CFR 752 (2001 Comp.). The purpose of

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Opinion of Alito, J.
this new office was to ensure that “private and charitable
community groups, including religious ones . . . have the full
est opportunity permitted by law to compete on a level play
ing field, so long as they achieve valid public purposes” and
adhere to “the bedrock principles of pluralism, nondiscrimi
nation, evenhandedness, and neutrality.” Ibid. The office
was specifically charged with the task of eliminating unnec
essary bureaucratic, legislative, and regulatory barriers that
could impede such organizations’ effectiveness and ability to
compete equally for federal assistance. Id., at 752–753.
By separate executive orders, the President also created
Executive Department Centers for Faith-Based and Commu
nity Initiatives within several federal agencies and depart
ments.1 These centers were given the job of ensuring that
faith-based community groups would be eligible to compete
for federal financial support without impairing their inde
pendence or autonomy, as long as they did “not use direct
Federal financial assistance to support any inherently reli
gious activities, such as worship, religious instruction, or
proselytization.” Exec. Order No. 13279, 3 CFR § 2(f),
p. 260 (2002 Comp.). To this end, the President directed
that “[n]o organization should be discriminated against on
the basis of religion or religious belief in the administration
or distribution of Federal financial assistance under social
service programs,” id., § 2(c), at 260, and that “[a]ll organiza
tions that receive Federal financial assistance under social
services programs should be prohibited from discriminating
against beneficiaries or potential beneficiaries of the social
services programs on the basis of religion or religious be
lief,” id., § 2(d), at 260. Petitioners, who have been sued in
their official capacities, are the directors of the White House
Office and various Executive Department Centers.
1 See, e. g., Exec. Order No. 13198, 3 CFR 750 (2001 Comp.); Exec. Order
No. 13280, 3 CFR 262 (2002 Comp.); Exec. Order No. 13342, 3 CFR 180
(2004 Comp.); Exec. Order No. 13397, 71 Fed. Reg. 12275 (2006).

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No congressional legislation specifically authorized the
creation of the White House Office or the Executive Depart
ment Centers. Rather, they were “created entirely within
the executive branch . . . by Presidential executive order.”
Freedom From Religion Foundation, Inc. v. Chao, 433 F. 3d
989, 997 (CA7 2006). Nor has Congress enacted any law spe
cifically appropriating money for these entities’ activities.
Instead, their activities are funded through general Execu
tive Branch appropriations. For example, the Department
of Education’s Center is funded from money appropriated for
the Office of the Secretary of Education, while the Depart
ment of Housing and Urban Development’s Center is funded
through that Department’s salaries and expenses account.
See GAO, Faith-Based and Community Initiative: Improve
ments in Monitoring Grantees and Measuring Performance
Could Enhance Accountability 21 (GAO–06–616, June 2006),
online at http://www.gao.gov/new.items/d06616.pdf (as visited
June 25, 2007, and available in Clerk of Court’s case file); see
also Amended Complaint in No. 04–C–381–S (WD Wis.), ¶ 23,
App. to Pet. for Cert. 71a–72a.
B
The respondents are Freedom From Religion Foundation,
Inc., a nonstock corporation “opposed to government en
dorsement of religion,” id., ¶ 5, App. to Pet. for Cert. 68a,
and three of its members. Respondents brought suit in the
United States District Court for the Western District of Wis
consin, alleging that petitioners violated the Establishment
Clause by organizing conferences at which faith-based orga
nizations allegedly “are singled out as being particularly
worthy of federal funding . . . , and the belief in God is ex
tolled as distinguishing the claimed effectiveness of faith
based social services.” Id., ¶ 32, App. to Pet. for Cert. 73a.
Respondents further alleged that the content of these confer
ences sent a message to religious believers “that they are
insiders and favored members of the political community”

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and that the conferences sent the message to nonbelievers
“that they are outsiders” and “not full members of the politi
cal community.” Id., ¶ 37, App. to Pet. for Cert. 76a. In
short, respondents alleged that the conferences were de
signed to promote, and had the effect of promoting, religious
community groups over secular ones.
The only asserted basis for standing was that the individ
ual respondents are federal taxpayers who are “opposed to
the use of Congressional taxpayer appropriations to advance
and promote religion.” Id., ¶ 10, App. to Pet. for Cert. 69a;
see also id., ¶¶ 7–9, App. to Pet. for Cert. 68a–69a. In their
capacity as federal taxpayers, respondents sought to chal
lenge Executive Branch expenditures for these conferences,
which, they contended, violated the Establishment Clause.
C
The District Court dismissed the claims against petition
ers for lack of standing. See Freedom From Religion
Foundation, Inc. v. Towey, No. 04–C–381–S (WD Wis., Nov.
15, 2004), App. to Pet. for Cert. 27a–35a. It concluded that
under Flast, 392 U. S. 83, federal taxpayer standing is lim
ited to Establishment Clause challenges to the constitution
ality of “ ‘exercises of congressional power under the taxing
and spending clause of Art. I, § 8.’ ” App. to Pet. for Cert.
31a (quoting Flast, supra, at 102). Because petitioners in
this case acted “at the President’s request and on the Presi
dent’s behalf ” and were not “charged with the administration
of a congressional program,” the District Court concluded
that the challenged activities were “not ‘exercises of congres
sional power’ ” sufficient to provide a basis for taxpayer
standing under Flast. App. to Pet. for Cert. 33a–34a.
A divided panel of the United States Court of Appeals for
the Seventh Circuit reversed. 433 F. 3d 989. The majority
read Flast as granting federal taxpayers standing to chal
lenge Executive Branch programs on Establishment Clause
grounds so long as the activities are “financed by a congres

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sional appropriation.” 433 F. 3d, at 997. This was the case,
the majority concluded, even where “there is no statutory
program” enacted by Congress and the funds are “from ap
propriations for the general administrative expenses, over
which the President and other executive branch officials have
a degree of discretionary power.” Id., at 994. According to
the majority, a taxpayer has standing to challenge anything
done by a federal agency or officer so long as “the marginal
or incremental cost to the taxpaying public of the alleged
violation of the establishment clause” is greater than “zero.”
Id., at 995.
In dissent, Judge Ripple opined that the majority’s deci
sion reflected a “dramatic expansion of current standing doc
trine,” id., at 997, that “cuts the concept of taxpayer standing
loose from its moorings,” id., at 998. Noting that “[t]he
executive can do nothing without general budget appropria
tions from Congress,” id., at 1000, he criticized the majority
for overstepping Flast’s requirement that a “plaintiff must
bring an attack against a disbursement of public funds made
in the exercise of Congress’ taxing and spending power,” 433
F. 3d, at 1000 (emphasis in original).
The Court of Appeals denied en banc review by a vote of
7 to 4. Freedom From Religion Foundation, Inc. v. Chao,
447 F. 3d 988 (CA7 2006). Concurring in the denial of re
hearing, Chief Judge Flaum expressed doubt about the panel
decision, but noted that “the obvious tension which has
evolved in this area of jurisprudence . . . can only be resolved
by the Supreme Court.” Ibid. We granted certiorari to
resolve this question, 549 U. S. 1074 (2006), and we now
reverse.
II
A
Article III of the Constitution limits the judicial power of
the United States to the resolution of “Cases” and “Contro
versies,” and “ ‘Article III standing . . . enforces the Con

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stitution’s case-or-controversy requirement.’ ” Daimler-
Chrysler Corp. v. Cuno, 547 U. S. 332, 342 (2006) (quoting
Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1, 11
(2004)). “ ‘No principle is more fundamental to the judicia
ry’s proper role in our system of government than the con
stitutional limitation of federal-court jurisdiction to actual
cases or controversies.’ ” Raines v. Byrd, 521 U. S. 811, 818
(1997) (quoting Simon v. Eastern Ky. Welfare Rights Orga
nization, 426 U. S. 26, 37 (1976)).
“[O]ne of the controlling elements in the definition of
a case or controversy under Article III” is standing.
ASARCO Inc. v. Kadish, 490 U. S. 605, 613 (1989) (opinion of
Kennedy, J.). The requisite elements of Article III stand
ing are well established: “A plaintiff must allege personal
injury fairly traceable to the defendant’s allegedly unlawful
conduct and likely to be redressed by the requested relief.”
Allen v. Wright, 468 U. S. 737, 751 (1984).
The constitutionally mandated standing inquiry is espe
cially important in a case like this one, in which taxpayers
seek “to challenge laws of general application where their
own injury is not distinct from that suffered in general by
other taxpayers or citizens.” ASARCO, supra, at 613 (opin
ion of Kennedy, J.). This is because “[t]he judicial power of
the United States defined by Art. III is not an unconditioned
authority to determine the constitutionality of legislative or
executive acts.” Valley Forge Christian College v. Ameri
cans United for Separation of Church and State, Inc., 454
U. S. 464, 471 (1982). The federal courts are not empowered
to seek out and strike down any governmental act that they
deem to be repugnant to the Constitution. Rather, federal
courts sit “solely, to decide on the rights of individuals,”
Marbury v. Madison, 1 Cranch 137, 170 (1803), and must
“ ‘refrai[n] from passing upon the constitutionality of an
act . . . unless obliged to do so in the proper performance
of our judicial function, when the question is raised by a
party whose interests entitle him to raise it,’ ” Valley Forge,

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supra, at 474 (quoting Blair v. United States, 250 U. S. 273,
279 (1919)). As we held over 80 years ago, in another case
involving the question of taxpayer standing:
“We have no power per se to review and annul acts of
Congress on the ground that they are unconstitutional.
That question may be considered only when the justifi
cation for some direct injury suffered or threatened,
presenting a justiciable issue, is made to rest upon such
an act. . . . The party who invokes the power must be
able to show not only that the statute is invalid but that
he has sustained or is immediately in danger of sustain
ing some direct injury as the result of its enforcement,
and not merely that he suffers in some indefinite way in
common with people generally.” Frothingham v. Mel
lon, decided with Massachusetts v. Mellon, 262 U. S.
447, 488 (1923).
B
As a general matter, the interest of a federal taxpayer in
seeing that Treasury funds are spent in accordance with the
Constitution does not give rise to the kind of redressable
“personal injury” required for Article III standing. Of
course, a taxpayer has standing to challenge the collection
of a specific tax assessment as unconstitutional; being forced
to pay such a tax causes a real and immediate economic in
jury to the individual taxpayer. See, e. g., Follett v. Town
of McCormick, 321 U. S. 573 (1944) (invalidating tax on
preaching on First Amendment grounds). But that is not
the interest on which respondents assert standing here.
Rather, their claim is that, having paid lawfully collected
taxes into the Federal Treasury at some point, they have a
continuing, legally cognizable interest in ensuring that those
funds are not used by the Government in a way that violates
the Constitution.
We have consistently held that this type of interest is too
generalized and attenuated to support Article III standing.

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In Frothingham, a federal taxpayer sought to challenge fed
eral appropriations for mothers’ and children’s health, ar
guing that federal involvement in this area intruded on the
rights reserved to the States under the Tenth Amendment
and would “increase the burden of future taxation and
thereby take [the plaintiff ’s] property without due process of
law.” 262 U. S., at 486. We concluded that the plaintiff
lacked the kind of particularized injury required for Arti
cle III standing:
“[I]nterest in the moneys of the Treasury . . . is shared
with millions of others; is comparatively minute and in
determinable; and the effect upon future taxation, of any
payment out of the funds, so remote, fluctuating and un
certain, that no basis is afforded for an appeal to the
preventive powers of a court of equity.
“The administration of any statute, likely to produce
additional taxation to be imposed upon a vast number of
taxpayers, the extent of whose several liability is in
definite and constantly changing, is essentially a matter
of public and not of individual concern.” Id., at 487.
Because the interests of the taxpayer are, in essence, the
interests of the public at large, deciding a constitutional
claim based solely on taxpayer standing “would be[,] not to
decide a judicial controversy, but to assume a position of au
thority over the governmental acts of another and co-equal
department, an authority which plainly we do not possess.”
Id., at 489; see also Alabama Power Co. v. Ickes, 302 U. S.
464, 478–479 (1938).
In Doremus v. Board of Ed. of Hawthorne, 342 U. S. 429,
433 (1952), we reaffirmed this principle, explaining that “the
interests of a taxpayer in the moneys of the federal treasury
are too indeterminable, remote, uncertain and indirect to fur
nish a basis for an appeal to the preventive powers of the
Court over their manner of expenditure.” We therefore re
jected a state taxpayer’s claim of standing to challenge a

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state law authorizing public school teachers to read from the
Bible because “the grievance which [the plaintiff] sought to
litigate . . . is not a direct dollars-and-cents injury but is a
religious difference.” Id., at 434. In so doing, we gave ef
fect to the basic constitutional principle that
“a plaintiff raising only a generally available grievance
about government—claiming only harm to his and every
citizen’s interest in proper application of the Constitu
tion and laws, and seeking relief that no more directly
and tangibly benefits him than it does the public at
large—does not state an Article III case or contro
versy.” Lujan v. Defenders of Wildlife, 504 U. S. 555,
573–574 (1992).2
2 See also DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 344 (2006)
(“Standing has been rejected” where “the alleged injury is not ‘concrete
and particularized,’ . . . but instead a grievance the taxpayer ‘suffers in
some indefinite way in common with people generally’ ” (quoting Defend
ers of Wildlife, 504 U. S., at 560, and Frothingham v. Mellon, decided with
Massachusetts v. Mellon, 262 U. S. 447, 488 (1923))); ASARCO Inc. v.
Kadish, 490 U. S. 605, 616 (1989) (opinion of Kennedy, J.) (“[G]eneralized
grievances brought by concerned citizens . . . are not cognizable in the
federal courts”); Valley Forge Christian College v. Americans United for
Separation of Church and State, Inc., 454 U. S. 464, 483 (1982) (“[A]sser
tion of a right to a particular kind of Government conduct, which the
Government has violated by acting differently, cannot alone satisfy the
requirements of Art. III”); United States v. Richardson, 418 U. S. 166, 174
(1974) (“[A] taxpayer may not ‘employ a federal court as a forum in which
to air his generalized grievances about the conduct of government or the
allocation of power in the Federal System’ ” (quoting Flast v. Cohen, 392
U. S. 83, 114 (1968) (Stewart, J., concurring); some internal quotation
marks omitted)); Schlesinger v. Reservists Comm. to Stop the War, 418
U. S. 208, 217 (1974) (“Respondents seek to have the Judicial Branch com
pel the Executive Branch to act in conformity with the Incompatibility
Clause [of the Constitution], an interest shared by all citizens. . . . And
that claimed nonobservance, standing alone, would adversely affect only
the generalized interest of all citizens in constitutional governance, and
that is an abstract injury”); Frothingham, supra, at 488 (“The party who
invokes the power [of judicial review] must be able to show not only that

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C
In Flast, the Court carved out a narrow exception to the
general constitutional prohibition against taxpayer standing.
The taxpayer-plaintiffs in that case challenged the distribu
tion of federal funds to religious schools under the Elemen
tary and Secondary Education Act of 1965, alleging that such
aid violated the Establishment Clause. The Court set out a
two-part test for determining whether a federal taxpayer
has standing to challenge an allegedly unconstitutional
expenditure:
“First, the taxpayer must establish a logical link be
tween that status and the type of legislative enactment
attacked. Thus, a taxpayer will be a proper party to
allege the unconstitutionality only of exercises of con
gressional power under the taxing and spending clause
of Art. I, § 8, of the Constitution. It will not be suffi
cient to allege an incidental expenditure of tax funds
in the administration of an essentially regulatory
statute. . . . Secondly, the taxpayer must establish a
nexus between that status and the precise nature of the
constitutional infringement alleged. Under this re
quirement, the taxpayer must show that the challenged
enactment exceeds specific constitutional limitations im
posed upon the exercise of the congressional taxing and
spending power and not simply that the enactment is
generally beyond the powers delegated to Congress by
Art. I, § 8.” 392 U. S., at 102–103.
The Court held that the taxpayer-plaintiffs in Flast had
satisfied both prongs of this test: The plaintiff ’s “constitu
tional challenge [was] made to an exercise by Congress of its
the statute is invalid but that he has sustained or is immediately in danger
of sustaining some direct injury as the result of its enforcement, and not
merely that he suffers in some indefinite way in common with people
generally”).

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power under Art. I, § 8, to spend for the general welfare,”
and she alleged a violation of the Establishment Clause,
which “operates as a specific constitutional limitation upon
the exercise by Congress of the taxing and spending power
conferred by Art. I, § 8.” Id., at 103–104.
III
A
Respondents argue that this case falls within the Flast
exception, which they read to cover any “expenditure of gov
ernment funds in violation of the Establishment Clause.”
Brief for Respondents 12. But this broad reading fails to
observe “the rigor with which the Flast exception to the
Frothingham principle ought to be applied.” Valley Forge,
454 U. S., at 481.
The expenditures at issue in Flast were made pursuant to
an express congressional mandate and a specific congres
sional appropriation. The plaintiff in that case challenged
disbursements made under the Elementary and Secondary
Education Act of 1965, 79 Stat. 27. That Act expressly ap
propriated the sum of $100 million for fiscal year 1966,
§ 201(b), id., at 36, and authorized the disbursement of those
funds to local educational agencies for the education of low
income students, see Flast, supra, at 86. The Act mandated
that local educational agencies receiving such funds “ma[k]e
provision for including special educational services and ar
rangements (such as dual enrollment, educational radio and
television, and mobile educational services and equipment)”
in which students enrolled in private elementary and second
ary schools could participate, § 2, 79 Stat. 30–31. In addi
tion, recipient agencies were required to ensure that “library
resources, textbooks, and other instructional materials”
funded through the grants “be provided on an equitable basis
for the use of children and teachers in private elementary
and secondary schools,” § 203(a)(3)(B), id., at 37.

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The expenditures challenged in Flast, then, were funded
by a specific congressional appropriation and were disbursed
to private schools (including religiously affiliated schools)
pursuant to a direct and unambiguous congressional man
date.3 Indeed, the Flast taxpayer-plaintiffs’ constitutional
claim was premised on the contention that if the Govern
ment’s actions were “ ‘within the authority and intent of the
Act, the Act is to that extent unconstitutional and void.’ ”
Flast, supra, at 90. And the judgment reviewed by this
Court in Flast solely concerned the question whether “if [the
challenged] expenditures are authorized by the Act the stat
ute constitutes a ‘law respecting an establishment of religion’
and a law ‘prohibiting the free exercise thereof ’ ” under
the First Amendment. Flast v. Gardner, 271 F. Supp. 1, 2
(SDNY 1967).
Given that the alleged Establishment Clause violation in
Flast was funded by a specific congressional appropriation
and was undertaken pursuant to an express congressional
mandate, the Court concluded that the taxpayer-plaintiffs
had established the requisite “logical link between [their tax
payer] status and the type of legislative enactment at
tacked.” In the Court’s words, “[t]heir constitutional chal
lenge [was] made to an exercise by Congress of its power
under Art. I, § 8, to spend for the general welfare.” 392
U. S., at 102, 103. But as this Court later noted, Flast “lim
ited taxpayer standing to challenges directed ‘only [at] exer
cises of congressional power’ ” under the Taxing and Spend
ing Clause. Valley Forge, supra, at 479.
3 At around the time the Act was passed and Flast was decided, the
great majority of nonpublic elementary and secondary schools in the
United States were associated with a church. In 1965–1966, for example,
91.1 percent of all nonpublic elementary schools and 78.2 percent of all
nonpublic secondary schools in the United States were religiously affili
ated. Dept. of Health, Education, and Welfare, Statistics of Nonpublic
Elementary and Secondary Schools 1965–66, p. 7 (1968). Congress surely
understood that much of the aid mandated by the statute would find its
way to religious schools.

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B
The link between congressional action and constitutional
violation that supported taxpayer standing in Flast is miss
ing here. Respondents do not challenge any specific con
gressional action or appropriation; nor do they ask the Court
to invalidate any congressional enactment or legislatively
created program as unconstitutional. That is because the
expenditures at issue here were not made pursuant to any
Act of Congress. Rather, Congress provided general appro
priations to the Executive Branch to fund its day-to-day ac
tivities.4 These appropriations did not expressly authorize,
direct, or even mention the expenditures of which respond
ents complain. Those expenditures resulted from executive
discretion, not congressional action.
We have never found taxpayer standing under such cir
cumstances. In Valley Forge, we held that a taxpayer
lacked standing to challenge “a decision by [the federal De
partment of Health, Education and Welfare] to transfer a
parcel of federal property” to a religious college because this
transfer was “not a congressional action.” 454 U. S., at 479.
In fact, the connection to congressional action was closer in
Valley Forge than it is here, because in that case, the “partic
ular Executive Branch action” being challenged was at least
“arguably authorized” by the Federal Property and Adminis
trative Services Act of 1949, which permitted federal agen
cies to transfer surplus property to private entities. Ibid.,
n. 15. Nevertheless, we found that the plaintiffs lacked
standing because Flast “limited taxpayer standing to chal
lenges directed ‘only [at] exercises of congressional power’ ”
under the Taxing and Spending Clause. 454 U. S., at 479
(quoting Flast, supra, at 102).5
4 See, e. g., 119 Stat. 2472 (appropriating $53,830,000 “to be available for
allocation within the Executive Office of the President”).
5 Valley Forge also relied on a second rationale: that the authorizing Act
was an exercise of Congress’ power under the Property Clause of Art. IV,
§ 3, cl. 2, and not the Taxing and Spending Clause of Art. I, § 8. 454 U. S.,

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Similarly, in Schlesinger v. Reservists Comm. to Stop the
War, 418 U. S. 208 (1974), the taxpayer-plaintiffs contended
that the Incompatibility Clause of Article I prohibited Mem
bers of Congress from holding commissions in the Armed
Forces Reserve. We held that these plaintiffs lacked stand
ing under Flast because they “did not challenge an enact
ment under Art. I, § 8, but rather the action of the Executive
Branch in permitting Members of Congress to maintain their
Reserve status.” 418 U. S., at 228. This was the case even
though the plaintiffs sought to reclaim reservist pay received
by those Members—pay that presumably was funded
through Congress’ general appropriations for the support of
the Armed Forces: “Such relief would follow from the inva
lidity of Executive action in paying persons who could not
lawfully have been reservists, not from the invalidity of the
statutes authorizing pay to those who lawfully were Reserv
ists.” Ibid., n. 17. See also United States v. Richardson,
418 U. S. 166, 175 (1974) (denying taxpayers standing to com
pel publication of accounting for the Central Intelligence
Agency because “there is no ‘logical nexus’ between the as
serted status of taxpayer and the claimed failure of the Con
gress to require the Executive to supply a more detailed
report of the expenditures of that agency”).
Bowen v. Kendrick, 487 U. S. 589 (1988), on which respond
ents rely heavily, is not to the contrary. In that case, we
held that the taxpayer-plaintiffs had standing to mount an
as-applied challenge to the Adolescent Family Life Act
(AFLA), which authorized federal grants to private commu
nity service groups including religious organizations. The
Court found “a sufficient nexus between the taxpayer’s
standing as a taxpayer and the congressional exercise of tax
ing and spending power,” notwithstanding the fact that
“the funding authorized by Congress ha[d] flowed through
at 480. But this conclusion merely provided an additional—“and perhaps
redundan[t],” ibid.—basis for denying a claim of standing that was already
foreclosed because it was not based on any congressional action.

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and been administered” by an Executive Branch official.
Id., at 620, 619.
But the key to that conclusion was the Court’s recognition
that AFLA was “at heart a program of disbursement of
funds pursuant to Congress’ taxing and spending powers,”
and that the plaintiffs’ claims “call[ed] into question how the
funds authorized by Congress [were] being disbursed pursu
ant to the AFLA’s statutory mandate.” Id., at 619–620 (em
phasis added). AFLA not only expressly authorized and ap
propriated specific funds for grantmaking, it also expressly
contemplated that some of those moneys might go to projects
involving religious groups. See id., at 595–596; see also id.,
at 623 (O’Connor, J., concurring) (noting the “partnership be
tween governmental and religious institutions contemplated
by the AFLA”).6 Unlike this case, Kendrick involved a
“program of disbursement of funds pursuant to Congress’
taxing and spending powers” that “Congress had created,”
“authorized,” and “mandate[d].” Id., at 619–620.
Respondents attempt to paint their lawsuit as a
Kendrick-style as-applied challenge, but this effort is un
availing for the simple reason that they can cite no statute
whose application they challenge. The best they can do is
to point to unspecified, lump-sum “Congressional budget ap
propriations” for the general use of the Executive Branch—
the allocation of which “is a[n] administrative decision
6 For example, the statute noted that the problems of adolescent premar
ital sex and pregnancy “are best approached through a variety of inte
grated and essential services provided to adolescents and their families”
by “religious and charitable organizations,” among other groups. 42
U. S. C. § 300z(a)(8)(B) (1982 ed.). It went on to mandate that federally
provided services in that area should “emphasize the provision of support
by other family members, religious and charitable organizations, voluntary
associations, and other groups.” § 300z(a)(10)(C). And it directed that
demonstration projects funded by the government “shall . . . make use of
support systems” such as religious organizations, § 300z–2(a), and required
grant applicants to describe how they would “involve religious and chari
table organizations” in their projects, § 300z–5(a)(21)(B).

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traditionally regarded as committed to agency discretion.”
Lincoln v. Vigil, 508 U. S. 182, 192 (1993). Characterizing
this case as an “as-applied challenge” to these general appro
priations statutes would stretch the meaning of that term
past its breaking point. It cannot be that every legal chal
lenge to a discretionary Executive Branch action implicates
the constitutionality of the underlying congressional appro
priation. When a criminal defendant charges that a federal
agent carried out an unreasonable search or seizure, we do
not view that claim as an as-applied challenge to the constitu
tionality of the statute appropriating funds for the Federal
Bureau of Investigation. Respondents have not established
why the discretionary Executive Branch expenditures here,
which are similarly funded by no-strings, lump-sum appro
priations, should be viewed any differently.7
In short, this case falls outside “the narrow exception”
that Flast “created to the general rule against taxpayer
standing established in Frothingham.” Kendrick, supra, at
618. Because the expenditures that respondents challenge
were not expressly authorized or mandated by any specific
congressional enactment, respondents’ lawsuit is not directed
at an exercise of congressional power, see Valley Forge, 454
U. S., at 479, and thus lacks the requisite “logical nexus” be
7 Nor is it relevant that Congress may have informally “earmarked” por
tions of its general Executive Branch appropriations to fund the offices
and centers whose expenditures are at issue here. See, e. g., H. R. Rep.
No. 107–342, p. 108 (2001). “[A] fundamental principle of appropriations
law is that where ‘Congress merely appropriates lump-sum amounts with
out statutorily restricting what can be done with those funds, a clear infer
ence arises that it does not intend to impose legally binding restrictions,
and indicia in committee reports and other legislative history as to how
the funds should or are expected to be spent do not establish any legal
requirements on’ the agency.” Lincoln, 508 U. S., at 192 (quoting In re
LTV Aerospace Corp., 55 Comp. Gen. 307, 319 (1975)); see also TVA v. Hill,
437 U. S. 153, 191 (1978) (“Expressions of committees dealing with re
quests for appropriations cannot be equated with statutes enacted by
Congress”).

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tween taxpayer status “and the type of legislative enactment
attacked,” Flast, 392 U. S., at 102.
IV
A
1
Respondents argue that it is “arbitrary” to distinguish be
tween money spent pursuant to congressional mandate and
expenditures made in the course of executive discretion, be
cause “the injury to taxpayers in both situations is the very
injury targeted by the Establishment Clause and Flast—the
expenditure for the support of religion of funds exacted from
taxpayers.” Brief for Respondents 13. The panel majority
below agreed, based on its observation that “there is so much
that executive officials could do to promote religion in ways
forbidden by the establishment clause.” 433 F. 3d, at 995.
But Flast focused on congressional action, and we must
decline this invitation to extend its holding to encompass dis
cretionary Executive Branch expenditures. Flast itself dis
tinguished the “incidental expenditure of tax funds in the
administration of an essentially regulatory statute,” 392
U. S., at 102, and we have subsequently rejected the view
that taxpayer standing “extends to ‘the Government as a
whole, regardless of which branch is at work in a particular
instance,’ ” Valley Forge, supra, at 484, n. 20. Moreover, we
have repeatedly emphasized that the Flast exception has a
“narrow application in our precedent,” Cuno, 547 U. S., at
348, that only “slightly lowered” the bar on taxpayer stand
ing, Richardson, 418 U. S., at 173, and that must be applied
with “rigor,” Valley Forge, supra, at 481.
It is significant that, in the four decades since its creation,
the Flast exception has largely been confined to its facts.
We have declined to lower the taxpayer standing bar in suits
alleging violations of any constitutional provision apart from
the Establishment Clause. See Tilton v. Richardson, 403
U. S. 672 (1971) (no taxpayer standing to sue under Free Ex

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ercise Clause of First Amendment); Richardson, 418 U. S.,
at 175 (no taxpayer standing to sue under Statement and
Account Clause of Art. I); Schlesinger, 418 U. S., at 228 (no
taxpayer standing to sue under Incompatibility Clause of
Art. I); Cuno, supra, at 349 (no taxpayer standing to sue
under Commerce Clause). We have similarly refused to ex
tend Flast to permit taxpayer standing for Establishment
Clause challenges that do not implicate Congress’ taxing and
spending power. See Valley Forge, supra, at 479–482 (no
taxpayer standing to challenge Executive Branch action
taken pursuant to Property Clause of Art. IV); see also Dis
trict of Columbia Common Cause v. District of Columbia,
858 F. 2d 1, 3–4 (CADC 1988); In re United States Catholic
Conference, 885 F. 2d 1020, 1028 (CA2 1989). In effect, we
have adopted the position set forth by Justice Powell in his
concurrence in Richardson and have “limit[ed] the expansion
of federal taxpayer and citizen standing in the absence of
specific statutory authorization to an outer boundary drawn
by the results in Flast . . . .” 418 U. S., at 196.
2
While respondents argue that Executive Branch expendi
tures in support of religion are no different from legislative
extractions, Flast itself rejected this equivalence: “It will
not be sufficient to allege an incidental expenditure of tax
funds in the administration of an essentially regulatory stat
ute.” 392 U. S., at 102.
Because almost all Executive Branch activity is ultimately
funded by some congressional appropriation, extending the
Flast exception to purely executive expenditures would ef
fectively subject every federal action—be it a conference,
proclamation, or speech—to Establishment Clause challenge
by any taxpayer in federal court. To see the wide swathe
of activity that respondents’ proposed rule would cover, one
need look no further than the amended complaint in this ac
tion, which focuses largely on speeches and presentations

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made by Executive Branch officials. See, e. g., Amended
Complaint ¶ 32, App. to Pet. for Cert. 73a (challenging Exec
utive Branch officials’ “support of national and regional con
ferences”); id., ¶ 33, App. to Pet. for Cert. 73a–75a (challeng
ing content of speech by Secretary of Education); id., ¶¶ 35,
36, App. to Pet. for Cert. 76a (challenging content of Presi
dential speeches); id., ¶ 41, App. to Pet. for Cert. 77a (chal
lenging Executive Branch officials’ “public appearances” and
“speeches”). Such a broad reading would ignore the first
prong of Flast’s standing test, which requires “a logical link
between [taxpayer] status and the type of legislative enact
ment attacked.” 392 U. S., at 102.
It would also raise serious separation-of-powers concerns.
As we have recognized, Flast itself gave too little weight to
these concerns. By framing the standing question solely in
terms of whether the dispute would be presented in an ad
versary context and in a form traditionally viewed as capable
of judicial resolution, Flast “failed to recognize that this doc
trine has a separation-of-powers component, which keeps
courts within certain traditional bounds vis-a` -vis the other
branches, concrete adverseness or not.” Lewis v. Casey, 518
U. S. 343, 353, n. 3 (1996); see also Valley Forge, 454 U. S.,
at 471. Respondents’ position, if adopted, would repeat and
compound this mistake.
The constitutional requirements for federal-court jurisdic
tion—including the standing requirements and Article III—
“are an essential ingredient of separation and equilibration
of powers.” Steel Co. v. Citizens for Better Environment,
523 U. S. 83, 101 (1998). “Relaxation of standing require
ments is directly related to the expansion of judicial power,”
and lowering the taxpayer standing bar to permit challenges
of purely executive actions “would significantly alter the al
location of power at the national level, with a shift away from
a democratic form of government.” Richardson, supra, at
188 (Powell, J., concurring). The rule respondents propose
would enlist the federal courts to superintend, at the behest

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of any federal taxpayer, the speeches, statements, and myr
iad daily activities of the President, his staff, and other Exec
utive Branch officials. This would “be quite at odds with . . .
Flast’s own promise that it would not transform federal
courts into forums for taxpayers’ ‘generalized grievances’ ”
about the conduct of government, Cuno, 547 U. S., at 348
(quoting Flast, supra, at 106), and would “open the Judiciary
to an arguable charge of providing ‘government by injunc
tion,’ ” Schlesinger, supra, at 222. It would deputize federal
courts as “ ‘virtually continuing monitors of the wisdom and
soundness of Executive action,’ ” and that, most emphati
cally, “ ‘is not the role of the judiciary.’ ” Allen, 468 U. S., at
760 (quoting Laird v. Tatum, 408 U. S. 1, 15 (1972)).
3
Both the Court of Appeals and respondents implicitly rec
ognize that unqualified federal taxpayer standing to assert
Establishment Clause claims would go too far, but neither
the Court of Appeals nor respondents has identified a work
able limitation. The Court of Appeals, as noted, conceded
only that a taxpayer would lack standing where “the mar
ginal or incremental cost to the taxpaying public of the al
leged violation of the establishment clause” is “zero.” 433
F. 3d, at 995. Applying this rule, the Court of Appeals
opined that a taxpayer would not have standing to challenge
a President’s favorable reference to religion in a State of the
Union address because the costs associated with the speech
“would be no greater merely because the President had men
tioned Moses rather than John Stuart Mill.” Ibid.
There is reason to question whether the Court of Appeals
intended for its zero-marginal-cost test to be taken literally,
because the court, without any apparent inquiry into the
costs of Secretary Paige’s speech, went on to agree that the
plaintiffs lacked standing to challenge that speech. Id., at
996. But if we take the Court of Appeals’ test literally—
i. e., that any marginal cost greater than zero suffices—tax

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payers might well have standing to challenge some (and per
haps many) speeches. As Judge Easterbrook observed:
“The total cost of presidential proclamations and speeches
by Cabinet officers that touch on religion (Thanksgiving and
several other holidays) surely exceeds $500,000 annually; it
may cost that much to use Air Force One and send a Secret
Service detail to a single speaking engagement.” 447 F. 3d,
at 989–990 (concurring in denial of rehearing en banc). At
a minimum, the Court of Appeals’ approach (asking whether
the marginal cost exceeded zero) would surely create diffi
cult and uncomfortable line-drawing problems. Suppose
that it is alleged that a speechwriter or other staff member
spent extra time doing research for the purpose of including
“religious imagery” in a speech. Suppose that a President
or a Cabinet officer attends or speaks at a prayer breakfast
and that the time spent was time that would have otherwise
been spent on secular work.
Respondents take a somewhat different approach, con
tending that their proposed expansion of Flast would be
manageable because they would require that a challenged
expenditure be “fairly traceable to the conduct alleged to
violate the Establishment Clause.” Brief for Respondents
17. Applying this test, they argue, would “scree[n] out . . .
challenge[s to] the content of one particular speech, for exam
ple the State of the Union address, as an Establishment
Clause violation.” Id., at 21.
We find little comfort in this vague and ill-defined test.
As an initial matter, respondents fail to explain why the
(often substantial) costs that attend, for example, a Presiden
tial address are any less “traceable” than the expenses re
lated to the Executive Branch statements and conferences at
issue here. Indeed, respondents concede that even lawsuits
involving de minimis amounts of taxpayer money can pass
their proposed “traceability” test. Id., at 20, n. 6.
Moreover, the “traceability” inquiry, depending on how it
is framed, would appear to prove either too little or too

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614 HEIN v. FREEDOM FROM RELIGION FOUNDATION, INC.
Opinion of Alito, J.
much. If the question is whether an allegedly unconstitu
tional executive action can somehow be traced to taxpayer
funds in general, the answer will always be yes: Almost all
Executive Branch activities are ultimately funded by some
congressional appropriation, whether general or specific,
which is in turn financed by tax receipts. If, on the other
hand, the question is whether the challenged action can be
traced to the contributions of a particular taxpayer-plaintiff,
the answer will almost always be no: As we recognized in
Frothingham, the interest of any individual taxpayer in a
particular federal expenditure “is comparatively minute and
indeterminable . . . and constantly changing.” 262 U. S.,
at 487.
B
Respondents set out a parade of horribles that they claim
could occur if Flast is not extended to discretionary Execu
tive Branch expenditures. For example, they say, a federal
agency could use its discretionary funds to build a house of
worship or to hire clergy of one denomination and send them
out to spread their faith. Or an agency could use its funds
to make bulk purchases of Stars of David, crucifixes, or de
pictions of the star and crescent for use in its offices or for
distribution to the employees or the general public. Of
course, none of these things has happened, even though Flast
has not previously been expanded in the way that respond
ents urge. In the unlikely event that any of these executive
actions did take place, Congress could quickly step in. And
respondents make no effort to show that these improbable
abuses could not be challenged in federal court by plaintiffs
who would possess standing based on grounds other than
taxpayer standing.
C
Over the years, Flast has been defended by some and criti
cized by others. But the present case does not require us
to reconsider that precedent. The Court of Appeals did not

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615 Cite as: 551 U. S. 587 (2007)
Kennedy, J., concurring
apply Flast; it extended Flast. It is a necessary concomi
tant of the doctrine of stare decisis that a precedent is not
always expanded to the limit of its logic. That was the ap
proach that then-Justice Rehnquist took in his opinion for
the Court in Valley Forge, and it is the approach we take
here. We do not extend Flast, but we also do not overrule
it. We leave Flast as we found it.
Justice Scalia says that we must either overrule Flast
or extend it to the limits of its logic. His position is not
“[in]sane,” inconsistent with the “rule of law,” or “utterly
meaningless.” Post, at 618 (opinion concurring in judg
ment). But it is wrong. Justice Scalia does not seriously
dispute either (1) that Flast itself spoke in terms of “legisla
tive enactment[s]” and “exercises of congressional power,”
392 U. S., at 102, or (2) that in the four decades since Flast
was decided, we have never extended its narrow exception
to a purely discretionary Executive Branch expenditure.
We need go no further to decide this case. Relying on the
provision of the Constitution that limits our role to resolving
the “Cases” and “Controversies” before us, we decide only
the case at hand.
* * *
For these reasons, the judgment of the Court of Appeals
for the Seventh Circuit is reversed.
It is so ordered.
Justice Kennedy, concurring.
The separation-of-powers design in the Constitution is im
plemented, among other means, by Article III’s case-or
controversy limitation and the resulting requirement of
standing. See, e. g., Lujan v. Defenders of Wildlife, 504
U. S. 555, 559–560 (1992). The Court’s decision in Flast v.
Cohen, 392 U. S. 83 (1968), and in later cases applying it,
must be interpreted as respecting separation-of-powers prin
ciples but acknowledging as well that these principles, in
some cases, must accommodate the First Amendment’s Es

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616 HEIN v. FREEDOM FROM RELIGION FOUNDATION, INC.
Kennedy, J., concurring
tablishment Clause. The Clause expresses the Constitu
tion’s special concern that freedom of conscience not be com
promised by government taxing and spending in support of
religion. In my view the result reached in Flast is correct
and should not be called into question. For the reasons set
forth by Justice Alito, however, Flast should not be ex
tended to permit taxpayer standing in the instant matter.
And I join his opinion in full.
Respondents’ amended complaint challenged the religious
nature of national and regional conferences that promoted
President Bush’s Faith-Based and Community Initiatives.
See App. to Pet. for Cert. 73a–77a. To support the allega
tion respondents pointed to speeches given by the President
and other executive officers, speeches with religious refer
ences. Id., at 73a–76a. The complaint relies on respond
ents’ taxpayer status as the sole basis for standing to main
tain the suit but points to no specific use of Congress’ taxing
and spending power other than general appropriations to
fund the administration of the Executive Branch. Id., at
71a–73a.
Flast established a “narrow exception” to the rule against
taxpayer standing. Bowen v. Kendrick, 487 U. S. 589, 618
(1988). To find standing in the circumstances of this case
would make the narrow exception boundless. The public
events and public speeches respondents seek to call in ques
tion are part of the open discussion essential to democratic
self-government. The Executive Branch should be free, as
a general matter, to discover new ideas, to understand press
ing public demands, and to find creative responses to address
governmental concerns. The exchange of ideas between
and among the State and Federal Governments and their
manifold, diverse constituencies sustains a free society.
Permitting any and all taxpayers to challenge the content of
these prototypical executive operations and dialogues would
lead to judicial intervention so far exceeding traditional
boundaries on the Judiciary that there would arise a real

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danger of judicial oversight of executive duties. The burden
of discovery to ascertain if relief is justified in these poten
tially innumerable cases would risk altering the free ex
change of ideas and information. And were this constant
supervision to take place the courts would soon assume the
role of speech editors for communications issued by execu
tive officials and event planners for meetings they hold.
The courts must be reluctant to expand their authority by
requiring intrusive and unremitting judicial management of
the way the Executive Branch performs its duties. The
Court has refused to establish a constitutional rule that
would require or allow “permanent judicial intervention in
the conduct of governmental operations to a degree incon
sistent with sound principles of federalism and the separa
tion of powers.” Garcetti v. Ceballos, 547 U. S. 410, 423
(2006); see also Cheney v. United States Dist. Court for D. C.,
542 U. S. 367, 382 (2004) (noting that “separation-of-powers
considerations should inform a court of appeals’ evalua
tion of a mandamus petition involving the President or the
Vice President” and that “mandamus standards are broad
enough . . . to prevent a lower court from interfering with
a coequal branch’s ability to discharge its constitutional
responsibilities”). In the Article III context the Court
explained that concerns based on separation of powers
“counsel[ed] against recognizing standing in a case brought
. . . to seek a restructuring of the apparatus established by
the Executive Branch to fulfill its legal duties.” Allen v.
Wright, 468 U. S. 737, 761 (1984).
The same principle applies here. The Court should not
authorize the constant intrusion upon the executive realm
that would result from granting taxpayer standing in
the instant case. As Justice Alito explains in detail,
the Court’s precedents do not require it to do so. The
separation-of-powers concerns implicated by intrusive judi
cial regulation of day-to-day executive operations reinforce
his interpretation of Flast’s framework. Cf. Allen, supra,

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618 HEIN v. FREEDOM FROM RELIGION FOUNDATION, INC.
Scalia, J., concurring in judgment
at 761, n. 26 (relying “on separation of powers principles to
interpret the ‘fairly traceable’ component of the standing
requirement”).
It must be remembered that, even where parties have no
standing to sue, members of the Legislative and Executive
Branches are not excused from making constitutional deter
minations in the regular course of their duties. Government
officials must make a conscious decision to obey the Constitu
tion whether or not their acts can be challenged in a court
of law and then must conform their actions to these princi
pled determinations.
Justice Scalia, with whom Justice Thomas joins, con
curring in the judgment.
Today’s opinion is, in one significant respect, entirely con
sistent with our previous cases addressing taxpayer standing
to raise Establishment Clause challenges to government ex
penditures. Unfortunately, the consistency lies in the cre
ation of utterly meaningless distinctions which separate the
case at hand from the precedents that have come out differ
ently, but which cannot possibly be (in any sane world) the
reason it comes out differently. If this Court is to decide
cases by rule of law rather than show of hands, we must
surrender to logic and choose sides: Either Flast v. Cohen,
392 U. S. 83 (1968), should be applied to (at a minimum) all
challenges to the governmental expenditure of general tax
revenues in a manner alleged to violate a constitutional pro
vision specifically limiting the taxing and spending power, or
Flast should be repudiated. For me, the choice is easy.
Flast is wholly irreconcilable with the Article III restric
tions on federal-court jurisdiction that this Court has repeat
edly confirmed are embodied in the doctrine of standing.
I
A
There is a simple reason why our taxpayer-standing cases
involving Establishment Clause challenges to government

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619 Cite as: 551 U. S. 587 (2007)
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expenditures are notoriously inconsistent: We have inconsist
ently described the first element of the “irreducible constitu
tional minimum of standing,” which minimum consists of
(1) a “concrete and particularized” “ ‘injury in fact’ ” that is
(2) fairly traceable to the defendant’s alleged unlawful con
duct and (3) likely to be redressed by a favorable decision.
See Lujan v. Defenders of Wildlife, 504 U. S. 555, 560–561
(1992). We have alternately relied on two entirely distinct
conceptions of injury in fact, which for convenience I will call
“Wallet Injury” and “Psychic Injury.”
Wallet Injury is the type of concrete and particularized
injury one would expect to be asserted in a taxpayer suit,
namely, a claim that the plaintiff ’s tax liability is higher than
it would be, but for the allegedly unlawful government ac
tion. The stumbling block for suits challenging government
expenditures based on this conventional type of injury is
quite predictable. The plaintiff cannot satisfy the traceabil
ity and redressability prongs of standing. It is uncertain
what the plaintiff ’s tax bill would have been had the alleg
edly forbidden expenditure not been made, and it is even
more speculative whether the government will, in response
to an adverse court decision, lower taxes rather than spend
the funds in some other manner.
Psychic Injury, on the other hand, has nothing to do with
the plaintiff ’s tax liability. Instead, the injury consists of
the taxpayer’s mental displeasure that money extracted
from him is being spent in an unlawful manner. This shift
in focus eliminates traceability and redressability problems.
Psychic Injury is directly traceable to the improper use of
taxpayer funds, and it is redressed when the improper use
is enjoined, regardless of whether that injunction affects the
taxpayer’s purse. Flast and the cases following its teaching
have invoked a peculiarly restricted version of Psychic In
jury, permitting taxpayer displeasure over unconstitutional
spending to support standing only if the constitutional pro
vision allegedly violated is a specific limitation on the taxing
and spending power. Restricted or not, this conceptualizing

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of injury in fact in purely mental terms conflicts squarely
with the familiar proposition that a plaintiff lacks a concrete
and particularized injury when his only complaint is the gen
eralized grievance that the law is being violated. As we
reaffirmed unanimously just this Term: “ ‘We have consist
ently held that a plaintiff raising only a generally available
grievance about government—claiming only harm to his and
every citizen’s interest in proper application of the Constitu
tion and laws, and seeking relief that no more directly and
tangibly benefits him than it does the public at large—does
not state an Article III case or controversy.’ ” Lance v.
Coffman, 549 U. S. 437, 439 (2007) (per curiam) (quoting
Lujan, supra, at 573–574).
As the following review of our cases demonstrates, we ini
tially denied taxpayer standing based on Wallet Injury, but
then found standing in some later cases based on the limited
version of Psychic Injury described above. The basic logical
flaw in our cases is thus twofold: We have never explained
why Psychic Injury was insufficient in the cases in which
standing was denied, and we have never explained why Psy
chic Injury, however limited, is cognizable under Article III.
B
1
Two pre-Flast cases are of critical importance. In Froth
ingham v. Mellon, decided with Massachusetts v. Mellon,
262 U. S. 447 (1923), the taxpayer challenged the constitu
tionality of the Maternity Act of 1921, alleging in part that
the federal funding provided by the Act was not authorized
by any provision of the Constitution. See id., at 476–477
(argument for Frothingham), 479–480 (opinion of the Court).
The Court held that the taxpayer lacked standing. After
emphasizing that “the effect upon future taxation . . . of any
payment out of [Treasury] funds” was “remote, fluctuating
and uncertain,” id., at 487, the Court concluded that “[t]he
party who invokes the power [of judicial review] must be able

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to show not only that the statute is invalid but that he has
sustained or is immediately in danger of sustaining some di
rect injury as the result of its enforcement, and not merely
that he suffers in some indefinite way in common with people
generally,” id., at 488. The Court was thus describing the
traceability and redressability problems with Wallet Injury,
and rejecting Psychic Injury as a generalized grievance
rather than concrete and particularized harm.
The second significant pre-Flast case is Doremus v. Board
of Ed. of Hawthorne, 342 U. S. 429 (1952). There the tax
payers challenged under the Establishment Clause a state
law requiring public-school teachers to read the Bible at the
beginning of each schoolday. Id., at 430, 433.1 Relying
extensively on Frothingham, the Court denied standing.
After first emphasizing that there was no allegation that the
Bible reading increased the plaintiffs’ taxes or the cost of
running the schools, 342 U. S., at 433, and then reaffirming
that taxpayers must allege more than an indefinite injury
suffered in common with people generally, id., at 434, the
Court concluded that the “grievance which [the plaintiffs]
sought to litigate here is not a direct dollars-and-cents injury
but is a religious difference,” ibid. In addition to reiterat
ing Frothingham’s description of the unavoidable obstacles
to recovery under a taxpayer theory of Wallet Injury, Dore
mus rejected Psychic Injury in unmistakable terms. The
opinion’s deprecation of a mere “religious difference,” in con
trast to a real “dollars-and-cents injury,” can only be under
stood as a flat denial of standing supported only by taxpayer
disapproval of the unconstitutional use of tax funds. If the
1 The text of the statute did not just authorize public-school teachers to
read from the Bible, but mandated that they do so: “At least five verses
taken from that portion of the Holy Bible known as the Old Testament
shall be read, or caused to be read, without comment, in each public school
classroom, in the presence of the pupils therein assembled, by the teacher
in charge, at the opening of school upon every school day . . . .” N. J. Rev.
Stat. § 18:14–77 (1937) (emphasis added).

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Court had thought that Psychic Injury was a permissible
basis for standing, it should have sufficed (as the dissenting
Justices in Doremus suggested, see 342 U. S., at 435 (opinion
of Douglas, J.)) that public employees were being paid in part
to violate the Establishment Clause.
2
Sixteen years after Doremus, the Court took a pivotal
turn. In Flast v. Cohen, 392 U. S. 83 (1968), taxpayers chal
lenged the Elementary and Secondary Education Act of 1965,
alleging that funds expended pursuant to the Act were being
used to support parochial schools. Id., at 85–87. They ar
gued that either the Act itself proscribed such expenditures
or that the Act violated the Establishment Clause. Id., at
87, 90. The Court held that the taxpayers had standing.
Purportedly in order to determine whether taxpayers have
the “personal stake and interest” necessary to satisfy Article
III, a two-pronged nexus test was invented. Id., at 101–102.
The first prong required the taxpayer to “establish a logi
cal link between [taxpayer] status and the type of legislative
enactment.” Id., at 102. The Court described what that
meant as follows:
“[A] taxpayer will be a proper party to allege the uncon
stitutionality only of exercises of congressional power
under the taxing and spending clause of Art. I, § 8, of
the Constitution. It will not be sufficient to allege an
incidental expenditure of tax funds in the administration
of an essentially regulatory statute. This requirement
is consistent with the limitation imposed upon state
taxpayer standing in federal courts in Doremus . . . .”
Ibid.
The second prong required the taxpayer to “establish a
nexus between [taxpayer] status and the precise nature of
the constitutional infringement alleged.” Ibid. The Court
elaborated that this required “the taxpayer [to] show that

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623 Cite as: 551 U. S. 587 (2007)
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the challenged enactment exceeds specific constitutional lim
itations imposed upon the exercise of the congressional tax
ing and spending power and not simply that the enactment
is generally beyond the powers delegated to Congress by
Art. I, § 8.” Id., at 102–103. The Court held that the Es
tablishment Clause was the type of specific limitation on the
taxing and spending power that it had in mind because “one
of the specific evils feared by” the Framers of that Clause
was that the taxing and spending power would be used to
favor one religion over another or to support religion gener
ally. Id., at 103–104 (relying exclusively upon Madison’s
famous Memorial and Remonstrance Against Religious
Assessments).
Because both prongs of its newly minted two-part test
were satisfied, Flast held that the taxpayers had standing.
Wallet Injury could not possibly have been the basis for this
conclusion, since the taxpayers in Flast were no more able
to prove that success on the merits would reduce their tax
burden than was the taxpayer in Frothingham. Thus, Flast
relied on Psychic Injury to support standing, describing the
“injury” as the taxpayer’s allegation that “his tax money is
being extracted and spent in violation of specific constitu
tional protections against such abuses of legislative power.”
392 U. S., at 106.
But that created a problem: If the taxpayers in Flast had
standing based on Psychic Injury, and without regard to the
effect of the litigation on their ultimate tax liability, why
did not the taxpayers in Doremus and Frothingham have
standing on a similar basis? Enter the magical two-pronged
nexus test. It has often been pointed out, and never re
futed, that the criteria in Flast’s two-part test are entirely
unrelated to the purported goal of ensuring that the plain
tiff has a sufficient “stake in the outcome of the contro
versy,” 392 U. S., at 103. See id., at 121–124 (Harlan, J., dis
senting); see also id., at 107 (Douglas, J., concurring); United
States v. Richardson, 418 U. S. 166, 183 (1974) (Powell, J.,

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624 HEIN v. FREEDOM FROM RELIGION FOUNDATION, INC.
Scalia, J., concurring in judgment
concurring). In truth, the test was designed for a quite dif
ferent goal. Each prong was meant to disqualify from
standing one of the two prior cases that would otherwise
contradict the holding of Flast. The first prong distin
guished Doremus as involving a challenge to an “incidental
expenditure of tax funds in the administration of an essen
tially regulatory statute,” rather than a challenge to a taxing
and spending statute. See 392 U. S., at 102. Did the Court
proffer any reason why a taxpayer’s Psychic Injury is less
concrete and particularized, traceable, or redressable when
the challenged expenditures are incidental to an essentially
regulatory statute (whatever that means)? Not at all.
Doremus had to be evaded, and so it was. In reality, of
course, there is simply no material difference between Flast
and Doremus as far as Psychic Injury is concerned: If tax
payers upset with the government’s giving money to paro
chial schools had standing to sue, so should the taxpayers
who disapproved of the government’s paying public-school
teachers to read the Bible.2
Flast’s dispatching of Frothingham via the second prong
of the nexus test was only marginally less disingenuous.
Not only does the relationship of the allegedly violated provi
sion to the taxing and spending power have no bearing upon
the concreteness or particularity of the Psychic Injury, see
Part III, infra, but the existence of that relationship does
2 There is a natural impulse to respond that the portion of the teachers’
salary that corresponded to the time that they were required to read from
the Bible was de minimis. But even Flast had the decency not to seize
on a de minimis exception to distinguish Doremus: Having relied exclu
sively on Madison’s Remonstrance to justify the conclusion that the Estab
lishment Clause was a specific limitation on the taxing and spending
power, see Flast, 392 U. S., at 103–104, the Court could not simultaneously
ignore Madison’s admonition that “ ‘the same authority which can force a
citizen to contribute three pence only of his property for the support of
any one establishment, may force him to conform to any other establish
ment in all cases whatsoever,’ ” id., at 103 (quoting Madison’s Remon
strance; emphasis added).

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not even genuinely distinguish Flast from Frothingham. It
is impossible to maintain that the Establishment Clause is a
more direct limitation on the taxing and spending power
than the constitutional limitation invoked in Frothingham,
which is contained within the very provision creating the
power to tax and spend. Article I, § 8, cl. 1, provides: “The
Congress shall have Power To lay and collect Taxes . . . ,
to pay the Debts and provide for the common Defence and
general Welfare of the United States.” (Emphasis added.)
Though unmentioned in Flast, it was precisely this limitation
upon the permissible purposes of taxing and spending upon
which Mrs. Frothingham relied. See, e. g., Brief for Appel
lant in Frothingham, O. T. 1922, No. 962, p. 68 (“[T]he words
‘provide for the common defence and general welfare of the
United States’ are used as limitations on the taxing
power”); id., at 26–81 (discussing the general welfare limita
tion at length).
3
Coherence and candor have fared no better in our later
taxpayer-standing cases. The three of them containing
lengthy discussion of the Establishment Clause warrant
analysis.
Flast was dismissively and unpersuasively distinguished
just 13 years later in Valley Forge Christian College v.
Americans United for Separation of Church and State, Inc.,
454 U. S. 464 (1982). The taxpayers there challenged the
decision of the Department of Health, Education, and Wel
fare to give a 77-acre tract of Government property, worth
over half a million dollars, to a religious organization. Id.,
at 468. The Court, adhering to the strict letter of Flast’s
two-pronged nexus test, held that the taxpayers lacked
standing. Flast’s first prong was not satisfied: Rather than
challenging a congressional taxing and spending statute, the
plaintiffs were attacking an agency decision to transfer fed
eral property pursuant to Congress’s power under the Prop
erty Clause, Art. IV, § 3, cl. 2. 454 U. S., at 479–480.

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In distinguishing between the Spending Clause and the
Property Clause, Valley Forge achieved the seemingly im
possible: It surpassed the high bar for irrationality set by
Flast’s distinguishing of Doremus and Frothingham. Like
the dissenters in Valley Forge, see 454 U. S., at 511–512
(opinion of Brennan, J.); id., at 513–514 (opinion of Stevens,
J.), I cannot fathom why Article III standing should turn on
whether the government enables a religious organization to
obtain real estate by giving it a check drawn from general
tax revenues or instead by buying the property itself and
then transferring title.
While Valley Forge’s application of the first prong to dis
tinguish Flast was unpersuasive, the Court was at least not
trying to hide the ball. Its holding was forthrightly based
on a resounding rejection of the very concept of Psychic
Injury:
“[Plaintiffs] fail to identify any personal injury suffered
by them as a consequence of the alleged constitutional
error, other than the psychological consequence presum
ably produced by observation of conduct with which one
disagrees. That is not an injury sufficient to confer
standing under Art. III, even though the disagreement
is phrased in constitutional terms. It is evident that
respondents are firmly committed to the constitutional
principle of separation of church and State, but standing
is not measured by the intensity of the litigant’s interest
or the fervor of his advocacy.” 454 U. S., at 485–486
(emphasis deleted).
Of course, in keeping with what was to become the shameful
tradition of our taxpayer-standing cases, the Court’s candor
about the inadequacy of Psychic Injury was combined with
a notable silence as to why Flast itself was not doomed.
A mere six years later, Flast was resuscitated in Bowen
v. Kendrick, 487 U. S. 589 (1988). The taxpayers there

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brought facial and as-applied Establishment Clause chal
lenges to the Adolescent Family Life Act, which was a con
gressional scheme that provided grants to public or nonprofit
private organizations to combat premarital adolescent preg
nancy and sex. Id., at 593. The as-applied challenge fo
cused on whether particular grantees selected by the Secre
tary of Health and Human Services were constitutionally
permissible recipients. Id., at 620–622. The Solicitor Gen
eral argued that, under Valley Forge’s application of Flast’s
first prong, the taxpayers lacked standing for their as
applied claim because that claim was really a challenge to
executive decisionmaking, not to Congress’s exercise of its
taxing and spending power. 487 U. S., at 618–619. The
Court rejected this contention, holding that the taxpayers’
as-applied claim was still a challenge to Congress’s taxing
and spending power even though disbursement of the funds
authorized by Congress had been administered by the Secre
tary. Id., at 619.
Kendrick, like Flast before it, was obviously based on Psy
chic Injury: The taxpayers could not possibly make, and did
not attempt to make, the showing required for Wallet Injury.
But by relying on Psychic Injury, Kendrick perfectly re
vealed the incompatibility of that concept with the outcome
in Doremus. Just as Kendrick did not care whether the ap
propriated funds would have been spent anyway—given to a
different, permissible recipient—so also Doremus should not
have cared that the teachers would likely receive the same
salary once their classroom activities were limited to secular
conduct. Flast and Kendrick’s acceptance of Psychic Injury
is fundamentally at odds with Frothingham, Doremus, and
Valley Forge.
Which brings me to the final case worthy of mention.
Last Term, in DaimlerChrysler Corp. v. Cuno, 547 U. S. 332
(2006), we concisely confirmed that Flast was based on Psy
chic Injury. The taxpayers in that case sought to rely on

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Flast to raise a Commerce Clause challenge to a state fran
chise tax credit. 547 U. S., at 347. In rejecting the analogy
and denying standing, we described Flast as follows:
“The Court . . . understood the ‘injury’ alleged in Estab
lishment Clause challenges to federal spending to be the
very ‘extract[ion] and spen[ding]’ of ‘tax money’ in aid
of religion alleged by a plaintiff. And an injunction
against the spending would of course redress that injury,
regardless of whether lawmakers would dispose of the
savings in a way that would benefit the taxpayer
plaintiffs personally.” 547 U. S., at 348–349 (citation
omitted; some alterations in original).
What Cuno’s conceptualization of Flast reveals is that there
are only two logical routes available to this Court. We must
initially decide whether Psychic Injury is consistent with Ar
ticle III. If it is, we should apply Flast to all challenges to
government expenditures in violation of constitutional provi
sions that specifically limit the taxing and spending power;
if it is not, we should overturn Flast.
II
A
The plurality today avails itself of neither principled op
tion. Instead, essentially accepting the Solicitor General’s
primary submission, it limits Flast to challenges to expendi
tures that are “expressly authorized or mandated by . . .
specific congressional enactment.” Ante, at 608. It offers
no intellectual justification for this limitation, except that
“[i]t is a necessary concomitant of the doctrine of stare deci
sis that a precedent is not always expanded to the limit of its
logic.” Ante, at 615. That is true enough, but since courts
purport to be engaged in reasoned decisionmaking, it is only
true when (1) the precedent’s logic is seen to require narrow
ing or readjustment in light of relevant distinctions that the
new fact situation brings to the fore; or (2) its logic is funda

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mentally flawed, and so deserves to be limited to the facts
that begot it. Today’s plurality claims neither of these justi
fications. As to the first, the plurality offers no explanation
of why the factual differences between this case and Flast
are material. It virtually admits that express congres
sional allocation vel non has nothing to do with whether
the plaintiffs have alleged an injury in fact that is fairly
traceable and likely to be redressed. See ante, at 609–610.
As the dissent correctly contends and I shall not belabor,
see post, at 639–640 (opinion of Souter, J.), Flast is in
distinguishable from this case for purposes of Article III.
Whether the challenged government expenditure is ex
pressly allocated by a specific congressional enactment has
absolutely no relevance to the Article III criteria of injury
in fact, traceability, and redressability.
Yet the plurality is also unwilling to acknowledge that the
logic of Flast (its Psychic Injury rationale) is simply wrong,
and for that reason should not be extended to other cases.
Despite the lack of acknowledgment, however, that is the
only plausible explanation for the plurality’s indifference to
whether the “distinguishing” fact is legally material, and for
its determination to limit Flast to its “ ‘resul[t],’ ” ante, at
610.3 Why, then, pick a distinguishing fact that may breathe
life into Flast in future cases, preserving the disreputable
disarray of our Establishment Clause standing jurispru
dence? Why not hold that only taxpayers raising Estab
lishment Clause challenges to expenditures pursuant to the
Elementary and Secondary Education Act of 1965 have
3 This explanation does not suffice with regard to Justice Kennedy,
who, unlike the other Members of the plurality, openly and avowedly con
tends both that Flast was correctly decided and that respondents should
nevertheless lose this case. Ante, at 616 (concurring opinion). He thus
has the distinction of being the only Justice who affirms both propositions.
I cannot begin to comprehend how the amorphous separation-of-powers
concerns that motivate him, ante, at 615–618, bear upon whether the
express-allocation requirement is grounded in the Article III criteria of
injury in fact, traceability, or redressability.

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630 HEIN v. FREEDOM FROM RELIGION FOUNDATION, INC.
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standing? That, I suppose, would be too obvious a repudia
tion of Flast, and thus an impediment to the plurality’s pose
of minimalism.
Because the express-allocation line has no mooring to our
tripartite test for Article III standing, it invites demonstra
bly absurd results. For example, the plurality would deny
standing to a taxpayer challenging the President’s disburse
ment to a religious organization of a discrete appropria
tion that Congress had not explicitly allocated to that pur
pose, even if everyone knew that Congress and the President
had informally negotiated that the entire sum would be
spent in that precise manner. See ante, at 608, n. 7 (holding
that nonstatutory earmarks are insufficient to satisfy the
express-allocation requirement). And taxpayers should
lack standing to bring Establishment Clause challenges to
the Executive Branch’s use of appropriated funds when those
expenditures have the added vice of violating congressional
restrictions. If, for example, Congress instructs the Presi
dent to disburse grants to hospitals that he deems worthy,
and the President instead gives all of the money to the Cath
olic Church, “[t]he link between congressional action and con
stitutional violation that supported taxpayer standing in
Flast [would be] missing.” Ante, at 605. Indeed, taking
the plurality at its word, Congress could insulate the Presi
dent from all Flast-based suits by codifying the truism that
no appropriation can be spent by the Executive Branch in a
manner that violates the Establishment Clause.
Any last pretense of minimalism—of adhering to prior law
but merely declining to “extend” it—is swept away by the
fact that the Court’s holding flatly contradicts Kendrick.
The whole point of the as-applied challenge in Kendrick was
that the Secretary, not Congress, had chosen inappropriate
grant recipients. 487 U. S., at 620–622. Both Kendrick and
this case equally involve, in the relevant sense, attacks on
executive discretion rather than congressional decision: Con
gress generally authorized the spending of tax funds for cer

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tain purposes but did not explicitly mandate that they be
spent in the unconstitutional manner challenged by the tax
payers. I thus share the dissent’s bewilderment, see post,
at 640–641, as to why the plurality fixates on the amount of
additional discretion the Executive Branch enjoys under the
law beyond the only discretion relevant to the Establishment
Clause issue: whether to spend taxpayer funds for a purpose
that is unconstitutional. See ante, at 615 (focusing on
whether the case involves “a purely discretionary Executive
Branch expenditure” (emphasis added)).
B
While I have been critical of the Members of the plurality,
I by no means wish to give the impression that respondents’
legal position is any more coherent. Respondents argue
that Flast did not turn on whether Congress has expressly
allocated the funds to the allegedly unconstitutional use, and
their case plainly rests on Psychic Injury. They repeatedly
emphasize that the injury in Flast was merely the govern
mental extraction and spending of tax money in aid of reli
gion. See, e. g., Brief for Respondents 28. Respondents
refuse to admit that their argument logically implies, for the
reasons already discussed, that every expenditure of tax rev
enues that is alleged to violate the Establishment Clause is
subject to suit under Flast.
Of course, such a concession would run headlong into the
denial of standing in Doremus. Respondents’ only answer
to Doremus is the cryptic assertion that the injury there was
not fairly traceable to the unconstitutional conduct. Brief
for Respondents 21, and n. 7. This makes no sense. On
Flast’s theory of Psychic Injury, the injury in Doremus was
perfectly traceable and not in any way attenuated. It con
sisted of the psychic frustration that tax funds were being
used in violation of the Establishment Clause, which was di
rectly caused by the paying of teachers to read the Bible,
and which would have been remedied by prohibition of that

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632 HEIN v. FREEDOM FROM RELIGION FOUNDATION, INC.
Scalia, J., concurring in judgment
expenditure.4 The hollowness of respondents’ traceability
argument is perhaps best demonstrated by their counsel’s
game submission at oral argument that there would be
standing to challenge the hiring of a single Secret Service
agent who guarded the President during religious trips, but
no standing if those responsibilities (and the corresponding
taxpayer-funded compensation) were spread out over the en
tire Secret Service protective detail. Tr. of Oral Arg. 38–39.
The logical consequence of respondents’ position finds no
support in this Court’s precedents or our Nation’s history.
Any taxpayer would be able to sue whenever tax funds were
used in alleged violation of the Establishment Clause. So,
for example, any taxpayer could challenge the fact that the
Marshal of our Court is paid, in part, to call the courtroom
to order by proclaiming “God Save the United States and
this Honorable Court.” As much as respondents wish to
deny that this is what Flast logically entails, it blinks reality
to conclude otherwise. If respondents are to prevail, they
must endorse a future in which ideologically motivated tax
payers could “roam the country in search of governmental
wrongdoing and . . . reveal their discoveries in federal court,”
transforming those courts into “ombudsmen of the general
welfare” with respect to Establishment Clause issues. Val
ley Forge, 454 U. S., at 487.
C
Ultimately, the arguments by the parties in this case and
the opinions of my colleagues serve only to confirm that
Flast’s adoption of Psychic Injury has to be addressed head
4 Nor is the dissent’s oblique suggestion that Doremus did not involve
an “identifiable amoun[t]” of taxpayer funds, post, at 639, any more persua
sive. One need not consult a CPA to realize that the portion of the school
day during which the teachers’ educational responsibilities were to read
the Bible corresponded to a fraction of the teachers’ taxpayer-funded sala
ries. And while the amount of money might well have been inconsequen
tial, it was probably greater than three pence. See n. 2, supra.

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on. Minimalism is an admirable judicial trait, but not when
it comes at the cost of meaningless and disingenuous distinc
tions that hold the sure promise of engendering further
meaningless and disingenuous distinctions in the future.
The rule of law is ill served by forcing lawyers and judges
to make arguments that deaden the soul of the law, which is
logic and reason. Either Flast was correct, and must be
accorded the wide application that it logically dictates, or it
was not, and must be abandoned in its entirety. I turn, fi
nally, to that question.
III
Is a taxpayer’s purely psychological displeasure that his
funds are being spent in an allegedly unlawful manner ever
sufficiently concrete and particularized to support Article III
standing? The answer is plainly no.
As I noted at the outset, Lujan explained that the “con
sisten[t]” view of this Court has been that “a plaintiff raising
only a generally available grievance about government—
claiming only harm to his and every citizen’s interest in
proper application of the Constitution and laws, and seeking
relief that no more directly and tangibly benefits him than it
does the public at large—does not state an Article III case
or controversy.” 504 U. S., at 573–574. As evidence of the
consistency with which we have affirmed that understanding,
Lujan relied on the reasoning in Frothingham, and in sev
eral other cases, including Ex parte Le´vitt, 302 U. S. 633
(1937) (per curiam) (dismissing suit challenging Justice
Black’s appointment to this Court in alleged violation of the
Ineligibility Clause, Art. I, § 6, cl. 2), United States v. Rich
ardson, 418 U. S. 166 (1974) (denying standing to challenge
the Government’s failure to disclose the CIA’s expenditures
in alleged violation of the Accounts Clause, Art. I, § 9, cl. 7),
and Schlesinger v. Reservists Comm. to Stop the War, 418
U. S. 208 (1974) (rejecting challenge to Members of Congress
holding commissions in the military Reserves in alleged vio
lation of the Incompatibility Clause, Art. I, § 6, cl. 2). See

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Scalia, J., concurring in judgment
504 U. S., at 573–577. Just this Term, relying on precisely
the same cases and the same reasoning, we held unanimously
that suits raising only generalized grievances do not satisfy
Article III’s requirement that the injury in fact be concrete
and particularized. See Lance, 549 U. S., at 439–441.5
Nor does Flast’s limitation on Psychic Injury—the limita
tion that it suffices only when the two-pronged “nexus” test
is met—cure the Article III deficiency. The fact that it is
the alleged violation of a specific constitutional limit on the
taxing and spending power that produces the taxpayer’s
mental angst does not change the fundamental flaw. It re
mains the case that the taxpayer seeks “relief that no more
directly and tangibly benefits him than it does the public at
large.” Lujan, supra, at 573–574. And it is of no conceiv
able relevance to this issue whether the Establishment
Clause was originally conceived of as a specific limitation on
the taxing and spending power. Madison’s Remonstrance
has nothing whatever to say on the question whether suits
alleging violations of that limitation are anything other than
the generalized grievances that federal courts had always
been barred from considering before Flast. Flast was
forced to rely on the slim reed of the Remonstrance since
there was no better support for its novel conclusion, in 1968,
that violation of the Establishment Clause, unique among the
provisions of our law, had always inflicted a personalized
Psychic Injury upon all taxpayers that federal courts had
the power to remedy.
Moreover, Flast is damaged goods, not only because its
fanciful two-pronged “nexus” test has been demonstrated to
be irrelevant to the test’s supposed objective, but also be
5 It is true that this Court has occasionally in dicta described the prohi
bition on generalized grievances as merely a prudential bar. But the
fountainhead of this dicta, Warth v. Seldin, 422 U. S. 490 (1975), supported
its statement only by naked citation of Schlesinger, Richardson, and
Le´vitt. 422 U. S., at 499. And those cases squarely rested on Article III
considerations, as the analysis in Lujan and Lance confirms.

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cause its cavalier treatment of the standing requirement
rested upon a fundamental underestimation of that require
ment’s importance. Flast was explicitly and erroneously
premised on the idea that Article III standing does not per
form a crucial separation-of-powers function:
“The question whether a particular person is a proper
party to maintain the action does not, by its own force,
raise separation of powers problems related to improper
judicial interference in areas committed to other
branches of the Federal Government. Such problems
arise, if at all, only from the substantive issues the indi
vidual seeks to have adjudicated. Thus, in terms of Ar
ticle III limitations on federal court jurisdiction, the
question of standing is related only to whether the dis
pute sought to be adjudicated will be presented in
an adversary context and in a form historically viewed
as capable of judicial resolution.” 392 U. S., at 100–101.
A perceptive Frenchman, visiting the United States some
135 years before Chief Justice Warren wrote these words,
perceived that they were false.
“It is true that . . . judicial censure, exercised by the
courts on legislation, cannot extend without distinction
to all laws, for there are some of them that can never
give rise to the sort of clearly formulated dispute that
one calls a case.” A. de Tocqueville, Democracy in
America 97 (H. Mansfield & D. Winthrop transls. and
eds. 2000) (emphasis added).
Flast’s crabbed (and judge-empowering) understanding of
the role Article III standing plays in preserving our system
of separated powers has been repudiated:
“To permit a complainant who has no concrete injury
to require a court to rule on important constitutional
issues in the abstract would create the potential for
abuse of the judicial process, distort the role of the Judi

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636 HEIN v. FREEDOM FROM RELIGION FOUNDATION, INC.
Scalia, J., concurring in judgment
ciary in its relationship to the Executive and the Legis
lature and open the Judiciary to an arguable charge of
providing ‘government by injunction.’ ” Schlesinger,
418 U. S., at 222.
See also Richardson, 418 U. S., at 179–180; Valley Forge, 454
U. S., at 474; Lujan, supra, at 576–577. We twice have
noted explicitly that Flast failed to recognize the vital
separation-of-powers aspect of Article III standing. See
Spencer v. Kemna, 523 U. S. 1, 11–12 (1998); Lewis v. Casey,
518 U. S. 343, 353, n. 3 (1996). And once a proper under
standing of the relationship of standing to the separation of
powers is brought to bear, Psychic Injury, even as limited in
Flast, is revealed for what it is: a contradiction of the basic
propositions that the function of the judicial power “is, solely,
to decide on the rights of individuals,” Marbury v. Madison,
1 Cranch 137, 170 (1803), and that generalized grievances
affecting the public at large have their remedy in the politi
cal process.
Overruling prior precedents, even precedents as disrepu
table as Flast, is nevertheless a serious undertaking, and I
understand the impulse to take a minimalist approach. But
laying just claim to be honoring stare decisis requires more
than beating Flast to a pulp and then sending it out to the
lower courts weakened, denigrated, more incomprehensible
than ever, and yet somehow technically alive. Even before
the addition of the new meaningless distinction devised by
today’s plurality, taxpayer standing in Establishment Clause
cases has been a game of chance. In the proceedings below,
well-respected federal judges declined to hear this case en
banc, not because they thought the issue unimportant or the
panel decision correct, but simply because they found our
cases so lawless that there was no point in, quite literally,
second-guessing the panel. See Freedom From Religion
Foundation, Inc. v. Chao, 447 F. 3d 988 (CA7 2006) (Flaum,
C. J., concurring in denial of rehearing en banc); id., at 989–

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Souter, J., dissenting
990 (Easterbrook, J., concurring in denial of rehearing en
banc) (describing our cases as “arbitrary,” “illogical,” and
lacking in “comprehensiveness and rationality”). We had an
opportunity today to erase this blot on our jurisprudence,
but instead have simply smudged it.
My call for the imposition of logic and order upon this cha
otic set of precedents will perhaps be met with the snappy
epigram that “[t]he life of the law has not been logic: it has
been experience.” O. Holmes, The Common Law 1 (1881).
But what experience has shown is that Flast’s lack of a logi
cal theoretical underpinning has rendered our taxpayer
standing doctrine such a jurisprudential disaster that our ap
pellate judges do not know what to make of it. And of
course the case has engendered no reliance interests, not
only because one does not arrange his affairs with an eye to
standing, but also because there is no relying on the random
and irrational. I can think of few cases less warranting of
stare decisis respect. It is time—it is past time—to call an
end. Flast should be overruled.
Justice Souter, with whom Justice Stevens, Justice
Ginsburg, and Justice Breyer join, dissenting.
Flast v. Cohen, 392 U. S. 83, 102 (1968), held that plaintiffs
with an Establishment Clause claim could “demonstrate the
necessary stake as taxpayers in the outcome of the litigation
to satisfy Article III requirements.” Here, the controlling,
plurality opinion declares that Flast does not apply, but a
search of that opinion for a suggestion that these taxpayers
have any less stake in the outcome than the taxpayers in
Flast will come up empty: the plurality makes no such find
ing, nor could it. Instead, the controlling opinion closes the
door on these taxpayers because the Executive Branch, and
not the Legislative Branch, caused their injury. I see no
basis for this distinction in either logic or precedent, and
respectfully dissent.

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638 HEIN v. FREEDOM FROM RELIGION FOUNDATION, INC.
Souter, J., dissenting
I
We held in Flast, and repeated just last Term, that the
“ ‘injury’ alleged in Establishment Clause challenges to fed
eral spending” is “the very ‘extract[ion] and spen[ding]’ of
‘tax money’ in aid of religion.” DaimlerChrysler Corp. v.
Cuno, 547 U. S. 332, 348 (2006) (quoting Flast, supra, at 106;
alterations in original). As the Court said in Flast, the im
portance of that type of injury has deep historical roots
going back to the ideal of religious liberty in James Madi
son’s Memorial and Remonstrance Against Religious Assess
ments, that the government in a free society may not “force
a citizen to contribute three pence only of his property for
the support of any one establishment” of religion. 2 Writ
ings of James Madison 183, 186 (G. Hunt ed. 1901) (herein
after Madison), quoted in Flast, supra, at 103. Madison
thus translated into practical terms the right of conscience
described when he wrote that “[t]he Religion . . . of every
man must be left to the conviction and conscience of every
man; and it is the right of every man to exercise it as these
may dictate.” Madison 184; see also Zelman v. Simmons-
Harris, 536 U. S. 639, 711, n. 22 (2002) (Souter, J., dissent
ing) (“As a historical matter, the protection of liberty of con
science may well have been the central objective served by
the Establishment Clause”); 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”); N. Feldman, Divided By God:
America’s Church-State Problem—And What We Should Do
About It 48 (2005) (“The advocates of a constitutional ban on
establishment were concerned about paying taxes to support
religious purposes that their consciences told them not to
support”).
The right of conscience and the expenditure of an identifi
able three pence raised by taxes for the support of a reli
gious cause are therefore not to be split off from one another.

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The three pence implicates the conscience, and the injury
from Government expenditures on religion is not accurately
classified with the “Psychic Injury” that results whenever a
congressional appropriation or executive expenditure raises
hackles of disagreement with the policy supported, see ante,
at 624–625 (Scalia, J., concurring in judgment). Justice
Stewart recognized this in his concurring opinion in Flast,
when he said that “every taxpayer can claim a personal con
stitutional right not to be taxed for the support of a religious
institution,” and thus distinguished the case from one in
which a taxpayer sought only to air a generalized grievance
in federal court. 392 U. S., at 114.
Here, there is no dispute that taxpayer money in identifi
able amounts is funding conferences, and these are alleged
to have the purpose of promoting religion. Cf. Doremus v.
Board of Ed. of Hawthorne, 342 U. S. 429, 434 (1952). The
taxpayers therefore seek not to “extend” Flast, ante, at 615
(plurality opinion), but merely to apply it. When executive
agencies spend identifiable sums of tax money for religious
purposes, no less than when Congress authorizes the same
thing, taxpayers suffer injury. And once we recognize the
injury as sufficient for Article III, there can be no serious
question about the other elements of the standing enquiry:
the injury is indisputably “traceable” to the spending, and
“likely to be redressed by” an injunction prohibiting it.
Allen v. Wright, 468 U. S. 737, 751 (1984); see also Cuno,
supra, at 348 (“[A]n injunction against the spending would
of course redress that injury”).
The plurality points to the separation of powers to explain
its distinction between legislative and executive spending
decisions, see ante, at 611–612, but there is no difference on
that point of view between a Judicial Branch review of an
executive decision and a judicial evaluation of a congres
sional one. We owe respect to each of the other branches,
no more to the former than to the latter, and no one has
suggested that the Establishment Clause lacks applicability

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640 HEIN v. FREEDOM FROM RELIGION FOUNDATION, INC.
Souter, J., dissenting
to executive uses of money. It would surely violate the Es
tablishment Clause for the Department of Health and Human
Services to draw on a general appropriation to build a chapel
for weekly church services (no less than if a statute required
it), and for good reason: if the Executive could accomplish
through the exercise of discretion exactly what Congress
cannot do through legislation, Establishment Clause protec
tion would melt away.1
So in Bowen v. Kendrick, 487 U. S. 589 (1988), we recog
nized the equivalence between a challenge to a congressional
spending bill and a claim that the Executive Branch was
spending an appropriation, each in violation of the Establish
ment Clause. We held that the “claim that . . . funds [were]
being used improperly by individual grantees [was no] less a
challenge to congressional taxing and spending power simply
because the funding authorized by Congress has flowed
through and been administered by the Secretary,” and we
added that “we have not questioned the standing of taxpayer
plaintiffs to raise Establishment Clause challenges, even
when their claims raised questions about the administra
tively made grants.” Id., at 619.
The plurality points out that the statute in Bowen “ex
pressly authorized and appropriated specific funds for grant
making” and “expressly contemplated that some of those
moneys might go to projects involving religious groups.”
1 The plurality warns that a parade of horribles would result if there
were standing to challenge executive action, because all federal activities
are “ultimately funded by some congressional appropriation.” Ante,
at 610. But even if there is Article III standing in all of the cases posited
by the plurality (and the Court of Appeals thought that at least sometimes
there is not, Freedom From Religion Foundation, Inc. v. Chao, 433 F. 3d
989, 996 (CA7 2006)), that does not mean taxpayers will prevail in such
suits. If these claims are frivolous on the merits, I fail to see the harm
in dismissing them for failure to state a claim instead of for lack of jurisdic
tion. To the degree the claims are meritorious, fear that there will be
many of them does not provide a compelling reason, much less a reason
grounded in Article III, to keep them from being heard.

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Ante, at 607. That is all true, but there is no reason to think
it should matter, and every indication in Bowen that it did
not. In Bowen we already had found the statute valid on
its face before we turned to the taxpayers’ as-applied chal
lenge, see 487 U. S., at 618, so the case cannot be read to hold
that taxpayers have standing only to claim that congres
sional action, but not its implementation, violates the Estab
lishment Clause. Thus, after Bowen, the plurality’s distinc
tion between a “congressional mandate” on the one hand and
“executive discretion” on the other, ante, at 609, is at once
arbitrary and hard to manage: if the statute itself is constitu
tional, all complaints must be about the exercise of “execu
tive discretion,” so there is no line to be drawn between
Bowen and the case before us today.2
II
While Flast standing to assert the right of conscience is
in a class by itself, it would be a mistake to think that case
is unique in recognizing standing in a plaintiff without injury
to flesh or purse. Cognizable harm takes account of the na
ture of the interest protected, which is the reason that “the
constitutional component of standing doctrine incorporates
concepts concededly not susceptible of precise definition,”
2 Bowen also indicated that the barrier to standing in Valley Forge
Christian College v. Americans United for Separation of Church and
State, Inc., 454 U. S. 464 (1982), was that the taxpayers challenged “an
exercise of executive authority pursuant to the Property Clause of Article
IV, § 3.” 487 U. S., at 619. In Valley Forge, we had first discussed the
executive rather than legislative nature of the action at issue there and
then, “perhaps redundantly,” 454 U. S., at 480, pointed to the distinction
between the Property Clause and the Taxing and Spending Clause. Al
though at the time Valley Forge might have been taken to support the
distinction the plurality draws today, Bowen said that Valley Forge rested
on the distinction between the Property Clause on the one hand and the
Taxing and Spending Clause on the other. See also Valley Forge, supra,
at 480, n. 17 (noting that the transfer of property to a religious college
involved no expenditure of funds).

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leaving it impossible “to make application of the constitu
tional standing requirement a mechanical exercise.” Allen,
468 U. S., at 751. The question, ultimately, has to be
whether the injury alleged is “too abstract, or otherwise not
appropriate, to be considered judicially cognizable.” Id., at
752.3
In the case of economic or physical harms, of course, the
“injury in fact” question is straightforward. But once one
strays from these obvious cases, the enquiry can turn subtle.
Are esthetic harms sufficient for Article III standing?
What about being forced to compete on an uneven playing
field based on race (without showing that an economic loss
resulted), or living in a racially gerrymandered electoral dis
trict? These injuries are no more concrete than seeing one’s
tax dollars spent on religion, but we have recognized each
one as enough for standing. See Friends of Earth, Inc. v.
Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167,
183 (2000) (esthetic injury); Northeastern Fla. Chapter, As
sociated Gen. Contractors of America v. Jacksonville, 508
U. S. 656, 666 (1993) (“[T]he ‘injury in fact’ is the inability to
compete on an equal footing in the bidding process, not the
loss of a contract”); United States v. Hays, 515 U. S. 737, 744–
745 (1995) (living in a racially gerrymandered electoral dis
trict). This is not to say that any sort of alleged injury will
satisfy Article III, but only that intangible harms must be
evaluated case by case.4
3 Although the plurality makes much of the fact that the injury in this
case is “generalized,” ante, at 599, and shared with the “public at large,”
ante, at 600, those properties on their own do not strip a would-be plaintiff
of standing. See Federal Election Comm’n v. Akins, 524 U. S. 11, 24
(1998) (“Often the fact that an interest is abstract and the fact that it is
widely shared go hand in hand. But their association is not invariable,
and where a harm is concrete, though widely shared, the Court has found
‘injury in fact’ ”).
4 Outside the Establishment Clause context, as the plurality points out,
we have not found the injury to a taxpayer when funds are improperly
expended to suffice for standing. See ante, at 609–610 (citing examples).

551US2 Unit: $U71 [10-31-11 15:06:27] PAGES PGT: OPIN
643 Cite as: 551 U. S. 587 (2007)
Souter, J., dissenting
Thus, Flast speaks for this Court’s recognition (shared by
a majority of the Court today) that when the Government
spends money for religious purposes a taxpayer’s injury is
serious and concrete enough to be “judicially cognizable,”
Allen, supra, at 752. The judgment of sufficient injury
takes account of the Madisonian relationship of tax money
and conscience, but it equally reflects the Founders’ prag
matic “conviction that individual religious liberty could be
achieved best under a government which was stripped of all
power to tax, to support, or otherwise to assist any or all
religions,” Everson v. Board of Ed. of Ewing, 330 U. S. 1, 11
(1947), and the realization continuing to the modern day that
favoritism for religion “ ‘sends the . . . message to . . . nonad
herents “that they are outsiders, not full members of the
political community,” ’ ” McCreary County v. American Civil
Liberties Union of Ky., 545 U. S. 844, 860 (2005) (quoting
Santa Fe Independent School Dist. v. Doe, 530 U. S. 290, 309–
310 (2000), in turn quoting Lynch v. Donnelly, 465 U. S. 668,
688 (1984) (O’Connor, J., concurring); omissions in original).5
Because the taxpayers in this case have alleged the type
of injury this Court has seen as sufficient for standing,
I would affirm.
5 There will not always be competitors for the funds who would make
better plaintiffs (and indeed there appears to be no such competitor here),
so after accepting the importance of the injury there is no reason to refuse
standing as a prudential matter.