551 U.S. 587 (2007)
In 2001, the President issued an executive order creating the White House Office of Faith-Based and Community Initiatives within the Executive Office of the President.1 By separate executive orders, the President also created Executive Department Centers for Faith-Based and Community Initiatives within several federal agencies and departments.2
No congressional legislation specifically authorized the creation of the White House Office or the Executive Department Centers.3 Rather, they were created entirely within the executive branch by Presidential executive order.4 Nor has Congress enacted any law specifically appropriating money for these entities’ activities.5 Instead, their activities are funded through general Executive Branch appropriations.6
Respondents are Freedom From Religion Foundation, Inc., a nonstock corporation opposed to government endorsement of religion, and three of its members.7 Respondents brought suit in the United States District Court for the Western District of Wisconsin against the directors of the White House Office and the agency centers.8 The complaint alleged that the petitioners violated the Establishment Clause by organizing national and regional conferences at which faith-based organizations were singled out as particularly worthy of federal funding.9
The only asserted basis for standing was that the individual respondents are federal taxpayers opposed to the use of congressional taxpayer appropriations to advance and promote religion.10 The District Court dismissed the claims for lack of standing on November 15, 2004.11 A divided panel of the Seventh Circuit reversed in 2006, and the Court of Appeals denied rehearing en banc by a vote of seven to four.12 The Supreme Court granted certiorari in 2006.13
Whether federal taxpayers have standing under the Flast exception to challenge Executive Branch conferences and speeches as violating the Establishment Clause when the offices were created by presidential executive order and the activities were funded through general appropriations rather than specific congressional enactments?14
To have standing as a federal taxpayer to challenge an alleged violation of the Establishment Clause, a plaintiff must satisfy the two-part test from Flast v. Cohen: first, there must be a logical link between the taxpayer status and the type of legislative enactment attacked, meaning the challenge must be to an exercise of congressional power under the taxing and spending clause of Art. I, §8; second, the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power.15
No. The respondents do not challenge any specific congressional action or appropriation, nor do they ask the Court to invalidate any congressional enactment.16 The White House Office of Faith-Based and Community Initiatives and the Executive Department Centers were created entirely within the Executive Branch by presidential executive orders in 2001.17 No congressional legislation specifically authorized their creation, and no law specifically appropriated money for their activities.18 Instead, the conferences and speeches were funded through general Executive Branch appropriations that did not expressly authorize, direct, or mention the expenditures in question.19
These expenditures resulted from executive discretion rather than congressional action.20 The link between congressional action and constitutional violation that supported taxpayer standing in Flast is therefore missing here.21
The respondents lack standing to bring this Establishment Clause challenge.22
Related opinions on this issue
Justice Kennedy filed a concurring opinion agreeing that Flast should not be extended to this case.23 He stressed that the separation-of-powers design implemented by Article III's case-or-controversy limitation counsels against recognizing standing here.24 Extending standing would lead to judicial intervention exceeding traditional boundaries, with courts assuming the role of speech editors and event planners for executive officials.25
He noted that even where parties have no standing, government officials are not excused from making constitutional determinations in the regular course of their duties.26
Joined by Justice Thomas
Justice Scalia, joined by Justice Thomas, concurred in the judgment but urged that Flast v. Cohen should be overruled as wholly irreconcilable with Article III restrictions on federal-court jurisdiction embodied in the standing doctrine.27 He argued that the Court's taxpayer-standing cases are inconsistent because they have described the injury in fact differently, sometimes focusing on wallet injury and sometimes on psychic injury.28 He concluded that a taxpayer's purely psychological disapproval is never sufficiently concrete and particularized to support Article III standing.29
He further argued that stare decisis should not prevent overruling Flast given its lack of logical theoretical underpinning and the absence of reliance interests.30
Joined by Justices Stevens, Ginsburg, And Breyer
Justice Souter, joined by Justices Stevens, Ginsburg, and Breyer, dissented.31 He argued that the plurality's distinction between legislative and executive spending decisions has no basis in logic or precedent.32 The injury to taxpayers from the extraction and spending of tax money in aid of religion is the same regardless of whether the Executive or Congress initiates the expenditure.33
He maintained that the taxpayers here have the same stake in the outcome as the plaintiffs in Flast, and that the three pence principle from Madison's Remonstrance applies equally to executive expenditures.34 He would have held that the respondents have standing.35