Congress, Constitutional Law, Courts, Criminal law, Politics

ACORN Challenges Congressional Ban on Federal Funds

logoACORN is continuing its approach of “the best defense is a good offense.” The group has not only sued the filmmakers who recently disclosed misconduct by the organization, but it is now suing Congress for its ban on federal funding to the organization, alleging a bill of attainder in singling out the non-profit.

I was counsel in the last successful major bill of attainder case in Foretich v. United States, where Congress stripped Dr. Eric Foretich of his parental rights in favor of his well-connected ex-wife Elizabeth Morgan. Here is that opinion: foreitchus121603opn

ACORN has a plausible claim in this legislation. What is surprising is that Congress not only did not wait for a court adjudication of the many allegations of misconduct by the organization but did not take the trouble to create a detailed legislative finding of such misconduct. It is hard to argue that a ban on federal funding is not a form of punishment. I think that this is a strong claim for ACORN.

For the full story, click here.

19 thoughts on “ACORN Challenges Congressional Ban on Federal Funds”

  1. Okay, here is the latest on the possible Bill of Attainder against ACORN.

    The District Court granted the preliminary injunction:

    http://ccrjustice.org/files/Judge%20Gershon%2012%2011%202009%20PI%20Order.pdf

    The action was against the U.S. Secretaries of Housing and Treasury and the Director of the Office of Management and Budget, rather than against the United States. They were enjoined from enforcing the rider that provided that none of the funds made available by the joint resolution shall be provided to ACORN.

    The court, the Eastern District of New York (Brooklyn), noted that the 2nd Circuit had applied the Clause to corporations as well as individuals. The court analyzed all the elements of a Bill of Attainder and reviewed the cases.

    As said above by JT, “It is hard to argue that a ban on federal funding is not a form of punishment. I think that this is a strong claim for ACORN.”

  2. Pingback: More Exposure, More Foreclosure, Bachman’s a hoser. | The Wackness Ft. Minnesota

  3. Update:

    Justice Department memo on Oct. 23, 2009, allows payments to ACORN.

    http://www.justice.gov/olc/2009/obligations-public-law11168.pdf

    Footnote 3 addresses the Bill of Attainder issue. The memo’s approach let’s it avoid the constitutional problems anticipated by JT.

    NY Times had the story today at 2 PM:

    WASHINGTON — The Justice Department has concluded that the Obama administration can lawfully pay the community group Acorn for services provided under contracts signed before Congress enacted a law banning the government from providing funds to the group.

    The department’s conclusion, laid out in a recently disclosed five-page memorandum from David Barron, the acting assistant attorney general for the Office of Legal Counsel, adds a new wrinkle to a sharp political debate over the antipoverty group’s activities and recent efforts to distance the government from it.
    …
    http://www.nytimes.com/2009/11/28/us/politics/28acorn.html?_r=1&hp

  4. It’s funny how liberals poo-pooed the notion that a bill stripping individuals of bonus money awarded under an actual contract was not a bill of attainder and yet this is…
    ACORN was not deprived of life, liberty or property by the legislation because they were not legally entitled to the funds in the first place.

  7. Blouise:

    I enjoyed it too, but it was not great cross-exam. Here’s great cross-examination:

  8. Jill

    This video is the BEST!

    http://video.google.com/videosearch?q=congressman+grayson+on+bill+of+attainder&hl=en&emb=0&aq=f#

    Jill

    Click on the first one to come up: Grayson v. Broun.

    =================================================================

    How I wish we had someone of Grayson’s abilities representing my Ohio district.
    This video should be part of every high-school’s civic/government class lesson plan across the country. I can only imagine the productive discussions that would ensue.

  10. Procedurally speaking, how is ACORN ‘suing Congress?’

    You may laugh, but, to begin with, there are major issues of justiciability here; e.g. reconciling political question v. bill of attainder.

    I’d love to read a case setting forth the procedural requirements for gaining personal and subject matter jurisdiction over one of the three branches of government and compelling it to act as demanded in a complaint.

    Any cites?

  11. I just can’t figure out why somebody would take this personal. What they can’t take a joke? Hell, we had 8 years of tubby boy. If that’s not hysterical I am not sure….

  12. I likewise think ACORN makes a plausible case of being subjected to a Bill of Pains and Penalties strictly speaking–Bills of Attainder at common law providing for the death of its subject. Congress acted unilaterally without a judicial determination of legal guilt and cutting the funding would likely qualify as a “punishment” given the devastating effect. The line of cases following the Civil War concerning disqualifying oaths for ex-Confederate officials seem to broadly view what is a “punishment.” See Ex parte Garland

  13. For FFLEO and all interested in a full discussion, I recommend “Analysis and Interpretation of the Constitution, Annotations of Cases Decided by the Supreme Court of the United States, Senate Document No. 108-17, 2002 Edition: Cases Decided to June 28, 2002,” also known as the Constitution Annotated or the Con Annotated.

    It is available online from GPO in pdf:

    http://www.gpoaccess.gov/constitution/pdf2002/011.pdf

    Scroll down to page 365, Article I, Sec. 9, clause 3, for the history and analysis of the Bill of Attainder Clause.

  14. _________________________________

    Quote from V.T.:

    “Weighing against ACORN is the fact that the traditional use of such a Bill was to inflict punishment on natural persons, rather than on corporations or business associations.

    ACORN would have to argue that the clause applies not only to individual persons, but also to groups of persons who are vulnerable to nonjudicial determinations of guilt.”
    _________________________________

    Thank you for your discussion V.T.

  18. Traditionally, a Bill of Attainder is a 1) legislative act that 2) intentionally inflicts punishment on a 3) named individual, or individuals so narrowly described as to be effectively named.

    ACORN was certainly singled out by name.

    There seems to have been a lot of intent to punish it for bad behavior, although there was an arguable legislative effort to prevent fraud by a recipient of federal funds. In similar cases, the courts have examined the legislative history for evidence of a punitive intent.

    Weighing against ACORN is the fact that the traditional use of such a Bill was to inflict punishment on natural persons, rather than on corporations or business associations.
    ACORN would have to argue that the clause applies not only to individual persons, but also to groups of persons who are vulnerable to nonjudicial determinations of guilt.

  19. Jeremy Scahill makes an interesting point about this defunding bill:

    “Democrats joined Republicans in voting to “Defund ACORN,” yet have done nothing to stop Blackwater’s ongoing taxpayer-funded crusade in Iraq and Afghanistan.

    Republican Congressional leaders are continuing their witch-hunt against ACORN, the grassroots community group dedicated to helping poor and working class people. This campaign now unfortunately has gained bipartisan legislative support in the form of the Defund ACORN Act of 2009 which has now passed the House and Senate. As Ryan Grim at Huffington Post has pointed out, the legislation “could plausibly defund the entire military-industrial complex:”

    The congressional legislation intended to defund ACORN, passed with broad bipartisan support, is written so broadly that it applies to “any organization” that has been charged with breaking federal or state election laws, lobbying disclosure laws, campaign finance laws or filing fraudulent paperwork with any federal or state agency. It also applies to any of the employees, contractors or other folks affiliated with a group charged with any of those things.

    According to the Project on Oversight and Government Reform, this legislation could potentially eliminate a virtual Who’s Who of war contractors, including Lockheed Martin, Boeing and KBR to other corporations such as AT&T, FedEx and Dell.”

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