Courthouse Steps Oral Argument: USAID v. Alliance for Open Society International, Inc.

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Greg Walsh:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is titled “Courthouse Steps Oral Argument: USAID v. Alliance for Open Society International, Inc.” My name is Greg Walsh and I am Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today, we are fortunate to have with us Casey Mattox, a Senior Fellow of Free Speech and Toleration at the Charles Koch Institute. And Krystal B. Swendsboe, an Associate at Wiley Rein LLP. After our speakers give their opening remarks, we will go to audience Q&A. Thank you all for sharing with us today. Mr. Mattox, the floor is yours.

 

Casey Mattox:  Great. And thank you all for joining us. Hopefully you had an opportunity to listen in to the argument this morning. And whether you did or did not, hopefully we can give you a little bit of synopsis of what the Court discussed this morning, how the argument went, and possibly where we think the Court may go. But just to give a bit of an overview, we will begin with just a little bit of discussion about the procedure of the telephone argument. This is a new thing. We're only on the second day ever of these sorts of arguments, so we'll talk about that just briefly. Provide a quick background on the case for those, especially, who don't know much about this case. We'll provide an explanation of how we got here and what's at issue. And then we'll talk some about the issues that the Court discussed, and the potential implications of the decision, and then we'll wrap up by taking any questions.

 

      So I guess, just to begin—and Krystal, feel free to jump in here—but the Court held telephonic argument. And just so everyone is aware of how that is working, instead of the normal process where justices can sort of jump in at any time and ask questions, the way the Court is doing that for these telephonic arguments is to begin with the most senior justice and they each ask one or two questions and sort of move through the Court. And so after the first few minutes, where the attorney is beginning their presentation, then they quickly move to questions and move through the Court, basically, just one or two at a time. So it's a very different dynamic than we've heard in other arguments. I think one of the downsides of handling it this way is that it probably devalues the questions asked by the more junior justices because they can't come earlier on in the argument where they can sort of more shape the way the conversation is going. It's also very orderly though, so it has that advantage.

 

Krystal B. Swendsboe:  It is. And Casey, I'll point out, Justice Thomas is known for being silent on the bench. He has asked questions for the last two days in a row, both to petitioners and respondents. So maybe the order is good for that part. But it does end up being a very different argument when you have the justices going in a more procedural order like this.

 

Casey Mattox:  That's right. And I think you'll probably hear it when we get to the end. I think, frankly, it makes it a lot more difficult to read tea leaves. Not that tea leaf reading is ever easy. But it seems a little more challenging to read tea leaves from the Court coming out of an argument where it is that structure, because you don't know which justices are so passionate about one particular point that they keep coming back to it, or something like that. So that can be a little more challenging. So Krystal, if you want to give a case summary.

 

Krystal B. Swendsboe:  Absolutely. Thank you Casey. So fundamentally, this case is about the government's power to dictate speech by conditioning grant funding on the adoption of the government's anti-prostitution methods. Speech requirement is part of the Leadership Act, which was originally passed in 2003. It’s authorized over $80 billion to combat HIV, AIDS, and requires that no funds may be used by an organization "that does not have a policy explicitly opposing prostitution." And that's the policy requirement that's really at issue here.

 

      So this is the second time this case has come before the Court. 2013, the Court ruled that the funding requirement violated the First Amendment because it required the respondents, at that point just domestic grant recipients, to pledge allegiance to the government's policy. The almost identical issue was presented to the Court again today, with a slight twist.

 

      So the policy requirement was originally found unconstitutional as applied to respondents who were domestic organizations. The respondents this time: same entities that were before the Court in 2013, but now we're talking about their closely related foreign affiliates. So it's domestic grant recipients that are large enough to have a foreign affiliate.

 

      Now, based on the record, the foreign affiliates are virtually indistinguishable from the domestic entities. They share a branding, messages, they speak with one voice. Respondents argue that the 2013 decision effectively resolved the question here. Dictating the speech of their closely related foreign affiliates is the same as dictating speech for the domestic entities. It's unconstitutional, a violation of the First Amendment.

 

      Now, the government's argument draws a fine distinction based on corporate formalities of the domestic and foreign entities. And frankly, it flips the First Amendment argument on its head. Asserting that there are no constitutional barriers or limits to dictating the speech of foreign entities, which I think puts us in a little bit of a different ground for First Amendment arguments. So Casey, what did you think of the arguments?

 

Casey Mattox:  Well, like I hinted at the beginning, I find it difficult to really gauge which way the Court is going to go here. I think the change in makeup of the Court may impact that, not having Justice Kennedy here. My sense is that this is -- and we have Justice Kagan, as she did before, had recused. We probably should have mentioned that up front. So there's an eight member Court hearing this case.

 

      I think there is at least a decent possibility that the Court splits, or that they find some way to basically punt on an undeveloped record. So it was a very different conversation this time, than the last time, in that the government wasn't really asked to justify very much why it was imposing this, why it was necessary. The conversation was much more about, basically, whether rights were violated. Whether the corporate form question -- it was those kinds of conversations rather than, what is the government's interest it's attempting to advance. That was not really part of the conversation at all.

 

Krystal B. Swendsboe:  I agree. Usually, it seems like these First Amendment cases focus on the government's ability to do something. The government has to justify their standard or their policy. Here, the government really kind of came out of the gate in their brief, and even in argument, to say, there's nothing to stop us. Which, I think is kind of a bold position for the government to take.

 

Casey Mattox:  Yes it was.

 

Krystal B. Swendsboe:  So Casey, why do you think the government took this case? We had a strong opinion back in 2013. The Second Circuit here held that 2013 expanded a little bit. It expanded the 2013 opinion to apply to these foreign affiliates. So why are we looking at the case now?

 

Casey Mattox:  Yeah, I don't know. I mean, you generally assume that the Court doesn't just take a case in order to affirm. You would make money betting that way, that the Court doesn't take money to affirm -- doesn't take the Court to affirm. And here, if AOS wins, that's what the Court has done. And so why take the case at all? Why not let the issue develop before taking this up?

 

      But it certainly did not seem, from the argument, that there was a strong sense that the Court was trying to draw a line and was clearly leaning toward the government here. And so it didn't seem that it was trying to reign in its prior decision, for example, here. So we may have to wait to find out why the Court took the case and why not wait until -- let the Second Circuit's decision stand and take the next one.

 

      So I don't know. I don't have a good judgment, I guess, for how I expect the Court will rule. Do you have a guess, Krystal?

 

Krystal B. Swendsboe:  I don't, right off hand. I was a little surprised. I expected, Justice Roberts wrote the prior opinion so I expected him to come out of the gate a little bit stronger on the government burden side of this. I didn't hear those kind of questions. And then some of the hypotheticals posed were very tough. And it really, I think, put the onus on the respondent, even though they had been successful in the lower court to justify why their First Amendment rights were being violated, which I think is a little surprising.

 

      So I might be a little biased here. I worked on one of the amicus briefs submitted here and obviously, not speaking for a client there. But I'd like to think that the Court will affirm. But I'm curious in what way they'll do it and what, if any, lines they draw. Or this might ultimately be a cutback on their strong opinion from 2013.

 

Casey Mattox:  Yeah, and I think there was a lot of concern, or at least a lot of questions, maybe I should say it that way, from the justices about the potential implications of a decision for AOS, what other government programs might be affected. And there were questions from Alito, from Kavanaugh at least along those lines, just sort of querying exactly where this will go. I didn't think that they got particularly strong answers on those questions and they ranged everywhere from the Mexico City Policy, and some of this we can talk about a little bit later one. The Mexico City Policy, the Foreign Contributions --

 

Krystal B. Swendsboe:  Campaign finance.

 

Casey Mattox:  Right.  Exactly.  And U.S. elections. And then a lot of hypotheticals that were interesting hypotheticals about what happens if you have grants to organizations internationally that are promoting peace in the Middle East and the U.S. government requires someone to adopt a specific internal policy about their views on Israel, for example. And my sense was that those were very good questions with not particularly fine answers to cabin a decision. I don't know if you had a different thought on that.

 

Krystal B. Swendsboe:  No. I think that's fair. Other than, it might be worthwhile to talk a little bit about some of these hypotheticals in depth. So for example, one of them I think was a really tough one to answer. It was by Justice Alito talking about -- no, excuse me. Justice Kavanaugh talked about if we had a policy that requires a recognition of Israel in funding peace keeping efforts in the Middle East, would that particular requirement be acceptable? And obviously, respondent's counsel answered it—this is kind of nearing the end of the argument—noted that there's a difference between a fact that is required to be spoken and then something like the policy requirement here, that's more of a belief. And it was kind of a quick answer. And I think it fulfilled the questions. But it obviously raises additional concerns.

 

      We had NIFLA v. Becerra that talked about compelled speech for facts. That was obviously a problem. So I think these hypotheticals raised bigger issues that we couldn't really -- didn't get the opportunity to dive into during the arguments. And because the justices weren't able to kind of pile on each other's questions or ask follow-ups, I don't think we got the really in-depth answers that respondent's counsel was prepared for or that might actually be illuminating on these issues.

 

Casey Mattox:  No, that's right. So I mean on that particular question, there wasn't then the opportunity for a justice, as you would have expected basically, if the arguments were in the Court, to have immediately said, but what about NIFLA? Didn't we say? And then have a back and forth and hopefully get to a more refined answer on the question. So you're sort of left with this, well, it's because that would be a factual argument rather than -- or even the opportunity for a justice to clarify, okay, well, let me fix my hypothetical for you. That's a little more challenging to do in this context with a much more structured argument.

 

      I'll walk through, just quickly, some of the main strands of First Amendment jurisprudence that are at issue. I think there are at least a couple that are really presented here that are going to weigh on this decision. The compelled speech cases, any unconstitutional conditions cases. And sometimes those overlap. But the compelled speech cases, obviously going back to cases like West Virginia v. Barnette, where the Supreme Court had held that you can't -- the government couldn't force a Jehovah Witnesses to salute the flag. That case, Wooley v. Maynard, where New Hampshire had tried to have the Live Free or Die on every license plate and was not going to make an exception, again, for Jehovah Witness in that case. Hurley v. Gay, Lesbian Irish-Americans of Boston where the government was applying a non-discrimination rule to try to require a grade organizer to allow people in who were going to be representing a message that they didn't want to have in their parade, a group of gay and lesbian individuals who wanted to march in the Saint Patrick's Day Parade with them. NIFLA case that we mentioned, where the pregnancy centers in California were being required to provide certain disclosures, some of which would have been arguably just factual information, but they had objections to doing that and the Supreme Court held that those were protected Free Speech rights against compelled speech in those contexts.

 

      In the Hurley case, and not been mentioned here, but it seems to be quite relevant, because -- or the Healy case, I'm sorry. Healy was, if you go back just a little bit, the early 1970's, University -- Central Connecticut State had decided that it would not recognize the student organization because of that student organization's association with a national student organization that had allegedly engaged in violent activities. And so the university wanted this student group to sign a pledge that it did not support the use of violence. And the group said, basically, well, we don't use violence. But we will not sign a pledge of support in that way and engage in that compelled speech. The case was decided as a Freedom of Association case. But it's often thought of as a compelled speech case, and frankly, looks a lot like the facts here, at least with the domestic organizations that had come before.

 

      The unconstitutional conditions cases obviously are, the government can't do indirectly, by withholding government benefits or privileges, usually, what it can't do directly. And those are cases like Keyishian v. Board of Regents, where you have a faculty member -- the State of New York was requiring all faculty members to pledge that they were not a member of the Communist Party and never had been a member of the Communist Party. And so that personal pledge requirement, again, that sounds a little like the situation here in 2013, at least with the prior version of the case.

 

      The political patronage cases [inaudible 15:12]. O'Hare Truck Service which is one of my favorite interesting First Amendment cases where the Court had held, even where the benefit at issue is something you have absolutely no right to. So in that case, it was sort of a rotation for towing companies who wanted to be able to do towing for a community in Illinois and the Supreme Court held that even there, the government couldn't take people out of the towing rotation on the basis of protected activity. In that case, the O'Hare Truck Service, the owner of O'Hare Truck Service had supported the mayor's opponent, political opponent in an election. That violated the unconstitutional conditions doctrine.

 

      The exception to all of this, or the offshoot of these cases, are the government speech cases. Cases like Rust v. Sullivan, where the government is providing funding for a private entity to speak the government's own message and can, thus, require them to say something, or refrain from saying something, as a condition of the grant. And Rust is what's often thought of the gag rule case, the abortion gag rule case, where entities were not permitted to provide abortion referrals in that case, and that was deemed permissible because it was as part of the grant program.

 

      So that's kind of the history of the cases that are leading up to the situation here.

 

Krystal B. Swendsboe:  One thing I found interesting, and I think is a recurring theme in the cases that you mentioned is, what's the injury here? We've talked a lot about, you can't be forced to say something. The government can't -- shouldn't be allowed to compel you to say something or to put words in your mouth. There's also the potential injury of your speech being chilled. There's a limitation or a punishment imposed for speaking in a certain way. But I think -- and both of those were brought up during the argument today.

 

      But there's a third category of injuries that I thought might play in here more than it actually was talked about during the argument. And that's the right to avoid having to rebut the government's point. The government here has made the argument, it doesn't matter if we impose our regulations on the foreign affiliates. Domestic entities, you can just clarify any confusion. There's no issue. You just have to say, no, we disagree, because you have the freedom to say what you want. But public confusion regarding who the speaker is isn't really the main issue. It's really a point that if the government's policy was allowed to stand here, the domestic entities, effectively, are required to rebut or to correct what is being said. They're having to stand up and correct the record. They're having to overcome the government's thumb on the scale, as it were.

 

      I think that's a unique area of injury that I didn't see talked about a lot. But it was definitely running through the NIFLA decision we've talked about. In American Beverage v. San Francisco out of the Ninth Circuit en banc talked about this, as well. It's not necessarily that you will solely be chilled from speaking further, but that you shouldn't be forced to say something, including a correction for the government's misstatement or a way to counteract the government's forced speech.

 

Casey Mattox:  I think that's a good segue to talk about some of the issues that have been bubbling inside this case. There was a line from the 2013 decision that was concerned about the government's mandate there requiring the domestic organization to have to engage in evident hypocrisy, was the line. Do you want to talk a little bit about that, Krystal, and how you think that plays today?

 

Krystal B. Swendsboe:  Of course. Sure. So the origin of this line came from questioning by Justice Ginsburg and Justice Kennedy, back in 2013. In that case, the government forced -- effectively, the argument goes, it's evident hypocrisy to force contrasting hypocritical messages from one side of an organization but allow the other side to speak freely. The line received heavy -- and the line was, again, restated in the Court's 2013 opinion. Basically, the idea is, if you have a free speaking side of the organization and a hampered side of the organization, it effectively undermines the entire message because you can't speak out of both sides of your mouth.

 

      Now, this line received heavy attention from the Court today. Justice Breyer noted that nothing has really changed since the line was written in 2013. Justice Ginsburg, again, revisited it. Respondent's counsel, I think, nicely summarized why this evident hypocrisy is a problem. I mean, it sounds terribly, but there's obviously a practical problem, as well. Imposing a speech requirement on only part of an organization is just as bad as imposing it on the whole organization, if the requirement undermines the credibility and integrity of the entire organization's message, which particularly here, what we're dealing with, HIV/AIDS, it's important to have that kind of trust from the local community and to work with individuals to make sure that you can serve this end properly.

 

      If folks in the local community don't trust the speaker, or don't trust an organization because, hey, out of one side of their mouth they say, “We don't support prostitution,” the other side, they have to work with individuals who have been in the prostitution industry. Or you have to work within a government structure, you want to make sure your message is consistent in that you can be trusted. And that the aid you give will be trusted. And frankly, the evident hypocrisy the government is requiring here undermines that power.

 

Casey Mattox:  The case that I did not mention earlier that I usually will mention in these contexts, and I'll mention now, that I think is interesting in the light of the evident hypocrisy concern, is the Christian Legal Society v. Martinez case. That's a case that is a compelled speech, compelled association, religious freedom. It's kind of a combination case on unconstitutional conditions cases. Basically, the case where the Supreme Court held five to four, when we were a few justices different than we are now on the Court, that it was permissible for the University of California Hastings to have what was called an all-comers policy. And a policy that required every student organization to adopt a policy that it would not discriminate on the basis of, among other things, religion and sexual orientation, in its non-discrimination policy. But they interpreted that policy in an all-comers sense to mean that, basically, every organization had to agree to allow everyone to stand for office. And so that was the issue that came before the Court and the Court upheld that, five to four.

 

      So it's a similar kind of, you must adopt -- it's not so much a, we require you to say these words out loud. But we require you to change the internal documents for your organization in a way that reflects the policy that the school wants reflected. And the evident hypocrisy point there, to me, comes in where the concurrence from Justice Kennedy says that, well, if the organization has actually taken over, then the organization can come back and sue and challenge the fact that it is no longer allowed -- that it has been taken over by outsiders who disagree with the organization. And that the Court could look at that at that point.

 

      But that, again, seems to create this hypocritical situation where the organization, in order to sue later, would have had to already adopt a policy now, saying that it has a policy that it would later say that it disavowed. And so that --

 

Krystal B. Swendsboe:  -- Very much a catch-22.

 

Casey Mattox:  Yeah. The sort of odd situation where the private entity is placed in a position like that, where it has to say words that it doesn't really mean and is basically, then, put on the hook to try to have to explain to other people what it means and why it doesn't actually agree with the government, even though it adopted the government's preferred message in its internal documents.

 

Krystal B. Swendsboe:  I find it interesting, this evident hypocrisy line coming up again, for the very reasons you pointed out for CLS v. Martinez. It signals the -- I think Justice Sotomayor referred to it during the argument. This is much more of a functional approach to First Amendment speech regulations. You don't really see this anywhere else in the law and Justice Sotomayor kind of went through, listed a number of cases. Hobby Lobby, Hurley, a couple of others to now that the First Amendment is less concerned with a formality, or even a corporate formality in this case, so much as it is concerned with amputation or affiliation. What did you think of that argument and that string of questions in the argument today?

 

Casey Mattox:  Well, the most interesting part of that to me was just how much it signaled how the First Amendment doesn't care about your politics and basically the way First Amendment doctrine works when its working properly is that it should be protecting neutral principles. And so today, we heard counsel for Alliance for an Open Society, which is a [inaudible 00:24:23] organization citing Citizens United favorably. We heard -- and Masterpiece Cake Shop. We heard Justice Sotomayor pointing to Hobby Lobby and Hurley. So that's all very healthy. The First Amendment should be applying and protecting things. If it's not protecting speech that you don't like, then if you're not able to cite the First Amendment in support of speech that you don't like, then you may not have a very well resolved understanding of what the First Amendment is supposed to do.

 

      So I think that was all very positive, but it is very interesting to see how these principles end up working in ways that are protecting the speech of more than one side of the political calculous. I think, to your question about the attribution test, there were -- I think there were concerns from both Justice Roberts and Justice Thomas about exactly what this would look like. How do we know that an entity is, in fact, closely associated? And is that the right test? These are legally separate entities and what is the line going to be in future cases? Or potentially, what are the facts that they fight in this case to be able to show that here the speech of the domestic organizations be affected by the international affiliates about the policy because of public perception, because of co-branding. What exactly are those factors?

 

Krystal B. Swendsboe:  You're right. And Justice Roberts and Justice Thomas kind of went into this in some detail, which I think this might go to your earlier point. We're not sure what the Court will do with this case. This case has been going on for 15 years. So there's been a lot of back and forth and the government obviously got discovery from the respondents on this point. Respondents have a pretty sizable appendix. There's affidavits, and testimony, talking about how the organizations are similar and how their messaging is similar. But it's interesting that we haven't really seen a test develop. Respondent's counsel talked about it a bit during argument today, but a real test hasn't come up and it seems interesting to have a test be developed without the government really going into the interest that's compelling at test. Or that would allow them to limit speech in the way that they're doing here.

 

Casey Mattox:  Krystal, I think we may have -- we've already hit some on some of the long-term consequences. Do you want to touch on that? Or should we head over to questions? Or --

 

Krystal B. Swendsboe:  Well, I do have one question. I'm going to kick it back to you a little bit. So there were two policies that you mentioned up front. The Mexico City Policy and then the Campaign Finance Bar. I want to get your thoughts, particularly on those two, just because I think Campaign Finance is, I think, a difficult question. I think it was a hard question when it was raised today. The Mexico City Policy, I think, is kind of front and center of a lot of people's minds in thinking how this case apply going forward.

 

Casey Mattox:  Yeah, and I think the answer, at least on the Mexico City Policy, is basically the two ways that this has been distinguished for Mexico City, both in the Second Circuit below, and I think in some of the arguments we've seen. Well reading between the tea leaves in some of the questioning today was the distinction here, the argument they're making here is that this is affecting the domestic organizations. Not the international affiliates, but the domestic organizations free speech rights, because of their close association. That seems, to me, to be largely not the case in the Mexico City Policy context. There may be circumstances where it is. The other big distinction with the Mexico City Policy and the one distinction that I heard today on the Campaign Finance Bar on foreign contributions, is the distinction between a restriction on speech for a grantee and compelled speech.

 

      The Supreme Court has said, at least in passing before, that compelled speech is particularly bad. And what I don't think we actually have from the Court is a clear holding that, much like viewpoint discrimination is even worse than content discrimination. Both may be bad, but viewpoint is really, really bad. What we haven't heard is the Supreme Court say, and compelled speech is worse than a speech restriction in a way that we will recognize a clearer constitutional difference where, if this had been merely a speech restriction, it would have been okay and the government would have been -- there would have been no violation here. But because it is compelled speech, it's a different thing.

 

      That may end up being one of the possible implications of this case. If so, it will be quite significant. I think it's been, like I said, it's been sort of hiding in some of these, in the NIFLA case even. That's particularly concerning. This idea that pregnancy centers would not only be prohibited from saying a particular thing but would actually have to affirmatively state the government's message. I don't know if you have other thoughts on how this case may affect those issues.

 

Krystal B. Swendsboe:  No, I think you've summarized it. And I know folks, if they have questions, we'll get to those in just a moment. I do think your point about the distinction between compelled speech and then speech restrictions may make the difference for this Campaign Finance hypothetical. I think that may be not an easy way, but it could be a clean way for the Court to address that and hopefully cabin its opinion to the extent it needs to on that front.

 

Greg Walsh:  We'll now go to the first question. Once you hear the prompt, you may ask your question. Casey, Krystal, it doesn't look like we have anybody in the queue. Do you want to go into a little bit more depth on what you were talking about at the end there?

 

Krystal B. Swendsboe:  I was saying, we can certainly talk a little bit more about the hypotheticals. I don't know Casey. As I noted, we've written a brief for this case and my firm has been involved in these First Amendment issues for a long time. So it's always been interesting to see what type of policies the government uses -- or tries to use its funding power for.

 

      So I think my favorite one, even more recently, there was one state attempted to prohibit boycotting the State of Israel as a condition of public employment, required contractors to cease and refrain from engaging in constitutionally protected speech. This is out of the Western District of Texas in 2019. So to the extent there's any thought that, oh, allowing the government to use their spending power in this way will not have a large effect, I think there are constantly cases coming up where states and other government entities are using their funding in a way so they can dictate the marketplace of ideas. And this case, I think, kind of opens the door for more of that.

 

Casey Mattox:  Yeah. I think it terms of other possible implications here, I mean, even for commercial speech issues where you have a lesser percent of standards that's applicable, if you -- if the Court decides this case in a way that essentially treats compelled speech as different than speech restrictions and more pernicious than speech restriction, then that could potentially have implications for some of those cases. Or at least those would be opportunities for further development if that was the case. Because at least some of the compelled speech disclosure requirements, even in the commercial context, might be easily questionable, I guess, at that point. But philosophically, it makes sense.

 

      I think you can't sort of cabin -- once you are required to say something, especially a statement of opinion, if you're required to say something, there's no putting the genie back in the bottle. A speech restriction that says, particularly you can't say this in this context because you're receiving this funding for this period of time, or something like that, I think there is a difference in character between being limited with what your entity can say, which is a right you can nevertheless exercise at another time in another way, and a compelled speech, which once you have uttered words, you are on record with having taken a position. It's arguably more difficult to backtrack on that.

 

Krystal B. Swendsboe:  Very much so. It changes the content. It's very much a content based restriction as the Court's previously found.

 

Greg Walsh:  Casey, Krystal, I don't see any questions in the queue.

 

Casey Mattox:  Well, clearly we've answered them all. So that's great.

 

Krystal B. Swendsboe:  Glad we could be of some help.

 

Greg Walsh:  Okay, we have one. Yeah, you guys went into so much depth, I think you covered all the basis. Caller from area code 631, you're on the line.

 

Caller 1:  Hi. I just wanted to have maybe the guest speakers touch on the issue with the pandemic and the squelching of free speech and possibly even elections. Do they have any comment on maybe the bevy of court cases that may make it up to the Supreme Court?

 

Casey Mattox:  That's a good question. I did a thing for the Bar in L.A. a couple weeks ago on this front. I think the way those cases are most likely to present, if we get a speech case up to the Court, it's probably going to be not a facial attack on the government's ability to restrain public gatherings, church services, that kind of thing in light of coronavirus. But it's going to be more like a discriminatory application of those. Or at least allegations to that affect. So either where similar activities are being permitted and government is not permitting church meetings, or protest activity, or something like that to go forward along the same lines.

 

      I think there are some open legal questions, right now, around if you can gather -- basically, if you can stand in line at a Home Depot, if you can stand in line -- be inside a grocery store, then why can't other activities that are constitutionally protected have the same kind of requirements put in place? So kind of the over-breadth of some of these policies I think may be an issue. I think the challenge, frankly, to getting one of those cases up there is that by the time we get to the Supreme Court on many of these questions, at least I am hopeful that the issue would have been mooted by then, but I guess we'll see.  Krystal if you had different thoughts --

 

Greg Walsh:  Okay. Well it looks like we have another caller --

 

Krystal B. Swendsboe:  No I agree. I think that makes sense. Go ahead.

 

Greg Walsh:  Area code 475, you're on the line.

 

Caller 2:  Yes, hi. Good afternoon. Thank for the opportunity. Great conversation on all the topics there. What do you think is going to happen if you had the crystal ball, in terms of how the Supreme Court may rule on some of these controversial things, specifically around civil liberties, in the state of this sort of national, or international actually, health crisis? And that sort of format. And maybe this is a loaded question here, but just trying to pick your brain on this based on all your experience and what you've seen in the past maybe decade or two. Thanks.

 

Casey Mattox:  Krystal, do you have thoughts on what cases you expect to get there? I'll say, the thing that I've heard from people kind of concerned is that especially with -- and frankly, I think largely people have avoided bringing a lot of these cases. But the more facial attack on religious gathering, that kind of thing. For example, maybe the case that -- those may be bad facts making bad law, if you're a person or advocate. And purely for someone who's concerned about a decision like Employment Division v. Smith, that the better case or sort of the more discriminatory application of those rather than the broad side challenge. But Krystal, have you got thoughts on where you --

 

Krystal B. Swendsboe:  I agree. So I mean, I anticipate we could get any number of different things coming up. But I think the most obvious one is the discrimination effects of these -- in the religious freedom category. We've seen a couple of cases like that coming -- bubbling up in the Sixth Circuit. And one thing I think, it may come up no matter what the vehicle. But this idea here, the government has a lot of power, a lot of trust, to be doing what it is doing. Because we've got a pandemic.

 

      It's one of the odd times in life we get to justify a lot of things on the basis of a pandemic and the government will be given a lot more freedom, I think, to do what it wants and to pose regulations that otherwise would not be acceptable. So here, I think, if and when it comes up to the Court, the question will be, will we still continue to put the government through its paces for imposing regulations that violate our fundamental freedoms. Or will we allow the government a bit more flexibility because we are scared of a pandemic. Will we allow the government to impose limitations on our speech, or require us to say certain things? Or prevent us from going to worship in any number of ways, in a way that the government has never been allowed to do that before without question. And so I think it's an approach, perhaps, more so than a specific case I've got in mind.

 

Casey Mattox:  Yeah, and I think regardless of what courts end up doing with these cases, I think this has been a good illustration we've seen play out recently, that this is not necessarily a conflict between government having the power to do what it needs to do to address the pandemic and government respecting civil liberties. What exactly civil liberties may look like in a pandemic may vary a bit. But I think the challenge that we've been seeing and a lot of the reason that people have been protesting and upset, is basically been because they are seeing examples of where it appears that government is not respecting its own limits.

 

      And to say that the other way, I guess. The more that government seems to be taking seriously the extraordinary powers that it is exercising right now and basically trying to prohibit as little as possible and not overreach, then I think people have a lot -- as Krystal said, people have a lot of understanding for what is necessary in the moment. But the more that it looks like government officials are overreaching and stepping over separation of powers and taking on authority that they maybe should not have, then it breaks down that public confidence with elected officials that makes it impossible for them to actually impose what needs to be imposed in order to address the crisis. So I think contrary to the way that people would normally think about this, respecting civil liberties to the greatest extent possible may be exactly what government needs to do in order to have the public trust that it needs to address the pandemic.

 

      One example of that is just the drive-in churches, right, that have largely won in those cases. And those are great illustrations where it's difficult for people to understand why it is the government would need to impose that. And so I think that causes -- when you see governments prohibiting that kind of innovation, it makes people lose confidence that the government is only imposing what's necessary. And that lack of trust is, I think, particularly dangerous at a time like this when the government is going to need to exercise more power than it normally does.

 

Krystal B. Swendsboe:  You also see, Casey, when you think about the voting cases. You've got a number of elections that have been put off, sometimes it was the night before or requests to put off elections the night before. It's kind of quick, fly by the seat of your pants acting, again, undermines that trust that you place in the government you would hope that they'd utilize at a time like this.

 

Greg Walsh:  Looks like we have a call from area code 631 again.

 

Caller 3:  Maybe just as a follow up, touch on, for example, the so called nationwide injunction on immigration restrictions where one circuit judge is able to basically create a nationwide injunction. Why do you think that hasn't been done with this seemingly overreaching power? And also, as far as a standard of proof for this type of situation where the government grabs that much power and just shuts the entire economy down, shouldn't the courts be the arbiter of that as opposed to just executives that just running over each other to kind of just shut things down?

 

      And third, and lastly, where do you think this will wind up, as far as the power of the executive unchallenged by the courts, or the legislature for that matter, because I don't think there's any legislature as far as a pandemic goes, other than local police power. How are they able to lock away healthy people to save sick people when there really is no scientific proof that healthy people can spread it?  I understand they said that there's this asymptomatic spreading going on. But there is no objective proof of that. Wouldn't it be better served in the court as, for example, using a TRO or something of that nature to grant that power and then if the court finds that the standard of proof or evidence makes sense, then to continue the power of the executive to continue? And with that, I'll yield back and listen.

 

Casey Mattox:  Well I can -- I'll attempt to address a couple of those points just quickly. I think the nationwide injunction issue, the distinction here is that despite a lot of the way this has been maybe talked about in some corners, these are largely state and local governments that are acting, or generally state governments that are imposing most of the restrictions here. And so nationwide injunction wouldn't quite work because it's -- those are normally come in the context where there is one actor who has done something and its being enjoined in one particular district, but for the entire country, the application of that, like in the immigration context.

 

      As to I think the separation of powers related question, there was interestingly, I think the first problem there is that, basically for most states, at least every one that I'm aware of, there is some sort of statute in place that gives the executive, whatever power they have in this context. So I think that's why you're seeing it come from executives. Because legislatures have largely given them that power. Now, whether they are staying within those confines is a whole other question.

 

      There is an oral argument I would recommend to you this morning, because it's very informative. An actual video of the oral argument in Wisconsin where the legislature had sued the Governor -- or actually the Secretary of Health over her asserted broad power to issue mandates without oversight but the legislature, or engagement by the legislature, so I would recommend looking at that. But that's an example, I think, of the -- the courts will get engaged, but to police the separation of powers between the legislature and the government and what powers the legislature actually has given the Governor or the Secretary, in this case, and whether they're overstepping that authority.  So I think that’s the right place for this to be. It should ultimately be -- there should be a check and balance operating here and it seems to be playing out in Wisconsin.

 

Greg Walsh:  Casey, Krystal, do you have anything to add or conclude on before we finish up?

 

Krystal B. Swendsboe:  Other than it'll be a very interesting opinion when it comes out and we look forward to it. And thank you for hosting.

 

Casey Mattox:  Yeah, thank you very much. I'll be very interested to see if we actually get this opinion by the end of June. I guess that's maybe the other open question is whether, with arguments being pushed later, whether the June 30 end-of-the-court deadline actually sticks this year. But I guess we'll find out.

 

Greg Walsh:  That's an interesting thought. On behalf of The Federalist Society, I want to thank our speakers for the benefit of their valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.