OCTOBER TERM, 2000
Syllabus
LEGAL SERVICES CORPORATION
v.
VELAZQUEZ ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT
No. 99-603. Argued October 4, 2000-Decided February 28, 2001
*
The Legal Services Corporation Act authorizes petitioner Legal
Services Corporation (LSC) to distribute funds appropriated by
Congress to local grantee organizations providing free legal
assistance to indigent clients in,
inter alia, welfare
benefits claims. In every annual appropriations Act since 1996,
Congress has prohibited LSC funding of any organization that
represented clients in an effort to amend or otherwise challenge
existing welfare law. Grantees cannot continue representation in a
welfare matter even where a constitutional or statutory validity
challenge becomes apparent after representation is well under way.
Respondents-lawyers employed by LSC grantees, together with
othersfiled suit to declare,
inter alia, the restriction
invalid. The District Court denied them a preliminary injunction,
but the Second Circuit invalidated the restriction, finding it
impermissible viewpoint discrimination that violated the First
Amendment.
Held: The funding restriction violates the First
Amendment.
Pp.540-549.
(a) LSC and the Government, also a petitioner, claim that
Rust v.
Sullivan, 500 U. S. 173, in which
this Court upheld a restriction prohibiting doctors employed by
federally funded family planning clinics from discussing abortion
with their patients, supports the restriction here. However, the
Court has since explained that the
Rust counseling
activities amounted to governmental speech, sustaining
viewpoint-based funding decisions in instances in which the
government is itself the speaker, see
Board of Regents of Univ.
of Wis. System v.
Southworth, 529 U. S. 217,229,235, or
instances, like
Rust, in which the government uses private
speakers to transmit information pertaining to its own program,
Rosenberger v.
Rector and Visitors of Univ. of Va.,
515 U. S. 819,
833. Although the government has the latitude to ensure that its
own message is being delivered, neither that latitude nor its
rationale applies to subsidies for private speech in every
instance. Like the
Rosenberger
*Together with No. 99-960,
United States v.
Velazquez
et al., also on certiorari to the same court.
534
program, the LSC program was designed to facilitate private
speech, not to promote a governmental message. An LSC attorney
speaks on behalf of a private, indigent client in a welfare
benefits claim, while the Government's message is delivered by the
attorney defending the benefits decision. The attorney's advice to
the client and advocacy to the courts cannot be classified as
governmental speech even under a generous understanding of that
concept. In this vital respect this suit is distinguishable from
Rust. Pp. 540-543.
(b) The private nature of the instant speech, and the extent of
LSC's regulation of private expression, are indicated further by
the circumstance that the Government seeks to control an existing
medium of expression in ways which distort its usual functioning.
Cases involving a limited forum, though not controlling, provide
instruction for evaluating restrictions in governmental subsidies.
Here the program presumes that private, nongovernmental speech is
necessary, and a substantial restriction is placed upon that
speech. By providing subsidies to LSC, the Government seeks to
facilitate suits for benefits by using the State and Federal
Judiciaries and the independent bar on which they depend for the
proper performance of their duties and responsibilities.
Restricting LSC attorneys in advising their clients and in
presenting arguments and analyses to the courts distorts the legal
system by altering the attorneys' traditional role in much the same
way broadcast systems or student publication networks were changed
in the limited forum cases of
Arkansas Ed. Television Comm'n
v.
Forbes, 523
U. S. 666, and
Rosenberger v.
Rector and Visitors of
Univ. of Va., supra. The Government may not design a subsidy to
effect such a serious and fundamental restriction on the advocacy
of attorneys and the functioning of the judiciary. An informed,
independent judiciary presumes an informed, independent bar.
However, the instant restriction prevents LSC attorneys from
advising the courts of serious statutory validity questions. It
also threatens severe impairment of the judicial function by
sifting out cases presenting constitutional challenges in order to
insulate the Government's laws from judicial inquiry. The result of
this restriction would be two tiers of cases. There would be
lingering doubt whether an LSC attorney's truncated representation
had resulted in complete analysis of the case, full advice to the
client, and proper presentation to the court; and the courts and
the public would come to question the adequacy and fairness of
professional representations when the attorney avoided all
reference to statutory validity and constitutional authority
questions. A scheme so inconsistent with accepted
separation-of-powers principles is an insufficient basis to sustain
or uphold the restriction on speech. Pp. 543-546.
535
(c) That LSC attorneys can withdraw does not make the
restriction harmless, for the statute is an attempt to draw lines
around the LSC program to exclude from litigation arguments and
theories Congress finds unacceptable but which by their nature are
within the courts' province to consider. The restriction is even
more problematic because in cases where the attorney withdraws, the
indigent client is unlikely to find other counsel. There may be no
alternative source of vital information on the client's
constitutional or statutory rights, in stark contrast to
Rust, where a patient could receive both governmentally
subsidized counseling and consultation with independent or
affiliate organizations. Finally, notwithstanding Congress' purpose
to confine and limit its program, the restriction insulates current
welfare laws from constitutional scrutiny and certain other legal
challenges, a condition implicating central First Amendment
concerns. There can be little doubt that the LSC Act funds
constitutionally protected expression; and there is no programmatic
message of the kind recognized in
Rust and which sufficed
there to allow the Government to specify the advice deemed
necessary for its legitimate objectives. Pp. 546-549.
(d) The Court of Appeals concluded that the funding restriction
could be severed from the statute, leaving the remaining portions
operative. Because that determination was not contested here, the
Court in the exercise of its discretion and prudential judgment
declines to address it. P. 549.
164 F.3d
757, affirmed.
KENNEDY, J., delivered the opinion of the Court, in which
STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined. SCALIA, J.,
filed a dissenting opinion in which REHNQUIST, C. J., and O'CONNOR
and THOMAS, JJ., joined,
post, p. 549.
Alan Levine argued the cause for petitioner in No.
99-603.
With him on the briefs was
Stephen L. Ascher.
Deputy Solicitor General Kneedler argued the cause for the
United States in No. 99-960. With him on the briefs were Solicitor
General Waxman, Acting Assistant Attorney General Ogden, Beth S.
Brinkmann, Barbara L. Herwig, and Matthew M. Collette.
Burt Neuborne argued the cause for respondents in both
cases. With him on the brief were
Laura K. Abel, Kimani
536
Paul-Emile, Paul K. Sonn, David S. Udell, Peter M. Fishbein, and
Alan E. Rothman. t
JUSTICE KENNEDY delivered the opinion of the Court.
In 1974, Congress enacted the Legal Services Corporation Act, 88
Stat. 378, 42 U. S. C. § 2996
et seq. The Act establishes
the Legal Services Corporation (LSC) as a District of Columbia
nonprofit corporation. LSC's mission is to distribute funds
appropriated by Congress to eligible local grantee organizations
"for the purpose of providing financial support for legal
assistance in noncriminal proceedings or matters to persons
financially unable to afford legal assistance." § 2996b(a).
LSC grantees consist of hundreds of local organizations
governed, in the typical case, by local boards of directors. In
many instances the grantees are funded by a combination of LSC
funds and other public or private sources. The grantee
organizations hire and supervise lawyers to provide free legal
assistance to indigent clients. Each year LSC appropriates funds to
grantees or recipients that hire and supervise lawyers for various
professional activities, including representation of indigent
clients seeking welfare benefits.
This suit requires us to decide whether one of the conditions
imposed by Congress on the use of LSC funds violates the First
Amendment rights of LSC grantees and their clients. For purposes of
our decision, the restriction, to be quoted in further detail,
prohibits legal representation
tBriefs of
amici curiae urging reversal were filed for
the Pacific Legal Foundation by
John H. Findley; and for the
Washington Legal Foundation et al. by
Daniel J.
Popeo
and
R. Shawn Gunnarson.
Briefs of
amici curiae urging affirmance were filed for
the American Civil Liberties Union et al. by
Arthur N
Eisenberg and
Steven R. Shapiro; and for the New York
State Bar Association et al. by
Bruce A. Green and
Lawrence S.
Lustberg.
Frederick A. O.
Schwarz, Jr., filed a brief for
the American Judicature Society as
amicus curiae.
537
funded by recipients of LSC moneys if the representation
involves an effort to amend or otherwise challenge existing welfare
law. As interpreted by the LSC and by the Government, the
restriction prevents an attorney from arguing to a court that a
state statute conflicts with a federal statute or that either a
state or federal statute by its terms or in its application is
violative of the United States Constitution.
Lawyers employed by New York City LSC grantees, together with
private LSC contributors, LSC indigent clients, and various state
and local public officials whose governments contribute to LSC
grantees, brought suit in the United States District Court for the
Eastern District of New York to declare the restriction, among
other provisions of the Act, invalid. The United States Court of
Appeals for the Second Circuit approved an injunction against
enforcement of the provision as an impermissible viewpoint-based
discrimination in violation of the First Amendment,
164 F.3d
757 (1999). We granted certiorari, and the parties who
commenced the suit in the District Court are here as respondents.
The LSC as petitioner is joined by the Government of the United
States, which had intervened in the District Court. We agree that
the restriction violates the First Amendment, and we affirm the
judgment of the Court of Appeals.
I
From the inception of the LSC, Congress has placed restrictions
on its use of funds. For instance, the LSC Act prohibits recipients
from making available LSC funds, program personnel, or equipment to
any political party, to any political campaign, or for use in
"advocating or opposing any ballot measures." 42 U. S. C. §
2996e(d)(4). See § 2996e(d)(3). The Act further proscribes use of
funds in most criminal proceedings and in litigation involving
nontherapeutic abortions, secondary school desegregation, military
desertion, or violations of the Selective Service statute. §§
2996f(b)(8)-(10) (1994 ed. and Supp. IV). Fund recipients
538
are barred from bringing class-action suits unless express
approval is obtained from LSC. § 2996e(d)(5).
The restrictions at issue were part of a compromise set of
restrictions enacted in the Omnibus Consolidated Rescissions and
Appropriations Act of 1996 (1996 Act), § 504, 110 Stat. 1321-53,
and continued in each subsequent annual appropriations Act. The
relevant portion of § 504(a)(16) prohibits funding of any
organization
"that initiates legal representation or participates in any
other way, in litigation, lobbying, or rulemaking, involving an
effort to reform a Federal or State welfare system, except that
this paragraph shall not be construed to preclude a recipient from
representing an individual eligible client who is seeking specific
relief from a welfare agency if such relief does not involve an
effort to amend or otherwise challenge existing law in effect on
the date of the initiation of the representation."
The prohibitions apply to all of the activities of an LSC
grantee, including those paid for by non-LSC funds. §§ 504(d)(1)
and (2). We are concerned with the statutory provision which
excludes LSC representation in cases which "involve an effort to
amend or otherwise challenge existing law in effect on the date of
the initiation of the representation."
In 1997, LSC adopted final regulations clarifying § 504(a)(16).
45 CFR pt. 1639 (1999). LSC interpreted the statutory provision to
allow indigent clients to challenge welfare agency determinations
of benefit ineligibility under interpretations of existing law. For
example, an LSC grantee could represent a welfare claimant who
argued that an agency made an erroneous factual determination or
that an agency misread or misapplied a term contained in an
existing welfare statute. According to LSC, a grantee in that
position could argue as well that an agency policy violated
existing law. § 1639.4. Under LSC's interpretation, however,
539
grantees could not accept representations designed to change
welfare laws, much less argue against the constitutionality or
statutory validity of those laws. Brief for Petitioner in No.
99-603, p. 7. Even in cases where constitutional or statutory
challenges became apparent after representation was well under way,
LSC advised that its attorneys must withdraw.
Ibid.
After the instant suit was filed in the District Court alleging
the restrictions on the use of LSC funds violated the First
Amendment, see 985 F. Supp. 323 (1997), the court denied a
preliminary injunction, finding no probability of success on the
merits.
Id., at 344.
On appeal, the Court of Appeals for the Second Circuit affirmed
in part and reversed in part.
164 F.3d
757 (1999). As relevant for our purposes, the court addressed
respondents' challenges to the restrictions in § 504(a)(16). It
concluded the section specified four categories of prohibited
activities, of which "three appear[ed] to prohibit the type of
activity named regardless of viewpoint, while one might be read to
prohibit the activity only when it seeks reform."
Id., at
768. The court upheld the restrictions on litigation, lobbying, and
rulemaking "involving an effort to reform a Federal or State
welfare system," since all three prohibited grantees' involvement
in these activities regardless of the side of the issue.
Id., at 768-769.
The court next considered the exception to § 504(a)(16) that
allows representation of "'an individual eligible client who is
seeking specific relief from a welfare agency.'" The court
invalidated, as impermissible viewpoint discrimination, the
qualification that representation could "not involve an effort to
amend or otherwise challenge existing law," because it "clearly
seeks to discourage challenges to the status quo."
Id., at
769-770.
Left to decide what part of the 1996 Act to strike as invalid,
the court concluded that congressional intent regarding
severability was unclear. It decided to "invalidate the
540
smallest possible portion of the statute, excising only the
viewpoint-based proviso rather than the entire exception of which
it is a part."
Id., at 773.
Dissenting in part, Judge Jacobs agreed with the majority except
for its holding that the proviso banning challenges to existing
welfare laws effected impermissible viewpointbased discrimination.
The provision, in his view, was permissible because it merely
defined the scope of services to be funded.
Id., at 773-778
(opinion concurring in part and dissenting in part).
LSC filed a petition for certiorari challenging the Court of
Appeals' conclusion that the § 504(a)(16) suits-for-benefits
proviso was unconstitutional. We granted certiorari, 529 U. S. 1052
(2000).
II
The United States and LSC rely on
Rust v.
Sullivan,
500 U. S. 173 (1991), as support for the LSC program
restrictions. In
Rust, Congress established program clinics
to provide subsidies for doctors to advise patients on a variety of
family planning topics. Congress did not consider abortion to be
within its family planning objectives, however, and it forbade
doctors employed by the program from discussing abortion with their
patients.
Id., at 179-180. Recipients of funds under Title X
of the Public Health Service Act, §§ 1002, 1008, as added, 84 Stat.
1506, 1508, 42 U. S. C. §§ 300a, 300a-6, challenged the Act's
restriction that provided that none of the Title X funds
appropriated for family planning services could "be used in
programs where abortion is a method of family planning." § 300a-6.
The recipients argued that the regulations constituted
impermissible viewpoint discrimination favoring an antiabortion
position over a proabortion approach in the sphere of family
planning. 500 U. S., at 192. They asserted as well that Congress
had imposed an unconstitutional condition on recipients of federal
funds by requiring them to relinquish their right to engage
541
in abortion advocacy and counseling in exchange for the subsidy.
Id., at 196.
We upheld the law, reasoning that Congress had not discriminated
against viewpoints on abortion, but had "merely chosen to fund one
activity to the exclusion of the other."
Id., at 193. The
restrictions were considered necessary "to ensure that the limits
of the federal program [were] observed."
Ibid. Title X did
not single out a particular idea for suppression because it was
dangerous or disfavored; rather, Congress prohibited Title X
doctors from counseling that was outside the scope of the project.
Id., at 194-195.
The Court in
Rust did not place explicit reliance on the
rationale that the counseling activities of the doctors under Title
X amounted to governmental speech; when interpreting the holding in
later cases, however, we have explained
Rust on this
understanding. We have said that viewpoint-based funding decisions
can be sustained in instances in which the government is itself the
speaker, see
Board of Regents of Univ. of Wis. System v.
Southworth, 529 U. S. 217, 229, 235 (2000), or instances,
like
Rust, in which the government "used private speakers to
transmit specific information pertaining to its own program."
Rosenberger v.
Rector and Visitors of Univ. of Va.,
515 U. S. 819,
833 (1995). As we said in
Rosenberger, "[w]hen the
government disburses public funds to private entities to convey a
governmental message, it may take legitimate and appropriate steps
to ensure that its message is neither garbled nor distorted by the
grantee."
Ibid. The latitude which may exist for
restrictions on speech where the government's own message is being
delivered flows in part from our observation that, "[w]hen the
government speaks, for instance to promote its own policies or to
advance a particular idea, it is, in the end, accountable to the
electorate and the political process for its advocacy. If the
citizenry objects, newly elected officials later could espouse some
different or con-
542
trary position." Board of Regents of Univ. of Wis. System
Neither the latitude for government speech nor its rationale
applies to subsidies for private speech in every instance, however.
As we have pointed out, "[i]t does not follow ... that
viewpoint-based restrictions are proper when the [government] does
not itself speak or subsidize transmittal of a message it favors
but instead expends funds to encourage a diversity of views from
private speakers."
Rosenberger, supra, at 834.
Although the LSC program differs from the program at issue in
Rosenberger in that its purpose is not to "encourage a
diversity of views," the salient point is that, like the program in
Rosenberger, the LSC program was designed to facilitate
private speech, not to promote a governmental message. Congress
funded LSC grantees to provide attorneys to represent the interests
of indigent clients. In the specific context of § 504(a)(16) suits
for benefits, an LSC-funded attorney speaks on the behalf of the
client in a claim against the government for welfare benefits. The
lawyer is not the government's speaker. The attorney defending the
decision to deny benefits will deliver the government's message in
the litigation. The LSC lawyer, however, speaks on the behalf of
his or her private, indigent client. Cf.
Polk County v.
Dodson, 454 U.
S. 312, 321-322 (1981) (holding that a public defender does not
act "under color of state law" because he "works under canons of
professional responsibility that mandate his exercise of
independent judgment on behalf of the client" and because there is
an "assumption that counsel will be free of state control").
The Government has designed this program to use the legal
profession and the established Judiciary of the States and the
Federal Government to accomplish its end of assisting welfare
claimants in determination or receipt of their benefits. The advice
from the attorney to the client and the advocacy by the attorney to
the courts cannot be classified
543
as governmental speech even under a generous understanding of
the concept. In this vital respect this suit is distinguishable
from
Rust.
The private nature of the speech involved here, and the extent
of LSC's regulation of private expression, are indicated further by
the circumstance that the Government seeks to use an existing
medium of expression and to control it, in a class of cases, in
ways which distort its usual functioning. Where the government uses
or attempts to regulate a particular medium, we have been informed
by its accepted usage in determining whether a particular
restriction on speech is necessary for the program's purposes and
limitations. In
FCC v.
League of Women Voters of
Cal., 468 U. S.
364 (1984), the Court was instructed by its understanding of
the dynamics of the broadcast industry in holding that prohibitions
against editorializing by public radio networks were an
impermissible restriction, even though the Government enacted the
restriction to control the use of public funds. The First Amendment
forbade the Government from using the forum in an unconventional
way to suppress speech inherent in the nature of the medium. See
id., at 396-397. In
Arkansas Ed. Television Comm'n v.
Forbes, 523 U.
S. 666, 676 (1998), the dynamics of the broadcasting system
gave station programmers the right to use editorial judgment to
exclude certain speech so that the broadcast message could be more
effective. And in
Rosenberger, the fact that student
newspapers expressed many different points of view was an important
foundation for the Court's decision to invalidate viewpoint-based
restrictions. 515 U. S., at 836.
When the government creates a limited forum for speech, certain
restrictions may be necessary to define the limits and purposes of
the program.
Perry Ed. Assn. v.
Perry Local Educators'
Assn., 460 U. S.
37 (1983); see also
Lamb's Chapel v.
Center Moriches
Union Free School Dist., 508 U. S. 384 (1993). The
same is true when the government establishes a subsidy for
specified ends.
Rust v.
Sullivan, 500 U. S. 173
544
(1991). As this suit involves a subsidy, limited forum cases
such as
Perry, Lamb's Chapel, and
Rosenberger may not
be controlling in a strict sense, yet they do provide some
instruction. Here the program presumes that private,
nongovernmental speech is necessary, and a substantial restriction
is placed upon that speech. At oral argument and in its briefs the
LSC advised us that lawyers funded in the Government program may
not undertake representation in suits for benefits if they must
advise clients respecting the questionable validity of a statute
which defines benefit eligibility and the payment structure. The
limitation forecloses advice or legal assistance to question the
validity of statutes under the Constitution of the United States.
It extends further, it must be noted, so that state statutes
inconsistent with federal law under the Supremacy Clause may be
neither challenged nor questioned.
By providing subsidies to LSC, the Government seeks to
facilitate suits for benefits by using the state and federal courts
and the independent bar on which those courts depend for the proper
performance of their duties and responsibilities. Restricting LSC
attorneys in advising their clients and in presenting arguments and
analyses to the courts distorts the legal system by altering the
traditional role of the attorneys in much the same way broadcast
systems or student publication networks were changed in the limited
forum cases we have cited. Just as government in those cases could
not elect to use a broadcasting network or a college publication
structure in a regime which prohibits speech necessary to the
proper functioning of those systems, see
Arkansas Ed. Television
Comm'n, supra, and
Rosenberger, supra, it may not design
a subsidy to effect this serious and fundamental restriction on
advocacy of attorneys and the functioning of the judiciary.
LSC has advised us, furthermore, that upon determining a
question of statutory validity is present in any anticipated or
pending case or controversy, the LSC-funded attorney
545
must cease the representation at once. This is true whether the
validity issue becomes apparent during initial attorneyclient
consultations or in the midst of litigation proceedings. A
disturbing example of the restriction was discussed during oral
argument before the Court. It is well understood that when there
are two reasonable constructions for a statute, yet one raises a
constitutional question, the Court should prefer the interpretation
which avoids the constitutional issue.
Gomez v.
United
States, 490 U. S.
858, 864 (1989);
Ashwander v.
TVA, 297 U. S. 288, 346-348
(1936) (Brandeis, J., concurring). Yet, as the LSC advised the
Court, if, during litigation, a judge were to ask an LSC attorney
whether there was a constitutional concern, the LSC attorney simply
could not answer. Tr. of Oral Arg. 8-9.
Interpretation of the law and the Constitution is the primary
mission of the judiciary when it acts within the sphere of its
authority to resolve a case or controversy.
Marbury v.
Madison, 1 Cranch 137, 177 (1803) ("It is emphatically the
province and the duty of the judicial department to say what the
law is"). An informed, independent judiciary presumes an informed,
independent bar. Under § 504(a)(16), however, cases would be
presented by LSC attorneys who could not advise the courts of
serious questions of statutory validity. The disability is
inconsistent with the proposition that attorneys should present all
the reasonable and well-grounded arguments necessary for proper
resolution of the case. By seeking to prohibit the analysis of
certain legal issues and to truncate presentation to the courts,
the enactment under review prohibits speech and expression upon
which courts must depend for the proper exercise of the judicial
power. Congress cannot wrest the law from the Constitution which is
its source. "Those then who controvert the principle that the
constitution is to be considered, in court, as a paramount law, are
reduced to the necessity of maintaining that courts must close
their eyes on the constitution, and see only the law."
Id.,
at 178.
546
The restriction imposed by the statute here threatens severe
impairment of the judicial function. Section 504(a)(16) sifts out
cases presenting constitutional challenges in order to insulate the
Government's laws from judicial inquiry. If the restriction on
speech and legal advice were to stand, the result would be two
tiers of cases. In cases where LSC counsel were attorneys of
record, there would be lingering doubt whether the truncated
representation had resulted in complete analysis of the case, full
advice to the client, and proper presentation to the court. The
courts and the public would come to question the adequacy and
fairness of professional representations when the attorney, either
consciously to comply with this statute or unconsciously to
continue the representation despite the statute, avoided all
reference to questions of statutory validity and constitutional
authority. A scheme so inconsistent with accepted
separation-of-powers principles is an insufficient basis to sustain
or uphold the restriction on speech.
It is no answer to say the restriction on speech is harmless
because, under LSC's interpretation of the Act, its attorneys can
withdraw. This misses the point. The statute is an attempt to draw
lines around the LSC program to exclude from litigation those
arguments and theories Congress finds unacceptable but which by
their nature are within the province of the courts to consider.
The restriction on speech is even more problematic because in
cases where the attorney withdraws from a representation, the
client is unlikely to find other counsel. The explicit premise for
providing LSC attorneys is the necessity to make available
representation "to persons financially unable to afford legal
assistance." 42 U. S. C. § 2996(a)(3). There often will be no
alternative source for the client to receive vital information
respecting constitutional and statutory rights bearing upon claimed
benefits. Thus, with respect to the litigation services Congress
has funded, there is no alternative channel for expression of the
advocacy Con-
547
gress seeks to restrict. This is in stark contrast to
Rust. There, a patient could receive the approved Title X
family planning counseling funded by the Government and later could
consult an affiliate or independent organization to receive
abortion counseling. Unlike indigent clients who seek LSC
representation, the patient in
Rust was not required to
forfeit the Government-funded advice when she also received
abortion counseling through alternative channels. Because LSC
attorneys must withdraw whenever a question of a welfare statute's
validity arises, an individual could not obtain joint
representation so that the constitutional challenge would be
presented by a non-LSC attorney, and other, permitted, arguments
advanced by LSC counsel.
Finally, LSC and the Government maintain that § 504(a)(16) is
necessary to define the scope and contours of the federal program,
a condition that ensures funds can be spent for those cases most
immediate to congressional concern. In support of this contention,
they suggest the challenged limitation takes into account the
nature of the grantees' activities and provides limited
congressional funds for the provision of simple suits for benefits.
In petitioners' view, the restriction operates neither to maintain
the current welfare system nor insulate it from attack; rather, it
helps the current welfare system function in a more efficient and
fair manner by removing from the program complex challenges to
existing welfare laws.
The effect of the restriction, however, is to prohibit advice or
argumentation that existing welfare laws are unconstitutional or
unlawful. Congress cannot recast a condition on funding as a mere
definition of its program in every case, lest the First Amendment
be reduced to a simple semantic exercise. Here, notwithstanding
Congress' purpose to confine and limit its program, the restriction
operates to insulate current welfare laws from constitutional
scrutiny and certain other legal challenges, a condition
implicating central First Amendment concerns. In no lawsuit funded
by the Govern-
548
ment can the LSC attorney, speaking on behalf of a private
client, challenge existing welfare laws. As a result, arguments by
indigent clients that a welfare statute is unlawful or
unconstitutional cannot be expressed in this Governmentfunded
program for petitioning the courts, even though the program was
created for litigation involving welfare benefits, and even though
the ordinary course of litigation involves the expression of
theories and postulates on both, or multiple, sides of an
issue.
It is fundamental that the First Amendment "'was fashioned to
assure unfettered interchange of ideas for the bringing about of
political and social changes desired by the peopie.'"
New York
Times Co. v.
Sullivan, 376 U. S. 254, 269 (1964)
(quoting
Roth v.
United States, 354 U. S. 476, 484
(1957)). There can be little doubt that the LSC Act funds
constitutionally protected expression; and in the context of this
statute there is no programmatic message of the kind recognized in
Rust and which sufficed there to allow the Government to
specify the advice deemed necessary for its legitimate objectives.
This serves to distinguish § 504(a)(16) from any of the Title X
program restrictions upheld in
Rust, and to place it beyond
any congressional funding condition approved in the past by this
Court.
Congress was not required to fund an LSC attorney to represent
indigent clients; and when it did so, it was not required to fund
the whole range of legal representations or relationships. The LSC
and the United States, however, in effect ask us to permit Congress
to define the scope of the litigation it funds to exclude certain
vital theories and ideas. The attempted restriction is designed to
insulate the Government's interpretation of the Constitution from
judicial challenge. The Constitution does not permit the Government
to confine litigants and their attorneys in this manner. We must be
vigilant when Congress imposes rules and conditions which in effect
insulate its own laws from legitimate judicial challenge. Where
private speech is involved, even
549
Congress' antecedent funding decision cannot be aimed at the
suppression of ideas thought inimical to the Government's own
interest.
Regan v.
Taxation With Representation of
Wash., 461 U. S.
540, 548 (1983);
Speiser v.
Randall, 357 U. S. 513, 519
(1958).
For the reasons we have set forth, the funding condition is
invalid. The Court of Appeals considered whether the language
restricting LSC attorneys could be severed from the statute so that
the remaining portions would remain operative. It reached the
reasoned conclusion to invalidate the fragment of § 504(a)(16)
found contrary to the First Amendment, leaving the balance of the
statute operative and in place. That determination was not
discussed in the briefs of either party or otherwise contested
here, and in the exercise of our discretion and prudential judgment
we decline to address it.
The judgment of the Court of Appeals is
Affirmed.
JUSTICE SCALIA, with whom THE CHIEF JUSTICE, JUSTICE O'CONNOR,
and JUSTICE THOMAS join, dissenting.
Section 504(a)(16) of the Omnibus Consolidated Rescissions and
Appropriations Act of 1996 (Appropriations Act) defines the scope
of a federal spending program. I t does not directly regulate
speech, and it neither establishes a public forum nor discriminates
on the basis of viewpoint. The Court agrees with all this, yet
applies a novel and unsupportable interpretation of our
public-forum precedents to declare § 504(a)(16) facially
unconstitutional. This holding not only has no foundation in our
jurisprudence; it is flatly contradicted by a recent decision that
is on all fours with the present cases. Having found the limitation
upon the spending program unconstitutional, the Court then declines
to consider the question of severability, allowing a judgment to
stand that lets the program go forward under a version of
550
the statute Congress never enacted. I respectfully dissent from
both aspects of the judgment.
I
The Legal Services Corporation Act of 1974 (LSC Act), 42 U. S.
C. § 2996
et seq., is a federal subsidy program, the stated
purpose of which is to "provid[e] financial support for legal
assistance in noncriminal proceedings or matters to persons
financially unable to afford legal assistance." § 2996b(a).
Congress, recognizing that the program could not serve its purpose
unless it was "kept free from the influence of or use by it of
political pressures," § 2996(5), has from the program's inception
tightly regulated the use of its funds. See
ante, at
537-538. No Legal Services Corporation (LSC) funds may be used, for
example, for "encouraging ... labor or antilabor activities," §
2996f(b)(6), for "litigation relating to the desegregation of any
elementary or secondary school or school system," § 2996f(b)(9), or
for "litigation which seeks to procure a nontherapeutic abortion,"
§ 2996f(b)(8). Congress discovered through experience, however,
that these restrictions did not exhaust the politically
controversial uses to which LSC funds could be put.
Accordingly, in 1996 Congress added new restrictions to the LSC
Act and strengthened existing restrictions. Among the new
restrictions is the one at issue here. Section 504(a)(16) of the
Appropriations Act, 110 Stat. 1321-55 to 1321-56, withholds LSC
funds from every entity that "participates in any ... way ... in
litigation, lobbying, or rulemaking ... involving an effort to
reform a Federal or State welfare system." It thus bans LSC-funded
entities from participating on either side of litigation involving
such statutes, from participating in rulemaking relating to the
implementation of such legislation, and from lobbying Congress
itself regarding any proposed changes to such legislation. See 45
CFR § 1639.3 (2000).
551
The restrictions relating to rulemaking and lobbying are
superfluous; they duplicate general prohibitions on the use of LSC
funds for those activities found elsewhere in the Appropriations
Act. See §§ 504(a)(2), (3), (4). The restriction on litigation,
however, is unique, and it contains a proviso specifying what the
restriction does not cover. Funding recipients may "represen[t] an
individual eligible client who is seeking specific relief from a
welfare agency if such relief does not involve an effort to amend
or otherwise challenge existing law in effect on the date of the
initiation of the representation." The LSC declares in its brief,
and respondents do not deny, that under these provisions the LSC
can sponsor neither challenges to
nor defenses of existing
welfare reform law, Brief for Petitioner in No. 99-603, p. 29. The
litigation ban is symmetrical: Litigants challenging the covered
statutes or regulations do not receive LSC funding, and neither do
litigants defending those laws against challenge.
If a suit for benefits raises a claim outside the scope of the
LSC program, the LSC-funded lawyer may not participate in the suit.
As the Court explains, if LSC-funded lawyers anticipate that a
forbidden claim will arise in a prospective client's suit, they
"may not undertake [the] representation,"
ante, at 544.
Likewise, if a forbidden claim arises unexpectedly at trial,
"LSC-funded attorney[s] must cease the representation at once,"
ante, at 544-545. See also Brief for Petitioner in No.
99-603, at 7, n.4 (if the issue arises at trial, "the lawyer should
discontinue the representation 'consistent with the applicable
rules of professional responsibility' "). The lawyers may, however,
and indeed
must explain to the client why they cannot
represent him. See
164 F.3d
757, 765 (CA2 1999). They are also free to express their views
of the legality of the welfare law to the client, and they may
refer the client to another attorney who can accept the
representation, ibid. See 985 F. Supp. 323, 335336 (EDNY 1997).
552
II
The LSC Act is a federal subsidy program, not a federal
regulatory program, and "[t]here is a basic difference between [the
two]."
Maher v.
Roe, 432 U. S. 464, 475
(1977). Regulations directly restrict speech; subsidies do not.
Subsidies, it is true, may
indirectly abridge speech, but
only if the funding scheme is "'manipulated' to have a 'coercive
effeet'" on those who do not hold the subsidized position.
National Endowment for Arts v.
Finley, 524 U. S. 569, 587 (1998)
(quoting
Arkansas Writers' Project, Inc. v.
Ragland,
481 U. S. 221,
237 (1987) (SCALIA, J., dissenting)). Proving unconstitutional
coercion is difficult enough when the spending program has
universal coverage and excludes only certain speech-such as a tax
exemption scheme excluding lobbying expenses. The Court has found
such programs unconstitutional only when the exclusion was "aimed
at the suppression of dangerous ideas."
Speiser v.
Randall, 357 U. S. 513, 519 (1958) (internal quotation marks
omitted); see also
Regan v.
Taxation With Representation
of Wash., 461 U. S. 540, 550 (1983). Proving the requisite
coercion is harder still when a spending program is not universal
but limited, providing benefits to a restricted number of
recipients, see
Rust v.
Sullivan, 500 U. S. 173, 194-195
(1991). The Court has found such selective spending
unconstitutionally coercive only once, when the government created
a public forum with the spending program but then discriminated in
distributing funding within the forum on the basis of viewpoint.
See
Rosenberger v.
Rector and Visitors of Univ. of
Va., 515 U. S.
819, 829-830 (1995). When the limited spending program does not
create a public forum, proving coercion is virtually impossible,
because simply denying a subsidy "does not 'coerce' belief,"
Lyng v.
Automobile Workers, 485 U. S. 360, 369
(1988), and because the criterion of unconstitutionality is whether
denial of the subsidy threatens "to drive certain ideas or
viewpoints from the marketplace,"
National Endowment for
Arts v.
Finley, supra, at 587 (internal quota-
553
tion marks omitted). Absent such a threat, "the Government may
allocate ... funding according to criteria that would be
impermissible were direct regulation of speech or a criminal
penalty at stake." 524 U. S., at 587-588.
In
Rust v.
Sullivan, supra, the Court applied
these principles to a statutory scheme that is in all relevant
respects indistinguishable from § 504(a)(16). The statute in
Rust authorized grants for the provision of family planning
services, but provided that "[n]one of the funds ... shall be used
in programs where abortion is a method of family planning."
Id., at 178. Valid regulations implementing the statute
required funding recipients to refer pregnant clients "for
appropriate prenatal ... services by furnishing a list of available
providers that promote the welfare of mother and unborn child," but
forbade them to refer a pregnant woman specifically to an abortion
provider, even upon request.
Id., at 180. We rejected a
First Amendment free-speech challenge to the funding scheme,
explaining that "[t]he Government can, without violating the
Constitution, selectively fund a program to encourage certain
activities it believes to be in the public interest, without at the
same time funding an alternative program which seeks to deal with
the problem another way."
Id., at 193. This was not, we
said, the type of "discriminat[ion] on the basis of viewpoint" that
triggers strict scrutiny,
ibid., because the" 'decision not
to subsidize the exercise of a fundamental right does not infringe
the right,'"
ibid. (quoting
Regan v.
Taxation With
Representation of Wash., supra, at 549).
The same is true here. The LSC Act, like the scheme in
Rust, see 500 U. S., at 200, does not create a public forum.
Far from encouraging a diversity of views, it has always, as the
Court accurately states, "placed restrictions on its use of funds,"
ante, at 537. Nor does § 504(a)(16) discriminate on the
basis of viewpoint, since it funds neither challenges to nor
defenses of existing welfare law. The provision simply declines to
subsidize a certain class of litigation, and under
554
Rust that decision "does not infringe the right" to bring
such litigation. Cf.
Ortwein v.
Schwab, 410 U. S. 656, 658-660,
and n. 5 (1973)
(per curiam) (government not required by
First Amendment or Due Process Clause to waive filing fee for
welfare benefits litigation). The Court's repeated claims that §
504(a)(16) "restricts" and "prohibits" speech, see,
e. g.,
ante, at 545, 546, and "insulates" laws from judicial
review, see,
e. g., ante, at 547, are simply baseless. No
litigant who, in the absence of LSC funding, would bring a suit
challenging existing welfare law is deterred from doing so by §
504(a)(16).
Rust thus controls these cases and compels the
conclusion that § 504(a)(16) is constitutional.
The Court contends that
Rust is different because the
program at issue subsidized government speech, while the LSC funds
private speech. See
ante, at 541-542. This is so
unpersuasive it hardly needs response. If the private doctors'
confidential advice to their patients at issue in
Rust
constituted "government speech," it is hard to imagine what
subsidized speech would
not be government speech. Moreover,
the majority's contention that the subsidized speech in these cases
is not government speech because the lawyers have a professional
obligation to represent the interests of their clients founders on
the reality that the doctors in
Rust had a professional
obligation to serve the interests of their patients, see 500 U. S.,
at 214 (Blackmun, J., dissenting) ("ethical responsibilities of the
medical profession")-which at the time of
Rust we had held
to be highly relevant to the permissible scope of federal
regulation, see
Thornburgh v.
American College of
Obstetricians and Gynecologists, 476 U. S. 747, 763 (1986)
("professional responsibilities" of physicians), overruled in part
on other grounds,
Planned Parenthood of Southeastern Pa. v.
Casey, 505 U.
S. 833 (1992). Even respondents agree that "the true speaker in
Rust was not the government, but a doctor." Brief for
Respondents 19, n. 17.
The Court further asserts that these cases are different from
Rust because the welfare funding restriction "seeks to
555
use an existing medium of expression and to control it ... in
ways which distort its usual functioning,"
ante, at 543.
This is wrong on both the facts and the law. It is wrong on the law
because there is utterly no precedent for the novel and facially
implausible proposition that the First Amendment has anything to do
with government funding that-though it does not actually abridge
anyone's speech-"distorts an existing medium of expression." None
of the three cases cited by the Court mentions such an odd
principle. In Ro
senberger v.
Rector and Visitors of Univ.
of Va., the point critical to the Court's analysis was not, as
the Court would have it, that it is part of the "usual functioning"
of student newspapers to "expres[s] many different points of view,"
ante, at 543 (it surely is not), but rather
that the
spending program itself had been created "to encourage a
diversity of views from private speakers," 515 U. S., at 834. What
could not be distorted was
the public forum that the
spending program had created. As for
Arkansas Ed. Television
Comm'n v.
Forbes, 523 U. S. 666 (1998),
that case discussed the nature of television broadcasting, not to
determine whether government regulation would alter its "usual
functioning" and thus violate the First Amendment (no government
regulation was even at issue in the case), but rather to determine
whether state-owned television is a "public forum" under our First
Amendment jurisprudence.
Id., at 673-674. And finally, the
passage the Court cites from
FCC v.
League of Women
Voters of Cal., 468 U. S. 364, 396-397
(1984), says
nothing whatever about "using the forum [of
public radio] in an unconventional way to suppress speech inherent
in the nature of the medium,"
ante, at 543. It discusses why
the Government's asserted interest in "preventing [public radio]
stations from becoming a privileged outlet for the political and
ideological opinions of station owners and managers," 468 U. S., at
396 (internal quotation marks omitted), was insubstantial and thus
could not justify the statute's restriction on editorializing. Even
worse for the Court, after invalidat-
556
ing the restriction on this conventional First Amendment ground,
League of Women Voters goes on to say that "[o]f course,"
the restriction on editorializing "would plainly be valid" if
"Congress were to adopt a revised version of [the statute] that
permitted [public radio] stations to establish 'affiliate'
organizations which could then use the station's facilities to
editorialize with nonfederal funds."
Id., at 400. But of
course that is the case here. Regulations permit funding recipients
to establish affiliate organizations to conduct litigation and
other activities that fall outside the scope of the LSC program.
See 45 CFR pt. 1610 (2000). Far from supporting the Court's
nondistortion analysis,
League of Women Voters dooms the
Court's case.
The Court's "nondistortion" principle is also wrong on the
facts, since there is no basis for believing that § 504(a)(16), by
causing "cases [to] be presented by LSC attorneys who [can]not
advise the courts of serious questions of statutory validity,"
ante, at 545, will distort the operation of the courts. It
may well be that the bar of § 504(a)(16) will cause LSCfunded
attorneys to decline or to withdraw from cases that involve
statutory validity. But that means at most that fewer statutory
challenges to welfare laws will be presented to the courts because
of the unavailability of free legal services for that purpose. So
what? The same result would ensue from excluding LSC-funded lawyers
from welfare litigation entirely. It is not the mandated,
nondistortable function of the courts to inquire into all "serious
questions of statutory validity" in all cases. Courts must consider
only those questions of statutory validity
that are presented by
litigants, and if the Government chooses not to subsidize the
presentation of some such questions, that in no way "distorts" the
courts' role. It is remarkable that a Court that has so studiously
avoided deciding whether Congress could entirely eliminate federal
jurisdiction over certain matters, see,
e. g.,
Webster v.
Doe, 486 U. S. 592, 603
(1988);
Bowen v.
Michigan Academy of Family
Physicians, 476
U. S. 667,
557
681, n. 12 (1986), would be so eager to hold the much lesser
step of declining to subsidize the litigation unconstitutional
under the First Amendment.
Nor will the judicial opinions produced by LSC cases
systematically distort the interpretation of welfare laws. Judicial
decisions do not stand as binding "precedent" for points that were
not raised, not argued, and hence not analyzed. See,
e. g.,
United States v.
Verdugo-Urquidez, 494 U. S. 259, 272
(1990);
Hagans v.
Lavine, 415 U. S. 528, 533, n. 5
(1974);
United States v.
L. A. Tucker Truck Lines,
Inc., 344 U. S.
33, 37-38 (1952);
United States v.
More, 3 Cranch
159, 172 (1805) (Marshall, C. J.). The statutory validity that
courts assume in LSC cases will remain open for full determination
in later cases.
Finally, the Court is troubled "because in cases where the
attorney withdraws from a representation, the client is unlikely to
find other counsel."
Ante, at 546. That is surely
irrelevant, since it leaves the welfare recipient in no
worse condition than he would have been in had the LSC
program never been enacted. Respondents properly concede that even
if welfare claimants cannot obtain a lawyer anywhere else, the
Government is not required to provide one. Brief for Respondents
16; accord,
Goldberg v.
Kelly, 397 U. S. 254, 270 (1970)
(government not required to provide counsel at hearing regarding
termination of welfare benefits). It is hard to see how providing
free legal services to some welfare claimants (those whose claims
do not challenge the applicable statutes) while not providing it to
others is beyond the range of legitimate legislative choice.
Rust rejected a similar argument:
"Petitioners contend, however, that most Title X clients are
effectively precluded by indigency and poverty from seeing a
health-care provider who will provide abortion-related services.
But once again, even these Title X clients are in no worse position
than if Congress had never enacted Title X. The financial
constraints
558
that restrict an indigent woman's ability to enjoy the full
range of constitutionally protected freedom of choice are the
product not of governmental restrictions on access to abortion, but
rather of her indigency." 500 U. S., at 203 (internal quotation
marks omitted).
The only conceivable argument that can be made for
distinguishing
Rust is that there even patients who wished
to receive abortion counseling could receive the nonabortion
services that the Government-funded clinic offered, whereas here
some potential LSC clients who wish to receive representation on a
benefits claim that does not challenge the statutes will be unable
to do so because their cases raise a reform claim that an LSC
lawyer may not present. This difference, of course, is required by
the same ethical canons that the Court elsewhere does not wish to
distort. Rather than sponsor "truncated representation,"
ante, at 546, Congress chose to subsidize only those cases
in which the attorneys it subsidized could work freely. See,
e. g., 42 U. S. C. § 2996(6) ("[A]ttorneys providing legal
assistance must have full freedom to protect the best interests of
their clients"). And it is impossible to see how this difference
from
Rust has any bearing upon the First Amendment question,
which, to repeat, is whether the funding scheme is "'manipulated'
to have a 'coercive effect'" on those who do not hold the
subsidized position.
National Endowment for Arts v.
Finley, 524 U. S., at 587 (quoting
Arkansas Writers'
Project, Inc. v.
Ragland, 481 U. S., at 237 (SCALIA, J.,
dissenting)). It could be claimed to have such an effect if the
client in a case ineligible for LSC representation could eliminate
the ineligibility by waiving the claim that the statute is invalid;
but he cannot. No
conceivable coercive effect exists.
This has been a very long discussion to make a point that is
embarrassingly simple: The LSC subsidy neither prevents anyone from
speaking nor coerces anyone to change speech, and is
indistinguishable in all relevant respects from the sub-
559
sidy upheld in
Rust v.
Sullivan, supra. There is
no legitimate basis for declaring § 504(a)(16) facially
unconstitutional.
III
Even were I to accept the Court's First Amendment analysis, I
could not join its decision to conclude this litigation without
reaching the issue of severability. That issue, although decided by
the Second Circuit, was not included within the question on which
certiorari was granted, and, as the Court points out, was not
briefed or argued here. I nonetheless think it an abuse of
discretion to ignore it.
The Court has said that "[w]e may consider questions outside the
scope of the limited order [granting certiorari] when resolution of
those questions is necessary for the proper disposition of the
case."
Piper Aircraft Co. v.
Reyno, 454 U. S. 235,246-247, n.
12 (1981). I think it necessary to a "proper disposition" here
because the statute concocted by the Court of Appeals bears little
resemblance to what Congress enacted, funding without restriction
welfare-benefits litigation that Congress funded only under the
limitations of § 504(a)(16). Although no party briefed severability
in
Denver Area Ed. Telecommunications Consortium, Inc. v.
FCC, 518 U. S.
727 (1996), the Justices finding partial unconstitutionality
considered it necessary to address the issue.
Id., at 767
(plurality opinion) ("[W]e must ask whether § 10(a) is severable");
accord,
New York v.
United States, 505 U. S. 144, 186
(1992). I think we have that same obligation here. Moreover, by
exercising our "discretion" to leave the severability question
open, we fail to resolve the basic, real-world dispute at issue:
whether LSC attorneys may represent welfare claimants who challenge
the applicable welfare laws. Indeed, we leave the LSC program
subject to even a greater uncertainty than the one we purport to
have eliminated, since other circuits may conclude (as I do) that
if the limitation upon welfare representation is unconstitutional,
LSC attorneys cannot engage in welfare litigation at all.
560
"The inquiry into whether a statute is severable is essentially
an inquiry into legislative intent."
Minnesota v.
Mille
Lacs Band of Chippewa Indians, 526 U. S. 172, 191
(1999). If Congress "would not have enacted those provisions which
are within its power, independently of that which is not," then
courts must strike the provisions as a piece.
Alaska Airlines,
Inc. v.
Brock, 480 U. S. 678, 684 (1987)
(internal quotation marks omitted). One determines what Congress
would have done by examining what it did. Perhaps the most that can
be said on the subject is contained in a passage written by Chief
Justice Shaw of the Supreme Judicial Court of Massachusetts that we
have often quoted:
"[I]f [a statute's provisions] are so mutually connected with
and dependent on each other, as conditions, considerations or
compensations for each other, as to warrant a belief that the
legislature intended them as a whole, and that, if all could not be
carried into effect, the legislature would not pass the residue
independently, and some parts are unconstitutional, all the
provisions which as thus dependent, conditional or connected, must
fall with them." Warren v. Mayor and Aldermen of
Charlestown, 68 Mass. 84, 99 (1854).
It is clear to me that the LSC Act's funding of welfare benefits
suits and its prohibition on suits challenging or defending the
validity of existing law are "conditions, considerations [and]
compensations for each other" that cannot be severed. Congress
through the LSC Act intended "to provide high quality legal
assistance to those who would be otherwise unable to afford
adequate legal counsel," 42 U. S. C. § 2996(2), but only if the
program could at the same time "be kept free from the influence of
or use by it of political pressures," § 2996(5). More than a dozen
times in § 504(a) Congress made the decision that certain
activities could not be funded
at all without crippling the
LSC program with political pressures. See,
e. g., §
504(a)(1) (reapportionment
561
litigation); § 504(a)(4) (local, state, and federal lobbying); §
504(a)(7) (class-action lawsuits); § 504(a)(12) (training programs
for,
inter alia, boycotts, picketing, and demonstrations); §
504(a)(14) (litigation with respect to abortion). The severability
question here is, essentially, whether, without the restriction
that the Court today invalidates, the permission for conducting
welfare litigation would have been accorded. As far as appears from
the best evidence (which is the structure of the statute), I think
the answer must be no.
We have in some cases stated that when an "excepting proviso is
found unconstitutional the substantive provisions which it
qualifies cannot stand," for "to hold otherwise would be to extend
the scope of the law ... so as to embrace [situations] which the
legislature passing the statute had, by its very terms, expressly
excluded."
Frost v.
Corporation Comm'n of Okla.,
278 U. S. 515,
525 (1929); see also
Davis v.
Wallace, 257 U. S. 478, 484 (1922)
("Where an excepting provision in a statute is found
unconstitutional, courts very generally hold that this does not
work an enlargement of the scope or operation of other provisions
with which that provision was enacted, and which it was intended to
qualify or restrain"). I frankly doubt whether this approach has
been followed consistently enough to be called the "general" rule,
but if there were ever an instance in which it is appropriate it is
here. To strike the restriction on welfare benefits suits is to
void § 504(a)(16) altogether. Subsection (a)(16) prohibits
involvement in three types of activities with respect to welfare
reform: lobbying, rulemaking, and litigation. But the proscriptions
against using LSC funds to participate in welfare lobbying and
rulemaking are superfluous, since as described above subsections
(a)(2), (a)(3), and (a)(4) of § 504 withhold LSC funds from those
activities generally. What is unique about subsection (a)(16)-the
only thing it achieves-is its limit on litigation. To remove that
limit is to repeal subsection (a)(16) altogether, and thus to
eliminate a significant
quid pro quo of the legislative
compromise. We
562
have no authority to "rewrite [the] statute and give it an
effect altogether different" from what Congress agreed to.
Railroad Retirement Bd. v.
Alton R. Co., 295 U. S. 330, 362 (1935)
(quoted in
Carter v.
Carter Coal Co., 298 U. S. 238, 313
(1936)).
***
It is illuminating to speculate how these cases would have been
decided if Congress had enacted § 504(a)(16) without its proviso
(prescribing only the general ban against "litigation, lobbying, or
rulemaking, involving an effort to reform a Federal or State
welfare system"), and if the positions of the parties before us
here were reversed. If the LSC-funded lawyers were here arguing
that the statute permitted representation of individual welfare
claimants who did not challenge existing law, I venture to say that
the Court would endorse their argument-perhaps with stirring
language about the importance of aid to welfare applicants and the
Court's unwillingness to presume without clear indication that
Congress would want to eliminate it. And I have little doubt that
in that context the Court would find its current First Amendment
musings as unpersuasive as I find them today.
Today's decision is quite simply inexplicable on the basis of
our prior law. The only difference between
Rust and the
present cases is that the former involved "distortion" of (that is
to say, refusal to subsidize) the normal work of doctors, and the
latter involves "distortion" of (that is to say, refusal to
subsidize) the normal work of lawyers. The Court's decision
displays not only an improper special solicitude for our own
profession; it also displays, I think, the very fondness for
"reform through the courts"-the making of innumerable social
judgments through judge-pronounced constitutional imperatives-that
prompted Congress to restrict publicly funded litigation of this
sort. The Court says today, through an unprecedented (and indeed
previously rejected) interpretation of the First Amendment, that we
will not allow this
563
restriction-and then, to add insult to InJury, permits to stand
a judgment that awards the general litigation funding that the
statute does not contain. I respectfully dissent.
564
The next page is purposely numbered 801. The numbers between 563
and 801 were intentionally omitted, in order to make it possible to
publish the orders with permanent page numbers, thus making the
official citations available upon publication of the preliminary
prints of the United States Reports.
565
OCTOBER 2, 2000
Certiorari Granted-Vacated and Remanded
No. 99-1870. ADLER ET AL. V. DUVAL COUNTY SCHOOL BOARD ET AL. C.
A. 11th Cir. Certiorari granted, judgment vacated, and case
remanded for further consideration in light of
Santa Fe
Independent School Dist. V.
Doe, 530 U. S. 290 (2000).
Reported below:
206 F.3d
1070.
No. 99-6775. BLUE V. UNITED STATES. C. A. 4th Cir. Motion of
petitioner for leave to proceed
in forma pauperis granted.
Certiorari granted, judgment vacated, and case remanded for further
consideration in light of
Apprendi V.
New Jersey,
530 U. S. 466
(2000). Reported below:
187 F.3d
631.
No. 99-7351. GIBSON, AKA WILLIS V. UNITED STATES. C. A. 4th Cir.
Motion of petitioner for leave to proceed
in forma pauperis
granted. Certiorari granted, judgment vacated, and case remanded
for further consideration in light of
Apprendi V.
New
Jersey, 530 U. S.
466 (2000). Reported below:
187 F.3d
631.
No. 99-8958. WIMS V. UNITED STATES. C. A. 11th Cir. Motion of
petitioner for leave to proceed
in forma pauperis granted.
Certiorari granted, judgment vacated, and case remanded for further
consideration in light of
Apprendi V.
New Jersey,
530 U. S. 466
(2000). Reported below:
207 F.3d
661.
No. 99-9902. BURTON V. UNITED STATES. C. A. 5th Cir. Motion of
petitioner for leave to proceed
in forma pauperis granted.
Certiorari granted, judgment vacated, and case remanded for further
consideration in light of
Apprendi V.
New Jersey,
530 U. S. 466
(2000). Reported below:
211 F.3d
125.
No. 99-9924. MARTIN V. CAIN, WARDEN. C. A. 5th Cir. Motion of
petitioner for leave to proceed
in forma pauperis granted.
Certiorari granted, judgment vacated, and case remanded for
fur801
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