Is de-funding ACORN an unconstitutional “bill of attainder”?

[ashling]

Wexler
U.S. Rep. Robert Wexler, D-Boca Raton, and some other Democrats who voted against a measure to deny federal money to scandal-tainted ACORN said they did so because they regarded the action as an unconstitutional “bill of attainder.”

****

A bill of attainder, forbidden in Article I, Section IX of the constitution, is a legislative act that imposes punishment on a specific person or group without a trial or hearing. But there’s legal precendent allowing a law that singles out an entity if “the law under challenge, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes.”

UCLA law professor and blogger Eugene Volokh offers this discussion of the matter and concludes: “My rereading of the precedents leads me to confidently and unambiguously say, ‘I don’t know.’

[bobbolink]

1. Very good information! Thank you for digging this up!

[ashling]

5. Actually, one of my Con Law student's posted it

on Blackboard. For those of you who don't know Blackboard is a program for teaching on line. One of the more popular ones I think.

[Piewhacket]

7. Thanks for the note on blackboard. I notice it has a few black eyes...

all of its 44 patents invalidated last July on grounds of prior art.

apparently Blackboard (NASDAQ:BBBB) went public in 2004 after
seeking and obtaining patents without investigating or disclosing
prior art... ooooo. misuse of the patent system is a nasty biz.

apparently by then they had muscled their way into a prominent
market position with educational systems so even without patents
their stocks have somehow maintained value. otherwise stockholders
might complain. guess their contracts are carrying them through
the crisis for now.

great American success story. hey. every enterprise has an element
of risk, to be sure.


hope they are treating their customers well.
does your school require/provide access to blackboard as part of the
curriculum?

[ashling]

9. Didn't know about the patent thing

very interesting.

Yes we use blackboard for online classes and also provide it for class based instruction. We have updated recently, but the lower version is still in use at some colleges.

My wife teaches a couple of online classes at a local community college that has a program called "Noodle"

[Piewhacket]

13. Yeah, the open source community,

got pissed, and provided overwhelming prior art research to the
other side. OS general view is that software patents are an abomination,
and that's the nicest thing they say about 'em. Basically it was pretty much a
rout when Blackboard case finally got to decision.

Patents seem commonly misused in the software area. The old Ashton-Tate
case (dBase) is an early example. Patent abuse is still used as a tactic
because the upside will often outweigh the downside.

Nice to see a con law prof in DU. Be nice to see more lively discussions,
but I fear the DU moderators are not really up to it. Still, perhaps I'll catch
you on a controversial thread sometime, another will join us and
we can kick up the discussion a notch or two, that could be fun.

thanks for the comment.

[virgogal]

2. I love the prof's conclusion. Very funny!

[Hawkeye-X]

3. Nah. It's going to be Faux that's going to be scandal-ridden.

And forced to shut down its propaganda network after the Supreme Court reverses its decision on its "liar" bullshit judgement.

And Faux is exposed for the propaganda bullshit network it is.

[BlooInBloo]

4. Not if worded appropriately, unfortunately.

[spanone]

6. NOTHING has been proven whatsoever...

[struggle4progress]

8. Congress acted too quickly, and with too much political heat, to produce a legislative record

supporting the idea that ACORN was singled out "to further nonpunitive legislative purposes"

Thomas indicates that the language was not general but singled out ACORN by name:

H.R.3288
Title: Making appropriations for the Departments of Transportation, and Housing and Urban Development, and related agencies for the fiscal year ending September 30, 2010, and for other purposes ...
9/14/2009:
S.AMDT.2355 Amendment SA 2355 proposed by Senator Johanns. (consideration: CR S9308-9318; text: CR S9308)
Prohibiting use of funds to fund the Association of Community Organizations for Reform Now (ACORN).
9/14/2009:
S.AMDT.2355 Amendment SA 2355 as modified agreed to in Senate by Yea-Nay Vote. 83 - 7. Record Vote Number: 275. (text as modified: CR S9313-9314) ...


And what is the text of the amendment?



... SA 2355. Mr. JOHANNS submitted an amendment intended to be proposed by him to the bill H.R. 3288, making appropriations for the Departments of Transportation, and Housing and Urban Development, and related agencies for the fiscal year ending September 30, 2010, and for other purposes; which was ordered to lie on the table; as follows:

After section 414, insert the following:

Sec. 4__. None of the funds made available under this Act may be directly or indirectly distributed to the Association of Community Organizations for Reform Now (ACORN) ...


Note that there is no legislative purpose here, except to prevent ACORN uniquely from competing for funds it might otherwise be eligible to seek

[DCKit]

10. Revenge is always so messy. n/t

[HamdenRice]

11. It may be illegal, but not because it's a bill of attainder nt

[berni_mccoy]

12. Looks like it.