The Holder Justice Department has concluded that the Obama administration can lawfully pay Acorn for services provided under contracts signed before Congress banned the government from providing money to the group. Here is the Office of Legal Counsel memo reaching this conclusion.
OLC analysis is tortured. Congress stated: “None of the funds made available by this Joint Resolution or any prior Act may be provided to ACORN. . .” On its face, this looks like a blanket prohibition against paying ACORN under any circumstances. However, OLC purports to find ambiguity in the term “provided to” and then opts for a meaning that does not bar “payments made pursuant to a binding contractual duty.”
OLC opts for this interpretation because it avoids a construction which might require the government to breach its contractual obligations to ACORN. In my opinion, this stated DOJ objective is a worthy one, whatever we think of ACORN, and I don’t assume that it’s just a pretext by OLC for favoring ACORN. However, it seems to me that OLC avoids the result it disfavors only by ignoring the plain meaning of the statute Congress enacted, which is unworthy of DOJ.
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