What we have just heard. The National Constitution center is a private nonprofit with an Inspiring Mission from congress, to disseminate information about the u. S. Constitution on a nonpartisan basis in order to increase awareness and understanding of the constitution among the american people. That is just what we are trying to do as we Learn Together during these important arguments. Joining us to learn and to help understand the arguments we have just heard are two of americas leading advocates and scholars of the constitution, both of whom have filed briefs, called amicus briefs, on different sides of the case. Walter weber filed a brief in support of the petitioners, who are known as u. S. A id, and the case is usaid versus the alliance for open society international. He is senior counsel for the American Center for law and justice in washington, d. C. , which is the organization on whose behalf he filed a brief. He has written many briefs in landmark cases of the supreme aclj and before joining he served as attorney with the catholic league. Has filed a brief on behalf of the Cato Institute in support of the respondents, the alliance for open society international. He is the director of the robert leavy center for constitutional studies at the Cato Institute and the publisher of the Cato Supreme Court review. Ilya, thankah you for joining. Happy to be part of this grand experiment. Jeffrey i am thinking of the words of justice holmes, on the constitution. It is an experiment as all of life is an experiment. Based on the arguments today, the experiment is going very well. Lets be part of that grant tradition. Walter, you can begin. We just heard the lawyer for the government arguing on behalf of the government, that was assistant toichel, the u. S. Solicitor general. He said the case comes down to two propositions. The first is that foreign recipient of aid lacked Constitutional Rights, they cannot bring a constitutional claim, and he said the respondents cannot bring a constitutional claim because any effect on their message is a product of their own choices, not of government coercion. Can you unpack and summarize the core of the governments argument in this case . Sure, and walter please let me know if im going too long. Jeffrey keep it crisp at the beginning and we will have a lot of time for a lot of questions. Walter this is a followon case. There was a case already decided by the Supreme Court addressing a lot of the main issues in this case. Back up a second. This has to do with a foreign Grant Program. United states money being shipped overseas in order to address some issue, in this case it is putting the spread of hiv and aids. Because congress is of the view that prostitution and sex trafficking are an important vehicle in spreading these diseases, what congress did was added a clause to its statutory grant, saying youre not eligible to receive grant unless you have a policy explicitly opposing sex trafficking and prostitution. Said we object to having that policy, we would like to be in charge of our own policies, and we think it violates our First Amendment rights to say we are not eligible for this money unless we have the government policy. The Supreme Court by a sixto vote said that is right by a 62 vote said that is right. The case went back down to the lower courts and the grantee side said wait a second, it is not just us. We have foreign affiliates who are receiving the money as some grantees or contractors with us. We think they should not be subject to the policy either, because what sense does it make for us to say we will not be pushed around by the government on policies, but the grantees will have to. Same logo, same brand, same name, we think that violates the First Amendment. The lower courts a great the lower courts agreed. As to affiliates sharing the namebrand, it violates the First Amendment. The government said hold on a second, there is a longstanding line of cases that the court has recognized saying foreign entities operating abroad do not have Constitutional Rights. The domestic grantees have one. They can operate abroad. But if they will affiliate with contractors,ees or they have to recognize those entities cannot get under the umbrella of the First Amendment. Therefore, the same ruling should not apply to foreign entities. That is the just. That is the jist. Jeffrey many thanks to that. There is an important case that said the domestic entities cannot be forced to take the pledge, but that the core of the government case is they are foreign affiliates, care india, for example, lacks those rights and should not be able to claim them. Lawyer forument, the the petitioners, mr. David there are two violations of the First Amendment rights in the of the u. S. Respondents. He said the speech compulsion wasnt tribute at to them, when kenya takes the pledge its actions are to beaded to care u. S. , and the second is the speech restriction that prohibits the u. S. Entity from even contradicting the pledge on its own time and time, quoting chief Justice Roberts original 2013 opinion in the u. S. Id case, making it possible for care u. S. To disavow the message without doublespeak, and quoting from chief Justice Robertss opinion. Was appealing to the cheap, saying this is covered by a decision you wrote in 2013, which was 62. Justice kagan was recused, as she is in this one. Tell us more about how david bowker was saying the 2013 decision covers this case and the First Amendment rights of the u. S. Entities are being violated by the restriction. From a laymans perspective, the first point is basically it. If you have some foreign affiliate who takes a particular position, the general public observing this does not say that is care india, that is not care usa or care global. It is colloquially or commonly attributed throughout the network. That is where the second part comes in. There is a restriction on disavowing. Argument and of this case comes down to something Justice Sotomayor said once she found her unmute button. She had an issue with that for the second day. She said in a First Amendment context, we are less concerned with the corporate formalities. You can look at cases as different as hobby lobby, about the First Amendment rights of a closely held public corporation, or the hurley parade case. We do not look to see whether it is a partnership or an S Corporation or nonprofit. However you structure your rate galley wow however you structure your legality is this is aint of Corporate Structure case more than a First Amendment. The question is in 2013 the court did rule 62, and all of those justices are still on the court except just as gorsuch replaced Justice Scalia and Justice Kavanaugh replaced justice kennedy, so i suppose those would be the swing vote, but the point is does that 2013 rolling applied to those foreign entities . I think this is a question of, in the First Amendment context, it does because the corporate niceties do not matter so much for the purposes of protecting free speech rights, as Justice Ginsburg said. It is not just whether foreign entities or individuals or persons have First Amendment rights under the u. S. Constitution, typically they do not, but about the u. S. Governments obligation, Congress Shall make no law not to infringe on those beats rights or compel them in some way. On those speech rights or compel them in some way. Jeffrey lets talk about whether did the distinction is formal. The first question chief Justice Roberts asked is one thing is not clear in the precise relationship between the foreign and domestic entities. Is it reason to insist on formal corporate ties. Set of formal distinction is all that is necessary to attach a separate legal rights. Many justices noted about corporate formalities, as you said. Justice sotomayor said the hobby robbie case the hobby lobby case, that was a case that said the religiously scrupulous correlation cannot be corporation cannot be required to offer contraceptive coverage, indicated they were less concerned with corporate formalities then perception. People might think hobby lobby was endorsing contraception. At the end of the argument, Justice Gorsuch said the primary harm was the mistaken attribution of the foreign affiliate speech to the domestic entity, that sounds like an alter ego argument. You resist any attempt to pierce the corporate veil. Why should we attribute the speech of foreign affiliates to a domestic entity, and the answer of the respondent was we do not ask the government to pierce the corporate veil. There is a danger of speech being attribute it even when the corporate formalities are imposed. Walter, that is a long way of saying what is your response to this crucial distinction in the argument. Should we take a formalistic or a pragmatic view of whether the speech of the foreign entities will be attributed to the domestic entities, and what is your argument about why we should do this holistically rather than pragmatically . Walter a couple of things. The first point is the Supreme Court has not been consistent on this. If you look at the common sense event, which i think ilya was wisely pointing to, you have an entity like planned parenthood, then you have planned parenthood action or whatever they call their pac. You have the aclu, and the aclu 501 c four, or maybe a pac associated. You have planned parenthood saying they are not partisan group, and then you have an entity that has planned parenthood action as its name battling for particular candidates who support their position. That is the right to do that, but the Supreme Court has said it is also legitimate for are not to say you entitled to the nonprofit status of your campaign entity. You have the same logo, same name, same general worldview, distinctionalistic allows you to do things you were never allowed to do at a different formal status. Is a guy on the street going to say that looks the same to me . Probably. Does it matter nonetheless . Yes. We have at best an inconsistency on whether the corporate is decisive. Lobby wherext of the context of whether you are tax deductible entity, it does matter. Why cant that apply when you have a domestic entity that is restricted not restricted, but a foreign entity that is restricted, and that is part of the territory . The second point i want to make is that part of the problem that the Government Faces in this case is it is fighting with one hand tied behind its back. As the attorney for the solicitor general said, we fully accept the courts prior decision. Our brief takes the position that the prior decision was a mistake. That is because the prior decision turned on the gnosis on the notion there is compelled speech. Our view is the voluntary acceptance of a limited Discretionary Grant Program is not compelled speech. No one is applied no one is required to apply 99 of people will not be thinking about applying to a foreign grant to combat aids and hiv overseas. It is something you voluntarily undertake, and it is typical with voluntary Grant Programs by the government that you accept the strings that go with it. That said, it is an awesome power of the government. It controls the budget. It can pull springs it can pull strings that push around. There is alignment between the kind of programs Like Fighting smoking, fighting drug abuse, fighting hiv aids, versus a General Program like access to parks, access to libraries, can you drive in the hov lanes, where will be inadmissible for them to do so saying you accept the government position on smoking and sex trafficking cured we continued the original decision, that if you get one button bun wrong on your jacket thank you for that and for signaling an important point in your brief. You argue the original 2013 incorrect and was the court should overturn it and allow foreign aid to be conditioned on ensuring the organizations that receive it are on board with the general purpose of the program. Know, the court is reluctant to overturn prior decisions, and your cato brief argues this case was already decided by the 2013 decision. Betweenthe distinction foreign and domestic affiliates is unsupported by the record, which demonstrates the speech by close foreign affiliates is indistinguishable from respondent speech, and under the technical distinction between the two was rejected in the previous decision as evidence of hypocrisy. Justice breyer seem to pick up on that notion and several of his questions. He said, following up on Justice Ginsburgs question, if the organizations say we are against prostitution but the foreign disavowing are the Domestic Organizations are saying they do not support that pledge, Justice Breyer said some of the prostitutes will say they are hypocrites. If does that change one iota instead of sending their own worker over and the Foreign Worker says the same thing, how does that interfere one wit less they will be seen domestically as hypocrites interfering with the mission. If we accepted the argument before, why should we accept it now . Seem toJustice Breyer suggest that case was clearly covered by the 2013 decision . Ilya for freespeech purposes it is a distinction without a difference. This is not about piercing the corporate veil in terms of tort or contractual liability issues or issuing stock or other reasons for which we have the corporate form and we have affiliates and corporate parents and things like that. This was a colloquy with Justice Gorsuch toward the end of the argument. For freespeech purposes, it is very different. Hypocriticaluld be , it would be disingenuous to continue with the particular one body still refuses to adopt it or another one does. Is ae end of the day, this question of imputation. Cases, thethese corporate entity exists, not even for some sort of legalistic immunity or protection with respect to Corporate Law or tort liability, but because in many countries around the world, including the United States, you have to have a locally incorporated affiliate to be able to do business, whether as a nonprofit or a for profit. This came out right off the top with the chief justices first discussion with. He government lawyer they had no choice to incorporate local entities, so it is not a matter of wanting to have a legal separation that they had to to be able to operate in that area. Just in the speech context, it termsdifferently, or in of many fundamental rights, then when we are cocking about when we are talking about before we digr, into your argument that the original decision should be overturned, let me ask you about Justice Kavanaugh and his questions. He said can i add one thing . Of overturning the previous president , i think theres a less than zero chance of overturning that. It was a strongly written brief, but that was sixtwo. Take away the justices that were no longer on the court, it becomes 51. Is still five votes for that previous position, so the only question is whether, as we put it strongly, that the previous decision controls this one or whether they have to explain further to get to where they would need to go. You pressed that point. Do you believe there is any realistic chance that the decision will be overturned given the composition of the court . Why did you decide on the court to overturn it rather than arguing that the previous decision could be reconciled with this decision and maybe this is a chance to say but it was about the previous one that you think was incorrect and should be overturned as Justice Scalia laid it out . First, the odds question. One of the reasons why we filed this was because we think it is important for the Supreme Court to get this right. If no one points it out, if it gets it wrong, it becomes entrenched. There are two new justices, one of them replace someone who was in the majority and one who was in dissent. I would like to see both at least note that the arguments that we make have some force, and while that question may not ,e presented in this case because the government concedes that they would at least recognize, at least in their mind, that there is potential vulnerability in the death star, so to speak, that may become an issue down the road that leads into where we want to go with the merits on this. The previous case turned on the idea that making a funding condition string for receiving funds, part of the Grant Program, is the equivalent of compelling speech. The First Amendment is powerful. Not compeljust someone to adopted this. And you cannot forbid them from having a policy come and you cannot even pay for them because they do or do not have one. An example. Child sex abuse, they used to be and if the government, and it does not have to be th