I. Introduction
The government contractor, whether it be a business or a non-governmental organization (NGO), sits in a unique position between private citizen and arm of the government. As a private organization, the contractor has its own interests, goals, and political beliefs, but, as an extension of the federal government, it also has a responsibility to uphold the law and represent the government well in its work. Often the contention between these positions comes out through conflicts of speech.
One example of this contention is found in the global fight against Human Immunodeficiency Virus/Acquired Immune Deficiency Syndrome (HIV/AIDS). As AIDS retreats from the general population, it concentrates in marginalized communities such as sex workers. On the one hand, prostitution advances a culture that makes women “four times more vulnerable to [HIV/AIDS] infection than . . . men.” On the other hand, explicit calls to eradicate prostitution marginalizes sex workers and drives them underground and away from the doctors, educators, and social workers trying to help them. The United States and the NGOs engaging in HIV/AIDS treatment have found themselves on opposing sides of this policy debate, but the U.S. government has been able to exert its anti-sex work position over that of the NGOs through a regulation called the “Policy Requirement.” This regulation limits funds to only those organizations that explicitly adopt the government’s anti-sex work position, and denies funds to those who refuse or even take no stance at all. However, by controlling the speech of these contractors, the government is arguably acting against the spirit of the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003. And more broadly, the Policy Requirement violates the maxim articulated by Justice Robert Jackson some eighty years ago: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
This Note seeks to explore this conflict in light of the oft overlooked series of cases United States Agency for International Development v. Alliance for Open Society International, Inc. Both AOSI I and AOSI II, as they have come to be known, have implications for government contracting law, and both demonstrate the dramatic real-world consequences of the conflict between contractor speech and government policy. Mainly, they show how a judicial about-face on the legality of compelling speech under Policy Requirement between 2013 and 2020 has undermined greater government policy goals of ending HIV/AIDS by restricting the speech of contractors abroad, and their ability to effectively engage with marginalized peoples.
This Note is not the first to discuss the implications for free speech created by AOSI I and AOSI II. As this Note will discuss, Madison Pracht’s “Far, Free, Away? The Supreme Court’s Drastic Limitations on The First Amendment Abroad in Agency for International Development v. Alliance for Open Society International, Inc. II” for the Fordham International Law Journal provides a strong overview of how AOSI II implicates free speech abroad. The consensus of the scholarship collected by Pracht appears to be that the constriction of speech rights outside the United States is so restrictive in AOSI II that many scholars seek to frame the decision as extremely limited to its facts, and many of the specific statements made about speech abroad as dicta. This scholarship provided the author of this Note an important basis to refocus the discussion on government contracting and the roll of Congress in protecting the contractors it seeks to employ to achieve legislative goals across the world.
However, such a refocus is easier said than done in the current political environment. As this Note has gone through the editing process, the second Trump administration and Elon Musk have targeted USAID—the government agency tasked with distributing resources and coordinating AIDS relief efforts—for destruction. These actions, aside from exhibiting a staggering amount of cruelty and an utter lack of strategic thinking in the opinion of this author, risk mooting the idea of revising the Leadership Act to expand speech rights for foreign aid contractors. If no AIDS funding may distributed, or no contractors are available distribute it, the program and the law that created it might as well not exist. It is disingenuous to suggest a solution that ignores the bigger picture, so this Note will advocate for a broad congressional oversight effort that is necessary to save USAID and to perhaps someday end the policy requirement after the pieces are picked back up.
This Note will first examine the history of the federal government’s response to the global AIDS crisis before analyzing both AOSI I and AOSI II in Sections II and III. Section IV will focus on the legal and tangible consequences of AOSI II, and finally Section V will propose a congressional solution of revising the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003.
II. The Global Fight Against HIV/AIDS
To understand how the global fight against AIDS affects the freedom of speech of government contractors, one must understand both the state of the AIDS pandemic at the turn of the twenty-first century and America’s response to it. This section will provide this background before discussing how the Supreme Court’s decision in AOSI I successfully grappled with the question of when government policy can constrain contractor speech in the context of the HIV/AIDs epidemic, and when a contractor’s freedom of speech must reign supreme.
A. “Now the Days Are [Worse] Than Before . . . I Always Think of the Disease.”
At the turn of the millennia, the world was confronting an unprecedented health crisis in the form of HIV/AIDS. In 2001, forty million people globally lived with the disease, and it infected five million people in that year alone. HIV/AIDS reached into everyday life. Americans familiar with the politics of the late 80s and 90s can recall the dominant position the disease held in the national zeitgeist. This was with a HIV-positive population of 339,000 in 2000.
If HIV/AIDS was an epidemic in the United States, it was closer to a plague in Sub-Saharan Africa. Of the forty million global HIV-positive population in 2001, 28.5 million resided in Sub-Saharan Africa. That same year, HIV/AIDS claimed 2.2 million lives in the region. That was more than half of all HIV/AIDS related deaths globally. The emergence of HIV/AIDS destroyed gains in life expectancy, orphaned millions of children, and stunted development in one of the world’s poorest areas.
For those in Sub-Saharan Africa that lived with the disease, the consequences were profound. Physical health plummeted for persons living with HIV/AIDS experiencing severe symptoms without proper antiretroviral treatment. Many people living with HIV also saw a correlated rise of depression both from the health implications and the social stigma associated with a positive diagnosis.
B. America Answers the Call
Seeing both America’s public health failure to address HIV/AIDS, and the devastation ongoing in Sub-Saharan Africa, President George W. Bush encouraged Congress to adopt new legislation to bring America’s economic and scientific capabilities to bear. In 2003, Congress passed the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (Leadership Act). The Leadership Act granted billions of dollars to nongovernmental organizations operating in Sub-Saharan Africa fighting against HIV/AIDS. The Act stressed twenty-nine different objectives in the region including
plans to increase the availability of treatment for infected individuals, prevent new infections, support the care of those affected by the disease, promote training for physicians and other health care workers, and accelerate research on HIV/AIDS prevention methods, all while providing a framework for cooperation with international organizations and partner countries to further the goals of the program.
Part of the Act’s directives was a call to reduce “HIV/AIDS behavioral risks.” Reduction in these risks required funds to be used to educate people on safe sex, discouraging individuals from engaging in commercial sex work, and adopting reintegration strategies for sex workers. Both the government and its NGO partners agreed that such actions were necessary for combating HIV/AIDS. However, Congress limited the use of the behavioral risk funds by requiring the NGOs to refrain from using the funds to “promote or advocate the legalization or practice of prostitution or sex trafficking.” Additionally, and more importantly in the case of this Note, the Leadership Act withheld funds from organizations that “provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking.” In plain terms, organizations seeking to treat AIDS abroad had to make clear to the public that they did not condone sex work, even if they sought to partner with sex workers to treat the disease.
The United States Agency for International Development (USAID) is the executive agency charged with executing the Leadership Act’s funding provisions. In creating the Policy Requirement, USAID began to require that the recipient of any funding must explicitly agree in their award document that they are opposed to “prostitution and sex trafficking because of the psychological and physical risks they pose for women, men, and children.”
On the one hand, according to organizations on the frontlines of the global fight against AIDS, successful efforts to fight the disease require a willingness to work with marginalized groups such as sex workers. Marginalization against prostitution drives sex workers away from treatment and care because of the social stigma and fear that they will be denied treatment if they do seek it. On the other hand, open engagement with sex workers can lead to successful treatment and prevention through strategies like encouraging collective agreements among sex workers to engage in safe sex practices.
C. United States Agency for International Development v. Alliance for Open Society International, Inc. (AOSI I)
After Congress passed the Leadership Act, the United States did not initially enforce the “Policy Requirement” because the Department of Justice’s Office of Legal Counsel (OLC) found the provision unconstitutional. It was not until the OLC reversed its position without warning in 2005 that Leadership Act fund recipients became subject to it. A group of American NGOs led by the Alliance for Open Society International, Inc. (AOSI) sued to enjoin its enforcement on First Amendment grounds. AOSI and its partners found that the hardline stance required by USAID put them at odds with the people they were trying to work with, and chilled relations with host nations that disapproved. The result was an inability to use the government funds effectively, and AOSI found that the Policy Requirement prevented the NGOs from using their own private funds to work cooperatively with sex workers or advocate legal and policy changes.
AOSI contended that the Policy Requirement compelled speech by effectively requiring an American organization to adopt the government’s speech as its own. The Federal District Court for the Southern District of New York ruled for AOSI and granted an injunction against further enforcement. The Court of Appeals for the Second Circuit affirmed after several rounds of remanding due to USAID’s implementation of new guidelines per the injunction order and additional fact-finding. USAID appealed, and the Supreme Court granted certiorari in 2013.
The Supreme Court considered the Policy Requirement within the context of Congress’s Spending Clause power and the Court’s first amendment case law. Previously in Rust v. Sullivan, the Court held that “Congress’ power to allocate funds for public purposes includes an ancillary power to ensure that those funds are properly applied to the prescribed use.” Generally, the Court has held that Congress has no obligation to subsidize speech it does not approve of, and that the recourse for a potential funding recipient whose speech is affected is to decline the funds. However, the Court has limited this power in that the government cannot leverage federal funding to regulate speech outside the contours of the specific federal program being funded. While the Court acknowledged that finding what falls outside and inside the lines of a program is not always clear, it is the job of the Court to find the distinction and avoid attempts to manipulate the program to bring the condition within the contours. As stated by Justice Kennedy in Legal Services Corporation v. Velazquez, “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.”
With this in mind, the Court analyzed its decision in Rust where it held that limitations on spending government funds related to Title X on abortion access was constitutional because the limitations did not affect the fund recipient’s ability to use private money to promote abortion access. The organizations in Rust could still be publicly pro-abortion, privately fund them, and still receive the public funding if the Title X projects funded by that public money were not pro-abortion. The limit was on the government funds exclusively and did not require the organizations to take a public stance for or against anything.
In AOSI I on the other hand, the Court held that the Policy Requirement went beyond this limit. The Policy Requirement was not merely a criterion for selection or restriction for use of government funds, but was rather an “ongoing condition on recipients’ speech and activities, a ground for terminating a grant after selection is complete,” and therefore required the adoption of government speech as one’s own in perpetuity regardless of their actions outside the scope of the government program. The Policy Requirement forced a public and consistent stance on prostitution, and even the use of private funds was implicated because AOSI could not “avow the belief dictated by the Policy Requirement when spending Leadership Act funds, and then turn around and assert a contrary belief, or claim neutrality, when participating in activities on its own time and dime,” and expect for anyone to be fooled.
The Court therefore rejected the government’s assertion that freeing the NGOs from the Policy Requirement would undermine the government’s interest in having a unified message against prostitution because the requirement went beyond protecting the federal program to “defining the recipient” of the funds. The uncontested bar against using government funds to directly “promote or advocate the legalization or practice of prostitution or sex trafficking” ensured that federal funds would not be used for the prohibited purposes and that the government’s interest was protected.
Not all the members of the Court were convinced by this argument. Justice Antonin Scalia—joined by Justice Clarence Thomas—wrote a dissent in which he argued that governments are required to take stances on complex issues in order to create coherent policy and that the federal government should have the ability to “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.” Scalia opined that receiving funds with conditions does limit speech, but that such a limitation is necessary and constitutional: “[n]ot every disadvantage is a coercion.” The conditions are simply the cost of doing business. Outside of this broad view of government power to pick and choose its contractor of choice, Scalia also argued that even if the conditions could be unconstitutional, they were constitutional here because a stance on prostitution was directly linked to what he saw as a core goal of the Leadership Act.
While a reader may sympathize with Scalia’s argument for a broad governmental power, the core weakness of the dissent is that it embraces the exact problem that the majority warns about: it tries to bring conduct outside the contours of the program into its core, allowing the government to use increasingly broad excuses to limit speech. The Leadership Act is about the eradication of HIV/AIDS, and, while limits on funds supporting prostitution may be legal, forcing the NGOs in question here to permanently adopt a specific public stance goes beyond the goals of the spending program.
III. The Court Backtracks: Agency for International Development v. Alliance for Open Society International, Inc. (AOSI II)
A. Background
Following the decision in AOSI I, the Policy Requirement no longer applied to domestic organizations. However, it left the Policy Requirement intact regarding organizations based overseas. The government argued that keeping foreign entities subject to the Policy Requirement was necessary for the governmental interest at stake and constitutional given the organizations were not American and therefore not subject to free speech protections.
AOSI countered that the holding in AOSI I required the complete invalidation of the Policy Requirement. Core to AOSI’s argument was that it had partners overseas that were in practice indistinguishable from the American organization. While the organizations may be legally distinct, the foreign organizations shared names, mission statements, branding, and even logos with their American partners. The result, they argued, was a return to pre-AOSI status quo by proxy. Sex workers and foreign governments would be hesitant to work with the AOSI and its foreign affiliates because either AOSI would be compelled to take an anti-prostitution stance to maintain message unity, or AOSI would be broadcasting inconsistent messages resulting in distrust from sex workers, other public health entities, and private donors.
B. The Court’s Decision
In a 5–3 decision released in 2020, the Supreme Court sided with the government’s position. In the majority opinion, Justice Kavanaugh held that 1) “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”; and 2) “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.” Put another way, the Court held that the because the foreign affiliates are foreign and legally distinct from the American organizations, the First Amendment does not extend to them.
The Court distinguished AOSI II from other cases that implicated speech misattribution and inconsistency such as Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, which held that organizations could not be forced by the government to affiliate with someone and their speech. The majority in AOSI II held that the United States was not forcing the domestic organizations to affiliate with foreign entities, or forcing them to agree with the foreign affiliates pledge under the Policy Requirement, and therefore there was not a compelled speech requirement for the domestic organizations.
The Court also defended its position on policy and separation of power grounds. Granting AOSI’s request that foreign entities “closely identified” with American organizations be protected would impact Congress’s ability to condition funds to all foreign entities on the basis of supporting democracy, women’s rights, anti-terrorism, religious freedom, and other American diplomatic goals. After all, if all an organization had to do is find an American-based group to affiliate with to be eligible to funds, American tax dollars could be implicated in all kinds of unsavory acts. Additionally, by imposing this restriction on a long-exercised congressional power, the Court would be interfering with the creation and enforcement of American foreign policy.
Finally, the Court held that the decision in AOSI I did not invalidate the Policy Requirement outright or protect the foreign affiliates in itself:
Stated simply, in the prior decision, the Court did not facially invalidate the Act’s condition on funding. The Court did not hold or suggest that the First Amendment requires the Government to exempt plaintiffs’ foreign affiliates or other foreign organizations from the Policy Requirement. And the Court did not purport to override the longstanding constitutional law principle that foreign organizations operating abroad do not possess constitutional rights, or the elementary corporate law principle that each corporation is a separate legal unit.
Justice Thomas wrote a concurrence in which he echoed the concerns of Scalia’s 2013 dissent. Mainly, he argued that the 2013 decision was incorrect. He echoed the argument that the government has a broad right to condition funding based on values and policy objectives. This right, he argues, implies a broad freedom to associate in partnering and contracting with organizations.
C. Problem: Back to the Status Quo
By focusing its analysis on the legal separation between the foreign affiliates and the domestic institutions rather than their overlapping speech, the Court missed the true constitutional problem in front of it: that the government essentially sidestepped the 2013 decision to restrict the rights of domestic organizations. As the CATO Institute said in its amicus brief:
[T]here is no serious dispute that the government’s goal in this case is the same as its goal the last time the Court reviewed this issue: to force an affirmation from fund recipients that they agree with the government’s policy to oppose prostitution and sex trafficking. This time, the government seeks to impose the same unconstitutional requirement on Respondents exclusively through their closely identified foreign affiliates. As the Court made clear in AOSI I, this corporate line-drawing is a distinction without a difference.
Knowing it could not enforce the Policy Requirement directly against groups like AOSI, the government found that it could enforce it indirectly by forcing them to be consistent with their foreign affiliates. Justice Breyer, in dissent, makes the point that this distinction by the government could not save the Policy Requirement:
[C]orporate formalities do nothing to ward off speech distortion where—like AOSI I, but unlike Regan—the Government has required a speaker to espouse a specific belief as its own. If the affiliate is distinct from the recipient, we reasoned, the arrangement does not afford a means for the recipient to express its beliefs. And if the affiliate is more clearly identified with the recipient, the recipient can express those beliefs only at the price of evident hypocrisy. With respect to the latter situation, in other words, compelling a recipient to disavow a message involuntarily uttered by its clearly identified affiliate is forced hypocrisy, not free speech.
The fact that the foreign affiliates are not subject to First Amendment protections is irrelevant to the calculus because it is not really the foreign affiliates’ speech that is being analyzed and reacted to; it is what’s perceived to be the domestic organizations’ speech. The majority’s decision to distinguish Hurley and claiming the domestic organizations were not being compelled by their affiliation to foreign groups goes against the clearest lesson of Hurley which recognized that even loosely connected groups could be seen as one entity by the public. Given that core holding, Hurley would have also been decided the same way had the state court injunction at issue in that case required all the parade participants to carry the same banner.
The majority’s fear of contravening Congress’s power in the foreign policy context is also unfounded, and instead threatens long recognized speech rights. Indeed, the first part of the Policy Requirement, forbidding federal funds from being used to promote prostitution or sex trafficking, would still be alive and well had the Court held for AOSI. It was not challenged. Similarly, the Court already made clear in the 2013 decision that speech within the “contours” of a program could be regulated. This result still gives Congress the authority to impose certain speech requirements such as in the hypotheticals the majority deploys in AOSI II.
IV. The Implications of AOSI I and AOSI II
A. The Constitution Abroad
The United States Supreme Court had never so casually thrown around the blanket idea that the Constitution does not extend abroad to non-Americans in all circumstances. Indeed, Breyer’s dissent in AOSI II makes clear that the Court had always carefully avoided such a statement because of the implications it would carry. Legal scholars have had a similar reaction to Breyer, describing AOSI II’s implications as being necessarily dicta, or as the final stage of the Court’s failure to protect speech outside America’s borders.
The implications of AOSI II are not difficult to imagine, but, as they relate to the government contractor specifically, examples are helpful. Suppose there is a government contractor that specializes in overseas personal security details for diplomats. They have a closely tied but legally distinct foreign affiliate security firm to advise and supplement the detail when in country. The local firm is later accused of stealing and selling government-owned materials. Can the United States detain the members of the local firm indefinitely? Can they search their office without a warrant? Have their families constantly surveilled?
This is undoubtedly an extreme example, and the government has or can do some if not all these things in theory as the Court has said itself: “[C]onstitutional questions of extraterritoriality turn on objective factors and practical concerns present in a given case, not formalism.” However, the holding of AOSI II would presumably encourage the Court to support the government action, and would make it difficult for critical government contractors to find local affiliates to work with and result in possible violations of human rights. The Court has rarely decided to weigh in on the Constitution’s effect abroad precisely because its decisions send ripples throughout different industries and policy areas. As the dissent in this case points out, when it does decide on this kind of issue, it relies on case-by-case factual analysis, not a blanket rule.
Likely, defenders of AOSI II will claim that the Majority in that case was speaking to the general hesitancy to extend the constitution abroad, not setting a blanket rule in all cases under all facts. However, this reading gives more flexibility than the Court’s own words. Even assuming the reading that AOSI II only applies to cases involving the speech of American organizations with affiliated but legal distinct foreign partners, there are significant constitutional implications. Breyer points out as much in his dissent. Breyer asks whether, under AOSI II, a closely tied foreign news affiliate to an American news organization would be bound by a government contract that provided them critical funding to broadcast in those foreign nations, but required them to praise American policy in that country or ignore American misdeeds to remain in good graces with the contract. Sure, the American organization could run the real story under the protection of the Constitution, but their name—their stamp of approval—would be on those false stories overseas. Expanding on this idea, what if that foreign affiliate was normally the only truly free news source operating in the country? What if it was a critical source in providing the people in that nation with the truth? The hypocrisy forced on it by the hypothetical government contract would utterly destroy the reputation of the affiliate, and refusal to accept the government money would be fatal as well. The American organization may therefore be coerced by proxy to also follow the requirements of the program to protect the affiliate’s legitimacy. One fact from AOSI II that is often overlooked—as it does not form a core part of either side’s arguments, but that is relevant to this issue—is that sometimes a domestic organization might be required by either American law or foreign law to work through a local entity. A savvy (albeit morally dubious) contracting officer could easily look at this fact and the holding of AOSI II to make sure that every international contract opportunity that they create requires local affiliates, thus avoiding having to navigate AOSI I and stubbornly outspoken domestic groups.
Time will tell to what extent AOSI II will affect how the government and the Supreme Court view freedom of speech abroad. However, when the door opens to the potential of government censorship and compelled speech, the easier it is for the government to take the next step in restricting speech for someone else.
B. In AOSI II, the Court Continued to Ignore Congressional Intent and Diminished Congress in the Sphere of Contracting
Throughout this Note, and throughout the decisions of AOSI I and AOSI II, there has been an assumption that the Leadership Act absolutely requires an anti-prostitution statement and that therefore the cases needed to be considered on constitutional grounds. However, this assumption is based on the conservative members of the Court being generally unwilling to consider congressional intent on a deeper level. The legislative history shows that Congress updated the Act in 2008 in large part due to feedback from NGOs subject to the Policy Requirement. Had the Court given this history its proper deference, it could have avoided the constitutional implications above through statutory interpretation alone.
According to an amicus brief submitted to the court in AOSI II, current and former members of Congress explained the continuous debate over the Policy Requirement. Notably, Congress made multiple changes to the Act, including when it reauthorized the law in 2008. These changes included removing “a provision explicitly making ‘eradicating prostitution’ part of the Act’s strategy for ‘the reduction of HIV/AIDS behavioral risks.’” Congress understood that “explicitly opposing all prostitution would not help recipients pursue the Act’s public-health goals . . . . Congress tried to insulate its strategies [for example, strategies related to education of sex workers] from the Policy Requirement’s effects.” According to the brief, the Act and its history “makes clear that it addresses prostitution in the contexts of sex ‘trafficking,’ ‘sexual violence,’ and ‘coercive sexual encounters.’” It also makes clear that it does not require recipients to publicly announce any position or take any action on prostitution:
The requirement itself obligates each recipient, as a condition of receiving funds under the Act, to assure the government that it ‘ha[s] a policy explicitly opposing prostitution.’ . . . But it does not require the recipient to publicize this policy to anyone else . . . That tracks the descriptions of the Policy Requirement by its author and others in Congress as a “pledge” to the government.
Additionally, the brief clarifies that “even assuming that applying the Policy Requirement to foreign affiliates is constitutional, Congress did not ‘provide for severance of unconstitutional applications’ of the Requirement.” Once the Policy Requirement was struck down as it related to domestic organizations in AOSI I, the executive branch could not keep it afloat on its own without congressional approval. Doing so was an act akin to amendment of the law by the executive and therefore a violation of the separation of powers.
The implications are clear: by continuing to ignore Congress in cases such as AOSI II, the Court is diminishing the role of Congress in critical areas of governance, including government contracts. Here, Congress has used its power to create a program for distributing money in line with its appropriations powers. It has also used its ability to amend this nation’s laws to better reflect the will of the people and refine the program. However, the executive branch usurped both of these powers through its restrictive and incorrect reading of the Policy Requirement. The lesson for government contractors of the future is that the executive branch is the judge, jury, and executioner of any contract or program that the contractor enters. Congressional interventions can be ignored, and the contractor’s ability to lobby one of the branches of government for relief may be nullified by a stubborn agency. The judiciary may provide an injunction to protect the contractor, but the executive branch could sidestep it through a unilateral amendment without the agreement of Congress to the program and enforce it against them by proxy anyway.
This lesson has only been emphasized since the start of the second Trump administration. As the President has moved to shutter USAID, organizations that had signed contracts with the United States and had funds earmarked specifically for their project have watched helplessly as food rots in warehouses, medicine shipments fail to arrive, and the USAID employees that act as their point of contact are unceremoniously repatriated to the United States. The line between AOSI II and the so-called Department of Government Efficiency’s (DOGE) shuttering of an entire agency is not a straight line, but both are born from an assumption that Congress did not say what it was saying when it wrote the legislation and that bending the law to the executive’s liking is therefore permissible.
C. The Fight Against AIDS
The two previous sections discussed the implications of AOSI I and AOSI II generally, but what of the implications on the global fight against AIDS? After all, there are now two decades worth of data to evaluate. Has the United States succeeded or hamstrung itself?
The answer—perhaps unsurprisingly—lies somewhere in the middle until 2025. The upside is that, despite the restrictions of the Policy Requirement, the Leadership Act is arguably the single greatest deployment of American foreign assistance “since the Marshall Plan.” Seventeen million lives have been saved thanks to the work of AOSI and the other governmental and nongovernmental groups. New HIV infections have been cut in half since 2004, and HIV related deaths have dropped by sixty percent. According to the State Department’s 2022 report laying out the next five years of the President’s Emergency Plan for AIDS Relief (PEPFAR),
PEPFAR has been critical for the HIV response and sustainable health and community systems in countries, including through our support for programs at more than 70,000 facility and community health clinics and 3,000 laboratories; support for over 340,000 health care workers; expansive supply chains for HIV-related commodities; and strong systems for data collection and use.
This infrastructure also has ramifications outside of AIDS/HIV as they have been deployed to address other healthcare challenges.
However, despite these advancements, PEPFAR was behind its goal as of 2024. The target for new HIV infections in 2025 is meant to drop to only 370,000 globally, but the Biden State Department claimed that, “[a]t the current rate, we are off track to meet that goal, and progress varies dramatically by region, country, and subnational levels.” The State Department gives a myriad of reasons for this reality including, notably, “existing laws, policies, and practices make it harder for the populations most impacted by the HIV epidemic—including . . . sex workers . . . to have equitable access to quality HIV prevention.” The Biden State Department called for increased efforts to engage with sex workers and other at-risk communities by “working with partners to address stigma, punitive laws, and gender-based violence, and promote adoption and implementation of enabling policies for equitable and sustained HIV impact.” No call to action is made in regards to the United States’ own laws and regulations, but this silence could have been a signal that a second Biden administration planned to move away from the strict enforcement of the Policy Requirement seen in prior years.
Rather than following through with this potential evolution in thinking, or even keeping the status quo, the second Trump administration decided that eradicating one of the deadliest pathogens in the world is not an effort worthy of the United States of America. Elon Musk’s DOGE staffers moved rapidly to defund and de-staff USAID. The Washington, D.C., office was closed, and USAID workers abroad were repatriated back to the United States. Defenders of the Administration will doubtlessly point out that lifesaving humanitarian aid is exempt from the funding freeze. However, multiple reports indicate that this is not the case as of February 2025. According to senior USAID employees, Musk’s DOGE has taken active steps to block payments that USAID managers authorize.
Overall, while the Leadership Act and PEPFAR have led to enormous strides in eradicating AIDS, the Policy Requirement held PEPFAR back from meeting its goals, and now it may be too late to ever meet them. The Policy Requirement plateaued progress as AIDS has retreated into stigmatized populations in many countries. By refusing to engage with sex workers openly and acceptingly, the United States allowed AIDS a safe harbor at a time when it should have pushed the advantage, and now millions are at risk of dying because those in power either do not understand or care about the consequences.
V. Congress Should Amend the Leadership Act and Exercise Its Oversight Powers
With AOSI II providing cover for the Policy Requirement, the question becomes what should be done to protect contractor speech rights and revive the global fight against HIV/AIDS. Congress should embrace its role as the policymaker and amend the Leadership Act to remove the Policy Requirement. Congress should also put in place more oversight over executive agencies in general to avoid similar situations in the future.
Of all the branches, Congress is best poised to eliminate the Policy Requirement and put PEPFAR back on the road to success. Only Congress has the authority to amend the Leadership Act to explicitly remove to Policy Requirement and undo AOSI II with one stroke. It also can engage in fact-finding through investigation and inquiry to see how exactly the Policy Requirement has restricted PEPFAR’s success, how best to move forward and minimize the damage already done by the Policy Requirement. Furthermore, it is the only branch that can take the opportunity to increase Leadership Act funding if necessary to make up for lost time.
Congress is not only the correct branch to fix the mistakes of AOSI II and the Policy Requirement because of its constitutional mandate; it is also the best because no other option would be sufficient. While the Supreme Court could revise its position in the AOSI II case through subsequent decisions, it is highly doubtful that it would backtrack on itself so soon, especially given that the makeup of the court has remained skewed towards the majority coalition in AOSI II. It would take a truly dramatic turn in line with the worst-case scenarios discussed above in Section III(a) to shift the court the other direction. Turning to the executive branch, considering the fact that the State Department has recognized a need to cooperate with sex workers if it wants to hit its five-year plan for PEPFAR, perhaps it could unilaterally revise its regulations and its interpretation of the Policy Requirement. However, the problem with this strategy is that whether through a change of politics or some other consideration, the executive branch could later decide to reimpose the Policy Requirement on Leadership Act funding recipients.
Fears of a divided, partisan Congress do not change the fact that Congress is best positioned to undo the Policy Requirement, and it has shown a willingness to cross party lines in the past on this issue. The original Leadership Act passed the House with 183 Republicans and 191 Democrats in support. Many of those Republicans and Democrats have gone on record to defend the Leadership Act from the executive branch’s reading. Granted, there are significant differences in the political pressures associated with attaching one’s name to the largest investment in global health ever, and attaching one’s name to an amendment that can be interpreted as being pro-prostitution. However, one solution to this hurdle would be selective use of language in any amendment to the Leadership Act to make it more palatable. The executive branch has leaned on § 7601(23) of the Leadership Act in support of the Policy Requirement. The section currently begins by stating that “[p]rostitution and other sexual victimization are degrading to women and children and it should be the policy of the United States to eradicate such practices.” However, a reading of the entire section couches that sentence in a discussion of sex trafficking and sexual assault. Reforming the first sentence and making the connection between this first sentence and the rest of the section more explicit would undercut the legal justification for the policy requirement without appearing overly friendly to sex work. For example, language like “sexual victimization is degrading to women and children, and it should be the policy of the United States to provide resources for education counseling,” sends an anti-sexual violence message that politicians of different stripes can support without the language that gives the executive branch its leeway to enforce the Policy Requirement.
Another way to drum up bipartisan support for the amendment is directly related to the second major challenge that Congress would face in removing the Policy Requirement. Namely, that the executive branch may subvert the amendment as I argue it has subverted the original law and the 2008 amendment, and by extension undermine Congress as the lawmaker and controller of the purse. As discussed above, the Leadership Act as currently written does not support a reading that the Policy Requirement is required to be enforced as USAID interpreted it, but that has not stopped the executive branch from enforcing its reading over Congress’s. This subversion of the congressional will may be exactly the kind of rallying cry that energizes members of Congress on both sides of the aisleto flex both their law-making and oversight muscles. An amendment that includes provisions allowing for expanded oversight over the selection of fund recipients and regulatory interpretation of legislative language will prevent the executive branch from enforcing a de facto policy requirement through some new regulatory scheme or case-by-case discrimination. Indeed, Congress and the Government Accountability Office (GAO) have considered options for enhancing regulatory oversight of this kind in the past.
VI. Conclusion
Perhaps the greatest conflict between the government and its contractors and partners comes from differences in ideology and speech. While the government certainly has a vested interest in maintaining a unity of messaging, especially abroad, it cannot do so at the expense of the speech rights of American organizations. AOSI I makes that clear. However, in AOSI II, the government is provided a tool by the courts to restrict the rights of American organizations by proxy. Targeting foreign affiliates with speech restrictions force the American organizations to disavow or accept the speech that the foreign affiliates were forced to adopt and get the messaging unity the government seeks. This new status quo is no more acceptable than one in which the organizations could be regulated directly and therefore must be ended.
The goal sought by this Note is not based purely on the abstract desire for free speech, no matter how noble a goal that may be. Rather, the consequences here are much more tangible. Currently, millions globally live with AIDS. Successful treatment of these people and the prevention of spread requires flexibility on the part of governments and NGOs alike. It requires a willingness to engage with people stigmatized by their societies and meet them as human beings. AOSI II and the actions of the second Trump administration threaten America’s ability to do just that. The United States is on the verge of one of the greatest healthcare victories ever, and the nation risks throwing it away. That is unacceptable. Instead, Congress should embrace its role as the policymaker and amend the Leadership Act to remove the Policy Requirement. Doing so may not be easy, especially if the executive branch continues to subvert its will, but Congress can overcome such challenges through strong legislative drafting and proactive and stringent oversight.
