LegalServCorp_v_VelazquezDissent.txt

SUPREME COURT OF THE UNITED STATES
Nos. 99-603 and 99-960
LEGAL SERVICES CORPORATION, PETITIONER 99-603 v. CARMEN
VELAZQUEZ ET AL.
UNITED STATES, PETITIONER 99-960 v. CARMEN VELAZQUEZ ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
[February 28, 2001]
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. It 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 case. 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 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 3. 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). 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 9. Likewise, if
a forbidden claim arises unexpectedly at trial, "LSC-funded
attorney[s] must cease the representation at once," ante, at 10.
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, 335-336 (EDNY 1997).
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 effect'" 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 quotation
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 3. 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 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 10, 11, and "insulates" laws from
judicial review, see, e.g., ante, at 13, 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 7-8. 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.
SCALIA, J., dissenting
The Court further asserts that these cases are different from
Rust because the welfare funding restriction "seeks to use an
existing medium of expression and to control it . . . in ways which
distort its usual functioning," ante, at 8. 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 Rosenberger 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 9 (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 8-9. 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 invalidating 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 11, will distort the operation of the courts. It may well
be that the bar of §504(a)(16) will cause LSC-funded 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 LSCfunded 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, 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 12. 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 cli
SCALIA, J., dissenting
ents 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 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
11, 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 subsidy 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, realworld 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.
"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
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 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
SCALIA, J., dissenting
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
case 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
judgepronounced 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
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.