The AP reports:
The government has asked a federal judge to let it cut ACORN’s funding, saying a report commissioned by the embattled community activist reinforces Congress’ concern about misuse of federal funds.In papers filed Wednesday in U.S. District Court in Brooklyn, government lawyers sought a reversal of Judge Nina Gershon’s ruling last week that the government’s cutoff of ACORN funding was unconstitutional.
Gershon said ACORN was punished by Congress without “judicial, or even administrative, process adjudicating guilt.”
The Hill has more. Eugene posted on the district court ruling here.
Hans says:
Appealing makes sense because the Justice Department is supposed to defend federal laws that have a plausible legal defense, and legal scholars, including former Justice Department attorneys, have said that the law is constitutional.
Congress passed a law to cut off federal funds to scandal-plagued ACORN, after it was caught on videos promoting mortgage fraud in federally-insured mortgages, and child prostitution.
Even apart from Congress’s recent legislation, ACORN’s funds should have been cut off based on federal statutes debarring contractors who engage in fraud against the taxpayers.
ACORN, more than any other single organization, helped spawn the financial crisis and mortgage meltdown through promoting liar loans and getting government officials to impose politically-correct “affordable housing” mandates on the GSEs and others.
ACORN is a left-wing group that launched Obama’s career as a community organizer. (ACORN stands for Association of Community Organizations for Reform Now).
One wonders whether the Obama Justice Department will really mount a sufficiently vigorous defense of the law: Obama has long-standing ties to ACORN, and an ACORN affiliate received received $800,000 from Obama’s campaign.
It is easy to see why Congress would not want scarce federal funds to go to ACORN, which has a long history of terrible financial mismanagement, waste, financial fraud, voter registration fraud, and tax evasion. Congress had many legitimate, non-punitive reasons for cutting off funds to ACORN.
ACORN is currently challenging Congress’s action to cut off federal funds in a lawsuit brought by the radically left-wing Center for Constitutional Rights (CCR). CCR’s founder was very open about the fact that he did not believe in constitutional rights or civil liberties, except insofar as they could be used as a tool to bring down capitalist societies.
But whether or not Congress’s recent action is constitutional, there is no doubt that other statutory provisions allowing cut-offs of funds to government contractors guilty of fraud against the taxpayers are perfectly constitutional. As the Examiner notes, the Administration should have considered used those existing remedies to cut off funds to ACORN, even in the absence of Congressional action.
December 19, 2009, 1:22 pmSteve says:
This is a motion for reconsideration, I take it? It’s hard to see how they could prevail, no matter how damning the new facts are that they’ve uncovered from ACORN’s internal review, since there still wasn’t any adjudicative process. In other words, if the Volokh Execution Law is overturned as a bill of attainder, it’s not a good argument to say “here are a bunch of facts showing that Volokh really deserves to be executed.”
I wonder if DOJ will go so far as to take the case up to the Second Circuit. Hard to imagine they’re thrilled to be defending this law at all.
December 19, 2009, 1:24 pmHans says:
My comment above made a number of points, but did not contain links to supporting sources for most of them.
Here is a link to a longer version of my comment above, which in turn contains links to supporting sources.
December 19, 2009, 1:30 pmChris Travers says:
In other words, we are reminded that we do, in fact, have an adversarial system and that the justice department will try to defend as best, as best as they ethically can, unconstitutional laws.
Wow… I had almost forgotten that….
December 19, 2009, 1:34 pmneurodoc says:
So, Congress votes to cut off all funding of a private organization and DOJ must defend that action in the courts no matter if the Administration is on board with it and DOJ thinks the law isn’t there? Is DOJ compelled to defend Congress’ action in the courts or is it just a tradition and what Congress will do with DOJ’s funding if it doesn’t do so?
I suppose that if DOJ defends a Congressional undertaking in the courts, then it is obliged to do its most professional job no matter what their druthers might be. (Does Congress ever sent its own lawyers to court on its behalf? Did they do so when challenging the search of then Congressman Jefferson’s office? DOJ couldn’t represent Congress in that one, right, since it was Congress facing off with the Executive.)
December 19, 2009, 1:50 pmLior says:
The court found an act of Congress to be a bill of attainder, and the DOJ’s argument on appeal is “but they really are guilty, your honour”? This could only serve to bolster ACORN’s position.
December 19, 2009, 1:59 pmSoronel Haetir says:
Given that Obama signed the thing I’m not sure I would go so far as to say the administration is not on board with this move. They may well see it as a matter of needing to keep acorn affiliations out of the news for awhile. The fences can be mended later or new organizations formed to take over the work.
December 19, 2009, 2:07 pmHans says:
Interestingly, ACORN’s lawsuit is brought by the radically left-wing Center for Constitutional Rights (CCR). CCR’s founder, William Kunstler, was very open about the fact that he did not believe in constitutional rights or civil liberties, except insofar as they could be used as a tool to bring down capitalist societies.
A classic example was his attitude towards dissidents in South Vietnam. Many of these dissidents were liberals who had once criticized the U.S.-backed South Vietnamese government. After communist North Vietnam conquered South Vietnam, the dissidents began politely criticizing the human-rights abuses of the new government. They were promptly sent to re-education camps, where they were starved or tortured to death. The new Communist government turned out to be far crueler than the old right-wing government, which had at least allowed dissidents to live.
When some liberals, like Joan Baez, criticized this oppression against dissidents they had once worked with, William Kunstler refused to do so, saying that once a communist regime took power, he was not in favor of criticizing it for any human-rights abuses it committed. Kunstler said, “I don’t believe in criticizing socialist governments publicly, even if there are human-rights violations.” To Kunstler, civil liberties were just a tool to be used to bring down capitalist governments and pave the way for a communist “dictatorship of the proletariat.” Once such a dictatorship was in power, there was no more need for civil liberties or individual freedoms of any kind, since individual freedom could only prove an obstacle to the socialist transformation of society.
December 19, 2009, 2:19 pmChris Travers says:
After reading both links, this filing is laughable.
It seems that the DOJ is asking the judge to re-evaluate whether it is, as a matter of law, a bill of attainder on the basis of whether ACORN has, as a matter of fact, engaged in acts to suggest it should be punished. (I don’t have an opinion of ACORN, but I do have an opinion on this legislation’s constitutionality.)
This is pounding on the table, and I can’t believe that the DoJ would advance such an argument. I thought they were more professional than that.
Honestly, while not QUITE in the same league, it reminds me of that filing for reconsideration in that birther suit where the substance of the objection was “your past decision amounts to treason, your honor.”
December 19, 2009, 2:21 pmHans says:
Interestingly, ACORN’s lawsuit was brought by the left-wing Center for Constitutional Rights (CCR). CCR’s founder, William Kunstler, was very open about the fact that he did not believe in constitutional rights or civil liberties, except insofar as they could be used as a tool to bring down capitalist societies.
A classic example was his indifferent attitude towards dissidents in South Vietnam. Many of these dissidents were liberals who had once criticized the U.S.-backed South Vietnamese government. After communist North Vietnam conquered South Vietnam, the dissidents began politely criticizing the human-rights abuses of the new government. They were promptly sent to re-education camps, where they were starved or tortured to death. The new Communist government turned out to be far crueler than the old right-wing government, which had at least allowed dissidents to live.
When some liberals, like Joan Baez, criticized this oppression against dissidents they had once worked with, William Kunstler refused to do so, saying that once a communist regime took power, he was not in favor of criticizing it for any human-rights abuses it committed. Kunstler said, “I don’t believe in criticizing socialist governments publicly, even if there are human-rights violations.” To Kunstler, civil liberties were just a tool to be used to bring down capitalist governments and pave the way for a communist “dictatorship of the proletariat.” Once such a dictatorship was in power, there was no more need for civil liberties or individual freedoms of any kind, since individual freedom could only prove an obstacle to the socialist transformation of society.
December 19, 2009, 2:26 pmRyan Waxx says:
Oh, but they are more professional than that. If you see someone who is intentionally spiking a play that would hinder their boss had it succeeded, why be surprised at all?
December 19, 2009, 2:50 pmGuy says:
Once again confirming that an “activist judge” is defined to be any judge who decides a case contrary to the speaker’s wishes.
December 19, 2009, 3:00 pmArthurKirkland says:
Unless those seeking to excommunicate ACORN exhibit similar outrage concerning Blackwater, KBR and other opprobrious government contractors, it will be difficult to accept the objections to ACORN as anything other than petty right-wing partisanship masquerading as high-minded concern about public funds and propriety.
So far, most of them are failing miserably.
December 19, 2009, 3:05 pmRyan Waxx says:
Yeah, anyone who doesn’t agree with ArthurKirkland’s personal list of right-wing villains needs to shut right up, cause you’re dishonest and hypocritical and… stuff!
December 19, 2009, 3:08 pmSG says:
Unless those seeking to excommunicate ACORN exhibit similar outrage concerning Blackwater, KBR and other opprobrious government contractors, it will be difficult to accept the objections to ACORN as anything other than petty right-wing partisanship masquerading as high-minded concern about public funds and propriety.
Not exactly. I’d like to see ACORN not receive any of my tax dollars and I don’t have the same clevel oncern about Blackwater, KBR, etc – irrespective of the respective scandals, I see some value in the services the latter are contracted to provide whereas I don’t see much value in what ACORN is supposed to be providing – but if you could get the Congressional votes to defund Blackwter et al, I wouldn’t claim that it’s unconstitutional.
I think Congress not only has the right, they have the duty to exercise discretion in their discretionary spending.
December 19, 2009, 4:09 pmBT says:
Mr. Kirkland when did Blackwater, et al., register fake voters in any number of states, and possibly in the case of Al Franken, dummy up enough votes to throw an election? I am all for holding the Blackwaters of the world accountable for any wrong doing committed. It would be nice if those on your side would demand the same for the organizations that push a “progressive” agenda.
December 19, 2009, 4:12 pmzuch says:
“Who are you and what did you do with Barack Obama?” <*peels off Obama mask*> Ctheney appears….
If we wanted another Dubya-esque maladministration, we would have voted for McSame/Palin.
Cheers,
December 19, 2009, 4:52 pmArthurKirkland says:
Many government contractors appear to have engaged in fraud and other egregious misconduct — from grotesque overbilling and fatal underdelivering to weapons-smuggling and tax fraud, perhaps to the extent of war crimes — involving government contracts.
An ostensible argument against ACORN is that “ACORN’s funds should have been cut off based on federal statutes debarring contractors who engage in fraud against the taxpayers.”
I am not proposing that anyone be muzzled, as Ryan mistakenly implies. I am proposing that partisan swipes not be marketed as good-government outrage. And that standards be applied consistently.
By the way, if anyone is genuinely outraged about election misconduct, I expect to see ACORN mentioned in tandem with the Republican National Committee — which, I believe, is still the subject of a federal court consent decree associated with the RNC’s longstanding pattern of unlawful election-related conduct.
December 19, 2009, 5:06 pmRobert says:
I can see how passing a law barring the government from funding ACORN with funds already appropriated for organizations like it (for crimes in the past), can be interpreted as a bill of attainder.
If Congress decides not to fund ACORN for the next fiscal year, shouldn’t that be within Congress’s power to tax and spend?
December 19, 2009, 6:12 pmdave h says:
My question is: what is the proper method for defunding a group that is engaged in fraud (suppose for the moment that ACORN is in fact guilty of fraud or something equally heinous)? Or is the argument that congress has no oversight on the groups it funds?
December 19, 2009, 6:14 pmGuy says:
Pass a law saying that groups that have been convicted of fraud can’t get funds, or delegate the appropriate authority for making those determinations to the executive (which I believe they already have).
December 19, 2009, 6:17 pmArthurKirkland says:
Not 10 percent of the legislators who voted against ACORN would get within 100 feet of that legislation.
Ask them why.
December 19, 2009, 6:25 pmGuy says:
I know, defund Lockheed Martin? That’ll happen.
December 19, 2009, 6:28 pmJustice Department Seeks to Reverse ACORN Ruling | Liberal Whoppers says:
[...] more: Justice Department Seeks to Reverse ACORN Ruling Share this [...]
December 19, 2009, 7:08 pmChris Travers says:
SG:
Constitutional or not:
“Whereas Blackwater has not provided adequate safeguards against the participation of its employees in war crimes in Iraq, neither that company nor any successors in interest may apply for any contracts with the Federal Government from this day forward.”
Or what about:
“Whereas Blackwater employees are generally seen by many Iraqis a war criminals, and whereby we have an interest in maintaining a professional image in the reconstruction of Iraq, Blackwater and any successors in interest are hereby barred from any and all contracts with the federal government from ths day forward and all current contracts with them must be terminated immediately.”
Would it make a difference if the majority of Congressmen who proposed and voted for such wording said it was necessary for us to restore confidence in the US forces by the Iraqis and not one of them mentioned it as punishment?
I would actually think a better argument could be advanced here that such would not be a bill of attainder but would still suggest that if it was passed the courts should carefully review it and apply a fair analysis.
December 19, 2009, 7:36 pmSteve says:
My question is: what is the proper method for defunding a group that is engaged in fraud (suppose for the moment that ACORN is in fact guilty of fraud or something equally heinous)? Or is the argument that congress has no oversight on the groups it funds?
Only about 1 percent of federal funding is directly allocated by Congress – those pesky little things called earmarks. Congress doesn’t have to earmark ACORN a penny if it doesn’t want to, and no one is claiming it has to.
For funds that are allocated by the Executive Branch – say, defense funds parceled out by the Pentagon – there is a pretty rigorous system of federal contracting. There is a process by which allegations of fraud get investigated and contracts get cut off. And of course, folks who defraud the federal government may get prosecuted as well. Even contractors who don’t commit fraud may get cut off from future contracts for a wide variety of reasons; there are lots and lots of companies that apply for federal funding and don’t get it, and no one claims it is a bill of attainder as long as the Executive Branch makes the decision.
One of the problems with the ACORN legislation is that it arguably requires the federal government to default on contracts with ACORN that already exist – which could, of course, subject the government to quite a bit of liability and legal expense. In that sense, the law is somewhat similar to your local city council mandating that a big cross go up in front of city hall, leading to half the town budget being squandered on litigation with the ACLU. Ah, but the city council members all get reelected, that’s what matters!
December 19, 2009, 8:17 pmSG says:
Chris Travers:
Both of your proposed wordings strike me as constitutional. Congress, when spending the People’s money, has an obligation to consider the political impact of their funding. Receiving funding from the public is not a right, it is a privilege. Being denied such funding is not a punishment. This strikes me as a far lower hurdle than having your driver’s license revoked due to failure to submit to a breathalyzer, and that’s been upheld.
With one caveat: The current Congress can not bind a future Congress. They can create a presumption, but a future Congress remains free to overturn any such legislation, whether the subject is ACORN, Blackwater or whomever.
I don’t find fault ACORN for seeking judicial review; such is their right. I do find fault the ruling that held this to be a bill of attainder. How can discretionary spending not be subject to discretion?
December 19, 2009, 8:18 pmSteve says:
Would it make a difference if the majority of Congressmen who proposed and voted for such wording said it was necessary for us to restore confidence in the US forces by the Iraqis and not one of them mentioned it as punishment?
You would have a dual concern here: not only is Congress telling the Executive Branch who it can’t do business with based upon its own determination of who’s a bad guy, but Congress is also telling the Executive Branch how to conduct foreign policy. But generally speaking, it does make a difference if Congress has a legitimate purpose other than punishing a perceived bad guy.
December 19, 2009, 8:19 pmSteve says:
How can discretionary spending not be subject to discretion?
It is subject to the Executive Branch’s discretion, pursuant to the standard contracting process. If it were a Congressional earmark, of course Congress could exercise unfettered discretion.
December 19, 2009, 8:20 pmSG says:
It is subject to the Executive Branch’s discretion, pursuant to the standard contracting process.
I don’t believe that’s true. Didn’t someone (Nixon?) try to implement a back-door line item veto by refusing to spend the money Congress allocated and get shut down?
December 19, 2009, 8:40 pmSG says:
Congress is also telling the Executive Branch how to conduct foreign policy.
I thought it was well accepted that Congress could use it’s power of the purse to tell the executive branch how to conduct foreign policy. For example, can’t Congress refuse to fund military operations? Or on a slight tangent, can’t they keep active military programs that the Executive & DoD say they don’t want?
It really seems like the rule you’re promulgating is that money can always be spent but can never be saved. Is this what you want? Is this what you honestly believe the Constitution requires?
December 19, 2009, 8:44 pmChris Travers says:
SG:
If finding that all discretionary funding would be a privilege, what about, say, cutting Communist Party members off from Social Security payments? Would that be within Congress’s power?
December 19, 2009, 8:53 pmChris Travers says:
Steve:
I would think that a bill barring, say, Blackwater from ever applying for contracts again until such a law would be repealed could be read as fundamentally punative. Scoping it down to “Contracts for work in Iraq” might be legitimate though.
Bills have a strange way of staying on the books far longer than they can actually be enforced. Heck, we still have the Smith Act on the books as it was written prior to Yates, so if one just reads the statute, it sounds like it is a crime to say “it might be a good idea to think about another revolution.”
December 19, 2009, 8:58 pmSG says:
If finding that all discretionary funding would be a privilege, what about, say, cutting Communist Party members off from Social Security payments? Would that be within Congress’s power?
You have a category error – Social Security spending is not discretionary, it’s an entitlement. I would agree that denying entitlements would be a punishment, but that’s not what’s under discussion here.
December 19, 2009, 8:59 pmrpt says:
Thank you, Mr. Press Release. ACORN rules the financial world. A new low for Hans.
December 19, 2009, 10:06 pmrpt says:
Are you aware that the Coleman Franken case was actually litigated for six months, and Coleman lost?
December 19, 2009, 10:10 pmrpt says:
December 19, 2009, 10:13 pmSteve says:
Didn’t someone (Nixon?) try to implement a back-door line item veto by refusing to spend the money Congress allocated and get shut down?
If Congress earmarks funds for a particular recipient, the Executive Branch can’t just ignore it. Different situation. The vast majority of funds appropriated by Congress are not earmarked.
I thought it was well accepted that Congress could use it’s power of the purse to tell the executive branch how to conduct foreign policy. For example, can’t Congress refuse to fund military operations? Or on a slight tangent, can’t they keep active military programs that the Executive & DoD say they don’t want?
In very limited ways, Congress has a say, sure. Not all of the boundaries are firmly defined, but there definitely comes a point at which Congressional micromanagement of foreign policy butts up against the President’s prerogatives. “We insist you defund this organization because they’re embarrassing us and hurting the war effort”? A gray area, surely.
I would think that a bill barring, say, Blackwater from ever applying for contracts again until such a law would be repealed could be read as fundamentally punative. Scoping it down to “Contracts for work in Iraq” might be legitimate though.
The court’s analysis in this ACORN case is detailed and pretty instructive. You’re allowed to look at the legislative history and the overall context. You don’t just have to guess.
December 19, 2009, 10:39 pmTweets that mention The Volokh Conspiracy » Blog Archive » Justice Department Seeks to Reverse ACORN Ruling -- Topsy.com says:
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December 19, 2009, 10:45 pmGuy says:
I’m always skeptical of arguments that make this distinction, the law is actually much squishier than that, and no clear distinction between those two categories exists. The Supreme Court has held that what matters is not whether a right is implicated, but whether the law is intended to have a punitive effect.
Under the Equal Protection Clause, a “class of one” is grounds for a claim, and the government’s authority is at a nadir when the law is motivated by a bare desire to harm the affected class. I know that’s a different clause, but the Bill of Attainder Clause is really just a special point at the core of the intersection between due process and equal protection.
Anyway, the idea that legal “privileges” can be abrogated at will, with complete arbitrary discretion, would seem to be undercut by the wording of the Privileges and/or Immunities Clauses.
December 19, 2009, 10:46 pmneurodoc says:
Would you please explain the “discretionary” vs “entitlement” distinction. I was shocked to learn that civil service pensions funded in part by employee contributions are “entitlements” and, unlike government issued bonds, without any “full faith” government guarantees. “Entitlement” to my ears sounds like a pretty rock-solid guarantee if payment absent bankruptcy, but it seems it isn’t.
December 20, 2009, 7:37 amChris Travers says:
SG:
But Congress CAN say that deportees aren’t paid social security even if they were merely deported for political reasons, right?
Can Congress, say, pass a law saying that non-citizens who are affiliated with the Communist Party USA are allowed to stay in the country but can’t collect social security?
December 20, 2009, 12:14 pmChris Travers says:
Steve:
I think prior to a firm analysis looking at every fact in question, I think one really would have to guess. Basically the court in the ACORN case applied a detailed analysis consisting of questions of the function of a bill, its text, context, and legislative history. Any hypotheticals we come up with are also not detailed enough to support such an analysis.
(For example, “This isn’t punishment. We just don’t want a bad image and this will encourage other companies to be more careful” would seem to support a “bill of attainder” type ruling given the ACORN court’s framework because deterrence is a typical punitive function. regardless of what Congress says.)
December 20, 2009, 12:22 pmChris Travers says:
I decided to post this response here too. The point is to ask what the DOJ is thinking….
He thought he saw an Argument
That proved he was the Pope:
He looked again, and found it was
A Bar of Mottled Soap.
‘A fact so dread,’ he faintly said,
‘Extinguishes all hope!’
From “The Mad Gardener’s Song” by Lewis Carrol
December 20, 2009, 8:29 pmLarryA says:
That can be fixed.
December 20, 2009, 9:01 pmBut I doubt the current DOJ wants to open such a big can of worms.
Hans Bader says:
At National Review’s Bench Memos, Ed Whelan, a former Justice Department lawyer, argued that the ACORN provision is constitutional and not a bill of attainder. His December 14 analysis is available at this link.
Another Justice Department lawyer has reached the same conclusion here.
I think Whelan is right that the trial judge’s ruling in favor of ACORN was flawed and failed to address certain basic distinctions that distinguish the ACORN appropriations cut-off with measures the Supreme Court has struck down as bills of attainder.
I have discussed ACORN’s poor management and waste of federal funds, history of financial and other fraud, and its role in spawning the mortgage crisis through liar loans and promoting coercive “affordable housing” mandates, at this link.
December 21, 2009, 6:50 pm