Federal Decision on ACORN Funding: Does ACORN Have a Right to Your Tax Dollars??
News broke a couple of days ago that a federal judge had ruled that Congress violated the Constitution when it passed a bill cutting off ACORN’s funding. Specifically, the judge ruled in her opinion that the Congressional act had violated the Bill of Attainder Clause.
I don’t find the decision convincing. It seems to me that the opinion essentially establishes some sort of ongoing right to federal funding. This isn’t like a case where the Government actually punishes someone — such as the hypothetical Eugene Volokh Execution Act of 2009 mentioned in this 2009 Eugene Volokh post on the subject. Congress is simply saying: we choose not to fund a particular organization. Such decisions, it seems to me, are for Congress to make, and not some federal judge.
When I received financial aid in college, I had to sign an affirmation that I had registered for the Selective Service. If I didn’t sign the affirmation, I didn’t get the aid. Congress was not required to prove that I had failed to register. Congress simply refused to give funds to a particular class of people. Nobody had any right to those funds, it seems to me, so Congress could set such parameters if it wished.
Does Judge Gershon believe that Congress must wait until ACORN is convicted of criminal violations in a court of law before Congress can choose not to give my tax dollars to ACORN — or that Congress has to set up some kind of quasi-judicial review of misconduct allegations before it can defund an organization? Does Judge Gershon believe that Congress can set no parameters on how our tax dollars are spent, and must leave all discretion on that issue to federal bureaucrats?
Neither proposition makes sense to me. This can’t be what the Bill of Attainder Cause is designed to prevent.
For my lefty friends who are cheering this decision: would you also cheer on a decision striking down a hypothetical Defund Blackwater Act of 2010? Or would the Constitution mean something different in that context?
I hope this case is appealed, because I think it would be interesting to see how the federal appellate courts (in particular the Supreme Court) would handle it. Since Prof. Volokh has discussed this in the past, I have asked him to weigh in.
I believe Judicial Activists like Gershon and Reinhardt ought to be impeached and removed from the bench permanently.
PCD (1d8b6d) — 3/12/2010 @ 7:46 am“Congress simply refused to give funds to a particular class of people. ”
I think this they are permitted to do. But that’s not what I recall happening with the attempt to defund ACORN.
“Does Judge Gershon believe that Congress must wait until ACORN is convicted of criminal violations in a court of law before Congress can choose not to give my tax dollars to ACORN — or that Congress has to set up some kind of quasi-judicial review of misconduct allegations before it can defund an organization? Does Judge Gershon believe that Congress can set no parameters on how our tax dollars are spent, and must leave all discretion on that issue to federal bureaucrats?”
My guess is that congress can use general language to define a class of people that would hit ACORN but also anyone else that fit into that class. So if they said ‘any organization whose employee has been indicted,’ for example. But that would screw with a lot of things.
However there’s another matter, which is what does it mean to ‘defund’ — does that mean no new contracts? Does that mean that existing contracts are cancelled? What if work has been performed on them, but not yet paid? Does congress mean to expose itself to liability for breach or other theories, or overrule laws that define the relationship that contractor would have with the government? Etc…
imdw (223a39) — 3/12/2010 @ 7:50 am“would you also cheer on a decision striking down a hypothetical Defund Blackwater Act of 2010? Or would the Constitution mean something different in that context?”
I think such a decision would be for the better, because it would mean that congress would have to craft legislation that would defund anyone who did what Blackwater did. Which would be a better result than simply going after Blackwater.
imdw (d19661) — 3/12/2010 @ 7:52 amDefunding a particular group is not a cancellation of rights. No one has a right to federal money.
Some chump (050674) — 3/12/2010 @ 7:59 amYou have lefty friends? What a sell out.
steve sturm (369bc6) — 3/12/2010 @ 8:03 amThe Obami/Holder Justice Dept. has quashed any federal criminal investigation of ACORN. It will be left up to cash-strapped states to do the heavy-lifting.
Looking back on the decisions that this pathetic excuse for an administration has made in a little over 13 months, has there ever been another that has openly displayed such poor judgment?
GeneralMalaise (d63092) — 3/12/2010 @ 8:07 amimd-partisan, We see your true position, America Hating Democrats have a right to all the tax dollars they want, but anyone contracted to defend Americans is to be persecuted legally or you’ll ignore the illegalities to achieve your nefarious ends.
PCD (1d8b6d) — 3/12/2010 @ 8:08 amDoes a denial of taxpayer funding to an organization constitute punishment, equivalent to congress hypothetically passing a law that sends an individual to prison without trial?
ACORN has no right to receive taxpayer funds. The money is not theirs. This is not equivalent to fining them without trial, because the money is only given based on their performance of services, services that are no longer wanted.
The difference is that a bill of attainder creates a judicial verdict without trial. A denial of funding has nothing to do with a judicial verdict. Funding could be denied simply because the government is dissatisfied with the services it has received from them in the past. Criminality has nothing to do with this decision.
They are not being convicted of a crime by legislative action. The decision is absurd.
Amphipolis (b120ce) — 3/12/2010 @ 8:18 amThis is a good case. I know it’s a political decision that is unlikely to be executed, but I’d love to see an appeal filed by the DoJ.
WTFCI (26fd10) — 3/12/2010 @ 8:33 amAcorn does not have a right to my tax
Jack (e383ed) — 3/12/2010 @ 8:38 amdollars. It is a travesty that any judge
might think so.
9, WTFCI, you have got to be kidding! Mr. ACORN Attorney, Obama’s DOJ appealing a verdict forcing funding of ACORN. You have got to be on some heavy drugs this morning.
PCD (1d8b6d) — 3/12/2010 @ 8:39 amThe law of the land is no longer based on laws passed by congress, they are what some lone liberal judge says they are. One person rule has taken over. We are way past communism.
Scrapiron (4e0dda) — 3/12/2010 @ 8:55 am“Looking back on the decisions that this pathetic excuse for an administration has made in a little over 13 months, has there ever been another that has openly displayed such poor judgment?”
You mean like filing this case?
imdw (2c1194) — 3/12/2010 @ 8:58 amIt is simply a ludicrous ruling that distorts the bill of attainder clause into a ridiculous restriction on Congress’ power to control its own spending. I can’t even imagine that this passes a laugh test at the appellate level.
SPQR (26be8b) — 3/12/2010 @ 8:58 amThe metaphor i go for is this. Suppse it is the 1980s, and congress decides to stop funding things in South Africa. Are they entitled to that money? What crime was south africa convicted of?
Yes, it is a ridiculous ruling, but here’s the question: just how vigorously is the obama administration defending this law given that they probably would be all too happy to be “forced” to fund acorn.
A.W. (e7d72e) — 3/12/2010 @ 9:29 amCan Congress bring this matter directly to the Supreme Court? I believe they can in which case the Supreme Court would toss this idiotic ruling immediately. The obvious implication is once funded Congress must always fund. And that means Congress is bound forever by a previous Congress’s acts. No court will uphold that.
cubanbob (409ac2) — 3/12/2010 @ 9:40 amCan’t a Federal agency just “debar” them from receiving Federal Contracts/Grants?
A debarment by one agency applies to all agencies.
whoops, I guess that would require the Obama adminstration to actually “want” to cut off funds.
The Drill SGT (75accd) — 3/12/2010 @ 9:41 amSurprise, surprise. Nina Gershon is a judge appointed by Bill Clinton. When idiocy and corruption are part of a story, invariably and all too frequently a liberal is somehow involved, both coming and going.
Mark (411533) — 3/12/2010 @ 10:08 amno, imdimwit…
* guaranteeing captured terrorists that they will not be waterboarded
* reciting terrorists their rights (Holder didn’t always feel so generous: http://www.jenner.com/files/tbl_s69NewsDocumentOrder/FileUpload500/240/AmiciCuriae_janetReno.pdf
* holding that some terrorists will be tried in military tribunals and some in civilian courts
* Mirandizing Abdulmutallab after 50 minutes of interrogation
* Holder’s judgment in choosing lawyers to work for DOJ
* Holder’s lack of ethics and honesty in “forgetting” to disclose amicus briefs that could have put him in a bad light during his Senate confirmation hearings
* Holder’s poor judgment in refusing to pursue the case against the NBP thugs
etc…. etc…
GeneralMalaise (d63092) — 3/12/2010 @ 10:20 am[…] MORE […]
Federal Decision on ACORN Funding: Does ACORN Have a Right to Your Tax Dollars?? « THE BLACK KETTLE (4797e5) — 3/12/2010 @ 10:50 amIn her opinion, Judge Gershon invokes the Lovett decision to defeat the proposition that Patterico puts forward: that since federal contracts – and even the opportunity to compete for them – do not belong to Acorn by right, the bill takes nothing from ACORN that is theirs inherently, and so cannot be a punishment within the meaning of the attainder clause. Her point is that the federal employees in Lovett had no right to future federal employment (they had no property interest in prospective unrealized future positions), yet the Court still found the denial to the Lovett employees of the possibility of such future employment to be attainder. Thus, Judge Gershon reads Lovett to establish the principle that the legislative denial to a person (or corporate person) of future opportunity to be considered for remunerative federal employment – even though such does not belong to the person by right – is always a punishment within the meaning of the attainder clause.
This, it seems to me, is likely a misreading of Lovett. A bill of attainder is by definition a legislative act that imposes a punishment without judicial trial. To be a bill of attainder, therefore, the punishment imposed must be of the sort that ordinarily requires judicial trial to inflict. The bill must actually circumvent judicial due process. The Lovett Court made much of Lovett’s barring from future federal employment precisely because similar bars were only ever ordinarily imposed following judicial conviction – and conviction for “special types of odious and dangerous crimes, such as treason, acceptance of bribes by members of Congress [etc.]” By citing the bar from future employment, the Lovett Court was demonstrating that the bill circumvented judicial process because it imposed the sort of punishment that only ordinarily follows from a judicial trial.
The Lovett Court, in short, was interested in demonstrating that a circumvention of judicial due process had taken place; its purpose was decidedly not to announce a general principle regarding all discretionary federal benefits.
Thus, Lovett cannot be read to establish that barring a person (or corporate person) from the opportunity to pursue a discretionary federal benefit that is not theirs by right is always a punishment within the meaning of the attainder clause. Lovett stands merely for the propostion that where a certain punishment is only ordinarily imposed by judicial conviction, the imposition of the same by legislation is attainder.
It seems to me, therefore, that Judge Gershon ought to have addressed the question of whether the denial of opportunity to pursue federal contracts is something that only ordinarily follows judicial conviction. I don’t think the case with ACORN is clear cut, since such a disability is sometimes imposed on a federal contractor merely following bad behavior (such as perpetually late delivery or shoddy work) and can, at least administratively, be imposed due simply to an organization’s poor public reputation.
A bill of attainder imposes a punishment without judicial trial. To be attainder, therefore, the punishment imposed must be of the sort that only ordinarily follows judicial trial. This is true no less in Lovett than elsewhere.
Nathan Wagner (d22d59) — 3/12/2010 @ 10:55 amHowever there’s another matter, which is what does it mean to ‘defund’
Considering your insistence that ACORN received no federal funding even prior to the Defund ACORN law, I can’t imagine what it could mean.
So if they said ‘any organization whose employee has been indicted,’ for example.
What about “any organization which receives federal funds whose CEO embezzles those funds and which is guilty of more than twenty separate instances of voter registration fraud”?
What about “any organization which claims to be non-partisan for the purpose of collecting government money but which in its own internal documents makes clear that it is an arm of one political party”?
Subotai (7146d8) — 3/12/2010 @ 10:59 amIn 1999, Gershon ruled that New York City mayor Rudolph Giuliani could not cut the Brooklyn Museum of Art’s funding after it mounted an exhibit entitled “Sensation”.
She is at least consistent in her belief that government must fund things whether it likes it or not. She’s not even remotely Constitutional, but she is consistent.
Subotai (7146d8) — 3/12/2010 @ 11:08 am“Considering your insistence”
How bizzare.
Your two proposals would meet the criteria of being general language which might catch ACORN.
imdw (bcd2f2) — 3/12/2010 @ 11:10 am“How (bizzare) bizarre?”, he asks.
You are in a parallel universe, dimmie.
GeneralMalaise (d63092) — 3/12/2010 @ 11:25 am“… Does congress mean to expose itself to liability for breach or other theories, or overrule laws that define the relationship that contractor would have with the government? Etc…
“
Congress has abrogated contracts numerous times throughout our history, particularly at the conclusion of international conflicts where long-term contracts are terminated with payment only for goods and services already received.
AD - RtR/OS! (597a8f) — 3/12/2010 @ 11:30 amLet’s start calling Obama his appropriate middle name and then sit back and watch imadouchebag’s head assplode.
Dmac (ca1d8c) — 3/12/2010 @ 12:55 pmI note that there is apparently no issue that the prohibition against bills of attainder applies to corporate entities. I am okay with that, but I wonder if the folks on the left who say that the First Amendment doesn’t apply to corporations (i.e. with respect to the Citizens United decision)would agree.
Roscoe (c63744) — 3/12/2010 @ 1:06 pmThere is nothing that they could do that would justify cutting off their funding because it is deemed unconstitutional to not give them our tax money.
Amphipolis (b120ce) — 3/12/2010 @ 1:31 pmLet’s see here . . . Bill of Attainder: a bill that has a negative effect on a single person or group.
Well, there you go. Once funded, to defund them would have a negative effect; therefore, everything that is being funded must continue to be funded in perpetuity — for, to not fund them would cause them to be defunded which would lead to hardship for them duetolackoffundsandweallknowthatwecan’thavethatbecausethedecisiontoinitiallyfundthemlockedthemintoapermanent
Icy Texan (b7d19b) — 3/12/2010 @ 1:56 pmcontractwiththegovernmentoftheUnitedStatesofAmericawherebytheywouldbeGUARANTEEDfundingforaslongastheyexist
Apologies for the threadjack, but the City News Bureau of Chicago just tweeted that the Dem candidate for Obama’s Senate seat (Alexi Giannoulias) may be dropping out, due to an increasing amount of scandals attached to his family’s bank. He’s holding a fundraiser this evening, and hardly anyone’s bought any tickets. Awesome!
Dmac (ca1d8c) — 3/12/2010 @ 2:15 pmI’ll tell you what the Bill of Attainder clause was meant to prevent: What happened to Dr. Eric Foretich.
Foretich is the ex-husband of Dr. Elizabeth Morgan, who alleged that Foretich and his parents routinely sexually abused their young daughter Hilary on joint custody visits. Despite the lurid stories Morgan insisted the pre-schooler told her about her visits with Foretich (including allegations that his parents joined in the abuse), medical examinations revealed no evidence of sexual abuse and Foretich passed polygraph test with flying colors. Foretich’s unsupervised visitation rights survived Morgan’s court actions.
That’s when Morgan and her family took the law into their own hands. Hilary was not turned over to Foretich for his next scheduled visit, and Morgan’s parents – including her father, a retired CIA operative — vanished without a trace. Morgan said she had no idea where they had gone. When she refused to reveal in a D.C. court what she knew about Hilary’s disappearance, she was jailed for contempt in a Washington jail, to be released upon answering the questions.
That’s when the MSM sprang into action in Morgan’s defense. This was during the McMartin Pre-School “kids don’t lie” era, which we now know was a truckload of compost. Taking her side of the story, the news portrayed her as Joan of Arc, a woman failed by the system, sacrificing her freedom to prevent her (allegedly) pedophilic husband from putting his filthy mitts on her precious girl’s body ever again. Foretich became Public Enemy #1, getting hate mail and death threats, and being dismissed when he said on Donahue he was innocent of molestation.
Think that’s bad? That was before the government got involved. Pundits and politicians left and right — literally — rushed to Morgan’s defense, finally freeing her from jail through legislation limiting contempt jailing in D.C. in situations that pertained solely to Morgan’s case (the “District of Columbia Civil Contempt Imprisonment Limitation Act of 1989,” introduced by Virginia Congressman Frank Wolf, a Republican). George H.W. Bush signed that bill.
When Hilary was finally found in New Zealand being raised by her grandparents, he had to go to NZ to grovel before its family court system. Dr. Morgan joined her daughter Down Under to fight. Despite being not being found guilty of anything at all, the NZ court decided that Hilary Foretich – who renamed herself “Ellen Morgan” – had decided that she wasn’t going to tolerate being with her father, and that it wouldn’t force her. Defeated, Foretich returned home to America, but Dr. Morgan stayed behind with Ellen.
Think that’s enough for any man to endure? It still wasn’t over. Despite her being sprung from jail on her contempt charges by special legislation, Dr. Morgan faced charges for failing to comply the court order to provide information about Hilary/Ellen’s whereabouts. That was no problem as long as Morgan remained outside the USA. But she took ill with a potentially fatal disease, and she wanted to return to America for treatment. No problem, said the pols, this time led by Congressman Tom Davis (R-VA): They AGAIN drafted legislation solely for the purpose of preventing Dr. Morgan from being charged when she returned AND vacated Foretich’s visitation rights he previously won in court (the “Elizabeth Morgan Act”). Bill Clinton signed that bill in 1996. Morgan returned with her daughter, got well, and Foretich was legally prevented from meeting Ellen without her consent, which, predictably, she refused to give.
A more complete fleshing-out of this outrage can be found on the website for Jonathan Turley, the high-profile attorney and professor who successfully argued in 2003 before the D.C. Court of Appeals those acts were unconstitutional.
This is not to say that it is beyond a doubt that Foretich is innocent of the charges. But he did everything that he should have done to prove his innocence, and more. He was never proven to have harmed his daughter, but Republicans and Democrats alike conspired to screw that man with the full weight of the Federal government — twice.
L.N. Smithee (b048eb) — 3/12/2010 @ 2:52 pmAin’t Government grand?
AD - RtR/OS! (597a8f) — 3/12/2010 @ 2:57 pmThe Bradbots certainly do – more swirling today.
daleyrocks (718861) — 3/12/2010 @ 7:02 pmAfter reading the opinion in the case of Eric Foretich, I tried to find out about what happened after the Appeals Court ruled that the law Congress passed was a bill of attainder but drew a blank. The court also ruled that he suffered tangible damage to his reputation as a result of a law that effectively labeled him as a child abuser and denied him the right to access to the courts.
So here’s a question: If Congress acted outside of the Constitution and did something prohibited by it (creating a bill of attainder) and Mr. Foretich suffered damages as a result, can he sue the US Congress for damages? Or, better yet, can he sue members as individuals who have acted outside what the Constitution allows them to do as members?
According to Article I, Section 8: “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” To me, one of the things this says is that Congress has to act in accordance to the Constitution. If Congress does not act in accordance, can they be held liable, either collectively or as individuals?
I’m thinking not, but I would love to hear some legal reasoning on the subject. If possible, I think would go a long way to stop grandstanding by Congressmen any time some hot button issue hits the media. Or, at least, limit the damage.
Count de Money (6418e6) — 3/12/2010 @ 7:45 pm“…the judge ruled in her opinion that the Congressional act had violated the Bill of Attainder Clause.”
Yet another in a long series of flagrant lies and pervisons of the law from the uber-liberal courts.
Just one more step on the road to altering or abolishing.
Dave Surls (3c1e42) — 3/12/2010 @ 9:09 pmNutty Nina Strikes Again!
daleyrocks (718861) — 3/12/2010 @ 10:30 pm“A bill of attainder imposes a punishment without judicial trial.”
Not quite. This is what attained means…
“When sentence of death, the most terrible and highest judgment in the laws of England, is pronounced, the immediate inseparable consequence by the common law is attainder. For when it is now clear beyond all dispute, that the criminal is no longer fit to live upon the earth, but is to be exterminated as a monster and a bane to human society, the law sets a note of infamy upon him, puts him out of it’s protection, and takes no farther care of him than barely to see him executed. He is then called attaint, attinctus, stained, or blackened. He is no longer of any credit or reputation; he cannot be a witness in any court; neither is he capable of performing the functions of another man: for, by an anticipation of his punishment, he is already dead in law. This is after judgment: for there is great difference between a man convicted, and attainted; though they are frequently through inaccuracy confounded together. After conviction only, a man is liable to none of these disabilities: for there is still in contemplation of law a possibility of his innocence. Something may be offered in arrest of judgment: the indictment may be erroneous, which will render his guilt uncertain, and thereupon the present conviction may be quashed: he may obtain a pardon, or be allowed the benefit of clergy; both which suppose some latent sparks of merit, which plead in extenuation of his fault. But when judgment is once pronounced, both law and fact conspire to prove him completely guilty; and there is not the remotest possibility left of any thing to be said in his favour. Upon judgment therefore of death, and not before, the attainder of a criminal commences: or upon such circumstances as are equivalent to judgment of death; as judgment of outlawry on a capital crime, pronounced for absconding or fleeing from justice, which tacitly confesses the guilt. And therefore either upon judgment of outlawry, or of death, for treason or felony, a man shall be said to be attainted.”
“The consequences of attainder are forfeiture, and corruption of blood…”–Blackstone
A Bill of Attainder is a legislative act that declares a person attained, which (essentially) means that a person is stripped of all rights held under the law, especially the right to life, the right to own property and the ability to pass on inheritances.
The idea that an Act denying federal funding to ACORN is an Bill of Attainder is, as far as I can tell, fatuous nonsense, unless “attainder” has been redfined in U.S. statutory law. If it has, I sure haven’t heard about it.
Dave Surls (3c1e42) — 3/12/2010 @ 11:30 pmDave Surls,
The constitutional meaning of the attainder clause has been declared in the United States by the Supreme Court in Cummings v Missouri. Here it is:
Nathan Wagner (ccb314) — 3/13/2010 @ 6:28 am“A bill of attainder is a legislative act which inflicts punishment without a judicial trial.”
Yeah…except that isn’t what a Bill of Attainder is, and denying ACORN funding isn’t a punishment either.
The courts can’t just redefine words to mean what they want them to mean.
Dave Surls (7af287) — 3/13/2010 @ 12:07 pm“Yeah…except that isn’t what a Bill of Attainder is, and denying ACORN funding isn’t a punishment either.”
My guess would be it may depend on what the ‘denial of funding’ means. If it means things like not paying for work currently performed, that would be more like punishment. If it means things like not awarding new contracts, that would be less like punishment. Somewhere in the middle would be breaching current contracts.
imdw (5b7d57) — 3/13/2010 @ 12:36 pm