As she summarized the first opinion of the day on Thursday, Justice Elena Kagan said it involved the Armed Career Criminal Act and joked that it was “possibly not what you're here for this morning."
Kagan’s remark prompted laughter instead of disappointed grimaces as the morning progressed without the Court issuing highly anticipated decisions on affirmative action, voting rights and same-sex marriage.
The justices, however, continued to clean out their rapidly shrinking remaining docket by handing down three decisions dealing with arbitration, the First Amendment and the Armed Career Criminal Act "which takes up more of our time than we would like," Kagan said.
The Court has 11 undecided cases. Next week is expected to be the final week of the term if tradition holds. And the justices likely will schedule three decision days that week to finish up their work.
Besides the arbitration ruling, the court voted 6-2 that a condition for federal funding under a congressionally enacted program designed to combat HIV/AIDS violated the First Amendment. (The case was Agency for International Development v. Alliance for Open Society International.)
The U.S. Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 created a comprehensive strategy to combat the spread of those diseases around the world. Congress appropriated about $60 billion to government agencies and nongovernmental organizations to fund that effort.
The law imposes two conditions on recipients of the funds. One, no funds may be used to promote or advocate the legalization or practice of prostitution or sex trafficking—which Congress said contributes to the spread of HIV/AIDS. And two, no funds may be used by an organization that does not have a policy explicitly opposing prostitution and sex trafficking.
That second condition, which the court called the policy requirement, was challenged by a number of domestic nongovernmental organizations combating HIV/AIDs overseas. They claimed it violated their First Amendment speech rights. They feared that adopting a policy of explicitly opposing prostitution could alienate certain host governments and undercut the effectiveness of some of their programs by making it more difficult to work with prostitutes. They wanted to remain neutral on prostitution. The U.S. Court of Appeals for the Second Circuit held that the condition compelled fund recipients to "espouse the government's position" and that violated the First Amendment.
Writing for the high court majority, Chief Justice John Roberts Jr. said there is a line between conditions that define the limits of a government-spending program—those that specify the activities that Congress wants to subsidize—and conditions that seek to leverage funding to regulate speech outside the contours of the program itself. "The line is hardly clear," he conceded.
However, he added, the challenged condition clearly fell on the other side — the unconstitutional side — of the line.
"A recipient cannot avow the belief dictated by the policy requirement when spending federal funds and then turn around and assert a contrary belief, or claim neutrality, when participating in activities on its own time and dime," he wrote. "By requiring recipients to profess a specific belief, the policy requirement goes beyond defining the limits of the federally funded program to defining the recipient."
The chief justice rejected the government's argument that new program guidelines saved the program by permitting funding recipients to work with affiliated organizations that do not accept the condition as long as the funding recipients retain objective integrity and independence from those affiliates. "That doesn't work when the condition is that a funding recipient espouse a belief as its own," he explained.
And he also rejected the government's argument that the policy requirement was necessary because without it, the federal funds could free a recipient's private funds to be used to promote prostitution or sex trafficking. "The Government offers no support for that assumption or any reason to believe it is true here," he wrote.
Justice Antonin Scalia, joined by Justice Clarence Thomas, dissented, saying the policy requirement "is nothing more than a means of selecting suitable agents to implement the government's chosen strategy to eradicate HIV/AIDS. That is perfectly permissible under the Constitution."
Scalia wrote that the views that the government requires fund recipients to espouse are relevant to the program. "The government may enlist the assistance of those who believe in its ideas to carry them to fruition; and it need not enlist for that purpose those who oppose or do not support the ideas," he wrote. "That seems to me a matter of the most common common sense." (Justice Kagan did not participate in the case.)
Samuel Worthington, president and CEO of InterAction, one of the plaintiffs in the challenge, said in a statement, "This policy requirement affected the ability to provide life-saving health services to vulnerable populations in the fight against HIV and AIDS and prevented us from speaking freely in the important debate over how best to prevent the spread of HIV and AIDS. While we agree that the government can say how it wants its money spent, this requirement went far beyond that by shutting down research and debate on important topics."
In Descamps v. U.S., the Armed Career Criminal Act (ACCA), the justices decided what approach a sentencing court must take in determining whether a prior conviction under a so-called indivisible statute qualifies as a predicate offense for a sentence enhancement under the ACCA. A prior conviction qualifies as an ACCA predicate only if the statute's elements are the same as, or narrower than, those of the generic offense (the offense as commonly understood).
An indivisible statute is one that does not set out one or more elements of an offense in the alternative, for example, stating that burglary involves entry into a building or an automobile. When a statute does set out alternative elements of an offense—a divisible statute—sentencing courts follow the modified categorical approach which permits them to consult documents, such as indictments and jury instructions, to determine which alternative formed the basis of the prior conviction and then compare it with the elements of the generic crime.
The issue in Descamps was whether sentencing courts also could use that approach and consult additional documents when a defendant was convicted under an indivisible statute, as was Michael Descamps for burglary.
Writing for the 8-1 majority, Kagan answered no "because only divisible statutes enable a sentencing court to conclude that a jury (or judge at a plea hearing) has convicted the defendant of every element of the generic crime.
Justice Samuel Alito Jr. wrote a dissenting opinion.
Marcia Coyle can be contacted at email@example.com.