Flast v. Cohen

PETITIONER:Flast
RESPONDENT:Cohen
LOCATION:Congress

DOCKET NO.: 416
DECIDED BY: Warren Court (1967-1969)
LOWER COURT:

CITATION: 392 US 83 (1968)
ARGUED: Mar 12, 1968
DECIDED: Jun 10, 1968

Facts of the case

Florence Flast and a group of taxpayers challenged federal legislation that financed the purchase of secular textbooks for use in religious schools. Flast argued that such use of tax money violated the Establishment Clause of the First Amendment. A district court held that the federal courts should defer when confronted with taxpayer suits directed against federal spending programs.

Question

Did Flast, as a taxpayer, have standing to sue the government’s spending program?

Earl Warren:

Number 416, Florence Flast, et al, appellants versus John W. Gardner, Secretary of the Department of Health, Education and Welfare, et al.

Mr. Pfeffer.

Leo Pfeffer:

Mr. Chief Justice and may it please the Court.

This is a suit brought by a group of individual taxpayers residing in the City of New York challenging under both Establishment and Free Exercise Clauses of the First Amendment, the expenditure by the federal government funds to provide teaching services and textbooks and church related sectarian schools, the Government Act pursuant to which interpretation of the Elementary and Secondary Education Acts of 1965.

Our suit was brought and the Government made a motion to dismiss on one ground and one ground only and that is since the plaintiffs were merely taxpayers, under the decision of this Court in Frothingham against Mellon, they did not have standing to challenge the Act and its administration.

We cross moved for the convening of the three-judge courts and Justice Frankel granted our motion and referred to the three-judge court, the question of standing.

This was argued before the chief — before the three-judge court.

By a vote two to one, the Government’s position was upheld and with the dissent by Judge Frankel and our complaint was dismissed.

The sole authority for the dismissal of this complaint, at this level anyway, is that we do not have standing to sue and as Frothingham constitutes barring to a suit by taxpayers, challenging federal expenditures of funds, alleged to be in violation of the First Amendment.

Now, the initial question which the — which we address ourselves to and which the Government addresses itself to in its brief other than the technical question of the three-judge court which I presume the Government will argue, is whether Frothingham presents a constitutional barrier to a taxpayer’s suit.

It’s our contention that unlike the companion suit of Massachusetts against Mellon, which may — which we are willing to concede may have serve as a constitutional barrier to taxpayer suits.

Frothingham was a decided on a party of judicial self-restraint statute rather than constitutional lack of capacity.

I must say that Mr. Justice Brandeis would not concur with my concession because according to Mr. Justice Brandeis, even Massachusetts against Mellon in which the State of Massachusetts brought the suit challenging expenditure, even that was not a case of constitutional lack of competence, but of abstention.

In the classic concurring opinion of Mr. Justice Brandeis in Ashwander against T.V.A., he said, page 341 of 279 U.S., “the Court developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision.

They are at least of five of them, the fifth is the following.

The Court will not pass upon the validity of a statute by complaint of one who failed to show that he is injured by its operations.”

In Massachusetts against Mellon, the challenge of the Federal Maternity Act was not entertained, although made by the Commonwealth on behalf of its citizens.

Now, Justice Brandeis was one of the Justices of the Court which decided Massachusetts and Frothingham.

He participated in the conference and presumably was in the position to know what the Court intended and according to Justice Brandeis, even Massachusetts does not represent a constitutional question under office but on the question of judicial self-restraint.

However for the purpose of our case, we need not go that far and we urge that even if, even if Massachusetts interpret to represent a determination that a state had no constitutional power, for the Court has no constitutional power to hear a case by a state allegedly in behalf of its citizens, this does not apply to the Frothingham against Mellon which was decided simultaneously, but was an entirely separate and independent case by a taxpayer.

Are you going to deal Mr. Pfeffer with the Solicitor General’s three-judge court argument?

Leo Pfeffer:

Yes, I would try to deal with it – if the Court wants I would be glad to deal with it —

Well, that’s threshold question, isn’t it?

Leo Pfeffer:

It was raised for the first time — it was raised for the first time in the — in the answering brief.

If you prefer I’ll —

Well, you do it —

Leo Pfeffer:

I prefer deal with it in our rebuttal, unless the Court prefers —

Earl Warren:

I wonder if we shouldn’t – I wonder if we shouldn’t have that in our minds as we go along because that is a threshold case Mr. Pfeffer and that’s a —

Leo Pfeffer:

Well, then turning to that question, for the first time, in its answering brief, not before Judge Frankel, not before the three-judge court nor the motion to dismiss or affirm, but for the first time in its answering brief, the Court asserts, the Government asserts that this case should have been heard by a single judge and therefore direct appeal is not proper.

Apparently, it’s difficult for me fully to grasp the thrust of the Government’s position, but apparently it appeared that it’s that.

Leo Pfeffer:

Our complaint asserts that the Commissioner of Education had misconstrued the statute and has interpreted to authorize the use of federal funds to finance education in parochial schools.

However, in the alternative, if we are wrong and if the Commissioner did correctly interpret the statute, we assert that the statute to that extent was unconstitutional.

The Government’s position apparently is that we have pleaded in the alternative.

Now we do not initially challenge the statute itself, but only its administration, a three-judge court is improper.

I have examined carefully every single one of the decisions cited by the Government in its brief.

I have penalized every one of these in my reply brief.

I find not a single case cited by the Government or elsewhere which supports that proposition.

On the contrary, I have cited at least five cases in which this Court has held that where you have all kinds of pleadings of this kind and assert first that the statute was not complied with or the governmental agency did not act in compliance with the statutory authority, but in the event it did, that the statute is valid and constitutional.

This Court has held that the three-judge court is the appropriate in direct appeal is the procedure.

What case are you referring to?

Leo Pfeffer:

Well, I’m referring to the following cases, Allen against Grand Central Aircraft, 347 U.S. 535.

The latest case on this is Zemel against Rusk, 381 U.S. 1.

Also Florida Lime and Avocado Growers versus Jacobsen, 362 U.S. 73 and Lee against Bickell of 1934, 292 U.S. 415 and Sterling against Constantin 287 U.S. 387.

So what you’re saying is that if this complaint had two causes of action have set forth the unconstitutional claim and the cause of action in a constitutional claim, you would have — a three-judge court would have been required.

Leo Pfeffer:

Yes sir.

Now, the reason for that I think it’s entirely logical.

Suppose we had not asserted that this — the agency was acting beyond a statutory authority but had a simple one cause of action, the statute to the extent that it authorizes — the statute is unconstitutional because it authorizes this expenditure.

Pursuant to the decisions of this Court consistently, this Court would have insisted from the first week question whether the agency did act in authority with the statute would not reach a constitutional issue if it could find that agency acted beyond its statutory authority in the case after case which I have I cited in my brief where the assertion was that the statute is unconstitutional and of course we don’t reach that.

We’ll only reach that in the event we find that the agency acted pursuant to its statutory authority.

Therefore, in a sense, you might very well say Your Honor.

That our assertion that the agency is acting beyond its statutory authority is mere placid.

We would have done it anyway.

The Court would have to decide that anyway.

It’s therefore quite appropriate, indeed you might very well say if you accept the logic, the Government’s position of three-judge court is never appropriate because in every case, you will have to — you can’t attack a statute on its face.

Once the statute is passed you can’t go to court and get it attacked and get it declared constitutional.

You have to wait until it’s administered and then it comes up to initial question, did the administration complied with the statutory intent?

But that you may find it difficult to appreciate why the Government has thought fit to assert that this case is not proper before it.

One more point on this and I refer — if Your Honors please, I got first to go to the merits.

Suppose the Government is correct, suppose the Government is right, what happens?

The Court – the case is remanded to whom?

Leo Pfeffer:

To Judge Frankel which is the initial judge.

He decided in our favor.

He held we did have, we did have the standing.

We have to therefore go to trial, appeal to the Court of Appeals and then appeal to this Court to which time perhaps this Court would tell us we’re wrong.

Now, we didn’t have that which would mean in a trial unnecessary bearing upon the Government in defending this suit in front of this Court.

Now, if there ever was a case which is ripe for decision, this case is.

It was argued first before Judge Frankel, briefed before him.

It was argued before the three-judge court.

It was argued in our brief.

It was a subject of it as a hearing, extensive hearings by the Senate Judiciary Committee in which every recognized the authority on the subject has testified and given the opinion, been subject of innumerable law review articles and textbooks.

What additional with all due respect to the Court of Appeals, what additional light can another argument before the Court of Appeals and the decision before them shed to help this Court?

Well, that’s a practical argument, but not a legal argument on the equation of jurisdiction.

Leo Pfeffer:

Yes, Your Honor, it’s a practical argument.

Now, returning — returning to the merits of the issue —

Yes, before you leave that, you do say, do you not in your — in your brief, you disclaim any attack on the constitutionality of the statute, this statute?

Leo Pfeffer:

Only if it is interpreted according to what the Government interprets that authorized the conduct which we declare to be unconstitutional.

We believe that the statute can be conserved or preserved by holding that the Court — that the agency or the Commissioner misinterpreted the statute and the authority, it does not have a statutory authority to use public funds for sectarian schools.

Now, returning to Frothingham, we suggest that the examination of the opinion itself and comparison to the opinion with the Massachusetts opinion showed that the Court did not intend there to hold that it lacked constitutional jurisdiction.

To give you one or two, if you want two examples, the Court asserts that if Frothingham were allowed to sue, there would be the danger of a multitude of these civil suits and this is of course the practical point, you pointed out so strong, it’s a practical thing, not jurisdictional.

The Court would not have raised — asserted that practical consideration if the issue is one of jurisdiction.

It will simply say, under this, does not present a case of controversy under Lee therefore we have to dismiss.

But that went into that and it did raise that issue, that practical issue which is an issue relevant to a determination of whether or not to exercise discretionary jurisdiction, but irrelevant where there is no jurisdiction to act at all, no power to act at all.

Similarly, the Court referred to the distinguished case of Bradfield against Roberts.

Bradfield against Roberts, a taxpayer suit, challenging the constitutionality of the expenditure of federal funds to maintain a sectarian hospital in the District of Columbia.

The suit was accepted and was decided on the merits.

In Frothingham, the Court said, “Well, that case is different because that was considered as it if were a suit by a — against a municipal corporation.

I will come to that in a moment, but assuming that is correct, and the Court cited in (Inaudible) in this corporation’s order (Inaudible), I don’t remember what, in a corporation law showing that this is analogous to a stockholder in a corporation, a city is like a municipal corporation and just like a stockholder is allowed to sue in a Court of Equity against waste by the board of directors, so the same way a citizen of a city is considered like a stockholder to sue the board of directors or the mayor or whoever it is for waste.

That too, Your Honors, is a question of equitable discretion.

It’s not a question of constitutional jurisdiction, so the point I am making is that the examination of Frothingham on its face indicates that the basis of the decision was not lack of jurisdictional competence, but a judicial discretion.

Abe Fortas:

Well, Mr. Pfeffer, as I read Frothingham, I would say that it’s based squarely upon separation of powers that for the courts to entertain a stockholder to pay a taxpayer’s action of this sort would be to invade the legislative prerogatives of the Congress for example and that the Court certainly talked in terms of one of jurisdiction, an absence of jurisdiction.

Abe Fortas:

And that the very last sentence in the opinion which I have before me says that to entertain the suit, would be not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and co-equal department and authority which plainly we do not possess, which reads to me as the Court is saying two things.

One, that it does not have jurisdiction and two, that it does not have jurisdiction because of the principles of separation of powers.

Leo Pfeffer:

The — as I interpret that part of the opinion, that last sentence it’s that the Court reached the conclusion in this way.

First, it determines that and the previous language of the Court indicates, it determines that as the Court of Equity it will not entertain on the theory of de minimis a suit by an individual who suffered a de minimis injury.

Therefore, the Court said that this is a decision made by a Court of Equity.

Abe Fortas:

But I followed your argument on that but you did not, you haven’t heretofore addressed yourself to this question of the separation of powers, which as I read the opinion in Frothingham is the basis of it.

Leo Pfeffer:

Mr. Justice Fortas, the separation of power is not ever since Marbury versus Madison is not a jurisdictional power.

The — whatever this Court, whatever this Court has passed upon the constitutionality of an Act of Congress it’s to that extent infringing, if you will, on the concept of separation of powers.

Marbury versus Madison said this is the responsibility of the Court.

And as we indicate —

Abe Fortas:

But Frothingham says there are certain types of actions including that the exercise of the appropriation of power and the determination of how federal moneys which will be expended which are exclusively within the province of the legislative branch of the government and therefore, as I read Frothingham and perhaps I’m wrong, I’m asking for your help, as I read Frothingham where the Court said, “and therefore, we have no jurisdiction on this type of suit.”

Leo Pfeffer:

Mr. Justice Fortas, I don’t read Frothingham that way.

I read Frothingham, the Court’s determination that it will not issue in effect in part of the opinion where it decides first as a Court of Equity, that the plaintiff has no standing therefore dismiss the case, that’s the end, there was therefore no controversy before it.

There was simply an issue, but there was no litigant, therefore in that case, there’s no case of controversy.

Abe Fortas:

Well, if you’re right about that I suppose you would have to take the position that Mr. Justice Sutherland used some language kind of loosely when he said, that by jurisdiction that we do not possess, and said that we have a want of jurisdiction here.

Leo Pfeffer:

The only thing I can reply to that is that, though Mr. Justice Brandeis has interpreted and Mr. Justice Brandeis was on the bench then, and presumably he has with the position to know what was this intended.

This is one loose sentence at the end which I might suggest that if that was case, the Court would have hand it down, a single opinion both in Massachusetts and Frothingham.

It carefully had two of things with different reasoning with different approaches.

Now I also —

Byron R. White:

But absolutely, we’re talking about equity jurisdiction?

Leo Pfeffer:

I beg your pardon?

Yes, perhaps an equity jurisdiction.

Now, equity that’s my argument.

They’re talking about equity jurisdiction which is not a question of oxley not a question of constitutional jurisdiction.

Hugo L. Black:

What do you understand was meant by that last sentence?

Leo Pfeffer:

Pardon?

Hugo L. Black:

What do you understand was meant by that last sentence?

Leo Pfeffer:

My —

Hugo L. Black:

Was that a legislative power to enact laws, and therefore we can’t consider the constitutionality of any outcome?

Leo Pfeffer:

No, I trust that’s not what he intended to say, couldn’t possibly have.

Hugo L. Black:

That seems to be the reading interpretation of my Brother Fortas’ case now.

Leo Pfeffer:

Well, I tried to find that relationship, but other than the possibly, loose use of concluding sentence which there may be more accurate psychological explanation for —

Hugo L. Black:

I assume that if you take the position that’s Marbury versus Madison was decided, this Court does have found, passed on the constitutionality of legislation whether the corporations or other things.

Leo Pfeffer:

Indeed it does and in my brief, I have listed and analyzed many cases, many cases both before and after Frothingham.

It was the Court which did exactly that in suits by taxpayers.

I have just cited two for the lack of — the others are all in my brief. One of the case is Wilson against Shaw in which the Court accepted jurisdiction, decided on the merits on a taxpayer suit challenging the building of Panama Canal, the expansion of the Panama Canal.

Now the Court took that.

If this were a case of competence, judicial incompetence, lack of judicial competence, now the Court would never have proper merits for it.

Abe Fortas:

Well, your position in Frothingham is that the Court had jurisdiction that the suit was properly brought by a taxpayer that the Court might have passed on the constitutionality of the Maternity Act and that it’s merely declined to do so in the exercise of its discretion or something of the sort, is that right?

Leo Pfeffer:

Yes, that’s exactly my position.

Now, assuming — assuming —

Potter Stewart:

Wilson against Shaw of course was that — was before Frothingham and I suppose the Government counsel says that Frothingham simply overruled it.

Leo Pfeffer:

Yes.

In fact the Government does so contend.

The Government does so contend that Wilson against Shaw is overruled by Frothingham.

Well, if that’s so then I ask this Court to overrule Frothingham, but what one Court can do another Court can undo, but I don’t think — I don’t think that the Court intended to overrule Frothingham or with to overrule Shaw, it did not face them.

It said that Wilson against Shaw and Bradfield against Roberts, and the other case the question was reserved.

Now, our argument that this by the Court in Frothingham saying that no case or the question was reserved is the determination that the issue is not one of jurisdictional power or jurisdictional — judicial power, but judicial discretion because ever since the earliest time of the Supreme Court, it does not give a advisory opinion.

There must be a case of controversy.

Therefore, when it did decide on the merits in all those cases even though the question of standing was raised and it was consciously considered by the Court, it nevertheless proceeded to decide it on the merits.

I can offer no explanation for that other than a finding, a determination, yes we do have — we do have jurisdiction under the Constitution.

Now what the Court said in Frothingham by interpreting this “at the most we made a mistake in exercising the jurisdiction we have.

Perhaps, we shouldn’t.

In this case, we will not make that mistake.

We will not exercise the jurisdiction we have,” but it could — did not say that those cases were erroneously decided on the question of jurisdiction, but only perhaps on the question of judicial discretion.

Now, since Frothingham, — I want to say one word about Bradfield against Roberts, this is just a case directly in point to our case.

It was absolutely the same as our case.

It indicates that it did intend to overrule Bradfield against Roberts is the fact that they sought to distinguish it — Mr. Justice Sutherland so distinguishes it in Frothingham, that doesn’t indicate an intent to overrule.

How did they seek to distinguish it?

He said, “that was treated by the lower court as if it were a suit against a municipal corporation, a taxpayer’s suit against a municipal corporation and of course said that we consider those somewhat similar to a stockholder’s suit and therefore we accept it.”

Leo Pfeffer:

We have argued that if that is so, we’re trying to doubt the validity of that distinction because many — there’s a variety of reasons which we have set forth in our brief, but even if that were so, then this case is exactly our old force with Bradfield against Roberts.

Bradfield against Roberts was a suit not against the municipal government of the District of Columbia, Mr. Roberts was the Secretary of Treasury of the United States.

The expenditures which were challenged were the building of a hospital didn’t come from taxes paid exclusively by residents of District of Columbia.

It was paid, came out of the General Treasury of the United States, paid off by 120 million Americans at that time.

The suit was defended not by the corporation council of the District of Columbia but by the Attorney General of the United States.

There was a corporation, a municipal corporation in sense of — but they were the instrumentality by which the money was passed over to the sectarian institutions.

Every one of these factors are present here.

Our suit is against a national official, the Secretary of Health, Education and Welfare and Special Education not local.

It’s being defended by the Department of Justice not by the corporation counsel of City of New York and all on respect it’s entirely identical.

Earl Warren:

We’ll recess now Mr. Pfeffer.

Leo Pfeffer:

Just one short addendum on the point raised by Mr. Justice Fortas about the separation of powers.

I think it is important to emphasize that this is a First Amendment case.

This is a – indeed it invoked the opening words of the Bill of Rights, Congress will make no law establishment of religion or prohibiting the free exercise thereof.

In respect to the First Amendment, I think separation of powers argument is least apposite.

I will remind, Your Honors, of the classic statement in Barnette, West Virginia against Barnette case that the very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of the majorities and officials to establish them as legal principles to be applied by the courts.

One’s the right for life, liberty, and property, free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote; they depend on the outcome of no election.

Now I have set forth in my brief prior number of cases after Frothingham in which taxpayer suits similar to the present one were accepted by this Court.

Because of lack of time I will rely on my brief rather than to summarize those cases.

I come now to the — well, I believe the major consideration, should the Court exercise that discretion which the Constitution gives it in accepting or rejecting this similar case.

Initially, I want to make one point that should the Court decide to follow the discretion of Frothingham and hold that the plaintiffs in this case can’t sue, or the plaintiffs — taxpayers cannot sue in any First Amendment case on the Establishment Clause involving expense through federal funds then there were simply no way, none that I know of, whereby a congressional act granting a million dollars to a church, to build a church can be challenged in the courts.

Potter Stewart:

Well, the Solicitor General’s brief suggest a variety of possible ways?

Leo Pfeffer:

The Solicitor General’s suggests a variety of the — none of which are applicable to this case.

The Solicitor General suggests for example that the state can conceivably sue to challenge the constitutionality of the application of this law.

But the stand of New York has taken the position that this is not, it has no jurisdiction here.

New York had — where this case originated, New York has a constitutional provision specifically forbidding, specifically forbidding this type of expenditure which is being carried on under the Federal Act by the Commissioner of Education.

And an opinion which was requested of the Attorney General of the State of New York and I have furnished the clerk of this Court the copy of that opinion and the opinion of the counsel for State Department of Education, asking whether — the question was, could the State of New York cooperate whether the — from the case of a Federal Act because of its own constitutional prohibitions?

The Attorney General of New York and attorney for Commissioner of Education said, “Yes, because this is not state money.”

The State of New York is merely acting as the conduit, merely acting as conduit to transfer the federal money to the schools.

Now, the federal government takes a position that this is state responsibility, the state’s exposition is that this is the federal responsibility.

The result is, nobody can challenge.

Leo Pfeffer:

The State of New York says, “We have no grievance because not a penny of our money is being involved here.

Now, there is many reasons why the court should take jurisdiction of this case.

First and foremost, this is — the issues in this case are just the type of questions which a court should have defied upon on the day this Court was established in 1789.

This is a forum to determine the constitutional application of federal statutes.

There is no other forum.

Second, this is a First Amendment case.

The court, the federal courts ever since the Bill of Rights was written, it hasn’t been pointed out, they definitely pointed out, the debate on having the Bill of Rights, that the courts are the peculiar guardians of the Bill of Rights.

It is to the courts which an aggrieved citizen goes to, to determine whether the Bill of Rights is being adhered to or violated.

This would be the only case, the only area of the Bill of Rights which would tie for want of practical reasons.

There is no other part of the the Bill of Rights, from the First through to the Tenth Amendment or the Eight Amendment, which isn’t somebody who can go to the courts and get a judicial determination, except if Frothingham is followed except this.

For all practical purposes, this constitutes, you might almost say, a repeal of the Bill of Establishments Clause insofar as it concerns governmental expenditures.

Byron R. White:

Were you — did you — do you suggest that the government’s position would mean that there was absolutely no one to do that, there are other kinds of parties I suppose, but the Government you think would object to them too.

Leo Pfeffer:

I have said, I have no doubt that they would object to them nor do I concede of any case.

All I can say is that there never has been a case that I know of in which a government would probably have challenged the federal expenditure under the First Amendment.

I’ve know of no such case.

Moreover, if the — this case is barred —

Byron R. White:

Don’t you think the state or what about the state or the authority within a state, if the plan they submitted was not approved by the Secretary on the grounds that it didn’t comply with the act in that benefits were not allocated to a certain private school?

Leo Pfeffer:

Well, the states have done, at least one, two other states have followed the opinion of the New York Attorney General in saying that they can that those private — that the state can’t act as a conduit to transfer the money to the private school because as they have no grievance.

They have no grievance one way, they are completely without grievance.

If the money can be transferred in the deal — on the type of two the state has very relatively minor part in this Act.

Byron R. White:

Yes.

But they are the ones who originated the plan, aren’t they?

Leo Pfeffer:

They — ones originate the plan as —

Byron R. White:

But the Attorney General of New York doesn’t require them to present a plan which involves this particular kind of money expenditure?

Leo Pfeffer:

It doesn’t have an authorized — it authorized this.

Byron R. White:

But if the local administrator wanted to submit a plan without these disbursements and I suppose he could and if it were turned down, he might have legitimate complaint.

Leo Pfeffer:

I don’t know.

I don’t know if we have time to get around.

You might very well argue that [Indiscernible] has no standing.

Byron R. White:

How about the Massachusetts case?

Leo Pfeffer:

I presume Massachusetts know why a suit brought in the sense by the State of Massachusetts on behalf of its residents.

Now, there is one — another factor which the Government has asserted in its brief which I want to call the Court’s attention to.

The contention that the issues in this case are very complex and therefore it’s not in — the taxpayer’s action is not appropriate means of securing the judicial determination of it.

I suggest to Your Honors that the issues in this case are relatively simple, child’s play, compared to those which were involved in apportionment cases.

Apportionment cases that involve congressional districts, state upper chamber districts, state lower chamber districts under the committee of municipal districts, municipal apportionment districts, each district, each of these districts is an island to itself must be decided by a Court individually.

Yet the Court has taken ever since Baker against Carr, has taken suits which are the equivalent of taxpayers suit, a suit of an individual citizen.

One individual citizen who has relationship to the whole area of representation is similar to a taxpayer’s relationship to the expenditure of federal funds.

He is in the same concept, the same category of de minimis.

There is anything hardly more de minimis than the value of an individual citizen both in respect to, let’s say, congressional representation which represents the half the million people.

Yet this Court ever since Baker versus Carr and even before Baker against Carr, never had the problems of that, never doubted that the individual citizens whose interest is so minute nevertheless has standing to bring this suit.

And as I say, the issue there is far more complex than the issues here.

The point of the matter is that de minimis on which filing was based has no relevancy under the First Amendment and it doesn’t have under the citizenship’s right to participate in — select to represent this government.

Abe Fortas:

Could you — would you make any distinction between or among the types of cases that taxpayers may bring, that is may a taxpayer — would a taxpayer have standing to attack for example, the constitutionality of appropriations for welfare funds or the constitutionality of expenditures for farm subsidies and that sort of thing?

Leo Pfeffer:

Constitution — as far as constitutional jurisdiction is concerned, no, as far as judicial discretion is concerned, yes.

This Court had —

Abe Fortas:

What is this discretion business?

You mean to say that we can decide that we will or will not entertain suits without any later hindrance, there being no alternative forum?

Leo Pfeffer:

What I am —

Abe Fortas:

Is that a matter of complete discretion in the Court?

Leo Pfeffer:

Well, discretion is a broad sense.

What I’m referring it to Justice Brandies’ rules of self-governance as set forth in the Ashwander against TVA.

He said over the years, this Court has developed a pattern of what case it will take, what case it will not take.

Abe Fortas:

Well, I not talking about this Court, the federal, we’re talking about the federal courts.

Now, can they — can the district courts although the proposition is established that a taxpayer has standing to challenge any sort of expenditure of federal funds.

If that proposition were established, could a District Court say, we’ll enter, you have standing to attack this kind, but not the other kind and on what basis would you draw such a line?

Leo Pfeffer:

This Court had a supervisory capacity over to this question in the District Court.

Abe Fortas:

I know, I’m raising questions of what is the discretion?

Whether it’s a matter of discretion of the court or whether the taxpayer has a right to maintain the suit and therefore the District Court has a duty to entertain it?

Leo Pfeffer:

No.

This Court can very well hold that where there is a First Amendment right involved, the court’s sound discretion is required the acceptance of the suit, pure due process.

Abe Fortas:

Alright, apart from sound discretion, is it your submission that a taxpayer has standing to challenge the appropriation and expenditure of federal funds where that challenge is based upon alleged violation of the First Amendment, but not otherwise.

Is that your submission?

Leo Pfeffer:

All I can say is that the Wilson against Shaw, the court took jurisdiction of the suit against Panama Canal?

Abe Fortas:

Well, that — I’m afraid that doesn’t help me very much.

Leo Pfeffer:

And — oh, I am saying that the Court has jurisdiction.

I’m convinced the Court has jurisdiction even if there were no First Amendment case.

I do not have, just —

Abe Fortas:

In other words, you draw — you make no distinction, whatever —

Leo Pfeffer:

On the first —

Abe Fortas:

— that there is jurisdiction that taxpayer’s standing to challenge any federal appropriation and that means that this — that the Congress passes a law, authorizing certain expenditures for let’s say, farm subsidy or welfare program and that means that a taxpayer can go into a District Court.

And the District Court if it is so minded would have a — the District Court has jurisdiction and if it’s so minded, it could for example issue a restraining order and temporary injunction pendente lite, right?

Leo Pfeffer:

Yes, as far as [Indiscernible] is concerned and as far as the system is concerned, yes.

I find nothing in the case of this Court which is decided to contrary.

I am now yielding 10 minutes of my time for Senator Ervin and I will reserve 10 minutes for rebuttal.

Thank you.

Earl Warren:

Senator Ervin.

Sam J. Ervin, Jr.:

Mr. Chief Justice, may it please the Court.

Judge Sutherland might well have stopped in the Frothingham case with his holding that the plaintiff attempted to attack the economic interest and our economic interest was so indeterminate and immeasurable as he could not invoke the preventive powers of Court of Equity.

He didn’t stop there however and he made other remarks which have been — which stated in substance that a plaintiff does not have standing to attack an Act of Congress, unless he can establish that he has been injured directly and not merely in some indefinite way uncommon with people generally.

Now, as we noted that the Frothingham case does not say that a plaintiff will not be barred from prosecuting his suit merely because his injury is held in common with others.

If the plaintiff injures or if this reasonably direct to defer.

The First Amendment insofar as the statute was concerned was based in the Constitution tot make effective the decoration of the Thomas Jefferson statute for religious freedom in to — in Virginia that it compelled them make contributions of money for the dissemination of religious opinion.

He does believe is more simple and ironic.

By adding that into the First Amendment, the Establishment Clause, they all go make [Indiscernible] and simple but also unconstitutional.

I maintain that a First Amendment case is different from a case generally that an appropriation on expenditure or the violation on the First Amendment of the entire — on entirely different footing from an appropriation or disbursement authorized by an Act of Congress didn’t list, but the case in the Frothingham case.

I respectfully submit that on a fair analysis of the Frothingham case that has nothing whatever to do with the case at bar.

The — under the First Amendment, every American has the constitutional rights not to be taxed or to have his tax money expended for the establishment of religion in violation of the Establishment Clause.

This is the — not some remote indefinite right but it is a — it is the direct interest.

It is something in which he has a personal to stake just as a plaintiff in Baker and Carr had a personal state in not having his vote diluted.

So you have in this case, taxpayers, citizens taxpayers.

Sam J. Ervin, Jr.:

You have them with a specific — right under the First Amendment not to be taxed or to have that tax money expended in violation of the amendment.

In addition to that you have them as — in the capacity as taxpayers or alleging that federal funds, federal tax moneys to which they have contributed as taxpayers about to be used by the Secretary of Health, Education and Welfare and the Commission of Education to establish religion in violation of the First Amendment.

Now, it is absolutely essential, unless we’re going to amend the – for all intents and practical purposes, if this Court does not have jurisdiction or federal courts does not jurisdiction to pass on this claim, it will for all practical intents and purposes make a dead parchment out of a part of the Establishment Clause of the First Amendment because effect of the — or lack of judicial review in claims of this kind would be to say that Congress shall pass no laws respecting an establishment of religion provided that Congress may pass laws appropriating and authorizing the disbursement of tax moneys to establish religion.

This is in the — this First Amendment provision — of this — as late Mr. Justice Jackson so well said on one occasion was placed first in the Bill of Rights because it was first in the minds and the hearts of those who drafted and ratified the Bill of Rights.

And this Court — other decisions of this Court, there is a way to obtain judicial review of every denial, of any right created by the Bill of Rights with the exception of these rights under the Establishment Clause of the First Amendment, if the position of the Government prevails in this case.

Mr. Pfeffer, pointed them out a moment ago, the great decision in which this Court declared that the right of Americans to enjoy the rights vouchsafed to them by the Democrats does not depend upon any election, does not depend on any vote.

But these are rights which are particularly within the guardianship of this Court and certainly, in cases like Baker against Carr where this Court said that a man had a personal stake and he had an concrete adverse position to those on the other side of the case, was the case in which the federal courts had jurisdiction.

That’s the situation.

Here, all these taxpayers, these citizens who have a constitutional right under the First Amendment are to be taxed or to have their taxes extended for the establishment of religion in violation of the First Amendment.

That’s a direct interest.

That’s a serious personal stake.

And every American citizen, who has a personal stake in seeing that the independence of government from religion and the independence of religion from the government observed and when the Congress give — our executive branch of the government, even in a violation of the Act of Congress on the take — to take federal tax moneys and they have them expended to establish religion in violation to the First Amendment then a justiciable controversy rises because of the interpretation of the First Amendment is necessary, the decision of the controversy and those who have such a serious — in such a direct, in such a personal stake in maintaining the separation of church and state as decreed by the First Amendment have standing to sue —

Byron R. White:

Well, Mr. — Senator what do you with the Doremus and that was —

Sam J. Ervin, Jr.:

And that —

Byron R. White:

That was Mr. Jackson too?

Sam J. Ervin, Jr.:

Yes.

In that case the plaintiff, two plaintiffs, one of whom had a child in the school and both of whom were taxpayers.

They brought a suit, to test of the validity under the First Amendment of the New Jersey statute which provided for the reading of three or four verses from the bible —

Byron R. White:

You don’t suggest it would’ve been different if there’s just been actually expenditures with —

Sam J. Ervin, Jr.:

[Indiscernible] independence of the action, the child of one of the plaintiffs, finished his school and was not in school at the time the suit was tried and of course as far as — the jurisdiction was based upon the claim of the parent that was the establishment of religion or denial free exercise which was concerned became moot.

The Court held was held as far as the taxpayers were concerned that they did not allege as do the taxpayers in this case that the reading of these — three or four verses of the bible entailed any increased outlay of money.

So there was no question of expenditure of tax bonds involved in the Doremus case.

Byron R. White:

That’s your reading of Doremus?

Sam J. Ervin, Jr.:

Yes.

Byron R. White:

Do they involve no —

Sam J. Ervin, Jr.:

No taxes.

Byron R. White:

No money at all?

Sam J. Ervin, Jr.:

They didn’t allege that any increase in taxes had been occasioned by the reading of this three or four verses from the bible.

It is defied up — here because a great expenditure of tax money was involved.

So that’s the reason that Doremus case has no application here and I say that when you take the fact that you have these people, who have a direct, who have an interest and a personal stake in maintaining the separation of church and state and in not having therefore — their tax moneys used to establish religion in violation of the First Amendment, it is in my mind the clear case of standing in these plaintiffs to sue.

Earl Warren:

Mr. Solicitor General.

Erwin N. Griswold:

Mr. Chief Justice and may it please the Court.

The basic charge in this suit is that two high officers of the federal government have acted improperly.

It’s irrelevant, but I think it highlights the abstract nature of the case to point out that the first of the defendants is no longer in office.

I don’t know what’s the name of the case is now.

It isn’t Flast against Gardner.

The essence of the charge is that these officers have misapplied an Act of Congress or more accurately that they have allowed others, state school officials to make such a misapplication.

As indicated in our brief, we raised first the question whether this Court has jurisdiction of this appeal or putting it in another way, whether this was a case which was required by any Act of Congress to be heard by a District Court of three judges.

In examining this question, I will ask the court to look in three places.

First, the complaint filed in the District Court; second, the text of the statute itself and third, the arguments made here by the appellants.

The complaint begins on page 5 of the joint appendix which from the course of habit, I suspect I will call the record.

It’s carefully drawn by skilled lawyers and I would suppose it could be taken at face value.

Incidentally, it makes no allegation whatever that the plaintiffs’ tax liabilities have been increased by a reason of anything that has been done.

Let me call attention first on page 6A of the record to paragraphs 8 and 9 where it is alleged under the heading, factual allegations higher on the page, it was not the intent of Congress in enacting Title I, Section 205 (a) (2) to require local educational agencies in order to qualify for federal funds to violate the prohibitions of the First Amendment.

In other words, they are contending that the statute properly construed, does not provide for any violation.

And then in paragraph 9, there is a very interesting allegation, “there are many programs within the meaning of Title I of the Elementary and Secondary Education Act of 1965 which could practicably be instituted by local educational agencies which would qualify them for the receipt of federal funds under the Act, but which would not violate the provisions of the federal constitution.”

In other words, the act, the alleged is constitutional.

And then finally on paragraph 11, “on inspiration and belief, it is feasible and practicable for the Board of Education of the City of New York to,” it says expand, I assume it means, expend this — to — no, it is expand, “to expand this constitutional programs and institute other constitutional programs and thereby qualify for and receive all the federal funds to which it is entitled under the Act.

Then the complaint goes on to a heading on page 9 under causes of action and there are two causes of action, paragraph 16, first count.

“The determination and action of the defendants violate the First Amendment of the United States Constitution in that they,” now that’s the determination and action of the defendants which is the question of construing the statute, not that the statute is invalid, “constitute a law respecting an establishment of religion.”

And summarily in the paragraph 17 of the second count, “the determination and action of the defendants,” again it is the construction made by the defendants which is charged not the statute itself and finally, at the bottom of the page, payers for relief, paragraph 21, the last full line, they referred, they asked the court to declare unconstitutional the determination and action of the defendants.

On the page 10, the complaint does move a little further.

It starts out to say that the determination and action of the defendants should be declared unconstitutional and then almost as an afterthought and with no factual allegation to support it, they ask in the alternative if such determination and action are within the authority and in the intent of the Act, the Act is to that extent unconstitutional and void and that phrase is the only thing in the complaint which either asserts or presents any facts.

Thurgood Marshall:

Well General, how about 13 on page 8A where the alleged money is the — already has been spent and will be spent, the Secretary of Education?

Erwin N. Griswold:

They alleged that it has been.

They make — that is a completely allegation.

It makes no reference to any particular place, any particular school.

No way to tell what are the circumstances surrounding that and I think it is appropriate to observe that that does tie in with the argument about unconstitutionality.

But let me refer next to the statute itself.

Much of it though not all of it, is printed in the appendix to the appellants’ brief beginning on page 57.

Erwin N. Griswold:

It’s a long statute and obviously very carefully drawn.

This is the blue covered brief.

It’s obviously an Educational and Welfare Act by which Congress sought as it stated in the opening declaration of policy to recognize the special educational needs of children of low income families.

And the fact that special problems are created because such children tend to be concentrated in certain areas and the desire of Congress to assist local educational agencies with concentrations of children from low income families to expand and improve their programs in order to contribute particularly to meeting the specially — special educational needs of educationally deprived children.

The statute then contains provision for grants to the states either directly or though local education or agencies.

The applications of the local educational agencies must be approved by the appropriate state, educational agency and this approval requires a determination of several factors, and that I would call the Court’s attention to material in Section 205 on page 63 of the appellant’s brief.

205 (a) (1) that payments under this Title will be used for programs and projects which are designed to meet the special educational needs of educationally deprived children in school attendance areas having high concentration of children from low income families.

And then I would call attention to the — of the Court to the provisions for judicial review which appear on page 69 and then to Title II which relates to library resources where Congress directs the Commissioner to carry out a program for making grants for the acquisition of school library resources, textbooks and other printed and published instructional materials for the use of children and teachers in public and private elementary and secondary schools.

On page 74 in Section 203 (a) (3) (b), the states are required to provide assurance that to the extent consistent with law such library and textbook facilities will be provided on an equitable basis.

And there are provisions on page 75 in the same Section which require that the expenditures shall in no case supplant state, local and private school funds.

And finally on page 76 in Section 205, it is expressly provided that title to library resources, textbooks and other printed and published instructional materials furnished pursuant to this title and control and administration of their use shall vest only in a public agency.

And then finally again on page 77, there is provision for judicial review and there is also provision in Section 206 that the Commissioner shall watch and see that there is no change in the plan which has been provided.

Hugo L. Black:

May I ask you, I looked at all these.

Do you claim that any of them detracts the plain allegation of the Bill, that the Bill provides for using money to give to state churches, to state schools, to public church school?

Erwin N. Griswold:

Yes, Mr. Justice, I contend, there’s one more Section of the statute that helps in this contention that the statute is perfectly, plainly constitutional on its face.

Hugo L. Black:

I understand that but I’m talking about the acute issue they raise that it’s not constitutional because it provides for the appropriation of tax-raised funds to operate church schools.

Erwin N. Griswold:

I am trying to contend at this point in my argument, Mr. Justice, that their contention is directed not against the statute, but against the administration of the statute and if it is against the administration of the statute, it was not a case which called for a three-judge court and therefore does not lie within the —

Hugo L. Black:

You’re limiting your reference to this to that subject.

Erwin N. Griswold:

At this point, I am discussing simply the jurisdictional question.

I do want to refer to what I will now call Section 805 of the Act, and I think I should explain this because the Court may in looking and checking on this may find some problem.

This was first enacted in 1965 as Section 605 and then in 1966, the Act was amended and this was changed to Section 705.

William J. Brennan, Jr.:

Where is the text?

Erwin N. Griswold:

And this is not —

William J. Brennan, Jr.:

Where is the text of this one?

Erwin N. Griswold:

It is summarized on page 4 of the Government’s brief.

William J. Brennan, Jr.:

Thank you.

Erwin N. Griswold:

The last part of the last full paragraph on page 4 contains practically all of it, but I’ll read the full text of Section 705 which is three-and-a-half lines long.

“Nothing contained in this Act shall be construed to authorize the making of any payment under this Act or under any Act amended by this Act for religious worship or instruction.”

That is Section — now Section 805.

Now, finally, let me turn to the —

Abe Fortas:

Well, does that really help you, Mr. Solicitor General?

Does that help you because I —

Erwin N. Griswold:

I think it helps to support the proposition that the complaint here and all of the contentions are against the administration of the Act and not against the Act.

Abe Fortas:

Well, I understand your point up to 705 of the complaint and the complaint alleges as I understand it not that funds are being expended for religious instruction, but they are being expended for instruction in religious schools and that is unconstitutional.

The complaint —

Erwin N. Griswold:

And I would suggest to the Court that that is not enough of an allegation without any factual basis to support it, to support the contention that the statute is unconstitutional.

Now, let us turn to the brief which was filed by the appellees, by the appellants in this Court.

This reinforces the position taken in their pleading.

It makes it plain that they are talking about administration and not about the basic constitutionality of the statute.

Indeed, at page 4 of the brief as already been pointed out, the appellant expressly states, first two lines of the last paragraph on that page, “the plaintiffs do not count the constitutionality of the Elementary and Secondary Education Act of 1965.”

They then quote paragraph 9 of their complaint to which I’ve already referred in which they assert that there are many ways in which the statute can be administered constitutionally.

Now, let me also point out two other items on page 4 of their brief.

One of the contentions that was made in the District Court and which is relevant here is that in this suit as taxpayers they are federal taxpayers and if they have standing to question things in New York, they have as much standing to question was being done in California, Hawaii, and I guess Guam as what happens in New York and they tried to cut that down in the District Court and the statement at the top of page 4 that the plaintiffs through their attorney expressly stated that this case was to be deemed one limited to the practices of the New York City Board of Education not what the federal officer join but the New York City Board of Education.

And the last line and a half of the following paragraph, “to defend only the programs and practices engaged within the City of New York.”

Abe Fortas:

I thought you think that’s really surely clear that they mean something a little different from, what I understand you to imply, what they’re saying is they’re attacking the actions of the Secretary of Health, Education, and Welfare in approving the plan of New York.

Erwin N. Griswold:

Well, I think so, but let’s take a look at page 17 of their brief.

Just above the middle of the page about 10 lines down on page 17, they say the complaint in the present suit should not have been dismissed for it too should have been deemed a suit against the municipality.

Now the only municipality would be that of the City of New York.

A similar statement is made at the bottom of page 24 where we are told that this Court has jurisdiction of this case even if it be deemed a suit against the federal government rather than the Board of Education of the City of New York.

I’m not here representing the Board of Education of the City of New York, but the appellants seem to regard this as a suit against those officers.

Potter Stewart:

Didn’t I read in the briefs somewhere that there is pending litigation in the state courts attacking this?

Erwin N. Griswold:

Yes, Mr. Justice there is pending a case there and that seems to me they go to what you might call equity jurisdiction in this case.

That is the case where the defendants against whom they do have a charge are in court and where this matter might be decided and it’s seems to me rather difficult to sustain the proposition that high federal officers should come in here to defend a matter which turns largely on actions done by state administrative officers.

Finally on pages 52 —

Potter Stewart:

Is there a reference to the caption and file of that case and then where it is, I suppose that’s a matter of the court’s judicial notice?

Erwin N. Griswold:

Yes, it cited in our brief, but I’m not — it’s in a footnote, but I am not sure that I can turn to it at once.

Potter Stewart:

Well, —

Thurgood Marshall:

Isn’t it true that reply briefs are the copy that’s been filed with the clerk of the New York action?

Erwin N. Griswold:

A copy of the —

Thurgood Marshall:

New York Action has been filed with the clerk of this Court?

Erwin N. Griswold:

That may be, I’m not — well.

Thurgood Marshall:

And is also — is it correct that it has no attack on Title II of the New York action?

Erwin N. Griswold:

I do not know Mr. Justice.

Thurgood Marshall:

Well, I don’t see how we can decide without reading it whether it affects this case of not.

Erwin N. Griswold:

I’m not contending that it does materially affect this case.

Thurgood Marshall:

But as a matter of fact, the only thing we passed on is this complaint.

Erwin N. Griswold:

The only thing that is before the Court is this complaint and I am suggesting that a complaint which does not in effect allege any facts with respect to the defendants in the complaint does not present the issue which the parties seek to present here.

Let met finally call attention to pages 52 and 53 of the appellees’ brief where twice they say that what they are contending against is the administration of the Elementary and Secondary Education Act.

Byron R. White:

Well, wouldn’t that be the – if what you say is the proper construction of the complaint there is really nothing stated against these defendants.

Do you think that it comes out to a jurisdictional question of standing or shouldn’t it be just a motion to dismiss or failure to complaint?

Erwin N. Griswold:

It would have been a motion to dismiss Mr. Justice if it were not for the fact that the Court had found probable jurisdiction.

So we thought it appropriate to raise the question in our brief.

It is our duty to raise jurisdictional questions whenever they —

Byron R. White:

Well, I agree with that, I agree with that.

I certainly would agree with that but the argument doesn’t state the facts against these sentences of standing problem, but it is just a failure to state a cause of action.

Erwin N. Griswold:

Well, I will get to that in the next portion of my argument.

But to conclude on the jurisdictional question, this Court has made it clear in many cases that Congress did not intend to require three-judge court with attendant direct appeal when and I’m quoting, “when administrative action and not the Act of Congress is the sale.”

Here the appellants expressly disclaim any attack on the constitutionality of the statute.

As this Court said in the Ex parte Bransford where the complaint seeks an injunction on the ground that the unconstitutionality of the result obtained by the use of a statute which does not attack this unconstitutional, no special court is required where the attack is aimed at an allegedly erroneous administrative action.

However this question was raised [Indiscernible]

Erwin N. Griswold:

Mr. Justice, I think that it first became apparent to us when we read the appellants’ brief and found that striking statement at the beginning that no charge is made against the constitutionality of this statute.

Of course, you understand the cause, why not [Indiscernible]

Erwin N. Griswold:

Of standard fall on —

On the pleadings.

Erwin N. Griswold:

I agree on the pleadings and that led us to reexamine the pleadings and when we re-examined the pleadings we found repeated allegations relating to the administration of the Act and only incidental, but seemed to us afterthought allegations relating to the constitutionality of the statute.

I now turn to the other jurisdictional question in this case.

It might be known as Frothingham revisited where the setting here is extraordinarily close to that which was actually involved in the Frothingham case.

Among other things that was a welfare statute.

The Maternity Act of 1921, it called for payments to be made to State Child Welfare or Hygiene agencies.

The states were required to present detailed plans for carrying out the provisions of the Act and for approval of a newly created Board of Maternity and Infant Hygiene composed of the Chief of the Children’s Bureau of the Department of Labor, the Surgeon General and the Commissioner of Education, the same officer who is involved here.

Erwin N. Griswold:

I did not have a chance to carry out some research and find out whether some of the money actually expended under the Maternity Act of 1921 was used in Presbyterian or Jewish hospitals, but I think is very likely that it was.

In the Frothingham case, this Court held that a taxpayer could not maintain a suit to enjoin an expenditure under that Act.

With the benefit of hindsight —

Potter Stewart:

You suggested, I think here that long ago that an attack might have been made upon that Act upon First Amendment ground if as you suspect or suppose some of the money was used in Presbyterian or Methodist or Roman Catholic or Jewish hospitals, was that — that was the point (Voice Overlap).

Erwin N. Griswold:

That was — that would have been —

Potter Stewart:

That would have suggested?

Erwin N. Griswold:

— possible to make such an attack.

Potter Stewart:

But the fact is that there was no attack in that case upon the legislation upon the grounds of the First Amendment.

Erwin N. Griswold:

No, Mr. Justice.

I was merely trying to point out that cases are extraordinarily parallel.

Potter Stewart:

Well, the attack there was based on the Tenth Amendment, wasn’t it?

Erwin N. Griswold:

The attack made by the Commonwealth of Massachusetts was based on the Tenth Amendment.

Potter Stewart:

And Mrs. — does the Frothingham party was based on what constitutional provision?

Erwin N. Griswold:

I don’t quite know.

Potter Stewart:

I thought the Tenth Amendment.

Erwin N. Griswold:

Due process perhaps, taking of her money without proper constitutional warrant.

Potter Stewart:

I thought it was the Tenth Amendment.

Erwin N. Griswold:

I have no doubt he relied in part on the Tenth Amendment, but not sue it.

I think that it can be said that with the benefit of hindsight the result that was reached in the Frothingham case was a fortunate one.

The case has served us well.

It’s not operated to shield great illegality on the part of either the federal government or the states.

With the Frothingham on the books, this Court has had ample room to move around to fulfill its function and our constitutional and federal system.

If the rule had not been so long established, it would still be a good one.

There is no occasion, we contend, to overturn a doctrine which has functioned well and has stood the test of time.

One of the first cases that came before this Court was Hayburn’s case in 2 Dallas in 1792.

There the Court made up of judges who were familiar with the framing of the Constitution declined to decide a friendly suit designed to get an opinion on a legal question with which government officers were confronted.

During the same decade, the Court concluded that it was not give an advisory opinion at the request of President Washington.

Affirming him against Mellon was, I submit, simply a modern exemplar of the doctrine so clearly stated in the early days of the Court.

It has been explained in various ways as a matter of case or controversy, as a matter standing, as a matter of judicial denial or judicial self-limitation, as something akin to the rule of the court will not decide political questions and so on.

I think it partakes of all of these things and that they are ways of expressing an important element that lies back of the decision without in any way losing any benefit that those ideas provide.

Erwin N. Griswold:

I would suggest that the Frothingham decision and its predecessors and successors are in last analysis, expressions of the doctrine of separation of powers which is embedded in our history and as substantially affected constitutional doctrine.

In the field of intergovernmental immunities, for example, the McCulloch and Maryland, and Collector against Dave, well, the latter case has been overruled.

It’s still the law I suppose that a discriminatory state tax against a federal officer would be unconstitutional.

There’s no provision in the Constitution which says so, but the Constitution does establish the federal system and the constitutional doctrine flows from that fact.

Now, similarly, the Constitution sets up the three co-equal branches of our government and this is the basis for constitutional rules and practices.

Only two weeks ago, we had in this area an example of the application of the doctrine of separation of powers in the decision of the Court of Appeals of the District of Columbia Circuit in the case involving a Congressman Adam Clayton Powell.

Of course this Court has not passed on that decision, but it is relevant since the result reached for the Court of Appeals turns essentially on concepts of separation of powers.

Under that doctrine —

Abe Fortas:

I would have thought we had enough trouble with this case.

Erwin N. Griswold:

I want to get all the help that I can.

[Laughter] Under that doctrine, the matter of the capacity, the whole seat in Congress is one for the houses of that body to decide and it is not fitting for a court says the Court of Appeals, a part of another co-equal branch of the Government to enter into it.

Do I mean by this that it’s never appropriate for a court to consider the constitutionality of an Act of Congress since that would inevitably bring the Court into conflict with the legislative body which has of course given its own opinion of the constitutionality of the statute by enacting it?

Obviously enough I make no such contention.

I do say though that considerations arising out of the separation of powers make it appropriate and I would say impair that the Court considered heavily the circumstances under which it will undertake to pass upon the constitutionality of an Act of Congress.

Now, that I suggest was what the Court was doing in Frothingham against Mellon.

The considerations that led the Court to withhold its hand there are equally valid today.

Potter Stewart:

Mr. Solicitor General, I now passed again at Frothingham and I find it — you’re quite right.

The attack of the appellant Frothingham in that case was based not only on the Tenth Amendment, but also that the taking of her checks would violate the due — take her property without due process of law, but it was as we both agree not based upon in anyway upon the First Amendment.

It occurs to me that whatever the validity or rational of the Frothingham decision may be and there has been some difference of opinion about that expressed here today, that as suggested by in oral argument here, particularly by Senator Ervin and as suggested by the dissenting opinion of Judge Frankel in this District Court that might even accepting Frothingham that there might and should be quite a different rule with respect at least to the Establishment Clause of the First Amendment because what the Establishment Clause itself prohibits among other explicit things, but most explicitly prohibits is the expenditure of public taxpayers money for religious purposes whereas the Tenth Amendment doesn’t have very much to do with the expenditure of federal money nor does the Due Process Clause have very much to do with the expenditure of federal money.

The Establishment Clause at least of the First Amendment has directly and explicitly to do with that very subject and that’s the difference between this case and Frothingham.

Erwin N. Griswold:

Justice, I kind of like to qualify you explicitly there there because of course this is a —

Potter Stewart:

Of course it does have to do with it.

Erwin N. Griswold:

This is a modern view of the First Amendment.

Potter Stewart:

Well, —

Erwin N. Griswold:

It’s perfectly plain that it was not conception of the First Amendment when it was written —

Potter Stewart:

Well, certainly (Voice Overlap) no official church in this country.

We [Discernible] modern church of England though —

Erwin N. Griswold:

(Voice Overlap) my —

Hugo L. Black:

Are you asking us to overrule?

Erwin N. Griswold:

No, not at all I like it.

Erwin N. Griswold:

My brother was the treasurer of a congregational church in Exeter, New Hampshire and he, on behalf of the finance committee, wanted to borrow money on a mortgage in order to put an elevator in the church and they discovered that the title to the church is in the Town of Exeter.

And they had a good deal of difficulty giving the title out of the Town of Exeter because constitutional objections were made that this would be an appropriation for a religious body and I simply mentioned this to say that this is not a case where the First Amendment says there shall be no appropriation for an establishment of religion.

The First Amendment does prohibit an establishment of religion —

William O. Douglas:

Counsel, do you know of any better way to establish an institution and to finance it?

Erwin N. Griswold:

I know that what constitutes an establishment of religion is a complex and difficult matter.

For example, we have always had —

William O. Douglas:

I didn’t ask you to define that, I just put you one simple question.

Erwin N. Griswold:

We have always had and still have in this country and I hope we will retain tax exemption for religious bodies and that is certainly a substantial financial aid to a religion which until very recently was never questioned in any way and I simply suggest that this is a far more complex question.

[Indiscernible]

Erwin N. Griswold:

I would welcome a chance to get that as the thread of my argument.

Potter Stewart:

Arguments you were relying on Frothingham and I was simply suggesting a possible distinction and one not original with me was mentioned by Senator Ervin and by Judge Frankel —

Erwin N. Griswold:

Yes, and frankly, I do not myself place much stock as a citizen and lawyer in the preferred status of the First Amendment I like all of the Constitution.

I like the Fifth Amendment and the prohibition against titles and mobility and it seems to me that it’s hard to say and hard to find any historical or other basis for saying that because this is a First Amendment case, it should be treated in a different way.

This Court’s great moments come when it deals with people, people who are directly affected by Government or the law.

I think of Frank against Magnum and the Scottsboro Boys and Shuffling Sam.

The Court did not do so well with Dred Scott, largely because it lost sight of Scott and used his case as a vehicle for seeking to dispose of a large question which was then rending the country and which need not have been decided in order to dispose of his case.

When the Court has considered broad and general questions in the abstract more or less, it has not always found the results lastingly valid.

The decision holding in New York Workman’s Compensation Act unconstitutional might be cited as an example and if I may say so with great respect to Your Honor’s predecessors, the decision which might have been rendered if Frothingham v. Mellon had gone the other way.

The genius of the common law and in large measure, the talisman of constitutional adjudication is the concrete case with real and specific facts.

We common lawyers do not do so well in the abstract.

The present litigation is utterly abstract.

There are no real facts alleged in the complaint.

The complaint is entirely in general terms.

It could be applicable to over 22,000 local projects which had been financed by the Office of Education under this statute all over the country in every state with many types of projects and almost limitless local variations.

It is true that in this Court, the appellant say that they limit their complaint to practices in New York City.

Even as to that though, no facts whatever are alleged.

Everything is in general terms.

The appellants do not like what is being done under the Act, but was is being done has left to speculation.

It is not enough to say I suggest that some things are being done in the sectarian or parochial schools because even the appellants concede that medical and dental services may be provided in sectarian schools.

I suppose this would apply to psychiatric services, remedial programs for retarded or disturbed children are not much different and the record in the court below included in an assertion that such children will be better reached if instruction is given to them in their own familiar surroundings, but we have no facts about such matters, not because the court below cut off proof but because they were never alleged.

Hugo L. Black:

I don’t understand how you can say that, in basis of Section 13 of the Bill?

Erwin N. Griswold:

At what school and on what page Mr. Justice is something alleged to have been done?

Hugo L. Black:

8 (a) in the appendix.

Erwin N. Griswold:

I read it Mr. Justice.

I —

Hugo L. Black:

(Voice Overlap) the meticulous details about where the money was spent.

I do not understand how you can say that they do not charge, an ambiguous language.

The money was being used in this Bill to finance the construction of sectarian schools.

Erwin N. Griswold:

I say Mr. Justice that they do not allege tax which say that at a particular place at a particular time, something can be done.

Hugo L. Black:

So why do they have to alleged the facts about a particular thing when they alleged it in general.

That’s the general rule.

Erwin N. Griswold:

Because the point I am trying to make Mr. Justice is that issues of this sort ought to be decided in specific concrete cases and not in perfectly general terms and why we’re —

Hugo L. Black:

Do you want to get back to Commonwealth treaty?

Erwin N. Griswold:

No, Mr. Justice [Attempt to Laughter] but I would like to add some facts upon which this case in stand.

Now, why our facts not alleged?

Because I submit —

Thurgood Marshall:

Mr. Solicitor General was this question was raised in the District Court that it wasn’t specific, or was it merely the one point that they did not having the standing to sue.

I made a question because it would have been a possibility of amendment in the District Court.

Erwin N. Griswold:

Well, Mr. Justice this is all what — this all bears on standing to sue.

They would have standing if they have alleged a specific concrete case and facts which showed that they were hurt by something.

The reason that they didn’t allege facts it seems to me is what they are seeking here is a broad general declaration of the statutes or about the administration of the statute of theoretical determination divorced from any concrete impact on any party in the case.

That’s why I think it’s relevant to this point.

Some citizens, who happen to be taxpayers too, though I don’t think that’s important, do not like what the Government is doing.

Though as near as I can tell, the things they don’t like are being done by officials of New York State and City Governments and so they sue two high officers of the government for what?

For a declaration and injunction that the very general things they assert without ever putting down the single concrete fact are unauthorized or unconstitutional.

Now, this I submit is essentially a prayer for an advisory opinion, an opinion which is to be rendered in broad, general, and essentially abstract terms.

Let me see if I can test that statement.

Suppose this case came here the other way around.

Let me suppose that Secretary Gardner and Commissioner Howe were doubtful and uncertain about their powers and responsibilities under the Act.

Of course they could ask their general counsel or the Secretary of the Department of Health, Education and Welfare could request the Attorney General to give an opinion, but such opinions would be advisory only.

Erwin N. Griswold:

They would not bind anyone outside the Government, but Secretary Gardner and Commissioner Howe wanted a decision.

So they filed a suit in the United States District Court for the Southern District of New York asking for a binding declaration.

Against whom do they file the suit?

Well, that’s a nice question.

They’ve heard that Mr. Pfeffer and know that he has long given thoughtful consideration to these matters so they named him as the defendant and then there’s Mr. Brownell, he knows his way around the Government and they name him as the defendant.

It really doesn’t matter who they named since no one has any direct personal interest in the question and it doesn’t make any difference since all points of view will be presented as briefs filed by friends of the Court.

In the abstract though, let me observe and in the absence of any concrete facts.

I might point out that we have a full court of amicus briefs here and when I counted them last, there were nine and I’ve lost six to three.

Can it be imagined for a moment that the suit by Secretary Gardner and Commissioner Howe would be entertained by any Court.

I don’t think so and why not, because it would be seeking an essentially advisory opinion, a decision in the case which does not really have adverse parties and which did not arise on specific concrete facts.

Abe Fortas:

Well, I guess I don’t understand the complaint or your point.

As I understand it what they are in effect asking for is an injunction against the Secretary of HEW and the Commissioner of Education of the United States to prevent them from approving a program of the Department of Education of New York, to the extent that that program provides for the payment of money to religious schools for these — for the purposes that are clearly stated in here.

Erwin N. Griswold:

And Mr. Justice they do not — they do not allege a single program.

They do not allege a single fact, a single school, a single specific situation where anything is done and if something is being done in the sectarian school has become quite relevant to know what is being done and what are the circumstances of that and none of those facts are alleged in anyway.

Everything here is in completely —

Thurgood Marshall:

Where the complaint not dismissed, wouldn’t it be possible to find some of those facts by discovery one way or the other which might help everybody?

Erwin N. Griswold:

I still think we would have the same problem with respect to taxpayers suits on the one hand in that they would not be affected by what was done in their — either in their pecuniary or in their personal interest.

I also think we have a real problem here in that Commissioner Gardner — Secretary Gardner and Commissioner Howe have no direct supervisory or administrative responsibility here and indeed a section of the statute not quoted in our brief expressly prevents them from undertaking to operate the programs of the schools.

Thurgood Marshall:

Don’t we have to approve the plan?

Erwin N. Griswold:

They — there is nothing in the plans which states that something will be unconstitutional or illegal.

Thurgood Marshall:

We in fact, we don’t know what the plans are.

Erwin N. Griswold:

We don’t know what the plans are.

I agree.

They are not here.

Thurgood Marshall:

But if the Court keeps jurisdiction to the District Court, we would find out, wouldn’t we?

Erwin N. Griswold:

Assuming that there were allegations which raise it and that there were — this was the type of case in view of the essentially abstract nature of the claim that is made which is proper for the Courts to decide under what I would call a fair application of well established principles of separation of powers.

Hugo L. Black:

Why aren’t you making the same argument that’s made in Doremus everyday to the sufficiency of the claim, but it’s not a sufficient cause to deny a jurisdiction of court?

Erwin N. Griswold:

No, Mr. Justice, I think I’m not because here the absence of a concrete case is what keeps this from being a suit to use Madison’s raised of a judiciary nature.

It is of course proper for this Court to pass — to consider and pass upon the constitutionality of an Act of Congress when that issue is presented to it in an actual controversy involving specific facts, I suggest that in this case, what is sought is a simply general abstract declaration and that Frothingham against Mellon is a great exemplar of the application of the doctrine of separation against powers that this Court will not enter into such an undertaking.

Hugo L. Black:

How could you get any more vigorous?

Hugo L. Black:

He’s in this controversy.

It’s a dispute between two people charged by one that the taxpayer’s money is being spent to aid sectarian schools and teaching — teachers in those schools.

Erwin N. Griswold:

I think that maybe — may be a part of the trouble.

People are talking in general terms.

Hugo L. Black:

But the charge is that the Government has been spending money in this Act for that purpose.

Erwin N. Griswold:

And if the charge related to specific facts and if it were brought by people who were hurt by what has been done of course the Court ought to consider and decide the case.

In the hypothetical suit that I referred to brought by Secretary Gardner and Commissioner Howe and it’s an obviously impossible suit, the issues would be exactly the same and the interest of the parties would be exactly the same as those sought to be raised here.

The defendants would be taxpayers and citizens as the appellants are here.

The fact is that it would make it unwise and inappropriate to decide that case are equally applicable here.

They are the factors which lay behind this Court’s decision in the Frothingham case and they remain equally valid today.

Few days ago, we celebrated the 127th Anniversary of the birth of Justice Holmes.

In 1904, shortly after he came on this Court, he wrote the Court’s opinion in Missouri, Kansas and Texas Railway Company against May, in which he said “great constitutional provisions must be administered with caution.

Some play must be allowed for the joints of the machine and it must be remembered that legislatures are ultimate guardians of the liberty and the welfare of the people and quite as great the degree as the courts.”

This is a case I submit where it’s appropriate in the proper application of the constitutionally established separation or divisions of powers in this country for this Court to refrain from rendering a decision until a case of a truly judiciary nature arises and is properly presented to the Court.

Not an abstract general case seeking a sweeping declaration about everybody’s rights, but a case raising a specific question by someone who was hurt.

That will present a proper case for a judicial action.

This is a peculiarly a situation where there should be room for play in the joints.

The questions involved here are not ones of black and white.

William O. Douglas:

Well, we’re — are you assuming that we withhold one way or the other on the merits, aren’t you, and that’s not here, is it?

If the Court would sit in a shattering theory —

Erwin N. Griswold:

And this is a —

William O. Douglas:

— that this will call all Act of Congress unconstitutional.

Erwin N. Griswold:

Because this is a problem filled with so many uncertainties, Mr. Justice, so many variables, so many problems and difficulties, it is not wise and fitting it seems to me for the Court to enter into it in a general and abstract way.

But it is wise for the Court to wait until its rule is called for, that of deciding a case between parties of where the people have themselves a genuine personal interest in the matter.

William J. Brennan, Jr.:

Well, you’re going to meet the argument I understand both of the Senator and Mr. Pfeffer have made, it’s just never going to have a case like that.

Erwin N. Griswold:

Mr. Justice, the Court has a case like that on its docket now which will be heard either later this term or early next term, the case involving a City in New York which came up through the New York Court of Appeals.

I’ve already pointed out to two provisions in this statute itself containing provision for judicial review and that if a plan was disapproved by the Secretary or the Commissioner on these grounds, the state school authorities could directly go to a Court of Appeals to get the question raised.

There are many ways in which the question can be raised and in which if it is raised it will be raised in a specific concrete context.

Here the appellants have conceded that medical and dental services may be rendered to children in sectarian schools.

They agree that inspection may be given in the public schools to children from the sectarian schools and that library services could be given to all children on publicly owned neutral ground.

Erwin N. Griswold:

Their complaint is against remedial and guidance services note not some —

William J. Brennan, Jr.:

May I ask Mr. Solicitor General, will — suppose Massachusetts and Mellon will have some bearing on this lawsuit that you mentioned or on these provisions for judicial review?

Erwin N. Griswold:

I — I’m not prepared to state exactly what the issue will be there, but I do know that the New York Court of Appeals passed on them it is the basis of the appeal from that decision which is before the Court.

Abe Fortas:

If the Government moved to dismiss in the District Court on the grounds that the complaint has failed to state a justiciable cause.

Erwin N. Griswold:

They moved to dismiss but —

Abe Fortas:

On the grounds that you’re now urging.

Erwin N. Griswold:

They had moved to dismiss on the ground that the plaintiff do not have standing to maintain this act —

Abe Fortas:

That’s a different —

Erwin N. Griswold:

— and for such other and further relief, is the Court.

Abe Fortas:

I know, that’s not the argument you are addressing.

Erwin N. Griswold:

I appreciate it Mr. Justice but if the complaint should have been dismissed on any ground I believe that that’s appropriate to raise here.

Abe Fortas:

But another part of argument is that if it should have been dismissed on that ground, it should have been dismissed by a motion in the District Court.

I’m not suggesting that the Government should stop.

What I am suggesting that if you’re right about that, it’s — I’m suggesting that may be if the Government moved below on this ground that there is a substantial ground, it’s at least unfortunate.

Erwin N. Griswold:

Mr. Justice, I don’t understand that I’m making a separate ground.

I’m trying to make an argument in terms of Frothingham against Mellon that this is not the kind of a case which ought to be decided by this Court.

Abe Fortas:

Would you say that that’s true of all taxpayer suits?

Erwin N. Griswold:

Yes, that would be true of the taxpayer suits and the federal —

Abe Fortas:

I see, I did misunderstand you then.

What you’re saying, what you’re doing then is not attacking this complaint especially but saying that all taxpayer suits are by their nature, by their nature present abstract questions.

Erwin N. Griswold:

And that that is exemplified in a rather striking way by this particular complaint.

Abe Fortas:

I see.

Erwin N. Griswold:

Congress and President are as much want to uphold the Constitution as are the courts or Government lawyers.

The statute involved in this case was long before Congress, thoroughly debated there, carefully drawn with the precise issue here presented well in line and finally resolved by the action of Congress and the approval of the President.

It should be remembered that the problem before Congress involved not merely the question of church and state, but also another great constitutional principle, the equal protection of the laws provided as to the states by the Fourteenth Amendment and perhaps made applicable to the United States by the Fifth Amendment.

This Court now has before its certain welfare cases where it is contended that if welfare is to be given by a state, it must be made available on a basis of equality to all persons with similar needs without the irrelevant or arbitrary qualifications.

Summarily, Congress could well have concluded that if aid was to be given to needy children, or if books were to be provided for children in school, these things should be available to all children and that anything else would be an inadmissible denial of equal protection.

All that I say now is that these questions are real ones.

They are difficult ones.

They were wrestled out by Congress in a way that it’s entitled to a certain amount of admiration as well as respect.

Erwin N. Griswold:

In due course, this Court will have to come to its own conclusion and I do not for a moment suggest that the action of Congress or the President though they were aware of their constitutional duties is binding on this Court.

But it is entitled to respect and in this situation to weight.

This is, I submit one of the places where there is some small room for freedom in the joints in our great constitutional structure.

This Court will of course not shrink its judicial duty when a truly concrete cases presented by someone who is hurt in one way or another by the application of the statute.

Until such a case is presented, proper deference to the coordinate branches of the Government, proper regard to the great principles of separation of powers requires, I submit, that the Court withhold its hand.

A great predecessor of mine John W. Davis, when president of the American Bar Association referred in his presidential address to this Court’s power to pass on the constitutionality of statutes and the criticisms which had been made of the use of that power and the certain proposals to curb it.

In discussing this matter, he said, there is a curious misconception underlying much that is said and written on this subject as to the duties that the Court is called upon the discharge.

One might suppose from some of these outgivings that the Court sat at the outer gate of Congress waiting to visit the zealous censorship on the laws that issue from that port and that over then it had a general power of life and death or of approval or of veto.

But all thus, as are the functions of the Court, surely they do not go one step beyond the administration of justice to individual litigants.

Earl Warren:

Mr. Pfeffer.

Leo Pfeffer:

First, a brief comment on hypothetical case of Gardner against [Indiscernible] and how it’s distinguished from the very real case, Flast against Gardner.

If the — if the Secretary of Health Education and Welfare were to bring this type of suit, that the Solicitor General referred to, the only consummation could be a judgment declaring that the law is or is not constitutional.

That would indeed be an advisory opinion.

Now, perhaps that is a case of controversy although that is not 100% certain.

But Flast against Gardner does not call for an advisory opinion.

It calls for specific injunction against Mr. Gardner, that’s hardly is an advisory opinion and certainly is a case of controversy.

Potter Stewart:

It’s all — you’ve got another problem haven’t you as suggested by the Solicitor General?

Leo Pfeffer:

Well, we ought to — the declaratory judgment and an injunction, injunctive relief or both.

Secondly, I think I also ought to be called the Court’s attention that since this suit was started, and since there’s a good deal of discussion of the issue, and the question, the facts of governmental expenditure, the expenditure of funds to finance the construction of sectarian schools have been brought to the attention of Congress had only in the past two months, extended the Bill for another — the law for another three or four years which at this point may very well be held to be a legislative acceptance of the department’s determination, that indeed the Act does authorize the expenditures which we are challenging in this case, so that they very well be even in that basis, in that basis that the Act has now have been in effect legislatively construed and therefore would declared to be unconstitutional but the thrust, the crux of our complaint is that the whole act is not unconstitutional.

This entire program is not unconstitutional but unconstitutional at most is one — two sets of them.

One of type and one type of two which we say, we say that at best gives the administrator an option.

You can do — you can enforce this one of two ways.

You can enforce it in the way which we suggest through giving these special services in nonsectarian auspices, open to all children that would raise no constitutional issue.

Or you can — you can enforce in a different way which does raise a constitutional issue.

The administration has taken the line of approach and we assert that if this is what is authorized by the Act, it is constitutional.

Do you – in your view is that [Indiscernible] sort of class action [indiscernible] attacks the application of this Act or of the United States in one suit?

Leo Pfeffer:

I don’t know.

Why?

Leo Pfeffer:

Because it would be completely impossible.

We’d have to prove, we have to prove and would be impossible to prove it.

Leo Pfeffer:

Now, all we can do is in all cases —

[Indiscernible]

Leo Pfeffer:

As far as I would say, we are attacking — we are attacking the Secretary’s determination, the Secretary’s determination that it is constitutional all over the United States to use federal funds to finance the teaching in sectarian schools.

Now we prove our case — we prove our case especially (a) that that is being done at least in one place and (b) that the Secretary has so approved it.

This is our case.

Now, as we point out in our brief, it’s been done in Massachusetts, in Pennsylvania where a similar suit is pending.

The New York Times reported just the other day that’s being done in New Jersey and certainly under the direction of [Indiscernible] and I’m certain its being done in other places as well.

But to get the constitutional issue before the Court, we have to establish at least one place where it’s truly, else that it’s truly an advisory opinion and no case of controversy.

I want to make one more point about the three-judge court and direct appeal here being a matter of jurisdiction.

I don’t think it is.

This Court has taken cases from a one-judge court and bypassed the Court of Appeals where it felt it to be in the public interest, in the national interest, it made — this Court could very well hold.

Now even if this work, decided by Judge Frankel alone, the issue is of such great significance required an expedition determination that the Court could bypass the Court of Appeals.

It’s not a question of jurisdiction.

Now, I want to assure —

Potter Stewart:

I didn’t quite understand your last point.

Leo Pfeffer:

The point I’m making is that the case which I put my reply brief that bypassing the Court of Appeals is not a jurisdictional matter that even if this were not a three-judge court, even this case had been decided by one judge, it would have been within the power of this Court to say (Voice Overlap)

Potter Stewart:

To grant certiorari to this Court —

Abe Fortas:

You rather that we proceed on the assumption that it was — that Judge Frankel was the only judge vested in jurisdiction.[Laughter]

Leo Pfeffer:

Well, I would like to believe that, but whenever that it’s still within the power of the Court, I think that the Court has the power to do it and therefore, it cannot be accepted as a matter of jurisdiction.

The New York State suit which referred to (a) does not — that raises – does not raise Title II which is raised in this case, (b) it raises issue which are not —

William J. Brennan, Jr.:

Is that not what the statute —

Leo Pfeffer:

I beg your pardon?

William J. Brennan, Jr.:

Does that the case that you’ve taken, that doesn’t come up under the statute, does it?

Leo Pfeffer:

The case which was taken in the New York courts?

William J. Brennan, Jr.:

Yes.

Leo Pfeffer:

Yes, that comes up partly under this — it partly comes up under the statute.

William J. Brennan, Jr.:

Not under Title II.

Leo Pfeffer:

Not under Title II but even under Title I.

That case allegedly could not apply with the reply brief.

Certain conduct which are not authorized by the Commissioner of Education and the Secretary of Health, Education and Welfare.

Leo Pfeffer:

For example, we allege there that the Board of Education has allowed discretion on public school teachers to go into the parochial schools and teach them and be paid off from the fund.

This we contend at all.

It’s authorized either by the statute or by the health — by the Secretary’s determination.

How could we bring such suit in the federal court?

We certainly would be told you go to the state court and exhaust your state’s remedies.

For that reason, not for any other reasons that that suit is brought here.

Finally, the theoretical, completely theoretical idea that there is a remedy elsewhere, there isn’t.

There is no more remedy here than there was in Baker against Carr.

Baker against Carr, as Mr. Justice Frankfurter stated in a dissenting opinion he stated in Colegrove against Green or you can go to the legislature — to state legislature, They’ll remedy, whatever grievance you have, but of course it didn’t because they have the state in the maintenance of the status quo.

Every single state has a spec as the maintenance of the status quo.

It warranted the federal court and the easiest thing in the world is to let it go with the proper court and to find the rationalization for it as New York has done by saying, “Well, we’re just a conduit, we don’t really exercise determination” and therefore any grievance you have should go to the federal government.

We have called it the game of [Indiscernible] where everybody hit the [Indiscernible] to get the ball to the other side, because you’re responsiblity.

Now, between that the Constitution falls to the ground and nobody has responsibility for it.

Earl Warren:

I think we’ll take — we have to take the rest of your argument in your brief Mr. Pfeffer.

Leo Pfeffer:

Thank you Mr. Chief Justice, thank you.