ACORN cries foul, liberal judge agrees

A federal district judge, the Honorable Nina Gershon of the Eastern District of New York, has found that congressional legislation that restricts funding by the federal government of ACORN is unconstitutional by virtue of being a “bill of attainder.” Judge Gershon is best-known, at least until now, as the judge who ruled that Mayor Giuliani could not cut the Brooklyn Museum of Art’s funding after it displayed sickening pornography.
Judge Gershon’s latest decision in support of mandatory government funding for disgusting operations comes to us by way of a ruling on ACORN’s motion for a preliminary injunction. Such motions call for an inquiry into the likelihood of the moving party’s success on the merits, rather than an outright ruling on the merits. However, Judge Gershon goes beyond a ruling on likelihood of success and flatly declares the legislation at issue to be “unconstitutional under the Bill of Attainder Clause.”
Ed Whelan finds Judge Gershon’s opinion “unpersuasive.” I agree.
The judge begins by acknowledging that “legislative decisions enjoy a high presumption of legitimacy” particularly when they are challenged under the Bill of Attainder Clause, “which has been successfully invoked only five times in the Supreme Court since the signing of the Constitution.” Judge Gershon also acknowledges that “at first blush” the notion that the deprivation of the opportunity to apply for discretionary federal funds is “punitive” — the key issue under the Bill of Attainder Clause” — “seems implausible.”
But these statements turn out to be mere lip service, as Judge Gershon proceeds to embrace precisely the view she says seems implausible, while granting no presumption of legitimacy that I can discern to the congressional legislation she ends up declaring unconstitutional.
The decision to deny funding to ACORN in response to evidence of gross impropriety by that outfit bears virtually no resemblance to the cases in which the Supreme Court has upheld challenges under the Bill of Attainder Clause. These cases involved barring individuals from employment in certain jobs or from entry into certain professions. For example, in the case Judge Gershon relies on, Congress passed a law prohibiting the use of federally appropriated money to pay the government salaries of 39 named government employees deemed to be “radicals” and “crackpots.”
This case did not involve an organization’s ability to apply for discretionary funding. Thus, it does not support the proposition that Judge Gershon has already deemed implausible — that it is “punitive” for Congress to deprive an organization of the opportunity to apply for discretionary funding.
Even absent punitive intent, Congress could, and should, be expected to cut off funds to an outfit that has engaged in behavior such as ACORN’s. Judge Gershon relies on isolated statements by certain Republican members of Congress about “going after ACORN.” Whatever the meaning of these comments, ACORN’s enemies among Republicans could not have passed this legislation. Rather, the legislation passed because Democrats who, from all that appears, harbor no particular animosity towards ACORN, agreed with Republicans that ACORN no longer deserves government funding. This isn’t a Bill of Attainder; it is Congress doing its job (for a change) of policing how the peoples’ money is spent.
Judge Gershon also relies on a Second Circuit decision in which a state law blocked a power company from passing along to its customers the costs associated with an outage. The legislature did so based on findings that the utility failed to exercise reasonable care on behalf of the health, safety, and economic well-being of customers when it did not replace the faulty generator that later caused the outage.
This legislation effectively imposed a monetary penalty on the company due to an accidental outage. Moreover, the penalty made no attempt to “exclude those substantial costs that would have been incurred absent misconduct” on the utility’s part. The Second Circuit found the legislation punitive for these reasons.
The legislation involving ACORN can plausibly be deemed punitive for similar reasons to the extent that it bars the government from paying ACORN disbursements under pre-existing contracts. It was for this reason that the Obama administration Justice Department strained to construe the legislation in question not to bar such payments.
Judge Gerson concludes that, even so construed, the legislation is unconstitutional. But, so construed, Congress is not effectively “fining” ACORN; it is simply directing that the government conduct no new business with ACORN. Nor is this prohibition permanent, as were the bans on employment in the various Bill of Attainder cases mentioned above. It does not apply to future appropriations.
In sum, this is a bad decision that will help feather the nest of a very bad operation.

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