When the US Congress last year voted overwhelmingly to cut off federal funding of ACORN, one may have believed that Congress was exercising its constitutional authority to legislate the appropriation of government funds. According to activist liberal District Judge Nina Gershon, one would be wrong.
ACORN sued the US Government, claiming that the de-funding legislation constituted a bill of attainder, the issuance of which, per Article I Section 9 of the US Constitution, Congress is expressly prohibited. Unsurprisingly, Judge Gershon agreed, and in December issued a temporary injunction against the congressional ACORN funding ban. Yesterday, she made that injunction permanent.
Historical and Constitutional Context
First, some background on bills of attainder. Here is the general definition:
attainder n. The loss of all civil rights by a person sentenced for a serious crime. [< OFr. attaindre, to convict]
TechLawJournal goes into more detail:
"The Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function or more simply - trial by legislature." U.S. v. Brown, 381 U.S. 437, 440 (1965).
"These clauses of the Constitution are not of the broad, general nature of the Due Process Clause, but refer to rather precise legal terms which had a meaning under English law at the time the Constitution was adopted. A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial. Such actions were regarded as odious by the framers of the Constitution because it was the traditional role of a court, judging an individual case, to impose punishment." William H. Rehnquist, The Supreme Court, page 166.
Bills of Attainder and The Supreme Court
The Supreme Court of the United States (SCOTUS) has construed several cases as representing bills of attainder.
- In Ex Parte Garland (1866), SCOTUS held that a law that prohibited Civil War opponents from holding public office constituted a bill of attainder.
- In Cummings v. Missouri (1866), SCOTUS held that the amendment of the Missouri Constitution to require an Oath of Loyalty constituted an ex post facto law that prohibited the plaintiff from practicing his profession, and constituted a bill of attainder as punishment without trial.
- In US. v. Lovett (1946), SCOTUS held that the withholding of appropriation of salaries of government workers because of their involvement with the Communist party constituted a bill of attainder. Interestingly, the concurring opinion, which concludes that the section in question is not a bill of attainder, discusses the historical meaning and context of bills of attainder, and includes this statement:
"There was always a declaration of guilt either of the individual or the class to which he belonged."
And again:
"But if it is not an ex post facto law, the reasons that establish that it is not are persuasive that it cannot be a bill of attainder. No offense is specified and no declaration of guilt is made."
And finally:
When the framers of the Constitution proscribed bills of attainder, they referred to a form of law which had been prevalent in monarchial England and was employed in the colonies. They were familiar with its nature; they had experienced its use; they knew what they wanted to prevent. It was not a law unfair in general, even unfair because affecting merely particular individuals, that they outlawed by the explicitness of their prohibition of bills of attainder.
(I quote extensively from Lovett, as it is largely upon this decision that Judge Garshon bases her opinion.)
- In US v. Brown (1965), SCOTUS held that a law that prohibited members of the Communist party from holding office in labor unions constituted a bill of attainder. In issuing his decision, Chief Justice Warren included several other historical examples of bills of attainder, including capital punishment, confiscation of property, corruption of blood (confiscation of one's estate such that it cannot be passed on through inheritance), banishment, disenfranchisement, and exclusion from holding public office. Warren also expressed that the historical context of the Bill of Attainder clause was intended to enforce the separation of powers and to prevent tyranny by preventing trial by legislature and punishment without trial.
- In Nixon v. Administrator of General Services (1977), SCOTUS held that a law requiring former president Richard Nixon to preserve certain presidential papers and effects did not constitute a bill of attainder, finding that:
While the Bill of Attainder Clause serves as an important bulwark against tyranny, it does not do so by limiting Congress to the choice of legislating for the universe, or legislating only benefits, or not legislating at all.
Further that:
The Act's specificity in referring to appellant by name does not automatically offend the Bill of Attainder Clause.
(These providing useful limits on the constitutional scope of the Bill of Attainder clause.)
- In Selective Service Administration v. Minnesota PIRG (1984), SCOTUS held that a law requiring proof of registration with Selective Service in order to be eligible for federal student aid did not constitute a bill of attainder. An important finding:
Section 12(f) does not inflict punishment within the meaning of the Bill of Attainder Clause. It imposes none of the burdens historically associated with punishment. It does not even deprive appellees of Title IV benefits permanently, since it leaves open perpetually the possibility of qualifying for aid.
Note that this finding includes limiting the scope of attainder to "the burdens historically associated with punishment".
Summary of SCOTUS Definition and Scope of the Bill of Attainder Clause
Thus, one can readily understand the five-pronged test applied to determine applicability of the Bill of Attainder clause:
- A legislative act of Congress (or of a State)
- Specifying a readily identifiable individual or group
- Declaring the guilt of the person or group regarding a specific offense
- Enacting an attainder - or punishment - against the person or group specified
- For which that person or group has not been convicted in a judicial trial
To offend the Bill of Attainder clause, a law must declare the guilt of a person or group regarding a specific offense, and must then enact an attainder in response to that guilt. As is demonstrated in the above-referenced SCOTUS decisions, the concept of "attainder" consists of "the burdens historically associated with punishment" - those burdens being generally the deprivation of life, liberty, or property; corruption of blood; disenfranchisement; prohibition from holding public office; or prohibition from earning a living by practicing one's profession.
Further, SCOTUS holds that the mere act of calling out a specific person or group does not offend the Bill of Attainder clause.
These points are crucial to understanding the constitutionality (or lack thereof) of Judge Gershon's ruling.
The ACORN Ruling
Returning to the ACORN ruling, the crux of the plaintiffs' argument can be found on page 9:
Plaintiffs acknowledge that HUD, pursuant to the OLC memorandum, has paid, or has agreed to pay, for work already performed under existing contracts. They contend that congressional suspension of existing contracts and the denial of the opportunity to obtain future contracts amounts to punishment that violates the Bill of Attainder clause.
Gershon quotes from Nixon v. Administrator of General Services to define a bill of attainder as:
...a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.
She then explains the three-pronged test to determine if a statute "directed at a named or readily identifiable party" is punitive:
[F]irst, "whether the challenged statute falls within the historical meaning of legislative punishment"; second, "whether the statute, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further non-punitive legislative purposes," an inquiry sometimes referred to as the "functional test"; and third, "whether the legislative record evinces a legislative intent to punish."
Of course, in quoting these criteria from Consolidated Edison Company of NY, Inc. v. Pataki, (Con. Ed.) she gives herself an out. Further quoting:
A statute "need not fit all three factors to be considered a bill of attainder, rather, those factors are the evidence that is weighed together in resolving a bill of attainder claim."
(Notice that Gershon quotes not from SCOTUS - from which ample clarification of the definition and scope of the Bill of Attainder clause have come - but rather from a Second Circuit Court of Appeals decision.)
Historical Meaning of Legislative Punishment
Having laid the groundwork, Gershon then proceeds to explain how the ACORN defunding constitutes a bill of attainder. To do so, she quotes liberally from Lovett, in an attempt to conflate the denial of duly earned salary of a government employee to the prohibition of issuing federal contracts to ACORN.
The first problem with this conflation is that, in Lovett, the plaintiffs were duly employed government workers, and the law in question effectively fired them against the wishes of their employing agencies. On the other hand, ACORN is simply a government contractor: an agency attempting to procure government grants and contracts. Thus, the government-employee plaintiffs in Lovett had a reasonable expectation not to remain employed - even a right not to be fired without cause, while ACORN has no reasonable expectation of being granted future government grants or contracts - much less a right to the same.
Gershon attempts to avoid this obvious distinction by invoking a future opportunity claim:
The government attempts to distinguish Lovett on the ground that the plaintiffs in that case had a "vested property interest" in their jobs, whereas here, as plaintiffs unequivocally acknowledge, the have no right to the award of a grant or contract from the federal government. but the Court in Lovett did not base its decision on property rights analysis. The Supreme Court found a deprivation amounting to punishment under the Bill of Attainder clause, not only because plaintiffs were derived of their earned income from existing government jobs, but also because they were deprived of any future opportunity to serve the government. As the Court stated, "[t]his permanent proscription from any opportunity to serve the Government is punishment, and of a most severe type." Id That plaintiffs had no right to any particular job was of no moment.
Gershon's reasoning here is faulty. The government employees in Lovett were clearly "serving the government" in their employment. ACORN clearly was not. If anything, the government was providing a benefit to ACORN, through the awarding of grants and contracts. Further, the government work in which the Lovett plaintiffs were employed constitutes a chosen vocation, from which the statute in question effectively barred the plaintiffs. The ACORN defunding in no way can be construed to have, effectively or otherwise, barred ACORN from its chosen vocation - that vocation ostensibly being voter advocacy, and low-income housing and mortgage counseling.
Gershon then attempts to explain how Selective Service Administration v. Minnesota PIRG is not applicable:
Further, unlike the plaintiffs affected by the statute at issue in Selective Service, plaintiffs here cannot avoid the restrictions imposed upon them. Nothing in the challenged provisions affords plaintiffs an opportunity to overcome the ban.
Again, Gershon's reasoning is faulty. The federal funding ban imposed upon ACORN does not prevent ACORN from engaging in its chosen vocation. ACORN still retains the same rights of every other business in the country, to secure funding or to solicit funds through any other means in the private sector. The inherent implication in Gershon's argument here is that ACORN has a right to government funding. To wit, Gershon then quotes from Nixon and makes the following assertion:
"[I]t has been held permissible for Congress to deprive Communist deportees, as a group, of their social security benefits, but it would surely be a bill of attainder for Congress to deprive a single, named individual of the same benefit...The very specificity would mark it as a punishment, for there is rarely any valid reason for such narrow legislation[.]"
Accordingly, a close reading of the cases indicates that a deprivation of the opportunity to apply for funding in fact fits comfortably within the definition of "punishment" for bill of attainder purposes.
Quite to the contrary, the referenced cases are quite explicit regarding the scope of a "punishment" for bill of attainder purposes. That scope includes deprivation of life, property, or liberty (for example, to pursue a chosen vocation, to vote, to hold public office). Deprivation of the opportunity to apply for public funding in no way resembles the clear scope of a bill of attainder punishment as determined by SCOTUS.
If anything, deprivation of the opportunity to apply for public funding as a claim not against the Bill of Attainder clause, but rather the Due Process clause. However, the plaintiffs have not raised a Due Process claim. In fact, as quoted from Lovett (upon which Gershon relies heavily in her decision) above, the Bill of Attainder clause specifically excludes the sort of general, broad matters encompassed in the Due Process clause [emphasis added]:
When the framers of the Constitution proscribed bills of attainder, they referred to a form of law which had been prevalent in monarchial England and was employed in the colonies. They were familiar with its nature; they had experienced its use; they knew what they wanted to prevent. It was not a law unfair in general, even unfair because affecting merely particular individuals, that they outlawed by the explicitness of their prohibition of bills of attainder.
Thus, plaintiffs may argue that deprivation of the opportunity to apply for public funding is unfair, and a violation of Due Process and/or Equal Protection - but that deprivation is clearly and explicitly not a legislative punishment as evinced by the Bill of Attainder clause.
Functional Test and Legislative History
Next, Gershon moves on to explaining why the statute is punitive. I see no need to discuss either the functional test or the legislative history, as without a justifiable bill of attainder punishment, the question of the punitive nature of the statute is irrelevant. Without a legislative punishment, the statute by definition cannot be punitive.
Failing the Bill of Attainder Test
The ACORN defunding ban fails the Bill of Attainder test on two counts:
- Declaring the guilt of the person or group regarding a specific offense
- Enacting an attainder - or punishment - against the person or group specified
The matter of legislative punishment has been discussed already. However, Gershon's decision doesn't even address that the statute in question neither names an offense committed by ACORN nor declares ACORN' guilt with respect to such offense. The historical and constitutional context of the Bill of Attainder clause is quite clear that declaration of guilt of a specified offense is required for a statute to be considered to be a bill of attainder. Recall the statement from the concurring opinion in Lovett, upon which Gershon relies heavily in her opinion:
“There was always a declaration of guilt either of the individual or the class to which he belonged.”
This point is quite clear - and that the ACORN statute fails to meet this criterion is equally clear. Had the government, as a result of the ACORN statute, not fulfilled its current contractual obligations to ACORN, then plaintiffs would have had an ex post facto argument; however, as Gershon explains at the beginning of her decision, the government has agreed to fulfill all contractual obligations, and ACORN is not pursuing an ex post facto argument.
Over-Stepping Separation of Power
Having ruled in favor of ACORN, Gershon then issues her ruling, which essentially permanently enjoins all listed plaintiffs (HUD, OMB, Treasury, Commerce, DOD, and EPA) against enforcing (or instructing their subordinates to enforce) the ACORN statute. As a reminder, this statute reads:
None of the funds available by this joint resolution or any prior Act may be provided to the Association of Community Organizations for Reform Now (ACORN), or any of its affiliates, subsidiaries, or allied organizations.
Essentially, as the order is written, if any of the listed government agencies denies any future grant or contract to ACORN, it can be accused of violating Judge Gershon's order. In other words, Gershon has just granted ACORN a constitutional right to public funds.
Unfortunately for Judge Gershon, the Constitution grants the right of appropriation of public funds to the Legislature, not to the Judiciary.
BigGovernment.com explains further:
It’s noteworthy that in discussing the Bill of Attainder Clause of the Constitution, the district court failed to discuss at all the Appropriations Clause. That provision states that, “No money shall be drawn from the Treasury, but in consequence of appropriations made by law.” In other words, only Congress can dole out federal dollars.
The court fails to consider whether it has the authority to order the executive branch (the Treasury Department) to continue giving federal dollars to ACORN after the legislative branch (Congress) with sole possession of the power of the purse has specifically passed a law barring any such appropriation. This opinion doesn’t even raise the separation-of-powers issue of a court dictating federal spending.
By enjoining every government agency with any contact with ACORN against denying ACORN any public funds, Gershon has compelled the Legislature to appropriate funds against the expressed prerogative of the Legislature. Further, this ruling sets the precedent for any other government contractor for whom a contract (or grant) is cancelled, or not renewed, to petition the courts on a Bill of Attainder claim.
This ruling is a clear case of liberal judicial activism and malfeasance, and represents a frontal assault on the Constitution. Surely SCOTUS will vacate this decision and put Judge Gershon in her place - although, after such a decision, her place is off the federal bench entirely.
