Moreover, the actions plaintiff is challenging in his Article VI claims - the qualifications for and selection of the Senate and House Chaplains and the prayers offered by these Chaplains - are not taken pursuant to Congress' tax and spending power under Article I, section 8. Rather, they are actions taken pursuant to the Senate's and the House's power to choose their own officers in Article I, section 2 (House) and section 3 (Senate), and to determine the rules of their proceedings pursuant to Article I, section 5. Merely because plaintiff has pleaded his claim to challenge the appropriation of government funds to pay the salaries of the Senate and House Chaplains does not transform his Article VI claim into a challenge to the exercise of Congress' spending power. Indeed, the Supreme Court in Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208,228 (1974), rejected just such a contrived attempt to create taxpayer standing to challenge an action of Congress not taken pursuant to its tax and spending power. In that case, the plaintiffs challenged as a violation of the Incompatibility Clause, U.S. Const. art. I, § 6, cl. 2,8 the membership of various Members of Congress in the Armed Forces Reserve. While plaintiffs had challenged the fact that the Members were paid the reservist salary provided for by federal law, the Court concluded that the plaintiffs were not challenging actions of Congress taken under its spending power. Reservists Committee, 418 U.S. at 228. The Supreme Court found that it was the action of allowing these members of Congress to maintain their commissions in the Armed Forces Reserve that caused the plaintiffs' alleged harm, not the incidental fact that these Member reservists were paid the standard salaries received by reservists. Id. at 228 & n.l7. Hence, the Supreme Court held that the plaintiffs lacked taxpayer standing to bring their claim.
8 The Incompatibility Clause provides that, "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."
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