Hastings Constitutional Law Quarterly


Drew G. Stark


Tax expenditure theory proposes that the Supreme Court not treat tax deductions any differently than direct expenditures. Such analysis is complicated by the fact that taxpayers typically do not have standing unless they can assert an individual and personalized injury. However, Establishment Clause jurisprudence has a narrow exception allowing taxpayers to establish standing without showing personal injury.

While the Supreme Court has revisited this exception several times since its creation, it has yet to address whether it applies to challenges against tax deductions. In cases that involve tax credits, exemptions, or deductions, the Court has either found standing or neglected to raise the issue altogether.

This Note addresses the question of whether the tax expenditure analysis is appropriate for analyzing taxpayer standing in Establishment Clause challenges. It proposes that tax deductions and direct expenditures should be treated equally for standing purposes.