[JURIST] The US Supreme Court [official website] heard oral arguments Monday in two cases [JURIST report]. In Agency for International Development v. Alliance for Open Society International [transcript, PDF] the court considered the only First Amendment [text] case this term, on whether the US Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 [22 USC § 7601 text] requires potential funding recipients to “espouse the government’s views.” The US government withholds funds under the act if an organization does not explicitly denounce prostitution [JURIST news archive]. The Deputy Solicitor General argued that “there is a germaneness component to Congress’s—the constitutionality of Congress’s funding decisions in this area. And the more sweeping and the less germane the condition would be, the more it’s open to constitutional attack. Now, this condition is very, very germane, because as—because as Congress found, prostitution and sex trafficking contribute to the spread of the disease.” Justice Breyer countered with “[T]he people who work with the prostitutes to try to prevent AIDS uniformly tell us that if you go to those prostitutes and you try to get them to take steps to stop AIDS, it’s very hard to do if at the same time you’ve announced you’re against all prostitution. So what they’re saying is that the condition imposed will interfere with the objective, and if there is a germaneness requirement—and nobody says the opposite. … But if everyone is telling us that this is counterproductive and the exact opposite, then can we say, well, it isn’t germane.” Respondents, a group of advocacy organizations, argued that although Congress has the right to choose where spending is allocated based on views, it did not do so fairly in this case.

Congress can certainly fund a particular program and not fund others. And we have no argument with that. [T]he Spending Clause definitely comes with that ancillary power. And in fact that’s what the Congress did here. It said, [w]e want to fund a fight against HIV/AIDS. We don’t want to support that disease. And we want to oppose prostitution. We don’t want to support that practice. What it cannot do, then, is take its viewpoint and impose its viewpoint on the grantee and make it a condition.

Justice Elena Kagan recused herself from this case.

In Hillman v. Maretta [transcript, PDF] the court heard arguments on if the Federal Employees Group Life Insurance Act of 1954 (FEGLIA) [text] preempts a state domestic relations equitable remedy which creates a cause of action against the recipient of Federal Employees’ Group Life Insurance (FEGLI) proceeds after they have been distributed. Jacqueline Hillman was widowed by her husband, Warren Hillman. Warren’s ex-wife, Judy Maretta, was designated the beneficiary for his FEGLI proceeds. Hillman sued under Va. Code Ann. § 10-111.1(D) [text], which the Virginia Supreme Court ruled was preempted by FEGLIA. Hillman argued that “Congress intentionally designed FEGLIA so that the Federal interest ends once the insurance proceeds are paid out. FEGLIA was established to enable Federal employees to carry out their responsibilities to their families. And Congress knew that some of its employees would get divorced, and it was depending upon State laws to help make sure that these family duties and obligations were carried out, because Congress doesn’t want to get into the—the business of regulating the divorce.” Maretta argued that FEGLIA creates an absolute right to direct proceeds that cannot be interfered with. “[W]e are not dealing with the generally applicable body of law; we are dealing with something that is quite openly an attempt to do an end run on preemption. The only thing that triggers section D is being a former spouse and receiving the proceeds. The statute doesn’t make any inquiry into intent, into whether there has been a tort or an independent contract. It simply reallocates the proceeds. It substitutes a new beneficiary.”