Taxpayers' and Citizens' Suits

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Federal courts will rule on the merits of a legal claim only at the request of one with a "personal stake in the outcome of the controversy." As a corollary of this central, entrenched standing doctrine, the federal judiciary turns away attacks on the legality of government behavior by citizens suing only as such. The rule stems from a separation of powers premise: that federal judges should not review conduct of Congress or the Executive absent the need to protect a plaintiff from distinct personal injury. The rule has been applied mostly to reject challenges by United States citizens to acts of the political branches of the federal government, although it also appears to bar federal court suits by state or local citizens against acts of their governments. In essence, the citizen interest in lawful governance is viewed as an ideological, not a personal, interest, an interest best left to political rather than judicial resolution. Nonetheless, if a plaintiff can show concrete individual injury, as in sierra club v. morton (1972), the public interest may then be argued in behalf of the personal claim, even if the primary motive for suing is not the personal but the citizen interest.

The law of taxpayer standing is more elaborate, because taxpayers' suits are sometimes deemed sufficiently personal to permit standing and sometimes rejected as disguised citizens' suits. Taxpayers contesting their own tax liability have a "personal stake," of course, but such an individualized interest is less clear for taxpayers disputing how tax revenues are spent. In frothingham v. mellon (1923) the Supreme Court found the pecuniary interest of a federal taxpayer in federal spending too remote to justify judicial review of congressional appropriations, but it reaffirmed its previous approval of federal court suits by local taxpayers attacking local spending programs. In flast v. cohen (1968) the Court created an exception, allowing federal taxpayers to challenge congressional spending as an establishment of religion because the establishment clause gives taxpayers a special interest in challenging the use of tax dollars to support religion. The dissent objected that the Court was recognizing standing to bring a "public action" having no effect on the suing taxpayer's financial interest.

Since Flast, the Court has denied standing to federal taxpayers who raised other constitutional objections in United States v. Richardson (1974) and Schlesinger v. Reservists Committee (1974). And in valley forge christian college v. americans united (1982), a decision that substantially undermines the premise of Flast, the Court denied standing to taxpayers who raised establishment clause objections, but challenged federal distribution of surplus property rather than congressional appropriations of money. Even at the state taxpayer level, invoking the establishment clause will not suffice if the claim is not of government financial support of religion but of regulatory support, as in doremus v. board of education (1952). In short, a federal court will recognize taxpayer standing only when there is a tangible financial connection between a local or state taxpayer's interest and government spending, or when a local, state, or federal taxpayer challenges legislative appropriations on establishment clause grounds.

The federal judiciary's rejection of citizen suits and most taxpayer attacks on spending reflects a view that the power of judicial review is only a by-product of the need to apply law, including constitutional law, to decide the rights of those claiming injury. To entertain public actions would be to expand judicial scrutiny of acts of the elected branches of government—usurpation that might bring retaliation, in the eyes of those who take this view. For those who think judicial review is founded on a broader obligation to assure government adherence to the Constitution, such an expanded scrutiny would be desirable. If Congress were to authorize the federal courts to take jurisdiction over public actions, the Supreme Court probably would not find Article III's "case" or "controversy" requirement an insurmountable barrier. But the Court has always been reluctant to entertain public actions on its own authority.

Jonathan D. Varat


Wright, Charles A.; Miller, Arthur R.; and Cooper, Edward H. 1984 Federal Practice and Procedure. Vol. 13:634–663. St. Paul, Minn.: West Publishing Co.