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tv   Review of Supreme Court Oral Argument in USAID v. Alliance for Open Society...  CSPAN  May 5, 2020 11:10am-12:16pm EDT

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>> welcome to the national constitution center's second day of supreme court reback -- recap. i am jeffrey rosen, president of the national constitution center, and it is a thrill to welcome all of you today as part of this historic experiment, to hear supreme court arguments live for the first time in american history and then convene advocates and scholars who have filed briefs on both sides of the case to help us learn together and understand
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what we have just heard. the national constitution center is a private nonprofit with an 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. that is just what we are trying to do as we learn together during these important arguments. joining us to learn and to help understand the arguments we have just heard are two of america's leading advocates and scholars of the constitution, both of whom have filed briefs, called amicus briefs, on different sides of the case. walter weber filed a brief in support of the petitioner's, who are known as u.s. a id, and the case is usaid versus the alliance for open society international. he is senior counsel for the american center for law and
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justice in washington, d.c., which is the organization on whose behalf he filed a brief. he has written many briefs in landmark cases of the supreme aclj and before joining he served as attorney with the catholic league. has filed a brief on behalf of the cato institute in support of the respondents, the alliance for open society international. he is the director of the robert leavy center for constitutional studies at the cato institute and the publisher of the cato supreme court review. ilya, thankah -- you for joining. >> happy to be part of this grand experiment. jeffrey: i am thinking of the words of justice holmes, on the constitution. it is an experiment as all of life is an experiment. based on the arguments today, the experiment is going very well.
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let's be part of that grant tradition. walter, you can begin. we just heard the lawyer for the government arguing on behalf of the government, that was assistant toichel, the u.s. solicitor general. he said the case comes down to two propositions. the first is that foreign recipient of aid lacked constitutional rights, they cannot bring a constitutional claim, and he said the respondents cannot bring a constitutional claim because any effect on their message is a product of their own choices, not of government coercion. can you unpack and summarize the core of the government's argument in this case? sure, and- walter: please let me know if i'm going too long. jeffrey: keep it crisp at the beginning and we will have a lot of time for a lot of questions. walter: this is a follow-on case.
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there was a case already decided by the supreme court addressing a lot of the main issues in this case. back up a second. this has to do with a foreign grant program. united states money being shipped overseas in order to address some issue, in this case it is putting the spread of hiv and aids. because congress is of the view that prostitution and sex trafficking are an important vehicle in spreading these diseases, what congress did was added a clause to its statutory grant, saying you're not eligible to receive grant unless you have a policy explicitly opposing sex trafficking and prostitution. said we object to having that policy, we would like to be in charge of our own policies, and we think it violates our first amendment rights to say we are not eligible for this money unless we have the government policy.
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the supreme court by a six-to vote said that is right -- by a 6-2 vote said that is right. the case went back down to the lower courts and the grantee side said wait a second, it is not just us. we have foreign affiliates who are receiving the money as some grantees or contractors with us. we think they should not be subject to the policy either, because what sense does it make for us to say we will not be pushed around by the government on policies, but the grantees will have to. same logo, same brand, same name, we think that violates the first amendment. the lower courts a great -- the lower courts agreed. as to affiliates sharing the namebrand, it violates the first amendment.
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the government said hold on a second, there is a long-standing line of cases that the court has recognized saying foreign entities operating abroad do not have constitutional rights. the domestic grantees have one. they can operate abroad. but if they will affiliate with contractors,ees or they have to recognize those entities cannot get under the umbrella of the first amendment. therefore, the same ruling should not apply to foreign entities. that is the just. -- that is the jist. jeffrey: many thanks to that. there is an important case that said the domestic entities cannot be forced to take the pledge, but that the core of the government case is they are foreign affiliates, care india, for example, lacks those rights and should not be able to claim them. lawyer forument, the
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the petitioner's, mr. david there are two violations of the first amendment rights in the -- of the u.s. respondents. he said the speech compulsion wasn't tribute at to them, when kenya takes the pledge its actions are to beaded to care u.s., and the second is the speech restriction that prohibits the u.s. entity from even contradicting the pledge on its own time and time, quoting chief justice robert's original 2013 opinion in the u.s. id case, making it possible for care u.s. to disavow the message without doublespeak, and quoting from chief justice roberts's opinion. was appealing to the cheap, saying this is covered by
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a decision you wrote in 2013, which was 6-2. justice kagan was recused, as she is in this one. tell us more about how david bowker was saying the 2013 decision covers this case and the first amendment rights of the u.s. entities are being violated by the restriction. >> from a layman's perspective, the first point is basically it. if you have some foreign affiliate who takes a particular position, the general public observing this does not say that is care india, that is not care usa or care global. it is colloquially or commonly attributed throughout the network. that is where the second part comes in. there is a restriction on disavowing. argument and of this case comes down to
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something justice sotomayor said once she found her unmute button. she had an issue with that for the second day. she said "in a first amendment context, we are less concerned with the corporate formalities." you can look at cases as different as hobby lobby, about the first amendment rights of a closely held public corporation, or the hurley parade case. we do not look to see whether it is a partnership or an s corporation or nonprofit. however you structure your rate galley -- wow -- however you structure your legality is -- this is aint of corporate structure case more than a first amendment. the question is in 2013 the court did rule 6-2, and all of those justices are still on the court except just as gorsuch
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replaced justice scalia and justice kavanaugh replaced justice kennedy, so i suppose those would be the swing vote, but the point is does that 2013 rolling applied to those foreign entities? i think this is a question of, in the first amendment context, it does because the corporate niceties do not matter so much for the purposes of protecting free speech rights, as justice ginsburg said. it is not just whether foreign entities or individuals or persons have first amendment rights under the u.s. constitution, typically they do not, but about the u.s. government's obligation, "congress shall make no law" not to infringe on those beats rights or compel them in some way. -- on those speech rights or compel them in some way. jeffrey: let's talk about whether did the distinction is formal. the first question chief justice
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roberts asked is one thing is not clear in the precise relationship between the foreign and domestic entities. is it reason to insist on formal corporate ties. set of formal distinction is all that is necessary to attach a separate legal rights. many justices noted about corporate formalities, as you said. justice sotomayor said the hobby robbie case -- the hobby lobby case, that was a case that said the religiously scrupulous correlation cannot be -- corporation cannot be required to offer contraceptive coverage, indicated they were less concerned with corporate formalities then perception. people might think hobby lobby was endorsing contraception. at the end of the argument, justice gorsuch said the primary harm was the mistaken attribution of the foreign affiliate speech to the domestic entity, that sounds like an
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alter ego argument. you resist any attempt to pierce the corporate veil. why should we attribute the speech of foreign affiliates to a domestic entity, and the answer of the respondent was we do not ask the government to pierce the corporate veil. there is a danger of speech being attribute it even when the corporate formalities are imposed. walter, that is a long way of saying what is your response to this crucial distinction in the argument. should we take a formalistic or a pragmatic view of whether the speech of the foreign entities will be attributed to the domestic entities, and what is your argument about why we should do this holistically rather than pragmatically? walter: a couple of things. the first point is the supreme court has not been consistent on this. if you look at the common sense event, which i think ilya was wisely pointing to, you have an entity like planned parenthood, then you have planned parenthood
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action or whatever they call their pac. you have the aclu, and the aclu 501(c) four, or maybe a pac associated. you have planned parenthood saying they are not partisan group, and then you have an entity that has planned parenthood action as its name battling for particular candidates who support their position. that is the right to do that, but the supreme court has said it is also legitimate for are not to say you entitled to the nonprofit status of your campaign entity. you have the same logo, same name, same general worldview, distinctionalistic allows you to do things you were never allowed to do at a different formal status. is a guy on the street going to say that looks the same to me? probably. does it matter nonetheless?
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yes. we have at best an inconsistency on whether the corporate is decisive. lobby wherext of the context of whether you are tax deductible entity, it does matter. why can't that apply when you have a domestic entity that is restricted -- not restricted, but a foreign entity that is restricted, and that is part of the territory? the second point i want to make is that part of the problem that the government faces in this case is it is fighting with one hand tied behind its back. as the attorney for the solicitor general said, we fully accept the court's prior decision. our brief takes the position that the prior decision was a mistake. that is because the prior decision turned on the gnosis -- on the notion there is compelled speech. our view is the voluntary
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acceptance of a limited discretionary grant program is not compelled speech. no one is applied -- no one is required to apply -- 99% of people will not be thinking about applying to a foreign grant to combat aids and hiv overseas. it is something you voluntarily undertake, and it is typical with voluntary grant programs by the government that you accept the strings that go with it. that said, it is an awesome power of the government. it controls the budget. it can pull springs -- it can pull strings that push around. there is alignment between the kind of programs like fighting smoking, fighting drug abuse, fighting hiv aids, versus a general program like access to parks, access to libraries, can you drive in the hov lanes, where will be inadmissible for them to do so saying you accept the government position on smoking and sex trafficking
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cured we continued the original decision, that if you get one button bun wrong on your jacket -- thank you for that and for signaling an important point in your brief. you argue the original 2013 incorrect and was the court should overturn it and allow foreign aid to be conditioned on ensuring the organizations that receive it are on board with the general purpose of the program. know, the court is reluctant to overturn prior decisions, and your cato brief argues this case was already decided by the 2013 decision. betweenthe distinction foreign and domestic affiliates is unsupported by the record, which demonstrates the speech by close foreign affiliates is indistinguishable from respondent speech, and under the technical distinction between the two was rejected in the
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previous decision as evidence of hypocrisy. justice breyer seem to pick up on that notion and several of his questions. he said, following up on justice ginsburg's question, if the organizations say we are against prostitution but the foreign disavowing --are the domestic organizations are saying they do not support that pledge, justice breyer said some of the prostitutes will say they are hypocrites. if does that change one iota instead of sending their own worker over and the foreign worker says the same thing, how does that interfere one wit less they will be seen domestically as hypocrites interfering with the mission. if we accepted the argument before, why should we accept it now? seem tojustice breyer suggest that case was clearly covered by the 2013 decision? ilya: for free-speech purposes
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it is a distinction without a difference. this is not about piercing the corporate veil in terms of tort or contractual liability issues or issuing stock or other reasons for which we have the corporate form and we have affiliates and corporate parents and things like that. this was a colloquy with justice gorsuch toward the end of the argument. for free-speech purposes, it is very different. hypocriticaluld be , it would be disingenuous to continue with the particular one body still refuses to adopt it or another one does. is ae end of the day, this question of imputation. cases, thethese corporate entity exists, not
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even for some sort of 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 affiliate to be able to do business, whether as a nonprofit or a for profit. this came out right off the top with the chief justice's first discussion with .he government lawyer they had no choice to incorporate local entities, so it is not a matter of wanting to have a legal separation that they had to to be able to operate in that area. just in the speech context, it termsdifferently, or in of many fundamental rights, then when we are cocking about -- when we are talking about
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before we digr, into your argument that the original decision should be overturned, let me ask you about justice kavanaugh and his questions. he said -- >> can i add one thing? of overturning the previous president, i think there's a less than zero chance of overturning that. it was a strongly written brief, but that was six-two. take away the justices that were no longer on the court, it becomes 5-1. is still five votes for that previous position, so the only question is whether, as we put it strongly, that the previous decision controls this one or whether they have to explain further to get to where they would need to go. you pressed that
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point. do you believe there is any realistic chance that the decision will be overturned given the composition of the court? why did you decide on the court to overturn it rather than arguing that the previous decision could be reconciled with this decision and maybe this is a chance to say but it was about the previous one that you think was incorrect and should be overturned as justice scalia laid it out? first, the odds question. one of the reasons why we filed this was because we think it is important for the supreme court to get this right. if no one points it out, if it gets it wrong, it becomes entrenched. there are two new justices, one of them replace someone who was in the majority and one who was in dissent. i would like to see both at least note that the arguments
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that we make have some force, and while that question may not ,e presented in this case because the government concedes that they would at least recognize, at least in their mind, that there is potential vulnerability in the death star, so to speak, that may become an issue down the road that leads into where we want to go with the merits on this. the previous case turned on the idea that making a funding condition string for receiving funds, part of the grant program, is the equivalent of compelling speech. the first amendment is powerful. not compeljust someone to adopted this. and you cannot forbid them from having a policy come and you cannot even pay for them because
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they do or do not have one. an example. child sex abuse, they used to be and if the government, and it does not have to be the federal government, their size and ability to coerce people into funding. let's take it to the state level. suppose a state once a child abuse grant program. this group applied that they would only use the fund to fight child abuse, not any of it to promote child abuse, but we will ifain our policy saying that consent is on both side, then they can engage in sexual relations. the government is entitled at a minimum to say we are going to give preference to groups that do not have the expressed policy
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in favor of child sexual abuse. of usaid v.tionale alliance for open society international, inc., it seems that cannot be done because what they are saying is if you have a first amendment right to have or not have a policy, the government cannot require it, and they cannot pay for it. they cannot say we will disqualify or even give lower ranking because of this policy. where does that leave the government and its ability to preserve mission integrity? you cannot have someone who represents a tobacco company talking to teens about smoking. people would laugh. it will not be effective. this is why i think there is a fundamental category problem with the first decision. it is true that you do not want the government to be able to use
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this popping pile of cash as a stick to say go along with our policies and you'll get the money that is a problem. you have to come up with some coherent line between saying no one can use the library or a public park unless they sign on this line about these preferred abortion, prostitution, you name it. it can go both ways. this should be a nonpartisan issue, some line between saying no one can have these privileges , whichthey told the line is unconstitutional, versus saying we will have a targeted ,rogram to fight this evil whether it is smoking or child sex abuse, how we want to prefer people with the program whether -- rather than those who are indifferent.
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thanks so much for that. be ableso meaningful to to go back to the first principles. that was the agency for international development versus the alliance case from 2013. -- line that she's chief roberts adopted was the following, he said the distinction that has emerged from these cases is between conditions that define the limits of the government conditionsogram and that leverage funding to regulate speech outside the contours of the federal program itself. he acknowledged that the distinction between conditions -- those that the court is confident that the requirement here -- you help us understand
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that distinction? is it true that congress could not say a child support agency in the u.s. not support child withinor would that be the conditions that define the program itself and would only be people who were distributing aid unrelated to child welfare who would not be able to be restricted from supporting this? help us understand. towards theo doctrine of unconstitutional conditions, not the first amendment, that is the government cannot tell your ability to exercise one right to ,our waiver or restriction voluntary restriction, giving up the right to exercise a different right. read, i that you just think that is apt, basically another context called germ name this -- germane-ness.
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do you require all program applicants for funding to fight hiv and aids to say that they are against the spread of those diseases, or are you requiring them to say they are for the lat tax? letter are clearly not germane. -- the latter are clearly not germane. if this is a program to advance government policy to fight prostitution or to not decriminalize it or criminalize it further around the world, then it would be totally germane and totally within the four squares of the program to set you have to adopt that policy to get the funds to advance that position. la, if thee of namb
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government position is sex between minors and adults is de , child sex abuse, then you are not going to get access to anti-child abuse funds . again, it has to be how germane or how close to the actual mission of the program that you are designing is the applicant, and that is really what the debate in 2013 boiled down to. beachobviously ace reduction because we are asking you to adopt a particular policy. there would not have been a problem if the policy for the program was you have to agree that hiv is bad or we want to prevent the spread. of wherelated policy you stand on prostitution, the court found correctly, i think,
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for reasons described elsewhere in the opinion, lies outside of that line. walter, are you questioning this distinction itself? you just disagreeing about on which side of the line this speech about prostitution falls? do have to call for the two thousand 13 decision to be overturned? all, ilya and i are agreeing on a lot of things, but we are not necessarily agreeing with what the supreme court said. that passage that you read talked about the scope of the program versus the activities outside of the program or the larger entity applying for the grant. i think this issue is totally different. that should be one of the decisive factors.
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if you say you cannot get hiv funds unless you agree to having puerto rico as a state, that has nothing to do with the program. leverage the supreme court did not say that. they said the difference was between the scope of the program versus your outside existence and functioning. i do not think that stands up with the germane question. if you want to say we are not going to allow some people to participate, if you have an antismoking problem, you would not allow the tobacco industry to participate. there is one organization that has a position that is antagonistic to the goal of the program, so they can promise all day that they will always use the money to fight the
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terrorists, maybe the ones they their like, but organizational perspective is what disqualifies them for the grant. that is outside the scope of the program. same thing that a group that wants to say repealing all laws against drug use. like it or not, if you have a program that will fight drug , formally thinks those restriction should be limited, the government can rightly say it is germane to our program to disqualify you or certainly at a minimum to prefer someone else your policy is inconsistent with the goals that we want to see accomplished. the nature of the entity is going to be undermining our efforts to have the effective program. a can disagree on whether not policy about sex trafficking and prostitution is germane to
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fighting hiv-aids. i do not think the supreme court decided that question. they seemed to accept congress finding that this is germane because prostitutes and sex traffickers are one of the main vehicles for the transmission of the contagion. apparently congress found that 40% of prostitutes in cambodia where jade -- were hiv positive. you don't want that activity going on that will further the problem your time to fight. we can disagree on whether or not that is germane. i do not think that decision -ness. on germane return to the oral argument and the implications of the decision on either side. justice kavanaugh asked both partners about the practical effects and he said i am interested in the implications
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if the government were to lose, if any other statutes would be called into question by such decision? the governmental lawyer said i do think so. like congressional bands on campaign contributions by foreign entities or opposing terrorism, congress often imposes restrictions on foreign to and domestic entities challenge this would be quite disruptive. you have the brief opposite concern. you say the argument against the domestic entities would allow the government to force recipients to espouse any number of messages that come into the --ernmental favor
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that organizations that receive funds to export agricultural products could be forced to declare their products .ave been genetically altered so who has the right? thet more dangerous as question suggests to allow, to prevent the government from imposing these conditions which could call the campaign restrictions into? question?onto certain kinds of regulations and restrictions about foreign entities that does not transfer to other areas of speech regulation or first amendment doctrine. the passages in my brief that you quote, you took the wind out
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of my cells a little bit on that, but that is exactly right. it comes down to help the government draws up its program. justice kavanaugh at the very end asking the lawyer for the , what implication could this have on foreign policy? if the government wanted to promote peace in the middle east, cut it condition that on organizations that recognize israel? the answer is yes because part of the u.s. government commitment is a recognition to israel. the -- if they no longer recognize israel or said it was a problem, then that would transform the argument. realities,ertain similarly with hamas, if you're giving it funds, and the u.s. government is certifying them on
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the list, that is kind of like it is how you design the program. if it is a general program of ords for good government good policies without defining them further, that would be a lot harder to restrict. we aregovernment says prevent --y to i think walter and i agree on this, that you have to, the way the congress draws up the program, it cannot say you then have to adopt policies that are not necessary to carrying out whatever it is that you are doing. of ruling inces the government's favor would be to chill speech to prevent
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domestic actors that are related to those who are not actors through these corporate niceties from engaging in the kind of operations that they want to be engaged in or choosing which of the rights they prefer to exercise. justice gorsuch said i think the argument goes beyond the force association which was the issue in the st. patrick's day parade case, to the chilling effect of speech, and he said the first amendment is not just concerned about protecting speech but the chilling effect of it. do not see anyi chilling effect. entities are free to take the here and use it, and respondents are asking for right to optimal message management. that was a memorable phrase. alter, what did you think of that response?
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did you think of that response? walter: to your first point, there is a legal doctrine that focuses on causation of a problem. if you are challenging a law that you think restricts your ability to do something, but there is some third-party actor you is part of the problem, will not necessarily be able to get the relief you are entitled to because of someone else involved. suppose you want to be able to run advertisements in a
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newspaper supporting a issue, but there is no newspaper in your town. the government cannot require a newspaper operator to just spring up in order to satisfy your desire to exercise your first amendment right. foreign country that says you can only operate in this country if you have an entity that is incorporated in thecountry, which is one of complaints in this case, saying it is easy for you to say we can do what we want, but the fact is usntry x excellent not let operate there. your problem is not with just of the government program. it is with the foreign government telling you you have to have a foreign entity. that is not the fault of the united states. that is why i think the question is arising, are you really asking us to solve a problem that is not the making of the united states?
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the optimum functioning principle is not something recognized in the first amendment because you usually do not have the right to change the environment to make it conducive to what you want. in here red light put so people will stop and see my sign. you do not have that right. if the government is saying we will not operate in this country unless you have an entity that is incorporated here, than that is the problem, not the government policy. the second thing, specific policies. give you a hot button, abortion. everybody who has feelings about this have strong feelings about it, and that is something that cuts both ways. you can either have a desire to have access to reproductive rights overseas or a desire to restrict implementation of things that cause violating
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rights of the unborn. if the government has a program to further the governmental policy, should it be allowed to say we are not going to fund people who have a mission statement and consistent our goals? if we are the obama administration, we will not on human life international to increase access to reproductive health care. if we are the trump admin station, we will not fund planned parenthood to increase rights for human life in the womb. that seems to me to be commonsense. that is why is so important that you have to put really strict limits on what the government can do to justify that. you have to have germane-. you have to have a limited scope policy, something that is discretionary because everyone is a --
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is required to go along with it. you have to have all of these high walls around this power. hand, you could essentially be saying the government could not have any kind of mission focus because it has to accept whoever comes along as long as they are qualified for the government. limits: ilya, are there to your claim that the first amendment rights of the domestic overies should carry broad? justice ends bird asked, you say the eighth at moment does not apply abroad, but does that mean the government operating abroad can torture people? are there any circumstances under which a domestic aid organization could not resist a foreignent imposed on affiliates? ilya: that example i think is
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apt because there international law would come into play. we have statutory laws against things, butrelated the eight the men it does not apply. i do not think that person getting tortured can go into court and say my eighth amendment rights have been violated. it is a different kind of case. matter,ifics of the lot and hear the specifics of the law is corporate law. if we accept that domestic entities have that kind of rights and not to be compelled or restricted in the ways that this program implicates, then the question is does that legal formality affect the protection? that gets back to what we were saying at the beginning. you have to look at the theory of the matter, the particular
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right being invoked or the legal claim being made. it is not so much that foreigners have these constitutional rights, first amendment or otherwise, it is recognizing or not recognizing those kinds of freedoms. jeffrey: friends, just a quick review, the supreme court has held that certain rights apply abroad and others do not. it held in terrorism cases that even a foreign detainee knelt outside the u.s. has a right of aneas corpus, to challenge unconstitutional conviction, whereas the court held the --rth of minute right fourth admin that right does not because request
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said the right of the people to first of, people were the citizens of the united states and does not apply abroad. arguing that what matters is the corporate form that is the rights of the domestic organization and also the nature of the restriction being imposed. brief, you say in your that the conditions doctrine would not permit the government to condition unrelated grants such as to assist taxpayers with irs filings, so you do seem to think there are certain kinds of conditions that would be so unrelated that they would not be allowed. tell us more about how you would define that and also the degree to which you think the corporate form limits the degree to which restrictions can apply abroad. walter: sure.
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the basic idea is the government should not be allowed to your constitutional rights out of existence through the use of money. that is different from saying that the government can have a program that is going to have criteria for eligibility, make sure your qualified to undertake. anytime you have something available to the public like access to a park, the public library, eligibility for food stamps, welfare programs, the government cannot say you are only going to be able to get these benefits if you sign off on our policies. the only possible exception would be if the policy was really strict we germane to what you are doing. i agree that i will return might library books on time, that is a
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condition for using the library. beyond that, there is the problem of governmental abuse. the is why we have to have strict high walls surrounding that power to limit it. that is not the only way to limit it. the other way is to say is it true that the government has all of these powers in ways that it is currently doing or have we strayed from the original vision of the federal government as one of limited power and instead replacing it with this octopus. why is the federal government regulating what is on your food products in that kind of thing? it is because of congress -- ends up having limited power. that is a separate problem but it gives rise to what we are seeing. never the government as a role
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it will necessarily be politicized. if it is, you will have winners and losers, and that is maybe one of the most important lessons we can take away from this case, we do not really want to be -- to have the government in a position where the only defense is to argue over whether the position is germane. should we really be trimming back some of this and saying we have local governments, shouldn't they be the ones in charge of this rather than having the federal government be the one calling the shots? i hope that is helpful. you asked about corporate entities. that is one of the ways the government is saying we will restrictions.n we are able to boss around foreign entities because they are foreign, but if they are domestic, then we can --
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you and your colleagues at cato are determined to lop off these tentacles and you're often opposed to governmental regulation. we believe this case is important because ruling in favor of the government would give it further discretion to impose the tentacles as a condition. tell us why the viewers should care about this case. we already talked about some of the horrible ways from your brief, but if the court would rule for the government, what are you concerned might happen? ilya: the government could arbitrarily pick winners and conditions, aach hobson's choice if you will, in this case for nonprofits and in other cases contractors to decide whether they want funding to pursue their mission or
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whether they would rather , not be their mission hypocrites in certain ways. this conversely to what walter eign inid, it would r congressional power to require congress to legislate with more specificity. that is this is not an argument about government power in the sense of can congress or the federal government have a program preventing the spread of hiv and aids abroad or for whatever other purpose. but must it legislate with the specificity really, so there is nothing to prevent the obama administration from saying we want a foreign program to increase access to abortion. if congress legislates that, they can have that program and deny funding to the human life missions,d other
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antiabortion groups. conversely, if the trump administration once a program to promote the sanctity of life in the room -- in the womb, then they can prevent planned parenthood from access to that bond. it pans on how you draw up the program and at that point you can add conditions to it. jeffrey: walter, your response? itter: i think ilya has exactly right. we agree. agreey: but you do not about the disposition of the case. why are you concerned that if the court rules against the government that these bad things could result? ilya and i agree on the principle. it is the particular application is where the dispute comes up.
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my problem is that i think that the supreme court did not adopt ss test that we think applies. it apply the scope of the program test and that would say we willoup to be accepting these grants and we will only use them to increase access to reproductive health care, and then plan their head could accept that and say, in this grant program we are only theg to increase appreciation for sanctity for life in the womb. i do not think that makes sense in terms of the government. if you're going to have a role that the government cannot take a position on these issues, then it does not make a lot of sense to say it can have that position ,ut then it cannot carry it out
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cannot contract with other people to do it and consistent with that impose eligibility criteria limited in a germane way to the program at issue. , my main concern is that we have an entrenchment and possibly expansion of a ruling that is off in its footing back in 2013. andrey: an arc question answer box, we have a question, how much do you feel is lost because the justices are being limited to being called on by the chief justice? the senior justices who go first have no limited opportunity to do that. i was struck by the fact that the justices are following up on each other's questions.
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ilya, how do you think it is working? has that affected your sense of which way the argument is going? i'm not asking for predictions, but we went to get a sense from the arguments about what that just a sense -- justices are most interested in. this is the second day that we've had this argument. i think we need more evidence. i am still processing how this changes arguments. on the one hand, it is more orderly in the sense that it is a series of dialogues rather than different people jumping in at different times which is a certain type of effectiveness. on the other hand, there are still time limits. the chief justice jumps into cut off but the council and sometimes his colleagues when toy have had enough time
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ask. it is not an unlimited series of dialogues. i do not know how this will affect things long-term. there is probably not nine different lines of inquiry for every case that the court takes up. there's going to be a lot of overlap and following up good that is probably good. on the other hand, it does make it a little harder to predict because all of the justices are asking questions of both sides, which they don't always do in a live argument. think there was more skepticism of the government's position. it will probably be a fairly narrow ruling, just think that the distinction in the corporate form does not make a difference and further apply the 2013 ruling. countot what the eventual
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would be, whether it was six-two or 7-1. anyway, that does seem what it is like. it is a interesting dynamic, and you can see that justice thomas, who rarely asks questions, maybe an average of three questions a decade, i think, both yesterday and today has been asking his full allotment of time and questions. he is the most senior associate justice, and he goes right after john rap -- john roberts and asked important questions. thisearly prefers structure. we have changed in the history of the supreme court, both in terms of how they write opinions and do argument, about the process, and even if we do not have cameras or live streaming when we go back to the court, maybe it would be nice to have a
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-ness forre orderly these points. jeffrey: it is time for closing arguments. we will try to be on time as the supreme court, so maybe some quick thoughts on whether the format and whether the sequence is working or not and then your final thoughts about why you believe the government should win this case. walter: sure. one point is that i think the format is more merciful for the advocates because it used to be you would have incoming fire from all directions. it sometimes simultaneously, and now it is more orderly. you're getting questions in a discreet passion. i think that makes it easier to stay august and proceed through what you want to get across. this willnt, i think
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definitely diminish the influence of the younger justices because sometimes a question can shape the way the discussion goes. if someone raises a point, that changes the perspective, and that can then change what the justices do with the case. in this case, you are only going to get that at the beginning of the argument from the senior justices. by they time to get to that newer ones, their ability will be diminished because they had to sit there waiting until he gets to their turn. as far as the argument, the previous case i think was more important than this. i think ilya is right, it will probably turn on corporate niceties versus separate identity. i think the larger points that the audience should keep in mind from this is what do we do with the problem of a government this large, and it controls funds and whathe ability to dictate
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we have to do in order to go along with the program, versus concerning some genuine for the ability to be effective as opposed to just being subject to whoever comes along and says i'm going to be in your program and you do not look at what i stand for. jeffrey: ilya, why is this case important and why do you think the government should lose this case? because it important is about the conditions that the the speechcan put on right or of any right. do you have to choose between your rights? what are the standards that court apply in evaluating these climes -- these claims, and the government should lose and will lose
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because this court is most solicitous of a first amended rights. i think they will continue that trend here as well as recognizing corporate niceties and constitutional as opposed to civil legation cases are less important. thank you for joining us. tomorrow the case is the little sisters of the poor, involving religious freedom and also the bar versus -- involving the protection act and all of the robo calls and whether restrictions on them violates the first amendment. this is your homework, please read the briefs and the cases. a few -- as you have seen, you cannot really have a sense unless you
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take the time to read the briefs and the main cases that are discussed. you can find all of them on the supreme court website. and you will be as prepared as art two advocates, just with a little bit of homework. i just wanted to say i filed in both of the cases tomorrow as well. jeffrey: congratulations for your proto-victory -- productivity. you did win an award for the funniest freak last year, ilya, so you will find amusement if you take the time to educate yourself about the constitution. that is what we are all doing, learning here together in this great experience of hearing supreme court arguments live for the first time in u.s. history. we look for to seeing you tomorrow. much walter and
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ilya. see you tomorrow. oye, oye, oye, all persons having business before the supreme court of united states, give their attention paired the court is now sitting. >> for the first time in history, here the u.s. supreme court life this month. due to the coronavirus pandemic the justices are hearing oral arguments by teleconference. c-span will provide live coverage of each of these sessions wednesday at 10 :00 a.m. eastern. the justices hear two cases, little sisters is of the poor versus pennsylvania and trump versus pennsylvania, and argument on the constitutional ity of the health care act.
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and a first admin that case on banning automated calls to cell phones in order to collect debt on behalf of the united states. be a part of history and listen to the supreme court oral arguments as they heard by the justices live wednesday at 10 :00 a.m. eastern on c-span, on demand on or listen on the free c-span radio app. immediately following the live session, joined jeffrey rosen of the national constitution center with a live discussion with scholars. today the senate banking committee holds a confirmation anding for brian miller live coverage begins at 2:30 p.m. eastern on c-span.
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♪ television has changed and c-span began but our mission continues to provide an view of government. we have brought you primary election coverage, the impeachment process come and now the federal response to the coronavirus. you can watch all of the public affairs programming on television, online or visit the free radio app and be part of conversations through the daily programs or through the social media feed. c-span, created by private industry as a public service and brought to you today by your television provider. >> next, mark esper talks about that military role during the pandemic.


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