The decision came today in Acorn v. United States. I haven’t read the opinion yet, but it looks pretty detailed. Here’s my summary of the general legal framework, from this September 15 post:
1. The Constitutions bans both the federal and state legislatures from enacting “bills of attainder.”2. This is understood as barring “a legislative act which inflicts punishment without a judicial trial.” (“If the punishment be less than death, the act [was historically] termed a bill of pains and penalties,” but “[w]ithin the meaning of the Constitution, bills of attainder include bills of pains and penalties.”) So if Congress says, “We conclude that Eugene Volokh is guilty of treason, and we order him to be executed,” that would be a classic bill of attainder.
3. According to the Court, permanent exclusion of named people — or even a class of people, such as Communist Party members or people who had given help to the Confederacy — from government office may constitute “punishment” and be treated as an unconstitutional Bill of Attainder. See U.S. v. Lovett (1946), U.S. v. Brown (1965), and Cummings v. Missouri (1866).
4. This may apply to punishment of corporations and other entities, and not just of individuals, at least according to Consolidated Edison Co. v. Pataki (2d Cir. 2002); I think that has to be right, but the issue is not clearly settled.
5. At the same time, even legislation that singles out individuals is not a Bill of Attainder if “the law under challenge, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes.” See Nixon v. Administrator of General Services (1977); SeaRiver Maritime Financial Holdings Inc. v. Mineta (9th Cir. 2002) (upholding the legislative exclusion of “any vessel that spilled more than one million gallons of oil into the marine environment after March 22, 1989″ — a class that includes only the Exxon Valdez — from Prince William Sound, because it has the legitimate nonpunitive purpose of “reduc[ing] the environmental risk to the Sound” by excluding “a vessel with a history of substantial spillage, and encourag[ing] SeaRiver and other tank vessel owners to take greater steps to avoid a similar spill in any marine environment”).
But the trouble, of course, is that most laws, including punitive ones, also further nonpunitive legislative purposes. The hypothetical Eugene Volokh Execution Act of 2009 would further nonpunitive legislative purposes of preventing future bad acts by me (as well as punishing me for all my manifold past sins). Likewise, the permanent exclusion of certain people from federal employment, struck down in Lovett and Brown, was likely aimed at preventing bad behavior by the named employees (Lovett) and Communist employees (Brown).
So would defunding ACORN be an unconstitutional bill of attainder? My rereading of the precedents leads me to confidently and unambiguously say, “I don’t know.” The distinction between “punishment” and actions that “reasonably can be said to further nonpunitive legislative purposes” strikes me as generally elusive and perhaps even illusory, and especially so here. But I thought I’d lay out the basic questions and precedents, and see what the rest of you think.
Thanks to Prof. Ruthann Robson (Constitutional Law Prof Blog) for the pointer.
~FR says:
IANAL- but based on history, wouldn’t a bill of attainder (or pains/penalties) against ACORN include:
1) Forfeiture of money, property, and assets currently owned outright by the corporation
2) Exclusion of ACORN (even a reformed/reorganized ACORN) or it’s employees from future contracts/employment
If the congressional bill included #2, then it mirrors ‘corruption of the blood’ in English law, and should be unconstitutional.
December 11, 2009, 10:15 pmTwirlip says:
Indeed. But a law which says, “We conclude that Eugene Volokh should no longer be given taxpayer money”?
December 11, 2009, 10:19 pmGuy says:
That would, among other things, exclude him from social security and medicare benefits, wouldn’t it? I think that almost certainly would be a bill of attainder. I don’t think the case with ACORN is quite as simple as that, but it’s not as clear as you seem to suggest, either.
December 11, 2009, 10:31 pmJ. Aldridge says:
Defunding is no bill of attainder. There never was a bill asking Congress to find ACORN guilty of anything and then punishing them.
December 11, 2009, 10:34 pmSimon Dodd says:
If Congress passed an act providing that “University X, having failed to comply with the Solomon Amendment, the Constitutionality of which was upheld in Rumsfeld v. FAIR, shall no longer receive any federal funds referred to in the aforesaid amendment,” would that constitute a bill of attainder? I thought that bills of attainder singled out individuals for punishment, not revoked federal funding for organizations.
December 11, 2009, 10:35 pmGuy says:
Do you think Congress needs to explicitly label them guilty for a Bill of Attainder to exist? What if Congress said “Eugene Volokh shall be executed, but we express no opinion of his guilt or innocence of any crime.”? Would that be okay under your interpretation?
December 11, 2009, 10:36 pmTwirlip says:
There’s an actual punishment involved there.
It’s a novel theory to say that being cut off from the government teat constitutes punishment, though I’m sure there are people willing to argue just that.
Is it really the case that once Congress begins to fund some group, it must then fund them forevermore unless a court finds them gulity of a crime?
December 11, 2009, 10:42 pmGuy says:
The important thing, I think, is that Congress has placed a higher bar for ACORN to clear in order to get funding than any other organization faces; if this law stands, the executive branch is not permitted to hire ACORN for any purpose, though they may contract with other organizations freely. ACORN may also have an Equal Protection claim, though the Bill of Attainder argument seems stronger, the rational basis test being what it is.
December 11, 2009, 10:48 pmTwirlip says:
Really? You think that any other organization with ACORN’s history of criminal behavior would be treated differently? Why?
December 11, 2009, 10:52 pmSteve says:
It’s a novel theory to say that being cut off from the government teat constitutes punishment, though I’m sure there are people willing to argue just that.
If you read the opinion, you’d realize that it’s not a novel theory, but in fact a theory that has been accepted by the Supreme Court in the past.
Amusingly, within minutes of the announcement of this decision, the judge’s Wikipedia page was updated to state that “the decision has been met with widespread criticism and calls for the judge’s impeachment.” You gotta love it.
December 11, 2009, 10:53 pmGuy says:
(emphasis mine)
I would think this makes the Bill of Attainder argument more clear, this is a legislative act at least partially motivated by an intent to punish. I don’t know that any other organization would be treated differently, but I suspect the political and media attention ACORN receives makes it more likely that they will be punished where other organizations would not. I think it’s at least open to debate.
December 11, 2009, 11:02 pmTwirlip says:
ACORN receives “political and media attention” precisely because of their long history of shady doings.
And yet you alleged otherwise.
December 11, 2009, 11:07 pmChris L says:
If the constitutional prohibition on Bills of Attainder ensures that once money starts flowing from the government’s coffers to an organization, the spigot can’t be individually turned off, is Uncle Sam effectively obligated to continue funding Blackwater (Xe) in perpetuity no matter how controversial it is?
Tonight, for example, we learned that Leon Panetta reportedly terminated a contract for Blackwater to load bombs onto the CIA’s drones, ostensibly because Blackwater is politically radioactive. Does the Bill of Attainder clause forbid this decision or does it only inure to the benefit of organizations in the left’s good graces?
December 11, 2009, 11:12 pmGuy says:
I wouldn’t be surprised to find that virtually any organization that registers voters in large numbers has examples of fraudulent registrations turned in to them. Of course, the bill was probably mostly motivated by the prostitution video, which is pretty damning evidence, but ACORN contends that the attempted sting failed at other locations, and the employees in the video have been fired. Defense contractors have been involved in illegal activity as well, and haven’t seemed to face similar penalties, though maybe it could be arguead that the levels of “guilt” are different.
December 11, 2009, 11:15 pmTwirlip says:
Would you mind refraining from this sort of baseless speculation? It really adds nothing to the debate.
And of course, ACORN’s problems extend beyond widespread voter registration fraud. (And It’s registration problems are not properly described as “examples of fraudulent registrations”).
December 11, 2009, 11:21 pmNathan Wagner says:
Eugene,
I’ll add to the chorus here. Many commenters feel that there is a world of difference between criminal punishment and eligibility for federal funding. A person has a right to freedom from criminal punishment unless duly tried and convicted. A person does not have a right to a remunerative contract for services with the government.
Perhaps you could answer a few questions:
(1) May not the government, merely as a matter of political judgment, elect not to contract with a specific person – since by so doing it takes nothing belonging to the person by right?
(2) The Census Bureau, citing matters of public appearance and trust, canceled its contract with ACORN for the 2010 census. Surely a suit against the Census Bureau on the grounds that it has no prerogative to make that judgment is unlikely to prevail. Does the executive then have a prerogative here that Congress does not? If so, how would you articulate that prerogative?
Thanks.
December 11, 2009, 11:23 pmGuy says:
My point is, this bill mentions ACORN by name, and denies them funding. Supreme Court precedent already says that Congress can’t name individuals and deny them a right to be employed by the government. It could be argued that corporations are fair game and individuals are not (though individuals are implicated by this bill as well) and it could be argued that there’s a difference between employment and contracting to perform a service, but those arguments are not obviously correct to me.
December 11, 2009, 11:28 pmTwirlip says:
Every time ACORN says a sting failed at a specific location, a video is released showing it succeded at that specific location. Which is one reason why ACORN has stopped saying things like that.
I’d ask where the Holder Justice Dept is, but I know they’re already tied down in fighting off subpoenas related to the dropping of charges in the Black Panther case.
No doubt they’ll get around to prosecuting Breibart in due course.
December 11, 2009, 11:30 pmTwirlip says:
So, what do you make of the Blackwater case Chris L mentioned? Can the government opt to stop using Blackwater, or Haliburton? Or can those entities sue the government under the “attainder” clause and require it to continue to use their services?
December 11, 2009, 11:36 pmGuy says:
Ok, I haven’t really been following the ACORN stories that closely, so I’m not going to comment further on how far their wrongdoing goes. I don’t see how any of this supports your position though, saying “but they really are guilty!” isn’t a great defense against the claim that this is a bill of attainder.
December 11, 2009, 11:37 pmGuy says:
Well, obviously if this is an unconstitutional bill of attainder, then a similar act that substitutes those corporations for ACORN, and changes its definition of a “covered” organization to match, would also be an unconstitutional bill of attainder. If this law isn’t a bill of attainder, then those laws wouldn’t be either.
December 11, 2009, 11:42 pmbadlaw says:
How do we know the decision to defund ACORN was to necessarily punish them? Maybe it was for the majority in Congress to cut ties with controversial left-leaning organization where the sitting President cut his political teeth and deftly dodged being tied to their shady dealings in the previous election.
This was about keeping the Democrats’ collective nose clean since we’re going into an election year, not to smack ACORN’s hand for being bad.
Though, I am curious: if defunding ACORN is a bill of attainder to some, what is the push to defund Haliburton/KBR for having employment contracts with arbitration clauses in them? Nevermind. I already know.
December 11, 2009, 11:47 pmGuy says:
I would point out that if the executive branch chose to stop hiring them, consistent with their existing contractual obligations, that would certainly be constitutional. The government has almost complete freedom to choose its contractors. But as I already pointed out, this act of Congress places a special statutory restriction on ACORN that doesn’t exist for other organizations.
December 11, 2009, 11:50 pmGuy says:
Technically, I think the intent there is to encourage those organizations to get rid of their arbitration clauses, not to deny them funding in a way they can’t avoid. So I’m not sure the analogy is perfect.
December 11, 2009, 11:54 pmSteve says:
Though, I am curious: if defunding ACORN is a bill of attainder to some, what is the push to defund Haliburton/KBR for having employment contracts with arbitration clauses in them?
That’s a good example of how to draft a neutral law that doesn’t violate the bill of attainder provision. If the Republicans really wanted to, I’m sure they could have found a constitutional way to write the ACORN law, but they were more interested in scoring political points than passing real legislation, I think. Or maybe it’s that a bill purporting to be neutral and defund any organization with allegations of criminal conduct against it, etc., wouldn’t have been appreciated by contractors like the ones you mentioned.
To anyone who’s interested in the actual legal issues and isn’t simply a crazed partisan who believes ACORN is Barack Obama’s shady organization that stole the 2008 election for him – if there’s actually anyone like that in this comment thread – the point is that this decision has nothing to do with the Executive Branch’s decision to contract with or cease contracting with entities like ACORN, as it deems appropriate. Indeed, the federal government has very specific rules and procedures regarding contracting, and if a contractor is accused of criminal activity, there is a normal process by which the government investigates and determines whether it wants to keep doing business with that contractor. This case says that Congress can’t simply supersede the investigatory process and determine that ACORN is guilty and should be cut off. So of course the Pentagon isn’t compelled to keep doing business with fraudsters and the like.
As to the money within Congress’ direct control – the 1% or so of the federal budget that is doled out in the form of those infamous earmarks – Congress of course retains the power to award it or not award it as it pleases. But there’s no need to pass a law saying “ACORN shall get no earmarks” because Congress can simply vote down any proposed earmark for ACORN – and, of course, if Congress were to actually vote ACORN an earmark it would supersede any prior no-earmark law.
December 12, 2009, 12:00 amSteve says:
Technically, I think the intent there is to encourage those organizations to get rid of their arbitration clauses, not to deny them funding in a way they can’t avoid. So I’m not sure the analogy is perfect.
The reason the analogy is far from perfect is that those entities aren’t named in the law. They’re not singled out. The bill applies to any contractor at all who chooses to have that type of arbitration provision in its contracts.
Of course, the law was obviously motivated by the conduct of a couple specific companies, but that’s not at all uncommon. For example, the Private Securities Litigation Reform Act was intended to rein in notorious class-action firms like Milberg Weiss – it’s right there in the legislative history – but because the statute didn’t actually single out Milberg Weiss, it wasn’t a bill of attainder. It applied to everyone, no matter what motivated it.
December 12, 2009, 12:02 amTwirlip says:
Of course, even though many people are acting as if the law singles out ACORN, it is actually extremely broad. It states that any organization which has done any of a laundary list of things is cut off from Federal funds. If anything the law is too broad, not too narrowly focused. From what I’ve seen a great many government contractors run afoul it, including Lockeed. I believe this is the relevant portion of the act.
(b) COVERED ORGANIZATION.—In this section, the
December 12, 2009, 12:22 amterm ‘‘covered organization’’ means any of the following:
1) Any organization that has been indicted for
a violation under any Federal or State law governing
the financing of a campaign for election for public
office or any law governing the administration of an
election for public office, including a law relating to
voter registration.
(2) Any organization that had its State cor
porate charter terminated due to its failure to comply with Federal or State lobbying disclosure re1quirements.
(3) Any organization that has filed a fraudulent
form with any Federal or State regulatory agency.
Guy says:
The fact that ACORN is specifically named doesn’t help, but I don’t think it’s dispositive. Congress could pass a law that punishes a class of people, or that purports to punish on neutral criteria, but still have it be a bill of attainder, I think. Congress is quite proficient in creating a list of criteria that only apply to one entity. Did the Private Securities Litigation Reform Act really “punish” class-action firms, beyond accomplishing the presumably legitimate goal of tort reform in a way that damaged their business model? I don’t think they faced any special disability per se. Likewise, it’s probably a legitimate use of Congress’ spending power to require their contractors to obey certain rules. The thing is, this law places a disability on ACORN simply for having been indicted at a time prior to the Bill’s passage, which looks a lot more like an attempt to punish, rather than influence future behavior.
Of course, it’s hard to be definitive. As Eugene says, the distinction between an intent to punish and an intent to further non-punitive goals is hard to nail down.
December 12, 2009, 12:28 amAndrew says:
I think the Volokh Conspiracy should be outraged at the total absence of government funding for this blog. It’s, it’s, it’s….just the same as if the government was inflicting punishment against this blog. Yeah, that’s what it is….a bill of attainder. Sue!
December 12, 2009, 12:28 amTwirlip says:
I don’t think that you’re read the act.
December 12, 2009, 12:29 amGuy says:
It’s my understanding that the text was amended to target only ACORN, I’m having trouble finding the text of the bill as passed, as opposed to introduced, in order to confirm that, but the fact that no one else seems to be suing to enjoin enforcement suggests either that ACORN is the only one affected or that the law will only be enforced against ACORN. Again, the fact that ACORN alone is mentioned by name in the text cuts against you. Also, I’ve already said that the fact that it targets a class doesn’t necessarily resolve the question.
December 12, 2009, 12:39 amSteve says:
Congress could pass a law that punishes a class of people, or that purports to punish on neutral criteria, but still have it be a bill of attainder, I think.
Well, yes, but you should check out the SeaRiver case, cited in Prof. Volokh’s post, for an example of just how much latitude exists to single out a particular corporation without saying so.
Of course, even though many people are acting as if the law singles out ACORN, it is actually extremely broad.
Yeah, here’s how “broad” the law is, straight from the court’s opinion:
Pretty “broad,” huh? The lesson is not to criticize a court’s opinion before you’ve at least glanced at it.
December 12, 2009, 12:42 amGuy says:
None of the funds made available by this joint resolution or any prior Act may be provided to the Association of Community Organizations for Reform Now (ACORN), or any of its affiliates, subsidiaries, or allied organizations.
Oh, duh, maybe if I’m looking for the text as passed, glancing at the opinion might be helpful to me as well. Thanks, Steve.
December 12, 2009, 1:04 amNoah says:
I completely agree with you. Take the Valdez example. It refers to the SET of ships that have spilled in excess of… and that is a SET that happens to contain only one member. However, if any other ship spilled, the set would include that ship too without prejudice to the first ship. By passing a law that names one company and says, in essence, this company is prohibited by law from working with the government, I think they are being overly specific and, as discussed, shouldn’t pass constitutional muster.
Another example was the attempt to regain the bonuses from AIG employees. It might be ok (though probably ill-advised) to pass a law that taxes bonuses of companies that the government has an ownership stake in at a higher rate – thereby defining a SET of companies that might comply, but to pass a bill that singled out AIG would be wrong.
December 12, 2009, 1:23 amShane says:
I think the Exxon Valdez case provides a useful starting point for analysis.
Exclusion from the sound is, prima facie, a reasonable response to a vessel being an increased risk.
The primary issues raised by the Exxon Valdez case are whether the Exxon Valdez is, in fact, an increased risk and who is to decide this. (A third issue raised is whether there are reasons for non-exclusion which outweigh the increased risk as a reason for exclusion. However, I put this issue to one side.)
Assume the owners have has taken note of their past failures, rewritten their policies, procedures and safety standards, reformed and, in fact, there is no increased risk. If this is the case then, objectively, the only purpose that the statute could have is to punish for past acts.
Now, subjectively, individual members of the legislature may have formed the view that there was an increased risk. They may have concluded, for example: “We are not convinced. We do not trust these people.” Or they may simply have reviewed the evidence and reach the conclusion for themselves that they are satisfied that there is an increased risk. So they voted for the bill.
The issue raised by the Bill of Attainder prohibition is whether the legislature is entitled to form this opinion.
Now, prima facie, there is nothing wrong with a legislature making judgments about risk. This is an important function of legislatures, something they are well placed to do and do often.
However, in cases where the Bill of Attainder prohibition would otherwise be infringed (because without it the statute would have no non-punitive purpose), the existence of increased risk is a jurisdictional fact.
If the existence of a jurisdictional fact (that is, a fact existence of which is a condition to the legislature having jurisdiction over the matter) is put in issue, a court must determine this issue for itself. The question is not whether there is evidence that could justify the legislature forming this opinion. If a court concludes that, as a matter of fact, the Exxon Valdez remains an increased risk, then the statute is valid. It has a legitimate non-punitive purpose. If the conclusion is the opposite, the statute is an unconstitutional bill of attainder.
As Prof Volokh recognizes, the Volokh Execution Act raises a complication for the analysis suggested by the Exxon case. As Prof Volokh points out, the Volokh Execution Act is a “classic” Bill of Attainder. To put it crudely, if it is the case that it is permissible to exclude the increased risk of the Exxon Valdez without contravening the prohibition on Bills of Attainder, it should also be possible to exclude the increased risk of Prof Volokh.
However, I would suggest that this simply means that the original understanding of Bills of Attainder was flawed, in that it failed to grasp the true nature of what would be prohibited. This is not to suggest that the classic prohibition does not apply – it is entirely possible that the original understanding has been incorporated in an “enlarged” meaning of the concept of a Bill of Attainder.
However, as a thought experiment, let us consider the Volokh Execution Act using the Exxon Valdez analysis.
The first point to be made is that the existence of a non-punitive basis for this Act must also depend on the existence of increased risk. In other words, the first hurdle that the legislature must get over is to establish that Prof Volokh, on the basis of things he has said and done, is, in fact, an increased risk of bad acts.
Next, it is clear that for the Act to have a non-punitive purpose, the remedy would have to be tailored to the increased risk. So in the absence of incorporation of the original understanding an order that Prof Volokh be executed for treason may be valid, on the basis that the increased risk of Prof Volokh committing treason in the future can only be excluded in this way.
However, before concluding that this must be so, it is necessary to consider the means that the legislature is entitled to use to exclude the increased risk. Is the legislature required to adopt the least restrictive means, subject to considerations of cost, for excluding the risk? Or is a legislature entitled to leeway in its choice of remedy, subject only to its response not being disproportionate?
This is the core issue raised by ACORN. I suggest that the rejection of the existence of a legitimate interest in investigating before further funds are provided (described as the government’s emergency rationale: page 13) was not justified: exclusion from funding is, prima facie, a reasonable response to an increased risk of funds not being properly spent in future. The legislature’s purpose of dealing with this risk is not lost simply because the same concerns could have been dealt with in a narrower way (eg using the other available mechanisms for investigation identified).
The finding of a legislative conclusion that misconduct had occurred I think focused too much on the subjective intent of (individual) legislators.
The issue of “singling out” is slightly more difficult. However, in the end I do not find the rejection of the existence of an exclusive class of one convincing. The legitimate reason for treating ACORN differently is: their conduct was their own and no-one elses.
December 12, 2009, 1:30 amMark N. says:
To make it concrete, do you think that the government could pass a law specifically excluding Eugene Volokh, by name, from eligibility for any federal research grants for which a researcher in his field would otherwise normally be eligible? It seems to me that that would fairly clearly be a Bill of Attainder, but by your argument it would not be.
December 12, 2009, 1:32 amAnon21 says:
Those who are loudly disagreeing with this decision would be well served to read the opinion before continuing their clamor. It’s not even especially long–only 21 pages. Judge Gershon addresses all the points which have been raised here, and as other commenters have pointed out, the Bill of Attainder Clause is a procedural limitation on the way in which government may accomplish punitive results. (Thus, the constitutional violation in Prof. Volokh’s example flows not from the fact that he is being executed, but rather from the fact of who is ordering the execution.) There is no issue of a “right” to federal funds here, merely a right to have one’s culpability and eligibility for funding determined by ordinary processes, both administrative and judicial.
December 12, 2009, 1:51 amTweets that mention The Volokh Conspiracy » Blog Archive » District Court Preliminarily Enjoins ACORN Defunding Law as a Bill of Attainder -- Topsy.com says:
[...] This post was mentioned on Twitter by Simon Dodd, Eugene Volokh. Eugene Volokh said: District Court Preliminarily Enjoins ACORN Defunding Law as a Bill of Attainder: The decision came today in Aco.. http://bit.ly/8F1kyk [...]
December 12, 2009, 2:01 amrpt says:
Details of these “convictions”?
December 12, 2009, 2:23 amrpt says:
Only on Fox.
December 12, 2009, 2:28 amJ. Aldridge says:
To be considered a bill of attainder yes they do. Declaring EV to be executed is a entirely different matter from a bill of attainder.
December 12, 2009, 2:39 amGuy says:
Yikes, I hope you at least agree such a law would violate the Due Process Clause. Which raises the further question- do you think this defunding might also violate due process?
Don’t you think it’s meaningless formalism to require an explicit declaration of a finding of guilt within the act? What purpose does the Bill of Attainder Clause serve if it is so easily circumvented?
December 12, 2009, 2:52 amAndrew says:
If Congress hires a sculptor to sculpt a sculpture, and Congress thinks the sculpture sucks, then obviously Congress should be able to exclude the sculptor from future contracts. How is ACORN different? This was a performance-based exclusion, not an exclusion based on extraneous factors.
December 12, 2009, 2:52 amLior says:
Andrew: say the sculptor sucks. Should Congress be able to deny him (and him alone) social security benefits?
@Twirlip, 10:52pm:
There is no argument that a law denying federal funding to “any organization with the following history of criminal behaviour: …” would be constitutional. That, for the moment, ACORN were the only such organization would not be an issue. However, the law explicitly treats organizations with the same criminal history as ACORN differently — since ACORN alone is to be denied funding. Even if ACORN were to be later acquitted of all charges, they wouldn’t become eligible for funding. As others have pointed out, you seem to imply that this denial of funding singles ACORN out due to their criminal behaviour. If so then it is a prime example of legislative determination of guilt and punishment, that is a bill of attainder.
December 12, 2009, 3:09 amAndrew says:
Lior, no, Congress could not deny social security benefits. Only future contracts, e.g. to sculpt.
Did Congress deny anyone at ACORN their social security benefits?
December 12, 2009, 3:12 amGuy says:
What’s obvious to you is somewhat less obvious to me. At any rate, as the Court stressed, the question of whether something is a bill of attainder is a very fact-bound question unique to each individual case. Your claim that this was a performance-based exclusion is open to debate as well; there already exist administrative procedures for determining who should get federal funding, and the government failed to explain why Congress found it necessary to depart from those procedures in this particular case.
December 12, 2009, 3:28 amLior says:
Andrew: “None of the funds made available by this joint resolution or any prior Act may be provided to the Association of Community Organizations for Reform Now (ACORN), or any of its affiliates, subsidiaries, or allied organizations.” Organizations don’t get social security, but they are eligible for other kinds of federal funds. This law doesn’t only make them ineligible for electoral work funding, or even for federal contracts — the wording makes ACORN ineligible to receive NSF research grants and TARP bailout funds, for example.
December 12, 2009, 3:33 amAndrew says:
Guy, it seems to me that Congress can give guidance to its art commission, if the elected representatives of the people find the sculpture revolting. It’s not about punishment; it’s about doing justice to the things being sculpted.
Lior, you make a distinction between electoral work funding and federal contracts on the one hand, versus NSF research grants and TARP bailout funds on the other hand. You may be correct to make such a distinction, but did the court make such a distinction?
December 12, 2009, 3:38 amGuy says:
I think it’s relevant, at least, that whether a sculpture is “revolting” is inherently subjective, and the question of to what degree is ACORN involved in wrongdoing is much less so. If they barred the sculptor because they believed he pocketed half of the funds and only used the other half of what they gave him to make the sculpture, that’s a much closer analogy to what happened here, and I think there’s a good case that that would be a bill of attainder.
As far as the “ugly statue” problem, I really doubt that Congress would take the time to pass such a narrow law over one ugly sculpture, and that’s a warning flag that something else might be up. You’ve unintentionally stacked the deck in this example by stipulating that they really are only concerned about an ugly sculpture. And even in your hypothetical, I suspect Congress would be able to make a more broadly applicable and less punitive fix to the problem, like requiring plans for the statue to be reviewed by a committee in advance. That they didn’t take that route wouldn’t necessarily prove punitive intent, but it would be another warning flag to raise the court’s suspicions.
December 12, 2009, 3:59 amAndrew says:
Guy, it’s certainly an interesting legal question. We’ll see what happens next. Incidentally, I think you’re underestimating the importance that a member of Congress attaches to a sculpture of himself or herself. :)
December 12, 2009, 4:05 amLior says:
Andrew: I was mainly responding to your argument about the sculptor. The ruling didn’t discuss the possibility that a more narrowly crafted law would be Constitutional. The reasoning seems to imply that any law applying specific punishments to ACORN would be unconstitutional, just like a law denying a particular named sculptor access to NEA funding.
The main precedent is US v. Lovett (1946). There an Act of Congress permanently prohibited any Federal funds from being used to pay a salary to thirty-nine named individuals (who had been accused of being communists), effectively barring them from federal employment. The Supreme Court ruled that this was an unconstitutional bill of attainder.
December 12, 2009, 4:13 amGuy says:
Andrew,
December 12, 2009, 4:27 amWell, if the law were only passed because of the agitations of a personally offended member of Congress, then I really do think you might have a bill of attainder on your hands. :)
Andrew says:
Lior, in Lovett, “The government agencies which had lawfully employed them were fully satisfied with the quality of their work….” In contrast, in this ACORN case, ACORN itself has been “acknowledging that it has made mistakes.” This seems like a big difference to me. Also, a person’s interest in his job (as in Lovett) seems a lot more like an entitlement than an interest in contracts that haven’t even been made yet (as in this case).
And, Guy, if the sculpture included a bust of the congresscritter immersed in some distasteful liquid, then perhaps more sympathy would be in order.
December 12, 2009, 4:33 amLior says:
It doesn’t matter that ACORN has made mistakes; Congress doesn’t have the authority to punish them for their mistakes. Congress can choose not to fund anyone who has been found to have made mistakes, but it cannot legislate to the effect that ACORN has made mistakes — that is a quintessential judicial action.
PS: Lovett specifically referred to the ineligibility for future employment beyond the loss of the existing one.
December 12, 2009, 4:56 amAndrew says:
Lior, the Senate rejects nominations all the time, but no one suggests that that amounts to any bill of attainder. Saying that someone is unqualified or that someone previously did a lousy job is not the same as accusing someone of a crime or other malfeasance. In Lovett, Congress said that a particular federal employee’s “writings constitute subversive activity.” That seems very different from what’s happened to ACORN.
December 12, 2009, 5:36 amBrett Bellmore says:
I don’t particularly like ACORN, but singling out a specific organization or person by name for some disadvantage, it seems to me, is unavoidably a bill of attainder. This wasn’t the usual “law of general application” carefully crafted to apply to only one instance, they actually NAMED ACORN.
December 12, 2009, 9:06 amNathan Wagner says:
Mark N,
Let us suppose that Eugene Volokh’s manifold sins and transgressions were published to the world, so that he became a stench in the nose of the public, and other researchers’ work could be dragged into disrepute as being “funded by the same program that supports Eugene Volokh.” The executive, taking Mr. Vololkh’s reputation into account, could cut off his funding. I don’t think anyone here has argued that point.
What the executive could not constitutionally do, however, is throw him in prison – however much public opinion may clamor for it. The difference is that Eugene Volokh has a constitutional right to due process but does not have a constitutional right to federal research funding.
So then we come to the legislative. A bill of attainder has two elements: it (1) names a specific person and (2) inflicts a punishment on that person without a judicial trial. It is the second element that causes me confusion. That which is untoward about a bill of attainder, it seems to me, is that it circumvents judicial due process. A bill denying research funding to that notorious public stench, Eugene Volokh, does not circumvent due process. No criminal punishment is inflicted upon him, and he is denied nothing that the executive may not in any case by its own discretion deny him.
Perhaps someone who has a solid handle on the precedents and clear up my confusion.
December 12, 2009, 10:03 amShelbyC says:
I’m not sure that’s true, I’d imagine that intent matters, no? I’d think a bill that says, “Jim’s plumbing shall get no government money because they have been guilty of fraud” would be a BofA, but would a bill that says, “Jim’s plumbing shall get no government money because they suck and paying them to do anything is basically the same as flushing money down the toilet”. IOW, if the intent is to use money more effictively and not to punish, is that a BofA? Now, I’m not sure which category covering your political backside falls under…
December 12, 2009, 10:33 amNoah says:
I suppose it is even broad enough that it might even deny ACORN the right to reasonable tax refunds if it qualified for any. I know it’s a non-profit, etc… but let’s suppose they were eligible for some sort of refund, that would be covered by “any prior Act” and ACORN alone would be denied those funds.
To continue the sculptor analogy, imagine if congress was so pissed about the sculpture he made that they denied him any future tax refunds who would otherwise have been entitled to. That’s getting into some seriously fascist type territory. (“If what you do doesn’t please the leadership then you will suffer…”)
December 12, 2009, 10:39 amCornellian says:
So then we come to the legislative. A bill of attainder has two elements: it (1) names a specific person and (2) inflicts a punishment on that person without a judicial trial. It is the second element that causes me confusion. That which is untoward about a bill of attainder, it seems to me, is that it circumvents judicial due process. A bill denying research funding to that notorious public stench, Eugene Volokh, does not circumvent due process. No criminal punishment is inflicted upon him, and he is denied nothing that the executive may not in any case by its own discretion deny him.
The punishment is that he is the only person in the country who is permanently ineligible for research funds for the “crime” of acting like Eugene Volokh. Every other person in the country can act exactly the same way Eugene Volokh did and still be eligible for research funds.
There is no valid comparison to the executive branch. There’s nothing unconstitutional about the President picking and choosing the people he likes for receipt of research funds. The check/balance on that behavior is that Congress can enact a statute restricting his discretion. Congress, in turn, is restricted by the Bill of Attainder clause.
December 12, 2009, 10:42 amNoah says:
Also, when the Senate rejects a nomination, that is not law. It is a separate function of the body, no? If the Senate passed a law saying “Harriet Miers cannot now, or ever, serve as a justice of the Supreme Court” it strikes me that would be crossing the Attainder line.
December 12, 2009, 10:44 amNathan Wagner says:
Thanks for the reply. My point in bringing in the executive was to show that he has no constitutional title to the funding, whereas he does have title to judicial due process. I understand that the proposed bill would inflict disadvantage on Eugene Volokh uniquely. That’s not where I’m hung up. My point is that the disadvantage inflicted does not deprive him of anything that can only ordinarily be taken away by judicial due process, as a “Eugene Volokh shall be executed” bill would certainly would.
In short, if a bill of attainder inflicts punishment without judicial trial, it seems to me that, to be a bill of attainder, the punishment in question must be of the kind which it ordinarily requires judicial trial to inflict. That’s where I’m hung up.
December 12, 2009, 11:19 amR. Richard Schweitzer says:
By what constitutional authority does Congress “fund” any non-governmental organization?
Presumably under the power to regulate commerce among the several states.
What are the limits on the discretion of Congress in the choices of means to exercise that power.
Are those limits violated when Congress chooses to abandon a prior choice of means?
Probably not.
R. Richard Schweitzer
December 12, 2009, 11:43 amSteve says:
If Congress hires a sculptor to sculpt a sculpture, and Congress thinks the sculpture sucks, then obviously Congress should be able to exclude the sculptor from future contracts.
The point is that Congress didn’t hire this particular sculptor, and isn’t merely seeking to cut it off from future contracts with Congress.
There is no dispute that Congress can decide who it gives earmarks to and who it doesn’t. But it can’t take one particular recipient of Executive Branch contracts and decide “sorry, we think this person sucks, so they can’t have any more Executive Branch contracts.”
December 12, 2009, 11:53 amNathan Wagner says:
In the case, the government did raise a point similar to my concern: that because funding eligibility is not Acorn’s by right, its denial to Acorn does not constitute punishment within the meaning of the Bill of Attainder clause.
The district court acknowledges that “neither the Supreme Court nor the Second Circuit has been faced with [...] a claim” that “the deprivation of the opportunity to apply for federal funds is ‘punitive’ within the meaning of the attainder clause.”
The court, however, follows a Florida district court in holding that such deprivation is punitive. And it reads Lovett as follows:
The latter not being theirs by right.
December 12, 2009, 12:56 pmAriel says:
Here’s another wrinkle. The OLC decided that ACORN could still receive HUD funding for preexisting law and contracts, notwithstanding the bill. The OLC’s reasoning would seem to apply to funding by other parts of the federal government as well. This reasoning would still deny new contracts to ACORN, but would require payment for any ongoing contracts and past ones. I think that makes it a little harder to argue it is a bill of attainder, even if it is still possible.
December 12, 2009, 1:24 pmChris Travers says:
My re-reading of the Defund ACORN Act suggests two things:
1) A plain reading of the bill suggests it is not a bill of attainder if read broadly. For example, if it bars any doctor who has EVER been convicted of inaccurate invoicing regarding Medicare services from any further reimbursements (whether the inaccuracy cost the government additional money or not), then it is not a bill of attainder as it is simply suggesting that the government would not do business with anyone who made ANY errors in invoicing.
2) On the other hand if it is interpreted as being subject to lax enforcement EXCEPT in the case of ACORN, then that is unconstitutional either as a bill of attainder or as another violation of due process.
December 12, 2009, 1:27 pmChris Travers says:
Hmmm… After reading this it doesn’t look like the Defund Acorn Act but rather the HUD appropriations resolution which does not do anything EXCEPT deny funding to ACORN. That seems like a clear bill of attainder to me.
December 12, 2009, 1:41 pmChris Travers says:
Nathan Wagoner:
Agreed. However consider section 163, which the OMB read as requiring, where possible, the suspension of existing contracts (and what is at issue here), which simply states, near the end of the year, that no funds appropriated in the past could be used to issue grants or other contracts to ACORN and the Defund ACORN Act which was clearly broader.
Section 163 is aimed directly at one organization with no justification other than the allegation, unsubstantiated by trial, of wrongdoing. It is thus equivalent to a bill forbidding Eugene Volokh from ever engaging in practising or teaching law on the basis that he might do bad things in the future, or worse still, lead his clients and students to subversive legal positions.
The Defund ACORN Act, on the other hand would have to be considered, IMO, clearly beyond the scope of the bills of attainder clause. Read strictly, it would ban any doctor who has ever issued a Medicare reimbursement form with the correct amount but incorrect billing code from EVER receiving any further Medicare-based reimbursement for services. It would also probably cause most current defence contractors to fold. If rigorously enforced against all indicated organizations, the act may be most unwise, but it is not a bill of attainder.
December 12, 2009, 2:08 pmShelbyC says:
Why not? As long as they’re trying to save money by limiting the exec’s discretion to hire someone thay sucks, and not to punish the guy for sucking, what’s the beef?
December 12, 2009, 2:10 pmChris Travers says:
Twirlip:
Ok. Two questions, assuming for the moment you are right:
1) What are the legitimate roles of Congress and the courts in finding?
December 12, 2009, 2:27 pm2) What are the legitimate roles of Contress and the courts in setting punishment?
Ryan Waxx says:
I’m of two minds of this.
Bills shouldn’t target named individuals or weasel around the problem by naming a “class” of one, where the definition of the class is not relevant to the consequences. So for example, because banning “vessels that have dumped X tons of oil” makes no rational sense EXCEPT as a way to single out a ship for “punishment”, therefore common sense would say that yes, that’s a bill of attainder.
So naming ACORN is right out, but I’m not so sure that naming a class that includes “any organization whose employees are caught on tape more than three times in a year instructing people on how to break the law” would be necessarily wrong, since the government presumably wouldn’t want to be hiring that kind of organization anyway.
I’m sure there are problems with the proposed above language… for example you’d want those tapes in a court of law to sniff out any problems with their provenance… but my point is that you’d have to make the requirements logically fit a non-punitive narrative, at the very least. This bill did not do that, hence the judge probably is in the right, at least in the realm of general principles.
On the other hand… isn’t defunding simply the opposite of earmarking? Why would one be legal, but not the other? Complaining that defunding steals power from the executive means nothing if the power to choose companies that recieve funds is stolen every time an earmark is written.
Hmm… maybe the judge is on to something bigger than even he realizes, if defunding AND earmarks are unconstitutional…
December 12, 2009, 2:32 pmChris Travers says:
ShelbyC:
Wouldn’t it depend on the argument behind why the sculptor sucks?
I.e. cutting off funding for Mapplethorpe’s works specifically because they are “obscene” (or even in bad taste if the court concluded that obscenity was really the concern) might be clearly a bill of attainder. But why would Congress seek to cut off funding to merely uninspiring art?
I would expect for excluding a sculptor from further contracts, it would require more than the fact that it might be uninspiring or mediocre.
December 12, 2009, 2:32 pmShelbyC says:
Agreed wrt obscene art. If Congress did, in fact, cut off funding for an artist doing “uninspiring” art it would be hard to argue that it was punative. But if they found an artist was consistantly defrauding the government, that seems like a trickier call. And that’s a little closer to the Acorn example.
December 12, 2009, 3:04 pmDespenser says:
Aside from the merits, did the Justice Department take a dive on this one? I haven’t read the pleadings, but it now occrs to me that the OLC opinion that the law is uncostitutional is a departure from normal OLC practice. Before a law is passed, they see constitutional problems. After a law has been passed and signed by the President, however, I understand that their proper role has been to identify an interpretation of the law that will best allow it to withstand judicial review.
December 12, 2009, 3:46 pmAndrew J. Lazarus says:
No, if they were, say Blackwater or Halliburton (both of which have committed, at the least, accounting frauds against the government, they would continue to operate without any comment outside the far left.
This might be a good time to mention that those ACORN pimp-ho videos were doctored with a fresh soundtrack.
December 12, 2009, 3:56 pmChris Travers says:
Despenser:
Did the OLC opinion read that the law was fundamentally unconstitutional? Or just that it would be unconstitutional to read it as interfering with existing contracts? Isn’t there a pretty big difference between those two?
December 12, 2009, 4:10 pmAndrew says:
Despenser, among other things the statute in question said that funds appropriated by the statute could not be used for future contracts with ACORN. My understanding is that OLC did not view that provision as an unconstitutional bill of attainder.
December 12, 2009, 4:11 pmMark N. says:
I read it as the opposite— an attempt by the OLC to save the law’s constitutionality by interpreting it to avoid some of the more likely pitfalls (abrogating existing contracts, even those where the work was already performed, would be easier to portray as punishment, so the OLC interprets the law to apply only to future contracts).
December 12, 2009, 4:59 pmrpt says:
Still waiting to hear about all of those “convictions”.
December 12, 2009, 5:49 pmgracchus says:
rpt is Still waiting to hear about all of those “convictions”.
There have been convictions against ACORN and/or its workers in a number of states related to voter registration. WA and MO come to mind. I believe there have been others. There have been no prosecutions associated with the recent prostitution-related stings
December 12, 2009, 6:21 pmSteverino says:
A) why isn’t it a bill of attainder for the Federal government as well as states to shut off support in order to punish the Boy Scouts without benefit of a judicial trial, merely becaus the Boy Scouts exercised their Constitutional rights? They were never convicted of anything either.
B) You know what I want for Christmas? A Constitution that recognizes I have more of a vested in interest in keeping the money that I earn than Obama and Pelosi’s cronies have in getting it.
The old US Consitution, not the new Venezualan one.
Naw, ain’t gonna happen this term.
December 12, 2009, 8:05 pmSteverino says:
I need to correct my last post. I meant states only, not the federal government. I realize the federal government cut off support because the ACLU sued. But in the intervening period between the Supreme Court ruling that the scouts could exclude homosexuals and the Bush administration passing numerous protections for the scouts such as cutting off federal funding of state schools if they barred the Boy Scouts from using those facilities, several states took such actions.
And many states, in order to qualify for funding, have allowed the Boy Scouts back in a limited way, but nothing like the support they had provided. Specifically due to the Boy Scouts stance on homosexuality.
So again, why is it not a bill of attainder for states to single out the Boy Scouts for punishment. Would it be legal, and not a bill of attainder, if the federal government simply told ACORN that it was only going to get a quarter of the money it thought it was going to get?
December 12, 2009, 8:21 pmGuy says:
Were these actions legislative acts? Did the acts mention the Boy Scouts by name? Or did they apply evenly to all organizations which discriminate on the basis of sexual orientation (or religion; if I recall, atheists aren’t allowed to be boy scouts)? Did the law permit the Boy Scouts to retain access if they renounced their discriminatory policies? These are all relevant questions, I think.
December 12, 2009, 9:51 pmrpt says:
Still waiting for that proof. Nothing.
“Said CCR Legal Director Bill Quigley: “We are used to seeing political grandstanding in Congress, but when it crosses the line into violating the Constitution, it has to stop. Big banks, pharmaceutical companies and private government contractors that have skirted the law are rewarded with bailouts, tax credits and billions of dollars in new contracts. Companies with multiple criminal convictions remain in favor, while Congress, without a shred of due process, joined in the scapegoating of an organization that helps average Americans going through hard times to get homes, pay their taxes, and vote. Who’s next?”
Since the vote to temporarily ban all federal funds from ACORN and its affiliates, related organizations have suffered. For example, in an affidavit filed in today’s lawsuit, an ACORN affiliate wholly separate from the national organization charges it has been unfairly affected. The organization, ACORN Institute (AI), had grants pending to provide computer training, asthma education, tax preparation and GED classes, among other programs. The affidavit avers that no grant the organization has received and administrated “has ever even allegedly involved any misconduct, misappropriation, fraud or other illegal conduct. AI has never been indicted nor convicted of any crime, nor…has any AI employee ever been indicted or convicted of a crime in conjunction with any work they have done for AI. AI has never been denied any grant from any federal agency due to fraud or other alleged misconduct.”
December 13, 2009, 12:27 amrpt says:
Just in case Jim (no comment) Lindgren or Jonathan Adler are checking in, “Climate-gate” is just as bogus as “Acorn-gate”:
“updated 9:18 a.m. PT, Sat., Dec . 12, 2009
LONDON – E-mails stolen from climate scientists show they stonewalled skeptics and discussed hiding data — but the messages don’t support claims that the science of global warming was faked, according to an exhaustive review by The Associated Press.
The 1,073 e-mails examined by the AP show that scientists harbored private doubts, however slight and fleeting, even as they told the world they were certain about climate change. However, the exchanges don’t undercut the vast body of evidence showing the world is warming because of man-made greenhouse gas emissions.”
December 13, 2009, 12:35 amBrian G. says:
Google is not hard to use. Deliberate ignorance as a debate tactic is not impressive.
December 13, 2009, 1:14 amAndrew J. Lazarus says:
If Google is so easy to use, use it yourself and make rpt look bad. I try to do that all the time.
December 13, 2009, 1:27 amreadery says:
Virtually no distinctions are perfectly clear. I don’t think this one is any more unworkable than many.
It seems to me, for example, that if Congress simply terminated a contract, that would be an ordinary management decision. People terminate contracts for poor performance all the time, and that’s simply business rather than punishment.
On the other hand, if Congress barred ACORN from ever participating in future government contracts (or even for a substantial period of time), that would seem more in the nature of punishment than a management decision. Burning bridges is different from simply ceasing to do business.
That’s my take, but another take is possible. It’s not a perfectly objective decision. But that’s OK. Many decisions in the Constitution aren’t perfectly objective decisions. So long as the courts are giving a reasonable, non-open-ended meaning that atempts to make sense of the constitution’s provisions, the fact they have to make a judgment call somestimes is part of the job.
December 13, 2009, 1:28 amGuy says:
I’ve used Google and found nothing saying that ACORN has been convicted of anything so far. They’ve been indicted, but, as they say, you can indict a ham sandwich. Some of their low-level employees have been convicted of crimes, but if that’s the standard, then every major corporation in the world is corrupt (well, okay, some would argue they are, but that’s beside the point).
December 13, 2009, 1:55 amDerHahn says:
Can you tell me how …Congress can enact a statute restricting his discretion. is different from the language a courts has just ruled is a Bill of Attainder?
December 13, 2009, 9:24 amuberVU - social comments says:
Social comments and analytics for this post…
This post was mentioned on Twitter by ExSimon: ACORN funding blocked as a bill of attainder: http://bit.ly/923fva. Intriguing….
December 13, 2009, 10:31 amrpt says:
That’s why I used it and found affirmative evidence that there are no convictions. This means I have made the prima facie case, and that now, going on day three, no one has found or cited to any conviction anywhere. If they’re out there, you have to find them.
December 13, 2009, 10:57 amChris Travers says:
Steverino:
Please provide concrete examples of bills as well as legislative history. The opinion at issue here suggests these things are very fact-centric and depend on the intent of the legislature, the function of the bill, and the nature of the bill. Merely an effect that denies funding to a group is not a bill of attainder.
Similarly when looking at the cases where social security benefits were denied to deported communists, the court ruled that was NOT a bill of attainder because the issue of communism was incidental to the legislative history and function of the bill (which denied social security benefits to certain groups of deportees).
If the bill says “we will not issue grants to organizations which discriminate against homosexuals” that is not a bill of attainder. If a bill says “We will not issue grants to the BSA because they discriminate against homosexuals” then that might be, if legislative or functional analysis supported it. At least that is what I got from reading the opinion.
December 13, 2009, 12:15 pmSteverino says:
Well, actually I can’t. All the state actions I referred to were administrative actions and not legislative. I hope you’ll accept the fact that the USSC decided Boy Scouts of America v Dale in 2000 and the fact that Bush signed into law in 2001 a bill barring federal funding from, among other things, departments of education that discriminated against the Boy Scouts as evidence that discrimanation had occurred.
I realize I’m out of place on this forum. I’m not an attorney. I’m interested in how valid a decision may or may not be, but I’m primarily interested in end results.
It seems quite obvious to me that a government can achieve the same result in a variety of ways. Look at the recent EPA announcement since Congress hadn’t acted on global warming, they were going to step in and issue their own set of draconian regulations. And as one White House source told Major Garret, “And it is not going to be able to regulate on a market-based way, so it’s going to have to regulate in a command-and-control way, which will probably generate even more uncertainty.”
Regulations have the force of law. The recent announcement by the White House, r.e. the EPA, tells me that legislative action is increasingly optional.
So you guys tell me, is discrimination via executive branch regulation an effective way of evading the prohibition against bills of attainder?
Does the fact that the legislature is supposed to provide oversight over these agencies make their regulations a legislative act?
I ask that because Professor Kerr, in his attempt to present the argument for health care mandates, argued that the commerce clause allows Congress to regulate both economic activity and inactivity. So, does the same apply here? If an executive branch agency issues regulations that discriminate against a specific organization based on viewpoint, and the legislature that oversees it and funds it allows it to take that action with full knowledge that it is doing so, does that not mean they approve of the action?
I suspect the answer is that, no, regulations don’t consitute illegal bills of attainder. And, despite the fact Congress wrote into law a bill defunding agencies that discriminated against the Boy Scouts which Bush signed, the fact that they choose not to act in other cases does not mean that the courts will find they approved in those cases they chose not to act.
In which case, it’s time to execute my escape plan to an unspecified Carribean tax haven. Because I can read the writing on the wall. If Congress doesn’t pass one economy-killing bill after another, the administration will do so in a “command-and-control way” that promises to “generate even more uncertainty” than the proposed legislation.
We finally have Cook County-style government nationwide. I suspect that the consensus here is that it is all perfectly legal.
December 13, 2009, 5:33 pmGuy says:
Congress can’t enact any statute restricting his discretion, such a statute must not run afoul of the Bill of Attainder Clause, or any other Constitutional provision. If they told the President he couldn’t hire anyone who had ever been convicted of a crime, that would be okay.
Steverino, by definition, only legislative acts can be Bills of Attainder, it’s more of a procedural safeguard than a substantive one. Administrative decisions are still restricted by the Due Process Clause, but a general policy of preventing funding to groups that discriminate on the basis of sexual orientation is likely to be Constitutional. I’m not aware that the Boy Scouts have been singled out in an unfair way on this issue.
December 13, 2009, 7:46 pmSammy Finkelman says:
so there – it’s not a Bill of attainder. The question of a Bill of attainder I think, by the way, revolves around the question of whether you are imposing a LEGAL DISABILITY upon some person – or corporation – or if you are exercising a discretion you normally are allowed to exercise.
December 13, 2009, 8:03 pmNoah says:
Read the decision (or the rest of the comment thread) – the decision cites the following passage as being the problem:
December 13, 2009, 8:20 pmrpt says:
Another day goes by without anyone here citing any actual conviction of any ACORN entity or person anywhere. Ho hum.
December 13, 2009, 8:37 pmShelbyC says:
did you try googling “acorn conviction election fraud”?
December 14, 2009, 9:00 amChris Travers says:
Twirlip and Sammy:
I agree that that act is not a bill of attainder, but it is not the act in question in this lawsuit.
December 14, 2009, 11:38 amRPT says:
Ah, but the real question is, did you? I provided an undisputed reference that there were no convictions. I am not required to do the work of those who argue otherwise. You, not me, have the burden of proof, and it is pretty obvious that by trying to throw it back on me that I have prevailed. End of discussion.
December 14, 2009, 2:06 pmShelbyC says:
Prevailed over what? I had no idea if anybody had been convicted or not until I read your last post and ran my google search. The first hit is here. There’s a cnn article here. I’m not sure I understand your position. If your goal is to find out whether or not anybody from acorn has been convicted of fraud, it’s probably faster to google.
December 14, 2009, 4:24 pmAndrew J. Lazarus says:
I think the question is whether ACORN, the corporate entity, has ever been convicted of fraud, and AFAICT the answer as of this moment is No. Individual employees of any number of companies have been convicted of fraud (Think Iraq Reconstruction) without their employers as an entity being cut off by Congress.
December 14, 2009, 8:54 pmrpt says:
Shelby has found 1, yes 1, yes, only 1, former ACORN employee convicted of a minor offense. That’s it. Thank you.
December 14, 2009, 11:26 pmRAP says:
What gives ACORN standing to challenge this law?
Suppose Congress passed a law ordering troops into Cuba; would Cuba have standing to challenge it?
I think not. I think the ONLY person with the appropriate standing would be POTUS, since it is his role as CIC to decide where we send troops. If POTUS decided to comply and send troops into Cuba, could Cuba sue to have them removed claiming that Congress had no authority to pass such a law? I can see it now, POTUS argues that he WANTS to send troops into Cuba, but the court says he can’t because of the unconctitutional law ordering him to do so.
If the executive branch doesn’t want to enforce the law passed by Congress, if they think it is unconstitional, it is up to them to challenge it. ACORN has no standing to challenge the law if the executive branch WANTS to follow its directive. By this ruling, is the judge seriously saying that the executive branch is PRECLUDED from pulling funding from ACORN even if they want to?
As we have seen in the “taking of private property for governmental use” case, even SCOTUS can torture the Constitution to the point that it is rendered meaningless; seriously, did the founders really have in mind that government could take someone’s private property (“fairly compensated”, of course …. LOL), and sell it to another private party because the second private party promises to use it in a way that will result in higher taxes?. IMHO, that is EXACTLY what the founders were trying to prevent, favoring one private party over another, and yet SCOTUS ruled otherwise.
Just because this federal judge ruled the way he did doesn’t mean it is a proper ruling. However, I wonder if the administration will appeal it, or let it stand because it is really what they want.
Finally, if SCOTUS were to uphold the ruling, that makes it the “law of the land”, but it doesn’t mean that it was a proper ruling in accordance with Constituional guidelines. We accept it because we have to and that is how our system works, but don’t tell me that Dems accept that SCOTUS ruled properly in Gore v. Bush.
RAP
PS: IMHO, our Constitution used to REALLY mean something. Now, I believe “progressive” thinking has turned it into just a bunch of suggestions subject to political whim.
December 18, 2009, 12:23 pmJohn David Galt says:
Is this the same legal reasoning that allows a guy’s civil right to own guns to be revoked under the so-called Violence Against Women Act without even an accusation that he’s done anything wrong, merely because a woman says “I’m scared of him”?
Pardon my French, but the founders were total dimwits not to realize that they needed to write a definition of “due process” to prevent travesties such as that.
August 19, 2010, 6:09 pm