Conditional Funding Can Raise Difficult Legal Questions. Trump’s Freezes Don’t.
Despite some confusion in the doctrine, the Trump administration's use of the funding power is clearly unlawful
By Michael C. Dorf [Cornell Law]In Agency for Int’l Dev. v. Alliance for Open Society Int’l, Inc. (2013), the Supreme Court invalidated a condition on federal spending. Under the challenged law, which provided money to combat the spread of HIV/AIDS throughout the world, a funded nongovernmental organization (NGO) was required to “have a policy explicitly opposing prostitution and sex trafficking.” The Court held that this condition violated recipient organizations’ right to free speech. Yet the Court’s opinion made clear that another condition on funding—forbidding the use of the money at issue “to promote or advocate the legalization or practice of prostitution or sex trafficking”—was unproblematic. According to the majority opinion by Chief Justice Roberts, there is a constitutionally dispositive difference “between conditions that define the limits of the government spending program—those that specify the activities Congress wants to subsidize—and conditions that seek to leverage funding to regulate speech outside the contours of the program itself.”
The Chief Justice immediately acknowledged, however, that the dividing line between permissible conditions on how the government’s money is spent and impermissible leveraging of that money to regulate other speech “is hardly clear, in part because the definition of a particular program can always be manipulated to subsume the challenged condition.” Nonetheless, the Court thought the line necessary.
Necessary perhaps, but is it even possible? After all, as the Court’s spending cases sometimes recognize, money is fungible. At least within a single enterprise, additional resources for one unobjectionable program can be used to free up resources for another, more problematic, program.
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