About the incredible judicial demand that Congress must continue to fund Planned Parenthood in spite of its explicit refusal to do so, Dan writes:

Today’s opinion is no more persuasive than the unexplained order. Talwani’s legal theory is that Planned Parenthood affiliates have a right of speech and association to continue receiving taxpayer money over the objections of Congress if the affiliates in states where abortion is banned do not perform abortions, and that Planned Parenthood performing abortions and engaging in politics with the financial benefits of taxpayer funding is an “expressive” right that Congress must fund. The idea that money might be fungible in the real world is never even considered.

This argument — Talwani’s, not Dan’s — is so preposterous that, if taken seriously, it would destroy our constitutional order overnight. In effect, Talwani submits that, because Planned Parenthood lobbies and advocates, as well as provides services, it is therefore in possession of a viewpoint, and that, because it is in possession of a viewpoint, Congress’s decision to remove its funding violates the First Amendment. This is ludicrous — not only because it has no basis in the Constitution’s original public meaning, but because it implies that, once any organization in America has received federal funding, that federal funding cannot be cut if its recipient happens to be vocal about its political views. If, as Talwani suggests, having an “expressive right” is sufficient to guarantee the flow of judicially enforceable cash, then all congressional spending decisions that involve private figures or institutions will become permanent as soon as the ink has dried and Congress will be unable to exercise any power over spending whatsoever.

And that’s before we get to the obvious problem of asymmetrical prohibition. If, as Talwani implies, Congress cannot choose to defund organizations in such cases as doing so could be construed as a judgment on their viewpoint, then how, exactly, can it choose to fund such organizations in the first place? At some point, Congress began giving money to Planned Parenthood. Was that an endorsement of Planned Parenthood’s advocacy? If so, why is that not a problem? After all, there are lots of health-related organizations in this country that believe — and lobby for — precisely the opposite things that Planned Parenthood believes. If, indeed, Congress is required to remain neutral, then the initial outlays that went to Planned Parenthood — and did not go to many of these alternatives — must have been a problem, no? Alternatively, if Congress’s initial decision to fund Planned Parenthood was not an endorsement, but rather a simple contract for the provision of services, then taking it away can’t be a removal of that endorsement, can it?

Ultimately, Talwani’s opinion reflects the extremely strange — but increasingly popular — view that it is a problem when legislatures and other representative bodies to make judgment calls because such judgment calls violate the viewpoint neutrality that is guaranteed by the First Amendment. In recent years, we have seen this argument leveled at state legislatures that have exercised control over the schools that they created and fund; at Congress for deciding to stop subsidizing NPR and PBS; and, now, at Congress for declining to send money to Planned Parenthood. It’s all nonsense, of course. The First Amendment requires the federal government and the states to be neutral on matters related to other people’s speech, religion, lobbying, and so on, but it does not require every lawmaker in America to become an empty vessel. Legislatures are elected to make exactly these sorts of decisions; that’s the only reason that we convene them. If Judge Talwani were to get her way, we wouldn’t need to bother.