Nadler: Cutting Off Federal Funds to ACORN "Flatly Unconstitutional"

[struggle4progress]

Source: Public Record

By Jason Leopold
The Public Record
Sep 17th, 2009

Congressman Jerrold Nadler, D-NY, denounced a Republican amendment adopted by the House of Representatives Thursday to deny all federal funds to the advocacy group the Association of Community Organizations for Reform Now (ACORN) as blatantly unconstitutional and a threat to unpopular organizations everywhere.

Nadler said the Republican initiative, the Defund ACORN Act, introduced by Rep. Darrell Issa, R-CA, singles out a specific organization by name for exclusion from participating in any federal program, in direct violation of the Constitution’s prohibition against Bills of Attainder. The amendment was attached to a student loan bill.

“Today’s Republican amendment is in blatant violation of the Constitution’s prohibition against Bills of Attainder,” said Nadler, the chairman of the Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties. “Congress must not be in the business of punishing individual organizations or people without trial, and that’s what this amendment does. Whatever one may think of an organization, the Constitution’s clear ban on Bills of Attainder is there for the protection of all of our liberties.”

The Supreme Court, in decisions dating back to the Civil War era, has held that the Constitution prohibits all legislative acts, “no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial….”

Read more: http://pubrecord.org/politics/5259/nadler-acorn-amendment-flatly/comment-page-1/

[indimuse]

1. Thanks for the post!

knr!

[Aragorn]

2. duh

but I feel confident our elected officials will 1) follow the constitution, and 2) not pander to anyone, in any case.

[bertman]

3. Yeah, right.

:rofl: :rofl: :rofl: :rofl:

That was a good one, Aragorn.

[No Elephants]

22. DUzy. Welcome, Aragorn.

[Robb]

4. Good. It's true. K&R. nt

[Alhena]

5. Not giving someone money is not the same as "punishing" them

This is silly as a Constiutional argument- ACORN has no Constitutional right to have the government give them money.

[yodermon]

6. Depends on the legislation that originally granted them the money.

Are there any other organizations that are also receiving money under that legislation?
Are those other orgs *still* receiving money even though ACORN no longer is simply because a new law singled them out by name?

That's how they're being "punished".

[Wizard777]

16. It is a hardship imposed in response to misconduct. So it is a punishment.

In this case It is an extrajudicial punishment. It derpives Acorn of due process. They have a right to be presumed innocent until proven guilty in a court of Law.

[mzmolly]

33. Very interesting.

:hi:

[unblock]

7. not true. could congress say everyone in america gets a $300 check except alhena?

[Alhena]

9. But they AREN'T giving every organization in America a check - what if I create my own

community organizer association- do I have a right to demand money from Congress?

[Gormy Cuss]

18. ACORN isn't demanding money from Congress.

They were awarded funding through the normal channels available to CBOs. That funding may be rescinded for failure to comply with the rules and regulations under which it was granted or allocated.

What Issa proposed is to ban an organization that took swift action in terms of disciplining the employees who acted inappropriately.

Read between the lines. Issa couldn't care less about ACORN. What matters is that it's a Chicago based CBO and that can be used to put a taint on Obama's past work as a community organizer. Don't believe me? Google ACORN and Obama and you'll get links to a number of Republican "concern" pieces on the topic. Here's one:

http://article.nationalreview.com/?q=NDZiMjkwMDczZWI5ODdjOWYxZTIzZGIyNzEyMjE0ODI=

[CatholicEdHead]

37. From what I hear on the street, only the 20%ers care about this

And the ACORN smear is not sticking in the center. Moderates see Obama trying to do his best, they can disagree with him but ACORN is far from a make or break issue with them. Moderate leaning Republicans see this ACORN for what it is, a bunch of nonsense.

[Unvanguard]

10. I am not a lawyer, and this is not an area of constitutional law I know well

but I think that would be an equal protection violation, not a bill of attainder.

[No Elephants]

23. It is a bill of attainder, an ex post facto law and a deprivation of due process. 3 for 3

ACORN had a vested right to funds. Congress now denied it because of alleged crimes on the part of ACORN employees. It is tantamount to imposing a fine for a crime without a trial. That makes it a bill of attainder.

But, point is, one way or another, it's unconstitutional.

[unblock]

31. it's not ex post facto unless they're billing for funding they already gave them

assuming all they're cutting off is future funds, then there's no ex post facto problem.

and i don't believe that passage of a new law violates due process. due process usually relates to enforcement of existing laws, which is not what's contemplated here.

i do think agree with nadler that it's a bill of attainder as discussed, though again, they can get around that.


at the end of the day, it sucks, but more for political and policy reasons than constitutional ones.

[Igel]

32. No, no, and no.

It's not a bill of attainder. It names them, but it neither prescribes a punishment for breaking a law nor confiscates property. One could advance a slippery-slope argument to make it a bill of attainder, but that would be revising a section of law, with all kinds of unforeseen complications, in order to achieve a very specific, partisan end. I dislike that when it's done, whether by dems or repubs.

It's not criminalizing anything. Their Constitutional rights are not in jeopardy. Even given that, as a corporation, they are deemed a person (which is, oddly, exactly what all of these claims entail), their conduct isn't being made retroactively criminal.

Due process involves the courts, primarily. This measure involves politicians, which means their actions are political and not legal. Nor is it a political meddling in things legal: Congress decides how to disburse funds all the time, granting funding to some and denying it to others. No "due process" is involved when a repub Congress gives money to one group and not to another, while a dem Congress reverses the ranking of grant recipients.

Now, you might have a claim if Congress prescribed the seizing of money already issued. However, the money, once disbursed, it disbursed. Until it's disbursed, it's under the Congress' control.

You might also have a claim if Congress (or the administration, with Congress' authorization) entered into a contract with ACORN. I don't know if this is the case or not; would a letter notifying ACORN of receiving a grant be judged a contract? Dunno.

One could argue that if there's a competition for grant funding, by stipulating that ACORN cannot apply Congress has violated the corporation's personal rights, pending formal action by the courts. I don't know; Congress also has a fair measure of sovereign immunity, and has also revoked some private contracts without, to my knowledge, suffering defeats in the courts. (Then again, the papers wouldn't have a vested interest in pointing out that breaking contracts like that was deemed illegal.) This kind of stipulation might be deemed discrimination, but showing that Congress was acting against a protected class of persons might be a bit tricky--there's certainly no intent to discriminate on the basis of race, and since it's a single organization how do you gauge disparate impact? (At least, until the money's disbursed.)

[Unvanguard]

34. It is none of the above.

You are ignoring a crucial distinction both on the political-philosophical level, and as a matter of law: criminal penalties, because they take away things that belong by right to the person or organization they target, must meet special conditions. ACORN, however, has no right whatsoever to federal funding. The government can exercise its own judgment, independent of court decision, on whether or not ACORN should get funds.

[izquierdista]

11. Wrong!

They have the right to ask, as do similarly organized institutions. Singling them out as ineligible is, in effect, a Bill of Attainder.

[No Elephants]

24. It's not about asking. The funding was already granted to ACORN.

[yellowcanine]

36. If they meet the requirements for a competive grant Congress cannot deny them the funds, though.

If a Federal Agency acting within existing law awards a grant to an organization Congress cannot turn around and change the law just to exclude that organization. That would indeed be a bill of attainder. The only thing Congress could do is defund the whole program - they can't single out individual organizations.

[unblock]

8. in practice, there's always a way around the bills of attainder restriction

instead of defunding acorn by name, they defund all organizations having a set of very particular characteristics that the know acorn matches. in order to make the constitutional case stronger, they can, in the process, defund a few innocent bystanders as well, and re-fund those through some other means.

[No Elephants]

25. But, they already voted, naming ACORN by name. That's the point of this thread.

It passed in the Senate within the last day or so, also naming ACORN by name.

The bill does not seem to be in final form yet, but I would say the die is cast. If they re-word the bill, ACORN can claim the re-wording was clearly a sham.

[unblock]

30. congress often names individual people or entities during the legislative process

what really matters is what's in the final law.

only on rare occassions will a court see it as helpful and necessary to delve into "congressional intent" as evidenced by congressional actions other than what's in the final law.

[fascisthunter]

12. kick(nt)

[bemildred]

13. Well said Mr Nadler. nt

[obliviously]

14. I want my money

give me money . you can't punish me by not giving me money wah wah wah!

[No Elephants]

26. WTF?

[Name removed]

28. Deleted message

Message removed by moderator. Click here to review the message board rules.

[Nuclear Unicorn]

15. I had no idea what a "Bill of Attainder" was/is...

So, for those, who like me, are ignorant of the subject:

The United States Constitution forbids both the federal and state governments to enact bills of attainder, in Article 1, Sections 9 and 10, respectively. It was considered an excess or abuse of the British monarchy and Parliament. No bills of attainder have been passed since 1798 in the UK. Attainder as such was also a legal consequence of convictions in courts of law, but this ceased to be a part of punishment in 1870.<5>

Bills of attainder were used through the 18th century in England, and were applied to British colonies as well. One of the motivations for the American Revolution was anger at the injustice of attainder—though the Americans themselves used bills of attainder to confiscate the property of British loyalists (called Tories) during the revolution. American dissatisfaction with attainder laws motivated their prohibition in the Constitution (see the case of Parker Wickham). The provision forbidding state law bills of attainder reflects the importance that the framers attached to this issue, since the unamended constitution imposes very few restrictions on state governments' power.

Within the U.S. Constitution, the clauses forbidding attainder laws serve two purposes. First, they reinforced the separation of powers, by forbidding the legislature to perform judicial functions—since the outcome of any such acts of legislature would of necessity take the form of a bill of attainder. Second, they embody the concept of due process, which was later reinforced by the Fifth Amendment to the Constitution. The text of the Constitution, Article I, Section 9; Clause 3 is "No Bill of Attainder or ex post facto Law shall be passed". The constitution of every State also expressly forbids bills of attainder. For example, Wisconsin's constitution Article I, Section 12 reads:

No bill of attainder, ex post facto law, nor any law impairing the obligation of contracts, shall ever be passed, and no conviction shall work corruption of blood or forfeiture of estate.

Contrast this with the subtly more modern variation of the Texas version: Article 1 (Titled Bill of Rights) Section 16, entitled Bills of Attainder; Ex Post Facto or Retroactive Laws: Impairing Obligation of Contracts: "No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made".

Traditionally, most bills of attainder designated the persons subjected to punishment by name. In some cases, however, legislatures imposed punishment on groups whose individual members could be ascertained without much difficulty. For example, a federal statute made it a crime for members of the Communist party to serve as officers of a labor union. The purpose of the statute was to protect the national economy by minimizing the danger of political strikes. The Court in United States v. Brown (1965) invalidated the statute as a bill of attainder. Since not all members of the Communist party were likely to incite political strikes, and since noncommunist agitators might also engage in such conduct, the decision whether the activities of a particular person presented the danger to be guarded against should have been left to the judicial branch.

Up until 2002, only five acts of Congress had ever been overturned on bill of attainder grounds. The Elizabeth Morgan Act was overturned in 2003 as a bill of attainder. Many suggested that the Palm Sunday Compromise in the case of Terri Schiavo was also a bill of attainder. The cases of U.S. v. Brown,<6> U.S. v. Lovett,<7> and In re Yung Sing Hee<8> establish bills of pains and penalties as punishment without trial, and included within the prohibitions of bills of attainder. The precedent that best reflects most of the original intention of the mandates is from Cummings v. Missouri.<9> It states

A bill of attainder, is a legislative act which inflicts punishment without judicial trial and includes any legislative act which takes away the life, liberty or property of a particular named or easily ascertainable person or group of persons because the legislature thinks them guilty of conduct which deserves punishment.

U.S. v. Lovett was a case historically relevant to taking away pay checks of government workers Congress could accuse of being Communists. This was an asset forfeiture case. It states:

Legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a trial, are 'bills of attainder' prohibited under this clause.
This expansive interpretation, however, makes it difficult for the legislatures to settle any individual cases and to pass any private bills, because taking away private property or rights could be construed as "punishment" even when the goal is to meet justified claims of some other party to the controversy.


http://en.wikipedia.org/wiki/Bill_of_attainder

[Demeter]

19. Sounds Like That Would Cover All Anti-Choice Legislation, Too

Seeing as women as a class are the victims, and lose their freedom, liberties and rights without a trial....

[Wizard777]

17. Should the Republicans political charter be revoked for this?

At least in accordance to the republicans handling of the Acorn thing it should be. They should also have all government funding cut off. But only if we are going to hold the Republicans to the Republicans standards. As always. YOU CAN'T DO THAT!

This is the problem with the Republicans participation in our Democracy. Democracy involves people making rules or laws we all can live by. The Republican party has become about making rules and laws for everyone else to live by.

[Demeter]

20. GOP's Problems Stem from Its NON-Governmental Funding

Not sure they can even get any government largess.

[Wizard777]

21. Matching funds is their largess.

Much like this corruption of Acorn induced by O'Keefe and Giles. That's a problem Acorn is dealing with. How the Republicans became corrupted by these outside influences is a problem for the Republicans to deal with. So revoke their Charter to force them to deal with these corruptions. Once they prove that they have properly dealt with these corrupting influences and can be trusted with the power of the People and our money again. Just like Acorn is doing. Their charter can then be reinstated. But only if we are going to hold the Republicans to Acorns standards.

Oh, somebody call Nancy. That table she stands guard on has turned.

:rofl:

[No Elephants]

27. How do you figure that when Democrats voted for it overwhelmingly too?

And what political charter are you talking about?

Republican participation in our Democracy is just fine. I don't want a one-party system. The problem with this bill and so many others since 2006 was participation by the party that controlled Congress at the time--and that ain't the Republicans.

[Wizard777]

29. They were relying on the Official to introduce legislation it was proper and legal for them to -

vote on. The budget is passed as a matter of law. What this amounts to is a Congressional retroactive line item veto of that budget. That budget is law and they are compelled to administer that law.

I'm taking this from a conversation I had with a Senator and Rep some years ago about revoking funding for an organization. They both told me the same thing. Once the budget passes it is law. They are compelled to effect that law. If the budget says Congress must throw 100 million dollars down a rat hole. Congress is required by law to throw that money down the rat hole. Once the Budget passes there is nothing they can do to stop it. If they don't throw the money down the rat hole disciplinary actions can be taken against them.

[truthisfreedom]

35. More "The Constitution is just a piece of paper" repukes at work here.

The anti-Constitution party.