• SCOTUS: US grant recipients can take controversial positions on their own “time & dime”

    In the US AIDS Leadership Act, Congress prohibited grant funds to any organization “that does not have a policy explicitly opposing prostitution.” Some grant recipients filed suit, claiming a violation of the First Amendment as an unconstitutional condition on this spending program. Public health groups supported this challenge, believing that the weight of evidence established that HIV/AIDS outreach efforts are more effective when prostitutes are not stigmatized.

    Today, the Supreme Court, led by Chief Justice Roberts, agreed with the grant recipients, but not on public health grounds. The Court (6-2, with Kagan recused) permitted restrictions on what happens with program funds directly, but the First Amendment protects what the groups do on their own “time and dime.”

    Justices Scalia and Thomas provided the dissent, discussing a hypothetical application by Hamas for US government funds. Money is fungible and the US Government should have freedom to choose grant recipients based on many factors, including their other activities. Scalia would draw the line only when Congress imposed unconstitutional conditions unrelated to the program goals. Here, prostitution is part of the etiology of the AIDS epidemic, and so the restriction should be constitutional.

    This case adds complexity to future cases involving public health and the First Amendment. Of course, Scalia is right that money is fungible, but his solution would have been a blanket invitation for Congress to meddle with unpopular but effective public health practices in other settings. But the majority opinion, while a tactical victory for public health, limits the power of Congress under the spending power to conditions “inside” grant programs. Limiting the power of Congress under the spending power is a long-term Republican goal. Today it attracted 3 Democrats as well.

    @koutterson

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    • Kevin
      For non-legal types who wish to understand a bit more, can you parse the following:

      “limits the power of Congress under the spending power to conditions “inside” grant programs. Limiting the power of Congress under the spending power is a long-term Republican goal.”

      Thanks
      Brad

    • Can you expand on the concept of limiting “the power of Congress under the spending power to conditions ‘inside’ grant programs.” What’s a practical example of what that might look like in a health grant program?

      • Two examples:

        1. Grant recipients can’t discriminate on the basis of race, even if grounded in a religious world view.
        2. We all have rights to political speech, but you can’t spend federal grant money on it.

    • The court has been issuing a lot of confused opinions lately. I’m reminded of their judgement on Arizona’s voter proof-of-citizenship law, which was similarly a tactical victory that leaves it unclear, in the long run, whether the state has the power to require voters to present proof of citizenship (the court ruled that the state could ask the federal government for this permission, and if the request is denied, could sue for the courts to override . But apparently not this time. Go figure.)