LEGAL SERVICES CORPORATION v. VELAZQUEZ et al.

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533 OCTOBER TERM, 2000
Syllabus
LEGAL SERVICES CORPORATION v.
VELAZQUEZ et al.
certiorari to the united states court of appeals for
the second circuit
No. 99–603. Argued October 4, 2000—Decided February 28, 2001*
The Legal Services Corporation Act authorizes petitioner Legal Services
Corporation (LSC) to distribute funds appropriated by Congress to local
grantee organizations providing free legal assistance to indigent clients
in, inter alia, welfare benefits claims. In every annual appropriations
Act since 1996, Congress has prohibited LSC funding of any organiza-
tion that represented clients in an effort to amend or otherwise chal-
lenge existing welfare law. Grantees cannot continue representation in
a welfare matter even where a constitutional or statutory validity chal-
lenge becomes apparent after representation is well under way. Re-
spondents—lawyers employed by LSC grantees, together with others—
filed suit to declare, inter alia, the restriction invalid. The District
Court denied them a preliminary injunction, but the Second Circuit in-
validated the restriction, finding it impermissible viewpoint discrimina-
tion that violated the First Amendment.
Held: The funding restriction violates the First Amendment.
Pp. 540–549.
(a) LSC and the Government, also a petitioner, claim that Rust v.
Sullivan, 500 U. S. 173, in which this Court upheld a restriction prohib-
iting doctors employed by federally funded family planning clinics from
discussing abortion with their patients, supports the restriction here.
However, the Court has since explained that the Rust counseling activi-
ties amounted to governmental speech, sustaining viewpoint-based
funding decisions in instances in which the government is itself the
speaker, see Board of Regents of Univ. of Wis. System v. Southworth,
529 U. S. 217, 229, 235, or instances, like Rust, in which the government
uses private speakers to transmit information pertaining to its own pro-
gram, Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819,
833. Although the government has the latitude to ensure that its own
message is being delivered, neither that latitude nor its rationale applies
to subsidies for private speech in every instance. Like the Rosenberger
*Together with No. 99–960, United States v. Velazquez et al., also on
certiorari to the same court.

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program, the LSC program was designed to facilitate private speech,
not to promote a governmental message. An LSC attorney speaks on
behalf of a private, indigent client in a welfare benefits claim, while the
Government’s message is delivered by the attorney defending the bene-
fits decision. The attorney’s advice to the client and advocacy to the
courts cannot be classified as governmental speech even under a gener-
ous understanding of that concept. In this vital respect this suit is
distinguishable from Rust. Pp. 540–543.
(b) The private nature of the instant speech, and the extent of LSC’s
regulation of private expression, are indicated further by the circum-
stance that the Government seeks to control an existing medium of ex-
pression in ways which distort its usual functioning. Cases involving a
limited forum, though not controlling, provide instruction for evaluating
restrictions in governmental subsidies. Here the program presumes
that private, nongovernmental speech is necessary, and a substantial
restriction is placed upon that speech. By providing subsidies to LSC,
the Government seeks to facilitate suits for benefits by using the State
and Federal Judiciaries and the independent bar on which they depend
for the proper performance of their duties and responsibilities. Re-
stricting LSC attorneys in advising their clients and in presenting argu-
ments and analyses to the courts distorts the legal system by altering
the attorneys’ traditional role in much the same way broadcast systems
or student publication networks were changed in the limited forum
cases of Arkansas Ed. Television Comm’n v. Forbes, 523 U. S. 666, and
Rosenberger v. Rector and Visitors of Univ. of Va., supra. The Gov-
ernment may not design a subsidy to effect such a serious and funda-
mental restriction on the advocacy of attorneys and the functioning of
the judiciary. An informed, independent judiciary presumes an in-
formed, independent bar. However, the instant restriction prevents
LSC attorneys from advising the courts of serious statutory validity
questions. It also threatens severe impairment of the judicial func-
tion by sifting out cases presenting constitutional challenges in order
to insulate the Government’s laws from judicial inquiry. The result of
this restriction would be two tiers of cases. There would be lingering
doubt whether an LSC attorney’s truncated representation had resulted
in complete analysis of the case, full advice to the client, and proper
presentation to the court; and the courts and the public would come to
question the adequacy and fairness of professional representations when
the attorney avoided all reference to statutory validity and constitu-
tional authority questions. A scheme so inconsistent with accepted
separation-of-powers principles is an insufficient basis to sustain or up-
hold the restriction on speech. Pp. 543–546.

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(c) That LSC attorneys can withdraw does not make the restriction
harmless, for the statute is an attempt to draw lines around the LSC
program to exclude from litigation arguments and theories Congress
finds unacceptable but which by their nature are within the courts’ prov-
ince to consider. The restriction is even more problematic because in
cases where the attorney withdraws, the indigent client is unlikely to
find other counsel. There may be no alternative source of vital infor-
mation on the client’s constitutional or statutory rights, in stark contrast
to Rust, where a patient could receive both governmentally subsidized
counseling and consultation with independent or affiliate organizations.
Finally, notwithstanding Congress’ purpose to confine and limit its pro-
gram, the restriction insulates current welfare laws from constitutional
scrutiny and certain other legal challenges, a condition implicating cen-
tral First Amendment concerns. There can be little doubt that the
LSC Act funds constitutionally protected expression; and there is no
programmatic message of the kind recognized in Rust and which suf-
ficed there to allow the Government to specify the advice deemed neces-
sary for its legitimate objectives. Pp. 546–549.
(d) The Court of Appeals concluded that the funding restriction could
be severed from the statute, leaving the remaining portions operative.
Because that determination was not contested here, the Court in the
exercise of its discretion and prudential judgment declines to address
it. P. 549.
164 F. 3d 757, affirmed.
Kennedy, J., delivered the opinion of the Court, in which Stevens,
Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed a dissent-
ing opinion in which Rehnquist, C. J., and O’Connor and Thomas, JJ.,
joined, post, p. 549.
Alan Levine argued the cause for petitioner in No. 99–603.
With him on the briefs was Stephen L. Ascher.
Deputy Solicitor General Kneedler argued the cause for
the United States in No. 99–960. With him on the briefs
were Solicitor General Waxman, Acting Assistant Attorney
General Ogden, Beth S. Brinkmann, Barbara L. Herwig, and
Matthew M. Collette.
Burt Neuborne argued the cause for respondents in both
cases. With him on the brief were Laura K. Abel, Kimani

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536 LEGAL SERVICES CORPORATION v. VELAZQUEZ
Opinion of the Court
Paul-Emile, Paul K. Sonn, David S. Udell, Peter M. Fish-
bein, and Alan E. Rothman.†
Justice Kennedy delivered the opinion of the Court.
In 1974, Congress enacted the Legal Services Corporation
Act, 88 Stat. 378, 42 U. S. C. § 2996 et seq. The Act estab-
lishes the Legal Services Corporation (LSC) as a District of
Columbia nonprofit corporation. LSC’s mission is to distrib-
ute funds appropriated by Congress to eligible local grantee
organizations “for the purpose of providing financial support
for legal assistance in noncriminal proceedings or matters
to persons financially unable to afford legal assistance.”
§ 2996b(a).
LSC grantees consist of hundreds of local organizations
governed, in the typical case, by local boards of directors.
In many instances the grantees are funded by a combination
of LSC funds and other public or private sources. The
grantee organizations hire and supervise lawyers to provide
free legal assistance to indigent clients. Each year LSC ap-
propriates funds to grantees or recipients that hire and su-
pervise lawyers for various professional activities, including
representation of indigent clients seeking welfare benefits.
This suit requires us to decide whether one of the condi-
tions imposed by Congress on the use of LSC funds violates
the First Amendment rights of LSC grantees and their
clients. For purposes of our decision, the restriction, to
be quoted in further detail, prohibits legal representation
†Briefs of amici curiae urging reversal were filed for the Pacific Legal
Foundation by John H. Findley; and for the Washington Legal Foundation
et al. by Daniel J. Popeo and R. Shawn Gunnarson.
Briefs of amici curiae urging affirmance were filed for the American
Civil Liberties Union et al. by Arthur N. Eisenberg and Steven R. Shapiro;
and for the New York State Bar Association et al. by Bruce A. Green and
Lawrence S. Lustberg.
Frederick A. O. Schwarz, Jr., filed a brief for the American Judicature
Society as amicus curiae.

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funded by recipients of LSC moneys if the representation
involves an effort to amend or otherwise challenge existing
welfare law. As interpreted by the LSC and by the Govern-
ment, the restriction prevents an attorney from arguing to a
court that a state statute conflicts with a federal statute or
that either a state or federal statute by its terms or in its
application is violative of the United States Constitution.
Lawyers employed by New York City LSC grantees, to-
gether with private LSC contributors, LSC indigent clients,
and various state and local public officials whose govern-
ments contribute to LSC grantees, brought suit in the
United States District Court for the Eastern District of New
York to declare the restriction, among other provisions of
the Act, invalid. The United States Court of Appeals for
the Second Circuit approved an injunction against enforce-
ment of the provision as an impermissible viewpoint-based
discrimination in violation of the First Amendment, 164 F. 3d
757 (1999). We granted certiorari, and the parties who com-
menced the suit in the District Court are here as respond-
ents. The LSC as petitioner is joined by the Government
of the United States, which had intervened in the District
Court. We agree that the restriction violates the First
Amendment, and we affirm the judgment of the Court of
Appeals.
I
From the inception of the LSC, Congress has placed
restrictions on its use of funds. For instance, the LSC
Act prohibits recipients from making available LSC funds,
program personnel, or equipment to any political party,
to any political campaign, or for use in “advocating or oppos-
ing any ballot measures.” 42 U. S. C. § 2996e(d)(4). See
§ 2996e(d)(3). The Act further proscribes use of funds in
most criminal proceedings and in litigation involving non-
therapeutic abortions, secondary school desegregation, mili-
tary desertion, or violations of the Selective Service statute.
§§ 2996f(b)(8)–(10) (1994 ed. and Supp. IV). Fund recipients

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are barred from bringing class-action suits unless express
approval is obtained from LSC. § 2996e(d)(5).
The restrictions at issue were part of a compromise set of
restrictions enacted in the Omnibus Consolidated Rescis-
sions and Appropriations Act of 1996 (1996 Act), § 504, 110
Stat. 1321–53, and continued in each subsequent annual ap-
propriations Act. The relevant portion of § 504(a)(16) pro-
hibits funding of any organization
“that initiates legal representation or participates in
any other way, in litigation, lobbying, or rulemaking, in-
volving an effort to reform a Federal or State welfare
system, except that this paragraph shall not be con-
strued to preclude a recipient from representing an indi-
vidual 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 prohibitions apply to all of the activities of an LSC
grantee, including those paid for by non-LSC funds.
§§ 504(d)(1) and (2). We are concerned with the statutory
provision which excludes LSC representation in cases which
“involve an effort to amend or otherwise challenge exist-
ing law in effect on the date of the initiation of the
representation.”
In 1997, LSC adopted final regulations clarifying
§ 504(a)(16). 45 CFR pt. 1639 (1999). LSC interpreted the
statutory provision to allow indigent clients to challenge wel-
fare agency determinations of benefit ineligibility under in-
terpretations of existing law. For example, an LSC grantee
could represent a welfare claimant who argued that an
agency made an erroneous factual determination or that an
agency misread or misapplied a term contained in an existing
welfare statute. According to LSC, a grantee in that posi-
tion could argue as well that an agency policy violated exist-
ing law. § 1639.4. Under LSC’s interpretation, however,

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grantees could not accept representations designed to
change welfare laws, much less argue against the constitu-
tionality or statutory validity of those laws. Brief for
Petitioner in No. 99–603, p. 7. Even in cases where con-
stitutional or statutory challenges became apparent after
representation was well under way, LSC advised that its
attorneys must withdraw. Ibid.
After the instant suit was filed in the District Court alleg-
ing the restrictions on the use of LSC funds violated the
First Amendment, see 985 F. Supp. 323 (1997), the court
denied a preliminary injunction, finding no probability of
success on the merits. Id., at 344.
On appeal, the Court of Appeals for the Second Circuit
affirmed in part and reversed in part. 164 F. 3d 757 (1999).
As relevant for our purposes, the court addressed respond-
ents’ challenges to the restrictions in § 504(a)(16). It con-
cluded the section specified four categories of prohibited ac-
tivities, of which “three appear[ed] to prohibit the type of
activity named regardless of viewpoint, while one might be
read to prohibit the activity only when it seeks reform.”
Id., at 768. The court upheld the restrictions on litigation,
lobbying, and rulemaking “involving an effort to reform a
Federal or State welfare system,” since all three prohibited
grantees’ involvement in these activities regardless of the
side of the issue. Id., at 768–769.
The court next considered the exception to § 504(a)(16)
that allows representation of “ ‘an individual eligible client
who is seeking specific relief from a welfare agency.’ ” The
court invalidated, as impermissible viewpoint discrimination,
the qualification that representation could “not involve an
effort to amend or otherwise challenge existing law,” be-
cause it “clearly seeks to discourage challenges to the status
quo.” Id., at 769–770.
Left to decide what part of the 1996 Act to strike as in-
valid, the court concluded that congressional intent regard-
ing severability was unclear. It decided to “invalidate the

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smallest possible portion of the statute, excising only the
viewpoint-based proviso rather than the entire exception of
which it is a part.” Id., at 773.
Dissenting in part, Judge Jacobs agreed with the majority
except for its holding that the proviso banning challenges
to existing welfare laws effected impermissible viewpoint-
based discrimination. The provision, in his view, was per-
missible because it merely defined the scope of services to
be funded. Id., at 773–778 (opinion concurring in part and
dissenting in part).
LSC filed a petition for certiorari challenging the Court
of Appeals’ conclusion that the § 504(a)(16) suits-for-benefits
proviso was unconstitutional. We granted certiorari, 529
U. S. 1052 (2000).
II
The United States and LSC rely on Rust v. Sullivan, 500
U. S. 173 (1991), as support for the LSC program restric-
tions. In Rust, Congress established program clinics to pro-
vide subsidies for doctors to advise patients on a variety of
family planning topics. Congress did not consider abortion
to be within its family planning objectives, however, and it
forbade doctors employed by the program from discussing
abortion with their patients. Id., at 179–180. Recipients of
funds under Title X of the Public Health Service Act, §§ 1002,
1008, as added, 84 Stat. 1506, 1508, 42 U. S. C. §§ 300a,
300a–6, challenged the Act’s restriction that provided that
none of the Title X funds appropriated for family planning
services could “be used in programs where abortion is a
method of family planning.” § 300a–6. The recipients ar-
gued that the regulations constituted impermissible view-
point discrimination favoring an antiabortion position over a
proabortion approach in the sphere of family planning. 500
U. S., at 192. They asserted as well that Congress had im-
posed an unconstitutional condition on recipients of federal
funds by requiring them to relinquish their right to engage

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in abortion advocacy and counseling in exchange for the sub-
sidy. Id., at 196.
We upheld the law, reasoning that Congress had not dis-
criminated against viewpoints on abortion, but had “merely
chosen to fund one activity to the exclusion of the other.”
Id., at 193. The restrictions were considered necessary “to
ensure that the limits of the federal program [were] ob-
served.” Ibid. Title X did not single out a particular idea
for suppression because it was dangerous or disfavored;
rather, Congress prohibited Title X doctors from counseling
that was outside the scope of the project. Id., at 194–195.
The Court in Rust did not place explicit reliance on the
rationale that the counseling activities of the doctors under
Title X amounted to governmental speech; when inter-
preting the holding in later cases, however, we have ex-
plained Rust on this understanding. We have said that
viewpoint-based funding decisions can be sustained in in-
stances in which the government is itself the speaker, see
Board of Regents of Univ. of Wis. System v. Southworth, 529
U. S. 217, 229, 235 (2000), or instances, like Rust, in which
the government “used private speakers to transmit specific
information pertaining to its own program.” Rosenberger
v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 833
(1995). As we said in Rosenberger, “[w]hen the government
disburses public funds to private entities to convey a govern-
mental message, it may take legitimate and appropriate
steps to ensure that its message is neither garbled nor dis-
torted by the grantee.” Ibid. The latitude which may
exist for restrictions on speech where the government’s own
message is being delivered flows in part from our observa-
tion that, “[w]hen the government speaks, for instance to
promote its own policies or to advance a particular idea, it
is, in the end, accountable to the electorate and the political
process for its advocacy. If the citizenry objects, newly
elected officials later could espouse some different or con-

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trary position.” Board of Regents of Univ. of Wis. System
v. Southworth, supra, at 235.
Neither the latitude for government speech nor its ration-
ale applies to subsidies for private speech in every instance,
however. As we have pointed out, “[i]t does not follow . . .
that viewpoint-based restrictions are proper when the [gov-
ernment] does not itself speak or subsidize transmittal of a
message it favors but instead expends funds to encourage
a diversity of views from private speakers.” Rosenberger,
supra, at 834.
Although the LSC program differs from the program at
issue in Rosenberger in that its purpose is not to “encourage
a diversity of views,” the salient point is that, like the pro-
gram in Rosenberger, the LSC program was designed to fa-
cilitate private speech, not to promote a governmental mes-
sage. Congress funded LSC grantees to provide attorneys
to represent the interests of indigent clients. In the specific
context of § 504(a)(16) suits for benefits, an LSC-funded at-
torney speaks on the behalf of the client in a claim against
the government for welfare benefits. The lawyer is not the
government’s speaker. The attorney defending the decision
to deny benefits will deliver the government’s message in
the litigation. The LSC lawyer, however, speaks on the be-
half of his or her private, indigent client. Cf. Polk County
v. Dodson, 454 U. S. 312, 321–322 (1981) (holding that a public
defender does not act “under color of state law” because he
“works under canons of professional responsibility that man-
date his exercise of independent judgment on behalf of the
client” and because there is an “assumption that counsel will
be free of state control”).
The Government has designed this program to use the
legal profession and the established Judiciary of the States
and the Federal Government to accomplish its end of assist-
ing welfare claimants in determination or receipt of their
benefits. The advice from the attorney to the client and the
advocacy by the attorney to the courts cannot be classified

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as governmental speech even under a generous understand-
ing of the concept. In this vital respect this suit is distin-
guishable from Rust.
The private nature of the speech involved here, and the
extent of LSC’s regulation of private expression, are indi-
cated further by the circumstance that the Government
seeks to use an existing medium of expression and to control
it, in a class of cases, in ways which distort its usual function-
ing. Where the government uses or attempts to regulate a
particular medium, we have been informed by its accepted
usage in determining whether a particular restriction on
speech is necessary for the program’s purposes and limita-
tions. In FCC v. League of Women Voters of Cal., 468 U. S.
364 (1984), the Court was instructed by its understanding
of the dynamics of the broadcast industry in holding that
prohibitions against editorializing by public radio networks
were an impermissible restriction, even though the Govern-
ment enacted the restriction to control the use of public
funds. The First Amendment forbade the Government from
using the forum in an unconventional way to suppress speech
inherent in the nature of the medium. See id., at 396–397.
In Arkansas Ed. Television Comm’n v. Forbes, 523 U. S. 666,
676 (1998), the dynamics of the broadcasting system gave
station programmers the right to use editorial judgment to
exclude certain speech so that the broadcast message could
be more effective. And in Rosenberger, the fact that stu-
dent newspapers expressed many different points of view
was an important foundation for the Court’s decision to in-
validate viewpoint-based restrictions. 515 U. S., at 836.
When the government creates a limited forum for speech,
certain restrictions may be necessary to define the limits and
purposes of the program. Perry Ed. Assn. v. Perry Local
Educators’ Assn., 460 U. S. 37 (1983); see also Lamb’s Chapel
v. Center Moriches Union Free School Dist., 508 U. S. 384
(1993). The same is true when the government establishes
a subsidy for specified ends. Rust v. Sullivan, 500 U. S. 173

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(1991). As this suit involves a subsidy, limited forum cases
such as Perry, Lamb’s Chapel, and Rosenberger may not be
controlling in a strict sense, yet they do provide some in-
struction. Here the program presumes that private, non-
governmental speech is necessary, and a substantial restric-
tion is placed upon that speech. At oral argument and in
its briefs the LSC advised us that lawyers funded in the
Government program may not undertake representation in
suits for benefits if they must advise clients respecting the
questionable validity of a statute which defines benefit eligi-
bility and the payment structure. The limitation forecloses
advice or legal assistance to question the validity of statutes
under the Constitution of the United States. It extends fur-
ther, it must be noted, so that state statutes inconsistent
with federal law under the Supremacy Clause may be neither
challenged nor questioned.
By providing subsidies to LSC, the Government seeks to
facilitate suits for benefits by using the state and federal
courts and the independent bar on which those courts de-
pend for the proper performance of their duties and responsi-
bilities. Restricting LSC attorneys in advising their clients
and in presenting arguments and analyses to the courts dis-
torts the legal system by altering the traditional role of the
attorneys in much the same way broadcast systems or stu-
dent publication networks were changed in the limited forum
cases we have cited. Just as government in those cases
could not elect to use a broadcasting network or a college
publication structure in a regime which prohibits speech
necessary to the proper functioning of those systems, see
Arkansas Ed. Television Comm’n, supra, and Rosenberger,
supra, it may not design a subsidy to effect this serious and
fundamental restriction on advocacy of attorneys and the
functioning of the judiciary.
LSC has advised us, furthermore, that upon determining
a question of statutory validity is present in any anticipated
or pending case or controversy, the LSC-funded attorney

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must cease the representation at once. This is true whether
the validity issue becomes apparent during initial attorney-
client consultations or in the midst of litigation proceedings.
A disturbing example of the restriction was discussed during
oral argument before the Court. It is well understood that
when there are two reasonable constructions for a statute,
yet one raises a constitutional question, the Court should
prefer the interpretation which avoids the constitutional
issue. Gomez v. United States, 490 U. S. 858, 864 (1989);
Ashwander v. TVA, 297 U. S. 288, 346–348 (1936) (Brandeis,
J., concurring). Yet, as the LSC advised the Court, if, dur-
ing litigation, a judge were to ask an LSC attorney whether
there was a constitutional concern, the LSC attorney simply
could not answer. Tr. of Oral Arg. 8–9.
Interpretation of the law and the Constitution is the pri-
mary mission of the judiciary when it acts within the sphere
of its authority to resolve a case or controversy. Marbury
v. Madison, 1 Cranch 137, 177 (1803) (“It is emphatically the
province and the duty of the judicial department to say what
the law is”). An informed, independent judiciary presumes
an informed, independent bar. Under § 504(a)(16), however,
cases would be presented by LSC attorneys who could not
advise the courts of serious questions of statutory validity.
The disability is inconsistent with the proposition that attor-
neys should present all the reasonable and well-grounded ar-
guments necessary for proper resolution of the case. By
seeking to prohibit the analysis of certain legal issues and
to truncate presentation to the courts, the enactment under
review prohibits speech and expression upon which courts
must depend for the proper exercise of the judicial power.
Congress cannot wrest the law from the Constitution which
is its source. “Those then who controvert the principle that
the constitution is to be considered, in court, as a paramount
law, are reduced to the necessity of maintaining that courts
must close their eyes on the constitution, and see only the
law.” Id., at 178.

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The restriction imposed by the statute here threatens se-
vere impairment of the judicial function. Section 504(a)(16)
sifts out cases presenting constitutional challenges in order
to insulate the Government’s laws from judicial inquiry. If
the restriction on speech and legal advice were to stand, the
result would be two tiers of cases. In cases where LSC
counsel were attorneys of record, there would be lingering
doubt whether the truncated representation had resulted in
complete analysis of the case, full advice to the client, and
proper presentation to the court. The courts and the public
would come to question the adequacy and fairness of profes-
sional representations when the attorney, either consciously
to comply with this statute or unconsciously to continue the
representation despite the statute, avoided all reference to
questions of statutory validity and constitutional authority.
A scheme so inconsistent with accepted separation-of-powers
principles is an insufficient basis to sustain or uphold the
restriction on speech.
It is no answer to say the restriction on speech is harmless
because, under LSC’s interpretation of the Act, its attorneys
can withdraw. This misses the point. The statute is an
attempt to draw lines around the LSC program to exclude
from litigation those arguments and theories Congress finds
unacceptable but which by their nature are within the prov-
ince of the courts to consider.
The restriction on speech is even more problematic be-
cause in cases where the attorney withdraws from a repre-
sentation, the client is unlikely to find other counsel. The
explicit premise for providing LSC attorneys is the necessity
to make available representation “to persons financially
unable to afford legal assistance.” 42 U. S. C. § 2996(a)(3).
There often will be no alternative source for the client to
receive vital information respecting constitutional and statu-
tory rights bearing upon claimed benefits. Thus, with re-
spect to the litigation services Congress has funded, there is
no alternative channel for expression of the advocacy Con-

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gress seeks to restrict. This is in stark contrast to Rust.
There, a patient could receive the approved Title X family
planning counseling funded by the Government and later
could consult an affiliate or independent organization to re-
ceive abortion counseling. Unlike indigent clients who seek
LSC representation, the patient in Rust was not required to
forfeit the Government-funded advice when she also received
abortion counseling through alternative channels. Because
LSC attorneys must withdraw whenever a question of a wel-
fare statute’s validity arises, an individual could not obtain
joint representation so that the constitutional challenge
would be presented by a non-LSC attorney, and other, per-
mitted, arguments advanced by LSC counsel.
Finally, LSC and the Government maintain that
§ 504(a)(16) is necessary to define the scope and contours of
the federal program, a condition that ensures funds can be
spent for those cases most immediate to congressional con-
cern. In support of this contention, they suggest the chal-
lenged limitation takes into account the nature of the grant-
ees’ activities and provides limited congressional funds for
the provision of simple suits for benefits. In petitioners’
view, the restriction operates neither to maintain the current
welfare system nor insulate it from attack; rather, it helps
the current welfare system function in a more efficient and
fair manner by removing from the program complex chal-
lenges to existing welfare laws.
The effect of the restriction, however, is to prohibit advice
or argumentation that existing welfare laws are unconstitu-
tional or unlawful. 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. Here, notwithstanding Congress’ purpose to con-
fine and limit its program, the restriction operates to insulate
current welfare laws from constitutional scrutiny and certain
other legal challenges, a condition implicating central First
Amendment concerns. In no lawsuit funded by the Govern-

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548 LEGAL SERVICES CORPORATION v. VELAZQUEZ
Opinion of the Court
ment can the LSC attorney, speaking on behalf of a private
client, challenge existing welfare laws. As a result, argu-
ments by indigent clients that a welfare statute is unlawful
or unconstitutional cannot be expressed in this Government-
funded program for petitioning the courts, even though the
program was created for litigation involving welfare benefits,
and even though the ordinary course of litigation involves
the expression of theories and postulates on both, or multi-
ple, sides of an issue.
It is fundamental that the First Amendment “ ‘was fash-
ioned to assure unfettered interchange of ideas for the bring-
ing about of political and social changes desired by the peo-
ple.’ ” New York Times Co. v. Sullivan, 376 U. S. 254, 269
(1964) (quoting Roth v. United States, 354 U. S. 476, 484
(1957)). There can be little doubt that the LSC Act funds
constitutionally protected expression; and in the context of
this statute there is no programmatic message of the kind
recognized in Rust and which sufficed there to allow the Gov-
ernment to specify the advice deemed necessary for its legit-
imate objectives. This serves to distinguish § 504(a)(16)
from any of the Title X program restrictions upheld in Rust,
and to place it beyond any congressional funding condition
approved in the past by this Court.
Congress was not required to fund an LSC attorney to
represent indigent clients; and when it did so, it was not re-
quired to fund the whole range of legal representations or
relationships. The LSC and the United States, however, in
effect ask us to permit Congress to define the scope of the
litigation it funds to exclude certain vital theories and ideas.
The attempted restriction is designed to insulate the Gov-
ernment’s interpretation of the Constitution from judicial
challenge. The Constitution does not permit the Govern-
ment to confine litigants and their attorneys in this manner.
We must be vigilant when Congress imposes rules and condi-
tions which in effect insulate its own laws from legitimate
judicial challenge. Where private speech is involved, even

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549 Cite as: 531 U. S. 533 (2001)
Scalia, J., dissenting
Congress’ antecedent funding decision cannot be aimed at
the suppression of ideas thought inimical to the Govern-
ment’s own interest. Regan v. Taxation With Representa-
tion of Wash., 461 U. S. 540, 548 (1983); Speiser v. Randall,
357 U. S. 513, 519 (1958).
For the reasons we have set forth, the funding condition
is invalid. The Court of Appeals considered whether the
language restricting LSC attorneys could be severed from
the statute so that the remaining portions would remain op-
erative. It reached the reasoned conclusion to invalidate
the fragment of § 504(a)(16) found contrary to the First
Amendment, leaving the balance of the statute operative and
in place. That determination was not discussed in the briefs
of either party or otherwise contested here, and in the exer-
cise of our discretion and prudential judgment we decline to
address it.
The judgment of the Court of Appeals is
Affirmed.
Justice Scalia, with whom The Chief Justice, Justice
O’Connor, and Justice Thomas join, dissenting.
Section 504(a)(16) of the Omnibus Consolidated Rescis-
sions 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 unsupport-
able 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 contra-
dicted by a recent decision that is on all fours with the pres-
ent cases. Having found the limitation upon the spending
program unconstitutional, the Court then declines to con-
sider the question of severability, allowing a judgment to
stand that lets the program go forward under a version of

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550 LEGAL SERVICES CORPORATION v. VELAZQUEZ
Scalia, J., dissenting
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 537–538. No Legal Services Corporation (LSC) funds
may be used, for example, for “encouraging . . . labor or anti-
labor 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). Con-
gress discovered through experience, however, that these re-
strictions 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. Sec-
tion 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 im-
plementation of such legislation, and from lobbying Congress
itself regarding any proposed changes to such legislation.
See 45 CFR § 1639.3 (2000).

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551 Cite as: 531 U. S. 533 (2001)
Scalia, J., dissenting
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 Ap-
propriations 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 re-
cipients 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 rep-
resentation.” The LSC declares in its brief, and respond-
ents do not deny, that under these provisions the LSC can
sponsor neither challenges to nor defenses of existing wel-
fare 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 fund-
ing, 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 544. Likewise, if a forbidden claim arises unex-
pectedly at trial, “LSC-funded attorney[s] must cease the
representation at once,” ante, at 544–545. 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 respon-
sibility’ ”). The lawyers may, however, and indeed must ex-
plain 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).

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552 LEGAL SERVICES CORPORATION v. VELAZQUEZ
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II
The LSC Act is a federal subsidy program, not a federal
regulatory program, and “[t]here is a basic difference be-
tween [the two].” Maher v. Roe, 432 U. S. 464, 475 (1977).
Regulations directly restrict speech; subsidies do not. Sub-
sidies, it is true, may indirectly abridge speech, but only if
the funding scheme is “ ‘manipulated’ to have a ‘coercive ef-
fect’ ” on those who do not hold the subsidized position. Na-
tional 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 spend-
ing program has universal coverage and excludes only
certain speech—such as a tax exemption scheme excluding
lobbying expenses. The Court has found such programs un-
constitutional 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 recipi-
ents, see Rust v. Sullivan, 500 U. S. 173, 194–195 (1991).
The Court has found such selective spending unconstitution-
ally coercive only once, when the government created a pub-
lic forum with the spending program but then discriminated
in distributing funding within the forum on the basis of view-
point. See Rosenberger v. Rector and Visitors of Univ. of
Va., 515 U. S. 819, 829–830 (1995). When the limited spend-
ing 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 unconstitu-
tionality 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 quota-

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553 Cite as: 531 U. S. 533 (2001)
Scalia, J., dissenting
tion marks omitted). Absent such a threat, “the Govern-
ment 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 princi-
ples to a statutory scheme that is in all relevant respects
indistinguishable from § 504(a)(16). The statute in Rust au-
thorized 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 re-
quired funding recipients to refer pregnant clients “for ap-
propriate prenatal . . . services by furnishing a list of avail-
able 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 chal-
lenge to the funding scheme, explaining that “[t]he Govern-
ment 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 Representa-
tion 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 537. 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

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554 LEGAL SERVICES CORPORATION v. VELAZQUEZ
Scalia, J., dissenting
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 545, 546, and “insulates” laws from judicial review,
see, e. g., ante, at 547, are simply baseless. No litigant who,
in the absence of LSC funding, would bring a suit chal-
lenging 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 pro-
gram at issue subsidized government speech, while the LSC
funds private speech. See ante, at 541–542. This is so un-
persuasive it hardly needs response. If the private doctors’
confidential advice to their patients at issue in Rust consti-
tuted “government speech,” it is hard to imagine what subsi-
dized 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 cli-
ents founders on the reality that the doctors in Rust had a
professional obligation to serve the interests of their pa-
tients, see 500 U. S., at 214 (Blackmun, J., dissenting) (“ethi-
cal responsibilities of the medical profession”)—which at the
time of Rust we had held to be highly relevant to the permis-
sible scope of federal regulation, see Thornburgh v. Ameri-
can 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 re-
spondents agree that “the true speaker in Rust was not the
government, but a doctor.” Brief for Respondents 19, n. 17.
The Court further asserts that these cases are different
from Rust because the welfare funding restriction “seeks to

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Scalia, J., dissenting
use an existing medium of expression and to control it . . . in
ways which distort its usual functioning,” ante, at 543. 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 Ro-
senberger 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 543 (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 pro-
gram 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 govern-
ment 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 un-
conventional way to suppress speech inherent in the nature
of the medium,” ante, at 543. It discusses why the Govern-
ment’s asserted interest in “preventing [public radio] sta-
tions 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 insub-
stantial and thus could not justify the statute’s restriction
on editorializing. Even worse for the Court, after invalidat-

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556 LEGAL SERVICES CORPORATION v. VELAZQUEZ
Scalia, J., dissenting
ing 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 con-
duct 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 545, 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 serv-
ices for that purpose. So what? The same result would
ensue from excluding LSC-funded lawyers from welfare liti-
gation entirely. It is not the mandated, nondistortable func-
tion 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 “dis-
torts” 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,

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557 Cite as: 531 U. S. 533 (2001)
Scalia, J., dissenting
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 sys-
tematically distort the interpretation of welfare laws. Judi-
cial 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 un-
likely to find other counsel.” Ante, at 546. 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-
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

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558 LEGAL SERVICES CORPORATION v. VELAZQUEZ
Scalia, J., dissenting
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 ac-
cess 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 dis-
tinguishing 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 repre-
sentation on a benefits claim that does not challenge the stat-
utes 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 546, 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 free-
dom 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 re-
peat, is whether the funding scheme is “ ‘manipulated’ to
have a ‘coercive effect’ ” on those who do not hold the subsi-
dized 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 ineligi-
ble for LSC representation could eliminate the ineligibility
by waiving the claim that the statute is invalid; but he can-
not. 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 sub-

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559 Cite as: 531 U. S. 533 (2001)
Scalia, J., dissenting
sidy upheld in Rust v. Sullivan, supra. There is no legiti-
mate basis for declaring § 504(a)(16) facially unconstitutional.
III
Even were I to accept the Court’s First Amendment analy-
sis, I could not join its decision to conclude this litigation
without reaching the issue of severability. That issue, al-
though 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 out-
side the scope of the limited order [granting certiorari] when
resolution of those questions is necessary for the proper dis-
position 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 en-
acted, funding without restriction welfare-benefits litiga-
tion that Congress funded only under the limitations of
§ 504(a)(16). Although no party briefed severability in Den-
ver Area Ed. Telecommunications Consortium, Inc. v. FCC,
518 U. S. 727 (1996), the Justices finding partial unconstitu-
tionality 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 sever-
ability question open, we fail to resolve the basic, real-world
dispute at issue: whether LSC attorneys may represent wel-
fare 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 limita-
tion upon welfare representation is unconstitutional, LSC
attorneys cannot engage in welfare litigation at all.

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560 LEGAL SERVICES CORPORATION v. VELAZQUEZ
Scalia, J., dissenting
“The inquiry into whether a statute is severable is essen-
tially 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, consid-
erations 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 leg-
islature 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 de-
fending the validity of existing law are “conditions, consider-
ations [and] compensations for each other” that cannot be
severed. Congress through the LSC Act intended “to pro-
vide high quality legal assistance to those who would be oth-
erwise 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

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561 Cite as: 531 U. S. 533 (2001)
Scalia, J., dissenting
litigation); § 504(a)(4) (local, state, and federal lobbying);
§ 504(a)(7) (class-action lawsuits); § 504(a)(12) (training pro-
grams for, inter alia, boycotts, picketing, and demonstra-
tions); § 504(a)(14) (litigation with respect to abortion). The
severability question here is, essentially, whether, without
the restriction that the Court today invalidates, the permis-
sion for conducting welfare litigation would have been ac-
corded. 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 [sit-
uations] 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 appro-
priate it is here. To strike the restriction on welfare bene-
fits suits is to void § 504(a)(16) altogether. Subsection (a)(16)
prohibits involvement in three types of activities with re-
spect 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

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562 LEGAL SERVICES CORPORATION v. VELAZQUEZ
Scalia, J., dissenting
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 Fed-
eral 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 repre-
sentation of individual welfare claimants who did not chal-
lenge 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 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 cases 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 deci-
sion 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 judge-pronounced constitutional
imperatives—that prompted Congress to restrict publicly
funded litigation of this sort. The Court says today, through
an unprecedented (and indeed previously rejected) interpre-
tation of the First Amendment, that we will not allow this

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563 Cite as: 531 U. S. 533 (2001)
Scalia, J., dissenting
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.

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Reporter’s Note
The next page is purposely numbered 801. The numbers between 563
and 801 were intentionally omitted, in order to make it possible to publish
the orders with permanent page numbers, thus making the official cita-
tions available upon publication of the preliminary prints of the United
States Reports.