Tuesday’s case, USAID v. Alliance for Open Society International, Inc., centered on 2003’s United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act, specifically its requirement that groups receiving federal funds to combat HIV/AIDS must have policies that explicitly oppose prostitution and sex trafficking.
In 2013, the Supreme Court said this requirement violates the First Amendment if applied to U.S.-based nongovernmental organizations, but the current case specifically deals with foreign affiliates of those organizations.
“What has changed since this case was here last?” asked Justice Clarence Thomas, usually known for remaining silent during arguments.
Because the justices are not sitting together as a group in the courtroom, each member of the high court is asking questions of counsel one-at-a-time, by seniority.
A U.S. District Court in New York and the Second Circuit Court of Appeals both ruled that the requirement is unconstitutional even as applied to foreign affiliates, but the government maintains that those affiliates are separate legal entities from the U.S. organizations and that constitutional protections should not be extended to them.
Justices Brett Kavanaugh and Samuel Alito expressed concern over the broader implications if the government were to lose its case.
"It will force Congress, either to withhold foreign aid entirely or to allow foreign aid to be used in ways that are contrary to the interests of the people of this country," said Alito.
As a hypothetical, Kavanaugh wondered about the constitutionality of a congressional law that would allow U.S. aid to foreign entities supporting Mideast peace, but only on the condition they have a policy to "explicitly recognize Israel as a legitimate state."
"Are you saying the U.S. can't impose that kind of speech restriction on foreign NGOs that are affiliated with U.S. organizations," Kavanaugh asked.
Chief Justice John Roberts made sure proceedings moved in an orderly fashion, cutting off attorneys when necessary and letting the questioning continue as the justices took their turns. This week is the first time that Supreme Court oral arguments have been made available live online.
The teleconferencing setup did suffer from the occasional technical difficulty, notably Justice Sonia Sotomayor forgetting to take herself off mute before asking questions.
“Sorry, Chief, I did it again,” Sotomayor told Roberts Tuesday, referring to how the same thing had happened during Monday’s case.
The court will conduct more arguments by teleconference on Wednesday and next week, when cases related to subpoenas of President Trump’s tax returns and other financial records will be argued.