The Bill of Attainder clause was among the topics of my Advanced Constitutional Law class last semester, so while I am not an expert on the clause, I’ll try to provide some guidance.
First, there are few Supreme Court cases on the clause. Second, Bill of Attainder controversies in the United States never involve the classic bills of attainder that were well-known to the Founders–namely a parliamentary vote that someone be executed for treason or some other crime. Accordingly, for Bill of Attainder law in the United States, the ratio of settled law to gray zones is lower than for many other topics of constitutional law. In my view, the legal analysis from the District Court (ruling for ACORN) and from the Second Circuit (ruling against ACORN) are both plausibly based in precedent. The Second Circuit examined matters of law de novo, so District Court’s legal analysis was entitled to no deference.
Here are the key points of the Second Circuit decision:
ACORN has standing to sue all the defendants. Even if ACORN has no interest in applying for Department of Defense grants, the fact that the DoD statute specifically forbids grants to ACORN causes a reputational injury to ACORN.
Whether something is a Bill of Attainder depends on a three-part test: (1) “specification of the affected persons,” (2) “punishment,” and (3) “lack of a judicial trial.”
The government conceded on items (1) and (3). Accordingly the question is whether the federal funding cut-off constitutes “punishment.” Here again there is a three-part test (verbatim from the Second Circuit):
(1) whether the challenged statute falls within the historical meaning of legislative punishment (historical test of punishment);
(2) whether the statute, “viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes” (functional test of punishment); and
(3) whether the legislative record “evinces a [legislative] intent to punish” (motivational test of punishment).
According to the Second Circuit, withholding of federal grants, especially in regards to a corporation rather than an individual, is not a traditional form of punishment, so item (1) is not satisfied.
The government passed item (2) of the test, because there was an eminently plausible non-punitive purposes: namely to efficiently manage federal funds by not giving taxpayer dollars to an organization which by its own admissions had extensive problems with accurate accounting and proper financial management, and which has an admitted record of embezzlement and criminal convictions of employees.
As for item (3), the Second Circuit agreed that there were some floor statements by Congresspersons indicating an intent to punish ACORN for alleged crimes; “however, here, the statements by a handful of legislators are insufficient to establish — by themselves — the clearest proof of punitive intent necessary for a bill of attainder.”
The three-part punishment test examines all three factors together. Accordingly, even if (3) were a close call, the government was so clearly the winner on (1) and (2), according the Second Circuit, that the government prevailed.
My editorial comment: Long before Andrew Breitbart broadcast the hooker tapes, the record of ACORN’s shady financial practices was so extensive, in my view, that Congress should have cut off all funding. In retrospect, some of the ACORN employees in the Breitbart tapes were unfairly maligned, because they contacted law enforcement shortly after the pretend pimp and prostitute departed. The Shirley Sherrod episode makes it very likely that any future videotape released by Breitbart will be viewed with cautious skepticism by much of the public, and there will not a be a rush to judgment.
While the Obama-Holder Department of Justice has been appropriately criticized for political favoritism in some cases (such as the New Black Panthers voter intimidation), in the ACORN case the DOJ played it straight, and followed its legal duty to vigorously defend the federal laws. The Obama-Holder DOJ deserves praise for its solid performance in the ACORN case.
Jeff S. says:
Don’t they also have to prove they had a good reputation prior to Federal action ?
August 13, 2010, 6:06 pmKamal says:
Seriously, David?
You do realize that the video was heavily edited? If you watched an actual news channel, you would have seen what the unedited video shows.
August 13, 2010, 6:10 pmKamal says:
I mean the premise itself is wrong. They weren’t dressed as pimps when they were in Acorn, they were dressed as pimps outside of acorn.
And the “Black Panthers” story. I like how covering racists in the Tea Part is off limits, but two black guys in a predominantly black district – that needs to be covered.
August 13, 2010, 6:13 pmrilkefan says:
“the record of ACORN’s shady financial practices was so extensive, in my view, that Congress should have cut off all funding”
Do you have a list of large federally-funded organizations that deserve exemption from BOAs based on the ACORN standard?
August 13, 2010, 6:15 pmJeff S. says:
Amazing how some think there is a Constitutional right to grant money. Numerous shell entities with no oversight passing Federal funds around to obfuscate the sources… Where are the investigations, where are the indictments ? Misuse of Federal funds should be a slam-dunk.
August 13, 2010, 6:24 pmrfg says:
“the record of ACORN’s shady financial practices was so extensive, in my view, that Congress should have cut off all funding”
By this criteion, quite a few other Federal contractors should also be cut off.
Oh well- consistency is not one of Congress’s strong points.
August 13, 2010, 6:35 pmByomtov says:
While the Obama-Holder Department of Justice has been appropriately criticized for political favoritism in some cases (such as the New Black Panthers voter intimidation), in the ACORN case the DOJ played it straight, and followed its legal duty to vigorously defend the federal laws. The Obama-Holder DOJ deserves praise for its solid performance in the ACORN case.
Dave Kopel:
As long as DOJ does things I like they are playing it straight. Actions I disagree with are political favoritism.
August 13, 2010, 6:41 pmJeff S. says:
Talk about keeping the bar set low to the ground…
August 13, 2010, 6:47 pmJustin says:
Even when Kopel is trying not to be a hack, he is such a hack. It’s rather amusing.
August 13, 2010, 6:52 pmJack Marshall says:
Kamal: Racism among Tea Party members is not a crime; voter intimidation, even attempted intimidation, is…no matter what the District’s demographic is. The rationalizations for DOJ’s idiotic handling of that case defy belief.
As for ACORN…I think allowing a treasurer who has embezzled millions of dollars stay with the organization while not informing the board goes beyond the usual level of organization corruption and ineptitude. No? Really?
ACORN had no one to blame but itself.
August 13, 2010, 6:52 pmrilkefan says:
“millions of dollars”
Wasn’t it under one million? And repaid?
August 13, 2010, 7:05 pmJDW says:
I think the initial findings of ACORN was that it was just shy of a million dollars, and they said an anonymous donor repaid the money (not that I think it matters whether it was repaid, especially when they kept the guy on the payroll after all this). But then there were reports from state authorities saying that it was actually in the multi-millions.
August 13, 2010, 7:11 pmnewrouter says:
is acorn a service that the feds should buying?
August 13, 2010, 7:47 pm1040 says:
kopel’s hackishness is hilarious.
August 13, 2010, 7:49 pmKirk Parker says:
newrouter, that’s a rhetorical question, right?
August 13, 2010, 7:51 pmFactchecker says:
Oh. Well that makes it okay!
August 13, 2010, 7:51 pmLibertarian1 says:
Just for curiosity were you that offended after Michael Moore’s edits of every single one of his propaganda efforts? He actually helped change election results with outright dishonesty.
August 13, 2010, 7:56 pmLaura(southernxyl) says:
What? What in the heck difference does that make?
August 13, 2010, 8:13 pmLaura(southernxyl) says:
Kamal, you totally skipped over this, didn’t you?
August 13, 2010, 8:14 pmrilkefan says:
“Oh. Well that makes it okay!”
No, just wondering about the comment’s accuracy. Sounds like there should be some existing standard on the books requiring the govt not to do business with such entities unless they can show they’ve fired the bad actors and board members who were aware of the problem though, not an act of congress naming one particular entity that hasn’t even gotten its day in court as it were.
August 13, 2010, 8:26 pmVisitor Again says:
The Second Circuit standard for “punishment”–love that little bit of a balancing twist added at the end just in case–seems as loose as a pimp’s morals–one size fits whoever we want it to fit. Early in my 40-year law career, I concluded the appellate courts could and do manipulate any number of applicable legal standards to reach the result they want in any given case, including standards generally applicable to all cases. And they have not disappointed me since. This case is a shining example. The apoplectic rage in Congress over ACORN was not apoplectic enough, says the court in its majestic wisdom.
August 13, 2010, 8:26 pmdisintelligentsia says:
It would have been nice if Schwarzenegger or Brown chose to uphold the oath of their office and vigorously defended Prop 8. I wonder if a writ of mandate / mandamus would lie for compelling them to undertake their sworn duty to protect the California Constitution (which Prop 8 had become a part of – ) or would such a writ be deemed a non-justiciable question because it infringed upon the executive’s discretion in the exercise of its powers?
As it sits an outsider looking in would have to wonder if the end was predetermined from the beginning because of the large number of collateral adverse issues that affected this particular case. The judge was homosexual with a longtime partner, the judge tried to radically alter the cameras-in-the-court rule for this trial only which made his motives for doing so suspect, state AG and governor refuse to perform their duty under the law, a party is allowed to intervene for purposes of the trial but is not deemed to have sufficient standing to appeal so the result (fiat) from the judge remains only because no parties are left to challenge the result, there is little evidence put on by the intervenors (I would presume because they either listened to bad advice from counsel or they thought that the result was a no-brainer because of Baker v. Nelson). Then, of course, the judge did not even bother to address the one case on point from the Supreme Court – Baker v. Nelson – just completely disregarded it as if it did not exist.
I know that each step has its logical defense – the judge was selected randomly, perhaps the judge felt an open televised court would be prudent in this charged case, the AG and governor have political considerations and possibly personal convictions on the subject and there are different rules for standing at the appellate level, but the end result is the same – the appearance of collusion to reach a pre-determined result that cannot be challenged and the appearance to voters that they have no say in their governance because their “betters” can reject anything that they choose for themselves.
It’s pathetic that Brown could not defend the amendment to the Constitution — attorneys argue things they don’t agree with all the time and it would be a breach of their ethics if they had a good legal argument to make on behalf of their client and failed to pursue it vigorously. I doubt there’ll be any complaints against Brown the the State Bar based on his particular failure to vigorously represent his client’s (the people’s) interests.
August 13, 2010, 8:28 pmMark Field says:
There are *5* threads on gay marriage on the front page of the VC, and you posted this here?
August 13, 2010, 9:30 pmdisintelligentsia says:
Sorry if the post offended for being in the wrong place – it’s just that Kopel’s aside about the DOJ’s questionable past performance hit a chord with me about Brown and his failure to do his duty. Perhaps my rant wasn’t very well focused for that purpose but that’s the reason behind it being here as opposed to one of the other threads.
August 13, 2010, 9:47 pmByomtov says:
Laura,
It makes Jack Marshall’s accusations (cough, cough) inaccurate.
August 13, 2010, 10:03 pmJK says:
Certainly it makes some difference, even if both acts are reprehensible.
August 13, 2010, 10:12 pmnicehonesty says:
It’s apparently difficult to get exact numbers since ACORN does its best to hide its financial malfeasance from the public, but here’s an AP story on CBS News and a Times Picayune story both putting the total amount embezzled at around $5 million.
What evidence do you offer that Jack Marshall’s statements are (cough, cough) inaccurate, Byomtov, JK, and rilkefan?
August 13, 2010, 10:27 pmLaura(southernxyl) says:
So they let the treasurer, who embezzled some amount of money, and apparently reimbursed it or had it reimbursed, what, after he was found out? stay in the job. You’re cool with that, byomtov?
August 13, 2010, 11:13 pmrilkefan says:
Those stories do not do what you claim.
Please read my previous comments, they’re not long.
August 13, 2010, 11:28 pmBob says:
Is it a bill of attainder if the legislature makes a statute with penalties, such that it can easily be known to apply to only one or a very few parties, which parties, to avoid penalty, would have to stop doing something in which they had an investment that would be lost? I’ve frequently thought that various regulatory bills were bills of attainder in all but name. Otherwise, couldn’t any bill of attainder be converted into a bill of non-attainder by putting it into a form, “No person shall live at [address] on or after [date], on pain of [boiling in oil, etc.].”?
August 13, 2010, 11:34 pmSoronel Haetir says:
That is where the analysis of whether the act meets the traditional forms of punishment comes in. Boiling in oil would easily meet that showing. Failure to qualify for future government grants not so much.
August 14, 2010, 1:05 amJK says:
No one said they were cool with it, we just disagreed with your characterization that it makes no difference at all. There’s plenty of rope to hang ACORN without putting words in peoples’ mouths.
August 14, 2010, 1:35 amBuck Turgidson says:
Even if we take Kopel’s description of the final test, the court’s decision with respect to (1) and (3) is blatantly and demonstrably wrong. Withholding funds has always been a congressional form of punishment and one need not look too far back to find Boehner’s threats that a Republican majority in the next Congress would defund all projects passed during the current session. And the entire purpose of the bill from the very beginning was to single out ACORN. (2) is the difficult one, but if the court did decide on (1) and (3) as described, they are more corrupt than ACORN.
August 14, 2010, 2:52 amGuy says:
I can see room for debate on whether this is a Bill of Attainder, but I hope that everyone can agree that the court dismissing the legislative intent prong because there was no finding of guilt in the text of the act is moronic.
August 14, 2010, 8:44 amLaura(southernxyl) says:
OK, JK, it’s different. Is it a relevant difference, in the context?
The only difference I can see that reimbursing the money after being caught should make, is possibly reducing jail time. Possibly.
August 14, 2010, 9:03 amGuy says:
It would also affect restitution/a civil suit.
August 14, 2010, 10:21 amGuy says:
What I think is strange is that the analysis of some people and the court seems to rely on the premise that they really were guilty. It seems to me that either the legislature is punishing or it isn’t, so the analysis should be the same whether the claims against ACORN are true or not.
August 14, 2010, 10:27 amDaniel Chapman says:
There’s no “premise” that they were actually guilty… actual guilt or innocence isn’t relevant.
August 14, 2010, 10:50 amGuy says:
There sort of was, or at least that the inference could have been reasonably drawn by the legislature seemed to have been relevant to the courts decision. I see how that happens – if it couldn’t have been drawn, the law would be irrational, but it puts the court in a weird position where it has to say “yes, they can do this in response to something bad ACORN did, since there’s a valid reason why they would want to do this in response to that bad thing”, but that’s kind of true for “punishments” as much as non-punishments, so it doesn’t prove much.
I’m not saying it’s the court’s fault, just that its part of the fact that there really isn’t a good distinction between punitive and non-punitive goals.
August 14, 2010, 11:33 amjbarntt says:
Unlike some other commentators , I thought Kopel’s analysis of the appeals court decision was clear and straight forward.
He is also fair in that he points out the district court decision also has merit.
Lastly, he criticizes Breitbart’s role in this and praises AG Holder’s.
Dislike of some of Kopel’s posts shouldn’t prejudice one against all of them.
August 14, 2010, 12:30 pmByomtov says:
Dave Kopel,
The Shirley Sherrod episode makes it very likely that any future videotape released by Breitbart will be viewed with cautious skepticism by much of the public, and there will not a be a rush to judgment.
I disagree. I suspect Breitbart’s next stunt will be welcomed by many on the right.
Laura,
So they let the treasurer, who embezzled some amount of money, and apparently reimbursed it or had it reimbursed, what, after he was found out? stay in the job. You’re cool with that, byomtov?.
Who said I was cool with that? Getting straight on one item doesn’t mean I condone all activities.
Deos it make a difference whether the amount involved was millions or under a million? Only if you care what the facts are. It doesn’t make the embezzlement OK, but it’s not OK to overstate the amounts either, especially when that overstatement is part of a general campaign of vilification. If the amounts involved are not relevant, why cite them at all?
August 14, 2010, 1:01 pmKestrelBrighteyes says:
So when will we see the same criteria used in the “Defund Acorn Act” applied to defense contractors that have actually been CONVICTED of felony fraud?
August 14, 2010, 1:17 pmIf Congress Attacks the Mighty Oak of Contractor Misconduct, It Shouldn’t Just Settle for an ACORN
JK says:
Wouldn’t that be nice. Never going to happen of course, I’ve never really understood why but for some reason many people just don’t seem to care about fraud and waste when it’s done under the umbrella of defense spending.
August 14, 2010, 1:42 pmnicehonesty says:
Speaking of caring about the facts…
Again, Byomtov, I ask what evidence do you offer that Jack Marshall’s statements are (cough, cough) inaccurate?
August 14, 2010, 4:55 pmjbb says:
Kopel is an absolute embarrassment and has no place on VC.
August 14, 2010, 5:26 pmrilkefan says:
Those articles continue to not do what you want them to. Jack Marshall says x, you point to articles where person p says !x and person q says x; that doesn’t cut it. If in fact the total is less than $1M then Marshall’s claim is inaccurate.
By the way, compare this case to that of the Iraq contractor some of whose employees raped etc another employee and were then shielded by the company following its official policy; Congress passed a law requiring firms the govt deals with not have such policies.
August 15, 2010, 12:35 amReaderY says:
I think the 2nd Circuit got it right here, but I also see this as a serious gray area so I wouldn’t say the district court’s opinion was absurd or widely off.
In general, granting and canceling contracts represents ordinary management rather than a kind of punishment. Canceling contracts is no more punishment than earmarking them. The Bill of Attainder Clause isn’t implicated by ordinary business conduct, including a decision not to do business with certain entities when the government acts as a consumer. Other clauses might be potentially implicated if the government acts unfairly in awarding or withholding contracts. But not the Bill of Attainder clause.
I think a permanent ban would rise to a greater level and might be punitive enough to implicate the clause. But what Congress did isn’t permanent.
August 15, 2010, 12:58 amGuy says:
But 1) The law you refer to applies generally to all contractors, and 2) it only places a condition, not an absolute disability, to receive government contracts. I don’t see any meaningful comparison to be drawn.
August 15, 2010, 5:42 amLaura(southernxyl) says:
Byomtov, here are Marshalls, cough, accusations.
You said this was inaccurate. When pressed, you said that the reason you said this is that some sources say the embezzlement was less than a million dollars. And embezzlement is not OK, just as saying millions of dollars were embezzled when not every source agrees that it is that much is not OK. Do I have it right now?
As to your objection to a general campaign of vilification, I object to those too. That doesn’t mean that we can’t identify and try to root out the bad guys. There is a term that applies to discovering that an organization’s treasurer has embezzled money from it, not reporting it, and allowing him to keep that post: it’s called corruption. Can we agree that that is not OK? Because that’s actually Marshall’s point, if I read him right. Not the exact figure that was embezzled.
August 15, 2010, 8:50 amrilkefan says:
My point was that this is the sensible way to deal with problematic contractors and the way Congress always handles such matters.
August 15, 2010, 12:48 pmGuy says:
Oh, I misunderstood, sorry for that.
August 15, 2010, 12:52 pmrilkefan says:
Hmm, second try:
Here’s your first inaccuracy.
Language noted for silliness.
A says x>2M, B says I thought x<1 M, C says Who cares, D says If it turns out that x<1M what A said was inaccurate, you say, D thinks embezzlement and saying something contested are equivalent. I can therefore say that you don't care about accuracy, just as Halliburton doesn't care about its employees raping and kidnapping?
Depends on what you have.
August 15, 2010, 2:10 pmnicehonesty says:
To clarify, rilkefan, you have offered absolutely no evidence to support your claim, nor to contradict the evidence I’ve offered.
August 15, 2010, 4:00 pmrilkefan says:
No, you don’t understand the use of the subjunctive in English, or you haven’t read you own link. The conversation is described in my previous comment, adding a C’ citing a (for this conversation useless) source that says E says x and F says !x.
August 15, 2010, 6:19 pmnicehonesty says:
Allow me to reiterate:
Here’s the evidence I’ve offered (two days ago, in this very thread):
An excerpt from the AP Story:
An excerpt from the Times Picayune story:
Now, here’s the evidence you (and JK and Byomtov) have offered in rebuttal to the AP/CBS and Times Picayune reports:
…
August 15, 2010, 6:51 pmrilkefan says:
Jeez, your own article, second paragraph:
I reiterate and adjust, “you don’t understand the subjunctive in English and you haven’t read you own link. The conversation is described in my previous comment, adding a C’ citing a (for this conversation useless) source that says E says x and F says !x.” If the amount in question is <1M, then the remark I questioned (note, not rebutted) is inaccurate. It’s a very minor issue, amusingly given the amount of difficulty you’re having getting this, but I care about accuracy, just as I care about Halliburton shielding rapists.
August 16, 2010, 4:10 pmKirk Lazarus says:
So rilkefan’s position appears to be that the CEO of ACORN is to be believed in preference to the La. AG. It’s hard to tell through the cloud of obfuscation.
August 17, 2010, 4:26 amrilkefan says:
Come for the law instruction, stay for the comedy.
August 17, 2010, 7:17 pm