A key element of any judicial system is who can make use of that system. In 1923, the U.S. Supreme Court took a big step, narrowing the range of individuals who can file suit in federal court to challenge actions by Congress. That step came in Frothingham v. Mellon, a decision giving lawmakers significant protection from constitutional scrutiny.
In Frothingham, the Justices considered the 1921 Sheppard-Towner Act, the federal government’s first venture into social welfare—until then the responsibility of state and local governments. Commonly called “the Maternity Act,” the measure sought to reduce infant mortality—then above 11 percent, far higher than in other industrialized countries—by providing expectant mothers and new parents with access to nurses and to health care information. The law provided $1.2 million yearly to go to states that would match the grants dollar-for-dollar, money to be spent however states wished to achieve the health goals. The law was the first Congressional response to the political power granted women the year before upon ratification of the 19th Amendment. But the 1921 law was not universally hailed; foes included the American Medical Association, which feared that the legislation would open the way for persons other than doctors and nurses to provide medical services.
A problem for the program’s advocates was that it was not entirely clear that Congress had the right to enact such a scheme. Article I of the Constitution lays out in detail the powers of Congress. Since Article I says nothing about improving health conditions, it could be argued that Congress was overstepping its authority in the Maternity Act.
One person certain the law was an unconstitutional expansion of federal power was Harriet A. Frothingham. A veteran political activist generally opposed to progressive-era changes in American society, she had been active in the National Association Opposed to Women’s Suffrage. Upon passage of the 19th Amendment, many of that body’s members formed Women Patriots. Women Patriots opposed birth control and anything they thought smacked of communism or pacificism. The group garnered its greatest press coverage in 1932 with a full-bore—albeit failed—campaign led by long-time Women Patriots president Frothingham to refuse a visa to Albert Einstein.
In challenging the Maternity Act, Frothingham faced a hurdle: under the U.S. system, plaintiffs cannot just ask that courts simply tell Congress it has acted unconstitutionally. Foes of a law must demonstrate that that measure does them actual harm, giving them standing to sue, and that what they are asking the court to do is to stop the executive branch from enforcing the act. But Frothingham’s lawyers saw a way around the issue of standing; they maintained that because she paid taxes, some of which would fund the program, their client had grounds for launching her assault on the Maternity Act. If the program was not constitutionally valid, her property—tax payments—was being taken without due process, violating the Fifth Amendment and making the defendant in the case Secretary of the Treasury Andrew W. Mellon.
Frothingham’s home state of Massachusetts was a hotbed of opposition to the Maternity Act. The Bay State, along with Connecticut and Illinois, spurned the federal money, opting entirely out of the program. In fact, Massachusetts waged its own legal battle against the statute’s constitutionality, claiming that the Maternity Act infringed on matters intended to be exclusively the province of the states. The state’s case was decided by the Supreme Court in a joint decision with Frothingham’s, and most reference works cite the ruling as Massachusetts v. Mellon.
Frothingham lost in the Supreme Court of the District of Columbia, where Chief Justice Walter I. McCoy decreed that “Congress is the body which in the first instance has the duty of deciding whether a proposed law may be constitutionally enacted.” She then took her case to the U.S. Supreme Court. The Justices there never got around to answering Frothingham’s allegation that the Sheppard-Towner Act was unconstitutional. They found, instead, that Frothingham couldn’t bring the case at all. As a taxpayer, they said, she didn’t have enough at stake to claim injury and make the matter a real conflict. The ruling was unanimous.
Oddly enough, in what was then its 132-year history, the high court had never ruled on whether merely being a taxpayer gave a person the right to challenge a Congressional action with only the bald allegation that it was unconstitutionally using federal revenues. When the issue had occasionally come up, the Justices decided the cases on other bases, ignoring the question of taxpayer standing.
When a city tax is involved, the connection is so “direct and immediate” that a taxpayer can challenge an ordinance, Justice George Sutherland said in the Court’s opinion. The same might apply to state legislative actions. “But the relation of a taxpayer of the United States to the Federal Government is very different,” Sutherland noted. “His interest in the moneys of the Treasury—partly realized from taxation and partly from other sources—is shared with millions of others.” This renders the impact on any single taxpayer “comparatively minute and indeterminable…remote, fluctuating and uncertain.” Moreover, he argued, to allow such suits was to open a Pandora’s box. “If one taxpayer may champion and litigate such a cause, every other taxpayer may do the same, not only in respect of the statute here under review, but also in respect of every other appropriation act and statute whose administration requires the outlay of public money and whose validity may be questioned.”
Courts since have cited Frothingham as instruction to toss challenges to federal laws by plaintiffs claiming standing because they have to pay taxes to fund the program. But, as legal scholar John M. Alexander has noted, Sutherland’s stress on how unmanageable it would be for courts to hear a case any time any taxpayer balked at any federal law means that the ruling rides on “considerations of administrative convenience” and “should be interpreted as one of self-restraint and not as a constitutional rule.”
In Flast v. Cohen in 1968 the Justices seconded that reading, saying that lower courts had been too restrained in using their powers, too sweepingly interpreting what Frothingham means. Flast leaves in place the ban on most taxpayer suits, but not all.
The Flast ruling came in a challenge to parts of the 1965 Elementary and Secondary Education Act giving aid to students in parochial as well as public schools. Just as the Maternity Act cited in Frothingham was the first federal social welfare venture, the 1965 law was Washington’s first foray into educational policy, long an exclusively local concern. Florence Flast, president of the United Parents Association of New York City, led seven plaintiffs calling the payment provision for parochial schools a violation of the First Amendment demand that “Congress shall make no law respecting an establishment of religion.” Lower courts had rejected the suit, citing Frothingham, but Chief Justice Earl Warren, with only one dissenter, essentially divided taxpayer challenges to Congressional actions into two groups. Warren explained that the Frothingham ban applies only to claims that Congress has exceeded powers given in Article I. But, Flast establishes, simply paying taxes is enough to get into court with a claim that a law violates a specific constitutional limit on Congressional power.
