Agency for Int’l Development v. Alliance for Open Society Int’l, Inc. (19-177)

argument 19-177

Agency for Int’l Development v. Alliance for Open Society Int’l, Inc.

Supreme Court of the United States 1h 8m 8 speakers 8 chapters transcribed 7 days ago official recording ↗

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What is the constitutional issue surrounding the anti‑prostitution policy condition in the Leadership Act?

John G. Roberts 0:00

This morning, we will hear argument in case 19-177, United States Agency for International Development versus the Alliance for Open Society International. I note at the outset that Justice Kagan is recused in this case. Mr. Michel.

Jeffrey B. Michel 0:22

Mr. Chief Justice, and may it please the court, 20 years ago, the HIV AIDS pandemic was devastating the world. In response, President Bush proposed and Congress adopted the Leadership Act. Since reauthorized three times, the act has committed nearly $80 billion to global AIDS relief. And it has worked, saving more than 17 million lives in the most successful American foreign aid effort since the Marshall Plan. The funding condition at issue here requires recipients to have a policy opposing prostitution and sex trafficking. which Congress found are coercive practices that spread HIV-AIDS and degrade women and girls. This court held that applying that condition to respondents, domestic entities, violates the unconstitutional conditions doctrine.

Jeffrey B. Michel 1:08

But respondents sought more, and the question now is whether the condition can still be applied to foreign grant recipients operating abroad.

Samuel A. Alito 1:17

Jeffrey B. Michel 1:17

can for two straightforward reasons. Foreign entities lack constitutional rights, so they cannot bring an unconstitutional conditions claim. And neither can respondents, because they are not subject to the funding condition. Thanks to their victory in this course, respondents can accept and use funds without any compelled speech. To be sure, respondents can choose to affiliate with foreign entities that must comply with the policy condition. But any effect on respondents' message is now a product of their own choice, not government compulsion. Respondents' contrary view is startling. They would allow U.S. nonprofits to export constitutional rights to legally separate foreign entities abroad simply because they share similar brands.

Jeffrey B. Michel 2:05

That novel theory has no basis in this court's prior decision. It could undermine longstanding regulations of foreign speech, and it has no practical justification. For 17 years, foreign recipients have adhered to the policy condition without harming the AIDS relief program or respondents' speech. This court afforded respondents all the relief they deserve. The decision below should be reversed.

John G. Roberts 2:30

Counsel, one thing that I think is not clear from the record is the precise relationship between the domestic entity and its foreign affiliates. We know that there are no formal corporate ties but that these entities share the same name, the same logo, the same brand. What would you require beyond that before attributing the speech of the foreign entity to the domestic one?

Jeffrey B. Michel 3:00

Mr. Chief Justice, you're correct that the record is not particularly thorough on that issue. Despite 15 years of litigation on this matter, the district court ultimately entered the injunction at issue here based simply on letter briefing. But our position is that the formal distinction between the two entities, the U.S. entity and the foreign entity, is all that is required to attach separate legal rights. Of course, it's important to note that that respondents and the foreign entities that they claim as affiliates made the choice to be separate legal entities. That choice, of course, has certain benefits for them, such as shielding them from liability, but it also has a certain importance.

John G. Roberts 3:43

Is it reasonable to insist on formal corporate ties in this context? I gather that it's undisputed that to be effective in many of the foreign countries involved here, you have to operate through a foreign entity. The effort would not be as effective if the American entity were the one actually on the ground in the foreign country.

Jeffrey B. Michel 4:15

Well, two points on that, Mr. Chief Justice. First, I think that that is not true as a uniform matter. Many of the respondents, the U.S. entities, do in fact operate in foreign countries through branch offices. And as a result of this court's prior decision, they always have a choice to operate in that way without compromising their speech in any way. They are, in other words, completely in charge of their own message while also accepting Leadership Act funds.