Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, Inc.

• Decision Date: 29 June 2020
• Docket Number: 19-177
• Citation: 140 S.Ct. 2082,207 L.Ed.2d 654
• Parties: AGENCY FOR INTERNATIONAL DEVELOPMENT, et al., Petitioners v. ALLIANCE FOR OPEN SOCIETY INTERNATIONAL, INC., et al.
• Court: U.S. Supreme Court

140 S.Ct. 2082

207 L.Ed.2d 654

AGENCY FOR INTERNATIONAL DEVELOPMENT, et al., Petitioners

v.ALLIANCE FOR OPEN SOCIETY INTERNATIONAL, INC., et al.

19-177

Supreme Court of the United States.

Argued May 5, 2020

Decided June 29, 2020

Noel J. Francisco, Solicitor General, Counsel of Record, Department of Justice, Washington, D.C., for Petitioners.

Katherine Florio, Emily J. Barnet, Wilmer Cutler Pickering, Hale and Dorr LLP, 7 World Trade Center, 250 Greenwich Street, New York, NY, David W. Bowker, Catherine M.A. Carroll, David A. Stoopler, Kevin M. Lamb, Alex Hemmer, Wilmer Cutler Pickering, Hale and Dorr LLP, 1875 Pennsylvania Ave., NW, Washington, DC, for Respondents.

Noel J. Francisco, Solicitor General, Joseph H. Hunt, Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Christopher G. Michel, Assistant to the Solicitor General, Benjamin H. Torrance, Sharon Swingle, Brad Hinshelwood, Attorneys, Department of Justice, Washington, D.C., for Petitioners.

Justice KAVANAUGH delivered the opinion of the Court.

In 2003, Congress passed and President George W. Bush signed the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act, known as the Leadership Act. 117 Stat. 711, as amended, 22 U.S.C. § 7601 et seq. Aiming to enhance America's response to the ravages of the global HIV/AIDS crisis, the Leadership Act launched "the largest international public health program of its kind ever created." § 7601(29). The Act has helped save an estimated 17 million lives, primarily in Africa, and is widely viewed as the most successful American foreign aid program since the Marshall Plan.

To advance the global relief effort, Congress has allocated billions of dollars to American and foreign nongovernmental organizations that combat HIV/AIDS abroad. As relevant here, Congress sought to fund only those organizations that have, or agree to have, a "policy explicitly opposing prostitution and sex trafficking." § 7631(f) ; see also § 7631(e) ; 45 C.F.R. § 89.1 (2019). Congress imposed that condition on funding, known as the Policy Requirement, because Congress found that prostitution and sex trafficking "are additional causes of and factors in the spread of the HIV/AIDS epidemic" and that prostitution and sex trafficking "are degrading to women and children." § 7601(23).

Plaintiffs are American nongovernmental organizations that receive Leadership Act funds to fight HIV/AIDS abroad. Plaintiffs have long maintained that they do not want to express their agreement with the American commitment to eradicating prostitution. Plaintiffs consider a public stance of neutrality toward prostitution more helpful to their sensitive work in some parts of the world and also to their full participation in the global efforts to prevent HIV/AIDS.

After enactment of the Leadership Act, plaintiffs challenged the Policy Requirement, alleging that it violated the First Amendment. In 2013, this Court agreed, concluding that the Policy Requirement ran afoul of the free speech principle that the Government "may not deny a benefit to a person on a basis that infringes his constitutionally protected ... freedom of speech."

Agency for Int'l Development v. Alliance for Open Society Int'l, Inc. , 570 U.S. 205, 214, 133 S.Ct. 2321, 186 L.Ed.2d 398 (2013) (internal quotation marks omitted). Therefore, the Policy Requirement no longer applies to American organizations that receive Leadership Act funds, meaning that American organizations can obtain Leadership Act funds even if they do not have a policy explicitly opposing prostitution and sex trafficking.

But as has been the case since 2003, foreign organizations that receive Leadership Act funds remain subject to the Policy Requirement and still must have a policy explicitly opposing prostitution and sex trafficking. Following this Court's 2013 decision barring the Government from enforcing the Policy Requirement against American organizations, plaintiffs returned to court, invoking the First Amendment and seeking to bar the Government from enforcing the Policy Requirement against plaintiffs’ legally distinct foreign affiliates. The U. S. District Court for the Southern District of New York agreed with plaintiffs and prohibited the Government from enforcing the Policy Requirement against plaintiffs’ foreign affiliates. The U. S. Court of Appeals for the Second Circuit affirmed. Judge Straub dissented. He described as "startling" the proposition that the First Amendment could extend to foreign organizations operating abroad. 911 F.3d 104, 112 (2018). The Second Circuit's decision was stayed pending this Court's review, meaning that foreign organizations currently remain subject to the Policy Requirement.

We granted certiorari, 589 U. S. ––––, 140 S.Ct. 660, 205 L.Ed.2d 417 (2019), and now reverse the judgment of the Second Circuit. Plaintiffs’ position runs headlong into two bedrock principles of American law.

First , it is long settled as a matter of American constitutional law that foreign citizens outside U. S. territory do not possess rights under the U. S. Constitution. Plaintiffs do not dispute that fundamental principle. Tr. of Oral Arg. 58–59; see, e.g. , Boumediene v. Bush , 553 U.S. 723, 770–771, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) ; Hamdi v. Rumsfeld , 542 U.S. 507, 558–559, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (Scalia, J., dissenting); United States v. Verdugo-Urquidez , 494 U.S. 259, 265–275, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990) ; Johnson v. Eisentrager , 339 U.S. 763, 784, 70 S.Ct. 936, 94 L.Ed. 1255 (1950) ; United States ex rel. Turner v. Williams , 194 U.S. 279, 292, 24 S.Ct. 719, 48 L.Ed. 979 (1904) ; U. S. Const., Preamble.

As the Court has recognized, foreign citizens in the United States may enjoy certain constitutional rights—to take just one example, the right to due process in a criminal trial. See, e.g. , Verdugo-Urquidez , 494 U.S. at 270–271, 110 S.Ct. 1056 ; Plyler v. Doe , 457 U.S. 202, 210–213, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) ; Kwong Hai Chew v. Colding , 344 U.S. 590, 596, 73 S.Ct. 472, 97 L.Ed. 576 (1953) ; Bridges v. Wixon , 326 U.S. 135, 148, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945) ; Yick Wo v. Hopkins , 118 U.S. 356, 369, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) ; cf. Bluman v. Federal Election Comm'n , 800 F.Supp.2d 281, 286–289 (DDC 2011), aff ’d, 565 U.S. 1104, 132 S.Ct. 1087, 181 L.Ed.2d 726 (2012). And so too, the Court has ruled that, under some circumstances, foreign citizens in the U. S. Territories—or in "a territory" under the "indefinite" and "complete and total control" and "within the constant jurisdiction" of the United States—may possess certain constitutional rights. Boumediene , 553 U.S. at 755–771, 128 S.Ct. 2229. But the Court has not allowed foreign citizens outside the United States or such U. S. territory to assert rights under the U. S. Constitution. If the rule were otherwise, actions by American military, intelligence, and law enforcement personnel against foreign organizations or foreign citizens in foreign countries would be constrained by the foreign citizens’ purported rights under the U. S. Constitution. That has never been the law. See Verdugo-Urquidez , 494 U.S. at 273–274, 110 S.Ct. 1056 ; Eisentrager , 339 U.S. at 784, 70 S.Ct. 936.^* To be sure, Congress may seek to enact laws that afford foreign citizens abroad statutory rights or causes of action against misconduct by U. S. Government officials, or laws that otherwise regulate the conduct of U. S. officials abroad. See Verdugo-Urquidez , 494 U.S. at 275, 110 S.Ct. 1056 ; cf. 10 U.S.C. §§ 2734(a), 2734a(a) ; 18 U.S.C. § 2340A ; 21 U.S.C. § 904 ; 22 U.S.C. §§ 2669, 2669–1 ; 42 U.S.C. § 2000dd ; but see 28 U.S.C. § 2680(k) (Federal Tort Claims Act's exception for torts "arising in a foreign country"). Plaintiffs did not raise any such statutory claim in this case.

Second , it is long settled as a matter of American corporate law that separately incorporated organizations are separate legal units with distinct legal rights and obligations. See Dole Food Co. v. Patrickson , 538 U.S. 468, 474–475, 123 S.Ct. 1655, 155 L.Ed.2d 643 (2003) ; Cedric Kushner Promotions, Ltd. v. King , 533 U.S. 158, 163, 121 S.Ct. 2087, 150 L.Ed.2d 198 (2001) ; P. Blumberg, K. Strasser, N. Georgakopoulos, & E. Gouvin, Corporate Groups §§ 6.01, 6.02, 6.05 (2020 Supp.).

Plaintiffs’ foreign affiliates were incorporated in other countries and are legally separate from plaintiffs’ American organizations. Even though the foreign organizations have affiliated with the American organizations, the foreign organizations remain legally distinct from the American organizations. Plaintiffs do not ask this Court to pierce the corporate veil, nor do they invoke any other relevant exception to that fundamental corporate law principle. Tr. of Oral Arg. 54.

Those two bedrock principles of American constitutional law and American corporate law together lead to a simple conclusion: As foreign organizations operating abroad, plaintiffs’ foreign affiliates possess no rights under the First Amendment.

That conclusion corresponds to historical practice regarding American foreign aid. The United States supplies more foreign aid than any other nation in the world. Cong. Research Serv., Foreign Assistance: An Introduction to U. S. Programs and Policy (2020) (Summary). Acting with the President in the legislative process, Congress sometimes imposes conditions on foreign aid. See 22 U.S.C. §§ 2271, 2272, 2371, 7110(g)(2). Congress may condition funding on a foreign organization's ideological commitments—for example, pro-democracy, pro-women's rights, anti-terrorism, pro-religious freedom, anti-sex trafficking, or the like. Doing so helps ensure that U. S. foreign aid serves U. S. interests. By contrast, plaintiffs’ approach would throw a constitutional wrench into American foreign policy. In particular, plaintiffs’ approach would put Congress in the untenable position of either cutting off certain funding programs altogether,...