Berkley Center

Hein v. Freedom of Religion Foundation involved a challenge to several executive orders that created a White House office and centers within federal agencies to ensure that faith-based community groups were eligible for federal funding. The president had issued the orders without any congressional authorization or specific appropriation by Congress. The Freedom of Religion Foundation brought suit alleging that the executive orders violated the Establishment Clause because the offices they created were designed to promote religious community groups over secular ones. Ruling against the foundation, the Supreme Court held that taxpayers do not have the ability to challenge executive branch activity on Establishment Clause grounds. Generally, taxpayers cannot bring suit against the government solely because they object to how the government is spending their tax dollars. The Court in Flast v. Cohen recognized a very narrow exception to this general prohibition, finding that tax payers do have the ability to challenge specific congressional expenditures for violations of the Establishment Clause. In Hein, the Court determined that challenges to executive branch action do not fit within the Flast exception. The Court concluded that extending the Flast exception to executive branch activity would subject every federal action—such as a conference, proclamation, or even a speech—to Establishment Clause challenges. Because the action in Hein was not taken pursuant to any specific congressional appropriation under its Article I Section 8 power to tax and spend for the general welfare, but was discretionary executive branch spending, the Court determined that Freedom of Religion Foundation was not able to challenge the expenditures. Thus, the Court dismissed the case without deciding whether the program at issue violated the Establishment Clause.