Connecting the Dots Between the Unconstitutional Conditions Doctrine for Individual Rights and the Federalism Limits on the Spending Clause

By Mike Dorf

Yesterday's SCOTUS ruling in Agency for International Development ("AID") v. Alliance for Open Society Int'l Inc. could prove to be an important precedent in the "unconstitutional conditions" line of cases.  After a brief description of the case and the ruling, I'll say a few words about the surprising lack of express connection between this line of cases and another line of cases that addresses a very similar topic: federalism limits on how Congress may exercise the Spending Power.

At issue in AID were a federal statute and implementing regulations that required recipients of federal funds for HIV/AIDS eradication efforts to "have a policy explicitly opposing prostitution."  Respondents are organizations that undertake such efforts with federal funds but do not have such a policy.  (Policy experts and governments take different views on whether to oppose prostitution because it is a vector of HIV transmission or to work with prostitutes--for example, by distributing condoms to them--on a harm reduction approach.)  Requiring them to adopt such a policy, they claimed, violates their First Amendment rights.

In a 6-2 ruling (with Justice Kagan recused), the Court agreed.  Writing for the majority, CJ Roberts characterized the Court's unconstitutional conditions cases as drawing a critical distinction between permissible "conditions that define the limits of the government spending program—those that specify the activities Congress wants to subsidize—and [impermissbile] conditions that seek to leverage funding to regulate speech outside the contours of the program itself."  Although acknowledging that this is not always a clear line, the Court thought it clear that the AID requirement fell on the impermissible side.  Among other things, the Court noted that the obligation to explicitly oppose prostitution was in addition to another condition forbidding AID recipients from using government funds to "promote or advocate the legalization or practice of prostitution."

Justice Scalia, joined by Justice Thomas, dissented.  They noted that the government, in selecting non-governmental organizations to carry out government policy, could adopt a policy of only choosing like-minded organizations.  Justice Scalia gave the following example: The government could decide not to fund Hamas for providing social services.  The AID conditions, Justice Scalia said, were functionally indistinguishable from selection criteria.

The majority offered two responses.  First, the Chief Justice observed that the AID policy was not merely a selection criterion but imposed ongoing obligations, enforceable by termination of funding.  Second, the majority said that the Government policy was not merely about soliciting "the assistance of those with whom it already agrees. It is about compelling a grant recipient to adopt a particular belief as a condition of funding."

There is more to-and-fro'ing between the majority and the dissent.  Suffice it to say that I find these cases extremely hard--perhaps even impossible, because there are slippery slopes in both directions.  (See my agonized past musings, here and here, for example.) On the one hand, as Justice Scalia notes, money is fungible, so that whenever the government funds any entity, it indirectly assists that entity in all of its activities, including actitvities that the government may oppose.  On the other hand, given the ubiquity of the state in modern life, a rule that government may withhold funds whenever it wishes would license considerable de facto censorship of a great many major organizations and individuals.  In the end, I find that my civil libertarian instincts put me closer to the majority's side in a case like AID, but I recognize that the doctrine is hardly perfect.

To his credit, CJ Roberts also does not pretend that the doctrine is perfect.  He quotes Justice Cardozo for the following proposition: “Definition more precise must abide the wisdom of the future.”  That is from the Steward Machine case, in what the Chief Justice calls "a related context."  What context?  Discerning the federalism-based limits on the power of Congress to condition the withholding of benefits under its power to tax and spend.  That does indeed seem related--and yet the Court's cases defining the limits of conditional taxing and spending appear to proceed on a completely different track from its cases involving unconstitutional conditions on individual rights.

They oughtn't.  In AID, the majority and the dissent agree that Congress (or a state legislature) may not impose conditions that are not relevant to its program and that it may not impose conditions in a way that is coercive.  The majority disagrees with what it characterizes as the dissent's further conclusion that these are the only limits, but there is no doubt that these are limits and--as neither side notices in the AID case--they are also limits in the Court's affirmative powers cases.  One might therefore think that this is a fertile area for cross-pollination.

Perhaps there has already been some such cross-pollination, at least sub-consciously.  The largely non-ideological breakdown of the voting in AID could reflect a blending of views on the two topics.  In the past, one could expect that liberals would favor a broad unconstitutional conditions doctrine for rights (i.e., a doctrine that somewhat strictly limited the government's ability to impose conditions on the conduct of individuals receiving government funds), while favoring deference to Congress in its imposition of conditions under the Spending Clause; and one could expect the opposite pair of approaches from conservatives.  But now we are beginning to see some consistency across the two domains.  Four of the Justices (Roberts, Kennedy, Breyer, and Alito) in the majority in AID were also in the majority in the Spending Clause portion of the ruling in the Health Care Case last Term--and it is a fair bet that the total would have been five if Justice Kagan had participated in AID.  So a majority of the Court appears to believe in robust limits on conditional spending whether the parties subject to the conditions are individuals or states.

Does this mean that the other four Justices are result-oriented hypocrites?  Not necessarily.  Justices Ginsburg and Sotomayor had good arguments against the Spending Clause holding in the Health Care Case--especially against its mysterious distinction between conditions on "old" and "new" spending.  Those arguments are not relevant in AID.  Meanwhile, Justices Scalia and Thomas could rightly say that the principle to which they object in AID--distinguishing between selecting a funding recipient based on its views versus later compelling the expression of certain views--was also not at issue in the Health Care Case.

Still, for a majority of the Court, there does appear to be some sort of non-ideological coherence developing on this set of perplexing questions.

Postscript:  As regular readers know, Neil ordinarily writes here on Thursdays and Fridays but he's now on vacation.  (I was unable to persuade him that blogging twice per week would enhance his honeymoon.  Go figure.)  Over the next month, I will occasionally take one of his slots (as today) and have occasional gap days.  I also may decide to run a few DoL "classic" posts, aka reruns.  We'll be back to our full schedule by the end of July.