tv Review of Supreme Court Oral Argument in USAID v. Alliance for Open... CSPAN May 5, 2020 11:22pm-12:28am EDT
center's second day of the supreme court recap. as a part of this historical experiment to hear supreme court arguments life for the first time for those that filed briefs on both sides of the case to help us learn together the constitution center is a private nonprofit with inspiring mission from congress to disseminate information about the u.s. constitution on a nonpartisan basis in order to increase awareness and understanding of the constitution among the american people and that is just what we are trying to do a both of whom have filed briefs called
amicus briefs on different sides of the case. walter weber fondled a brief in support of the petitioners known as usaid and of course the cases in usaid versus alliance for open society international. he's the senior counsel for the american center for law and justice in washington, d.c. which is the organization on whose behalf he final debriefing he's written many in landmark cases that the supreme court. and in support of the respondents of the alliance for the society international. he's the director of the robert media center the cato institute and the publisher of the supreme
court review. part of the grand experiment. >> i just keep thinking of those words of justice holmes in defining the constitution. he said it is an experiment of life. >> and i have to say based on the arguments yesterday and today, i think experiment is going very well so let's be part of that position. walter, perhaps you can begin. we just heard a lawyer for the government or giving on behalf of the government. that was christopher michael assistant to the solicitor general. and he said that the case comes down to two basic propositions. first, the foreign recipients lacked the constitutional rights and cannot bring the constitutional claim. then he says that neither the respondents also can't bring the constitutional claim because any
effect on their message is a product of their own choice and not of government coercion. can you please unpack and summarize the core of the government arguments in this case? >> chief justice roberts, you've been very good at this, keep it crisp and then we will have time for questions. being shipped overseas on this case. and spreading these diseases with thwith a congress that is a clause to the statutory grant
party saying you are not eligible to receive these once you have a policy opposing the trafficking and constitution. i think it violates the first amendment rights as they are not eligible for this unless we have the government supreme court i divided the 6-to vote if you are insisting they adopt the policy to receive the required grant. back down to the lower court and they have one and said wait a second, it isn't just us.
we are not going to push around but the policies are going to have to. same logo, same brand, same name. the lower court will agree with as to the affiliates that are sharing the same name logo brands the government then says hold on a second there is a long-standing line of cases the supreme court is recognizing it operating abroad. the day can't be under the umbrella of the first amendment
for domestic entities can't be forced to take the pledge, but the government's case is the foreign affiliates relax the rights and shouldn't be able to claim them. they said that there are two violations of the first amendment rights of the u.s. respondents. it takes the pledge that it won't support its actions are attributed to. big u.s. entity from contradicting the pledge on its
own dime to use the phrase from chief justice 2013 opinion making it impossible to disavow the message without doublespeak and using the phrases" in from chief justice roberts opinion. the first amendment rights are being violated. >> from the layman's perspective, the first point is basically if you have a foreign affiliates who takes a particular position, people
don't, the general public observing this they don't say that us and care usa or global or what have you. it is colloquial and attributed throughout the network. that is where the second part comes in. i think this whole argument into this whole case come down to something when she found her un- mute button. she had a problem with that. justices are just like us. they said in the first amendment context we are much less concerned in the corporate formalities. you can look at cases of different as hobby lobby about the first amendment rights and the publicly held corporation or the hurley case. we don't like to see whether the partnership or corporation or
nonprofit, however you structured your localities, that is beside the point of whether there are first amendment rights. at the end of the day this is more of a corporate structure case than in first amendment one because the question is in 2013, the court did rule and by the way, all of those justices were still on the court except justice gorsuch. does the 2013 ruling apply to those foreign entities, and i think this is simply a question of the first amendment context. the corporate entities do not matter so much for the purpose of protecting the free speech rights and justice ginsburg said it is not just whether foreign entities or individuals or persons of amendment rights
under the constitution. they don't. but about the u.s. government obligations the congress shall make no law not to infringe. >> let's talk more about the question whether the distinction is formal. the question justice roberts asked was if one thing the precise relationship between foreign and domestic entity. entity. is it reasonable to assist in this context our position is that the formal distinction between these entities is all that is needed to attach the certain legal rights and then many of the justices noted about the corporate formalities. the hobby lobby case, remember the famous case that says the religiously scrupulous corp. couldn't be required to offer the contraceptive coverage
suggesting that they were less concerned with corporate formalities and perception. people might think the hobby lobby corporation was endorsing a pledge. the affiliates speech of the entity sounds like an alter ego argument that resist any attempt to pierce the corporate veil and the entity of the respondents we don't ask the government to pierce the corporate veil. it is being attributed even when the court formalities are imposed. the comment that is a way of saying what is your response it is a crucial distinction in the argument should we take a pragmatic view of whether these entities would be attributed to
the domestic and what is your argument about why we should do this formalistic way rather than pragmatic. >> a couple of things. first, the supreme court has not been consistent. if you look at the common sense that they were pointing to, you have say an entity like planned parenthood. you have the aclu and then the 501 c. four. and on the one hand, planned parenthood saying we are a nonprofit group and on the other hand in entity battling for particular candidates and that is their right to do that. but it's also legitimate for congress to say you are entitled to the nonprofit status if you
are a campaign entity. so, you have the same logo, same name, same general worldview and get the formalistic distinction if you had a different formal status. is the guy on the street going to say it looks the same to me? probably. does it matter nonetheless. we have advanced the inconsistency on whether it is decisive and people have said in the context that it does matter. so why can't the same distinction apply for domestic entity that is restricted but we have the entity that is restricted and that is part of the territory. now the second point i want to make is part of the problem the government faces displayed on the one hand i find we fully
accept the court's prior decision. our brief takes the position of the state that is because it turned to the notion that there is a compelled speech. our view is the acceptance of the limited grant program is not. no one is required to apply and for that matter 99% of the people that apply for the foreign grant to combat aids and hiv overseas. but something you voluntarily undertake and it is typical with voluntary grant program to set up the strings to do with it. if it controls the budget it can pull the strings come so it's important to draw the line between those kind of programs that are discretionary and
limited by quitting smoking, fighting drug abuse, fighting hiv aids, versus a general program like access to programs and libraries, where it would be completely impermissible to say you can only do so if you accept the government's position on smoking, sex trafficking, etc.. we consider that original decision, one that enrollment objectives were going to get the subsequent ten. >> thank you for signaling the important point in your grief. you argue that the original 2013 u.s. aig decision was incorrect in the court should overturn it and allow foreign aid to be conditioned on ensuring that the organizations are basically onboard and a general purpose of the program. as we know, the court's reluctance to overturn its prior decision especially the 6-to decision and your briefing
argues that this case was already decided by the 2013 decision. you said that the distinction between the foreign and domestic affiliates is unsupported by the record which constraints the speech by the close for an affiliate indistinguishable from the respondents speech and you say that this sort of technical distinction between the two was rejected in the previous decision as evidence of hypocrisy and justice breyer seemed to pick up on the notion in several of his questions he said the following about justice ginsburg's question if the organizations say we are against prostitution, but the foreign organization are disavowing it and saying they don't support the pledge, justice breyer said some will say they are hypocrites. how does that change one iota instead of sending their own work over there to give them the
money and not the foreign workers that do the exact same thing about how does that interfere domestically and otherwise as hypocrites interfering in the nation if we accepted that argument before, why should we accept it now? tell us why justice breyer seemed to suggest that it was covered by the decision and why you believe that it is. >> for the free speech purposes, this isn't about piercing the corporate veil in terms of the contractual liability issues or issuing stock or some other reasons with which they have the affiliates and things like that. it was a colloquy justice gorsuch near the end of the argument. for the free speech purposes, it is very different. and indeed, it would be hypocritical or disingenuous to
continue the particular policy while one body still refuses to adopt it or another one does. at the end of the day, this is a question if the corporate entity exists and not even for some sort of a legalistic immunity or protection with respect to corporate law or tort liability, but because in many countries around the world including the united states, you have to have a locally incorporated affiliates to be able to do business. whether as a nonprofit or a for-profit. so, in many cases this came right off the top with the chief justice's first discussion with the government lawyer that they had no choice to incorporate the
local entities, so it isn't even a matter of wanting to have some legal separation that they happened to be able to operate in that area. so again, just in the speech context it works differently. or in terms of many fundamental rights rather and civil litigation world. >> thank you for that. walter, before we dig into your argument that the original decision should be overturned, let's ask about justice kavanagh questions -- >> can i add one thing lex >> sure. >> in terms of overturning them i think is less than a zero chance of that, because, no offense to walter -- it was a strongly written brief, of course, but that was a 6-2. you take away the justices that
are no longer there and it becomes 5-1. so even if you have gorsuch and kavanagh on the dissent, there's still five votes for the previous position. so the only question is whether, you know, as we put it strongly, that the previous control and whether they even have to explain a little bit further to get to where they will need to go. >> since you pressed the point, let me pose this to walter. you believe that there is any realistic aspect that the decision will be overturned in the composition of the court and if not, why did you decide to call on the court to overturn it rather than arguing as the government did the previous decision could be reconciled to treat the foreign entities differently, then maybe this is a chance to say clearly what it was about the previous decision that you think was incorrect and should be overturned as justice scalia laid out in his powerful dissent.
>> one of the reasons why we filed this because it is really important for the supreme court to get it right and even if it gets it wrong then it becomes interim and it's harder to fix down the road. one of them replaced somebody that was in the majority. i would like to see both of them at least note the arguments have some force and while it may not be presented in this case, they would at least recognize even if they do not -- there is a potential vulnerability in the previous decision that may become an issue down the road and that leads to the merits on this.
you can't even prefer them because they do or do not have a policy so let's take an example that i hope everybody would agree on. there is a group in favor of [inaudible] on of the things the strongly agree on is that is the federal government side and ability and let's take it to suppose they want to have an anti-child-abuse grant program.
we won't use the funds to promote what they are going to maintain the policy in saying that consent on both sides. we are going to give preference to the groups that don't have an express policy. under the rationale for the first, we believe that cannot be done because what they are saying is if you have the first amendment right, the government cannot require met and certainly also cannot refer to it and say we are going to disqualify or lower the ranking of the application. where does that lead the government if you cannot have
someone that represents the tobacco company talking about why. yes it is true you don't want the government to be able to use the cash as a characteristic go along with our policies and you will get the money. as that is a problem. so, you have to come up with some line between on the one hand saying no one is going to use the library or public park unless they sign on the bottom line on the preferred position. and it can go both ways depending on who it is. it should be a bipartisan,
nonpartisan issue. versus saying we are going to have a targeted program to fight the evil that we have identified with this smoking, child sex abuse, whatever. we were prefer people that are with the program rather than those that are either opposed to it or are in different and just doing it for the money. >> thank you for this opportunity to examine the merits of the case. c-span friends, it is so meaningful to be able to go back. so that's the agency for international development versus alliance for open society case from 2013 and the wind the chief justice roberts adopted in the 6-to decision was the following. he said that the distinction that emerged in the cases is between the spending program and
the conditions that seek to leverage funding to regulate speech outside the contours of the federal government itself and then he acknowledged those that reach outside it is not always self evident that the policy requirement here. can you help us understand the distinction the chief justice was embracing and is it true that the congress couldn't save the child support agency in the u.s. not support child abuse, or would that be within the conditions that defined the program itself and would only be people distributing them related to child welfare wouldn't be able to be restricted from supporting? help us understand the core of that distinction. >> this goes to the doctrine of the unconstitutional provisions, not the first amendment. that is, the government cannot
tie your ability to exercise one constitutional right to your waiter or restriction voluntary quote on quote voluntary restriction for giving up the right to exercise a different right. and the wine that you just read from chief justice roberts is basically another context called how germane is a condition that you are putting on to the program and the issue in the context of a policy that would be adopted. it's kind of well, do you require all of the program applicants for funding to fight hiv and aids to say they are against the spread o spread of , or are you saying they are for the flat tax? the latter is clearly unrelated and not germane. well, on both side of the line is the position of prostitution? if there is a program to advance
the government policies to fight prostitution or to not decriminalize it were to criminalize it further around the world, then yes it would be totally germane and totally within the four squares of the funding program to say yes, you have to adopt the policy to get the funds to advance the position. in the case of nambla, if the position is that sex between minors and adults is de facto or by law, child sex abuse, then you are not going to get access to the anti-child-abuse fund. so, again there has to be al germane or close to the actual mission of the program that you are designing is, and that is really what the debate and 2013 boils down to. yes, obviously it is a
restriction that implicates the amendment because we are asking you to adopt a particular policy. but again, there wouldn't have been able to see if that program was you have to agree that hiv and aids are bad or we want to prevent the spread. this unregulated policy of players you stand, the court found correctly i think for reasons described elsewhere in john roberts opinion why it's outside of that line. >> are you questioning the distinction itself in other words the distinction between conditions that define a federal program goes to reach out or are you disagreeing on which side of the line this speech falls in other words do you have to call for it to be overturned or they got it wrong on the facts?
>> we are agreeing on an awful lot of thing but not necessarily with the supreme court has said. the passage that you had talks about the scope of the program versus activities outside of the for the larger entity in the grant. and i think the germane issue is a totally different question. and i agree that that is what should be one of the decisive facts. if you say you can't get hiv funds unless you agree to having puerto rico as a state, it has nothing to do with the program is unconstitutional to leverage the ability to get money in and that is a problem. they said between the scope of the program versus the outside larger existence and function and i don't think that stands up in the germane question.
suppose we say we are not going to allow the tobacco companies to participate, you have a corporation that is antagonistic to the program. they can promise all day long but in the program they will only use money to fight terrorism, terrorists may be that they don't like. but from the organizational perspective it is what disqualifies them for the grand. same for the groups that [inaudible] if you have a program that is going to fight drug abuse and if an entity that thinks those restrictions should be limited, the government can say it is germane to disqualify or to
refer someone off because your viewpoint and policies are inconsistent with the goals we want to see accomplished and therefore the nature of the entity that you are is going to be undermining our efforts in the program. >> we can disagree on whether or not the policy is germane to fighting hiv aids. i don't think that is the question though. on the contrary, they do accept the congress's findings that this is germane because prostitutes and sex traffickers are one of the views of the transmission of. in fact apparently they found 40% were hiv-positive. you don't want the very activity going on that is going to
further problems you are trying to site. we can disagree whether that is germane or not. if they fixed it i would be a lot happier. >> let's return to the oral argument. and the implications of the decision on either side. justice kavanagh asked both parties and he said i'm interested in the implication of the decision of the government were to lose any other statutes called in to questions by such decisions into the government lawyers do but call into question statutory regulations in the speech that couldn't be applied domestically like the congressional bounds on the campaign contribution by foreign entities or opposing terrorism or apartheid, they all pose viewpoint restrictions and domestic entities able to unite to challenge this would be quite
disruptive. in your brief, you had the opposite concern and said an argument against the domestic entities would allow the government to force recipients to espouse any number of messages that come into the government's favor, nongovernment organizations receiving aid could be required to give a disclaimer before administrating vaccines stating that they do more harm than good. you said organizations that receive funds could be forced to declare the products are then genetically altered or scientific groups that receive phone is to research climate change could be forced to say they don't believe in climate change, so who has it right? is it more just this debate could interest in the question suggests to allow for -- to prevent the government from opposing these conditions which could call the campaign-finance restrictions into question or are you more concerned with allowing that they would allow the government to impose its
message on the group's? >> the campaign-finance law is a separate amendment. we have regulations and restrictions about the foreign entities that we do not transfer to other areas of speech regulations or first amendment doctrine that the passages in migrating the new quote and i have right here, you preemptive beyonpreemptively on that, but t is exactly right and it comes down to how the government draws up its program here so justice kavanagh at the end asked the respondent on the society institute was implication could this have on foreign policy. let's say they wanted to promote peace in the middle east. two condition that on the organizations that recognize israel if the answer is yes because part of the u.s.
government's commitment to peace in the middle east is a recognition of israel. they no longer recognize israel or said that it was a sort of state that was a problem for middle east peace and that would transform the arguments but there are certain realities that if you are giving ou were givint anti-terrorism funds and the government certifies that the hamas is on the list, that is kind of like the speed of an example in the domestic sphere. so they are a concern but again it is how you design the program. if it is a general program or funding for i don't know, good government or good policies without defining them further, then tha it would be a lot hardo restrict. but if the government says you know, we are going to the try to prevent -- again, i think we are
just concerned about the speech but the chilling effect on the government's lawyer is i don't see any chilling effect the domestic enemies take it and those respondents are looking for the phrase. what do you think of that response to justice kavanaugh's question if the government wanted to fund ngos? that is a harder case that recognizes the fact that they established a relationship. >> to your first point, there is a legal doctrine that focuses on the causation of a particular problem.
but there is some third-party actor that is part of the problem. you still can't get the relief you are entitled to suppose you run an ad in the newspaper are supporting a particular issue that they cannot require a newspaper to exercise your first amendment rights. if you have a foreign country that says you can only operate and one of the respondents but then just to say you can do whatever we want so the
so the hot button abortion. and then either have a desire to restrict that implementation. okay. if the government has a progra program, shouldn't it be allowed to say we are not going to fund people who have a mission statement were not going to fund human rights international to increase the women's access to birth
control. it seems it is common sense. and that's why it's so important on what the government can do. has to be a limited target you have to have something that is discretionary and required to sacrifice those first amendment rights. but on the other hand and then not to have any kind of mission focus. >> thank you for all that. and with your claim the rights under the domestic entities
should carry over but justice ginsburg asked the eighth amendment does not apply abroad but does that mean they can torture people? so under any circumstances the domestic aid organization could not resist a requirement because on the international law the statue on - - statutory laws against torture i cannot believe they cannot going to us court so the specifics of the law matter
and then to accept that domestic entity not to be compelled in the ways that the question is does that legal formality of having of affiliate protect that protection? so you do have to look at the theory of the matter with the legal claim being made and to have these constitutional rights first amendment or otherwise to recognize or not recognize to prevent the government from restrictions. what does that have entities and persons natural in the united states. >> c-span friends just the quick review the supreme court has held that certain constitutional rights apply
abroad and others do not that even foreign detainee outside of us jurisdiction has a right of habeas corpus the unconstitutional conviction. also the fourth amendment unreasonable searches and seizures is not a broad because chief justice rehnquist said the right of the people and then to respond that what matters is the corporate form the rights of the domestic organizations the restriction. what do you make of both of those claims? that the doctrine would not
with those grants to assist taxpayers with irs feelings one - - filing so with those conditions they were not be allowed. tell us how you would define that and also to the degree to which you think the nature of the corporate farm limits the degree to which restrictions can apply abroad. >> sure. the government should not be allowed to leverage your constitutional rights. that's different saying the government can have a program to make sure you are qualified basically. anytime that's available to the general public eligibility
for food stamps, welfare programs the government cannot say you only get these benefits or enjoy this if you sign off. the only other exception with it is strictly germane to what you are doing. beyond that there is a problem of potential of government abuse so to have a high wall surrounding that power with limits but that's not the only way. is it true the government has all these powers? boarded we stray from the original vision of the federal government with limited power?
instead replaced it with where the tentacles are reaching? why are they regulating that kind of thing? because of commerce to have limited power that's a separate problem but it is to what we are seeing here because if the government has a role it will be politicized. and so that i think is one of the most important lessons we can take away we don't want the government to be in a position our own defenses to argue if this is germane or not the then to say we have states and local governments rather than them and calling
the shots. with those corporate entities that's one of the way the government says we will have a limit on our restrictions. we can boss around foreign entities. but if they are domestic. >> thank you for that so you and your colleagues at cato are determined to walk off the tentacles of the behemoth and opposed to government regulation but you believe this case is important to be in favor of the government to give further discretion to its tentacles as a condition. so tell us why viewer should care about this case? we already talked about the horrible's you raise in your brief but by chance if the court were to rule for the
governmen government, what are you concerned might happen? >> it could arbitrarily pick winners and losers and attach conditions like a hobson's choice for nonprofits or contractors to decide if they want federal funding to pursue their mission or if they would rather maintain their mission of their conscience and not be hypocrites. i think conversely to what walter just said to rein in federal power to require congress to legislate with more specificity. this isn't an argument of government power can congress or the federal government have a program to prevent the
spread of hiv the must that legislate with specificity? there's nothing to prevent the obama administration to say we want to foreign program to increase access to abortion if congress legislates in that way they can have that program and then to one - - deny funding to other pro-life missions antiabortion groups. commercially of the trump administration wants to have a program to promote the sanctity of life in the womb then absolutely they can prevent planned parenthood from getting access. it just depends how you draw up your program and at that point you add extraneous conditions to it. >> i think he has it exactly right. we agree.
>> but you don't agree about the case so why should the viewers care about this case and why are you concerned the court rules against the government that these bad things could result? >> we agree on the principle the particular application. my problem is that i think the supreme court did not adopt the test but instead adopted the scope of the program to allow them when accepting grants will only use that to access healthcare and then planned parenthood favors
abortion in the without increased sanctity. so i think that makes sense in terms of government coherence and then to have a position on these issues then it doesn't make a lot of sense to say if you have a physician you cannot effectively carry out and can't contract with other people to do it and with that eligibility criteria and that's in a germane way to the program at issue so in this case my main concern is the entrenchment of expansion is off its footing.
>> how much do you feel the justices could interject their questions and comments limited to be called on by the chief justice and they can follow up on the line of thinking. >> i think they are following up on each other's questions. justice gorsuch and so to mayo mayor, how do you think that is working? is that affect your sense of how it is going? i am not asking for a prediction but what justices were most interested over the seniority changes and the way they are signaling. >> this is the second day of second argument this way. it's more evident in still processing the effectiveness and how this changes arguments.
on the one hand it's more orderly is a series of dialogue rather than a cacophony of different people jumping in a different times which has a different type of effectiveness but the chief justice still does jump into cut off counsel and sometimes his colleagues everybody's had enough time to ask questions. so it's not unlimited series of dialogues. i don't know how this would affect things long-term. if there's not nine different lines of inquiry for every court case so there will be a lot of overlap and following up which is good. on the other hand does make it a little harder to predict because as all the justices are asking questions on both sides they don't always do the
life argument but this case in particular i do think there was more skepticism of the government's position probably a fairly narrow ruling with that distinguish in the corporate form doesn't make a difference and further apply to the ruling that know what that count would be six / two or seven / one and justice thomas who rarely asks questions may be an average three questions a decade both yesterday and today have been asking his fall allotment of time and he is the most senior associate justice right after john roberts and ask important
questions for his colleagues to go after so he clearly prefers this structure. we have changed our history of the supreme court in terms of how they write opinions and do arguments and a whole host of things how the process has changed. even if we don't have cameras in the courtroom more live audio streaming when we go back, maybe it's nice to have a little more orderliness all the different lines of inquiry are clear rather than they are scoring debating points. >> it's time for closing arguments. and whether the sequence of asking questions is working and then your final thoughts why the government should win the case. >> it is a lot more merciful
to the advocate used to have fire from all directions now it is much more orderly i have to think it makes it easier for states to balance for the point you want to get across. the second point it would definitely diminish the influence of the younger justices because sometimes the question that oral arguments is to extract a confession that changes the perspective of the other judges can change what they do. but you only get that at the beginning by the time he gets to them their ability to do that so they are chomping at the bit waiting for their turn but for the argument itself
the previous case is much more important than this one and then to be on corporate niceties and separate identity but the larger point the audience should keep in mind what you do with the government that's large and then the ability to dictate what we have to do to go along. on the other hand to maintain a genuine concern so whoever is subject to whoever comes along. >> thank you so much for that. >> why is this case important and why should the government lose the case?
>> it is important because it's about the condition the government can put on our speeds traits to choose between the rights and what are the standards for the government is doing because this comes up in the government should lose because it is our first amendment rights and they will continue that as well as recognizing that corporate niceties are so much less important thank you for joining us tomorrow is the little sisters which is the important case with religious
and also the association the telephone protection act and all those robo calls and to violate the first amendment. please read the briefs in the cases for these fascinating oral arguments you cannot really understand what's going on unless you take the time for those cases that are discussed and you can find all of them on the supreme court website to bring court.gov you will be as prepared as the two great advocates of the supreme court i want to say with the cases as well. >> congrats from your productivity so at least on the other side.