Archive for the 'Bill of Attainder' Category

ACORN decision explained

Posted by on Aug 13 2010 | ACORN, Bill of Attainder, Constitutional Law

(David Kopel)

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.


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