Michael Gaynor
De-fund ACORN properly, PLEASE
By Michael Gaynor
December 16, 2009

ACORN does not have a right to federal funding, but, like everyone else, ACORN has a constitutional right not to be the subject of a bill of attainder and Judge Gershon ruled that Section 163 was a bill of attainder.

On December 11, 2009, in ACORN v. United States, 09-cv-4888(NG) (E.D.N.Y.), Judge Nina Gershon ruled that Congress cannot "declare that a single, named individual is barred from all federal funding in the absence of a trial" and "the discretionary nature of governmental funding does not foreclose a finding that Congress has impermissibly singled out plaintiffs for punishment" and she could not "discern any valid, non-punitive purpose for Congress enacting the legislation in this case."

The beneficiary of the ruling is evil, corrupt, subversive ACORN (the Association of Community Organizations for Reform Now). Understandably, ACORN critics are disappointed, even outraged. But there IS a fundamental legal principle at stake, the law is not a respecter of persons and thus the matter should be decided without regard to whether the de-fundee is ACORN, or the Salvation Army, or the National Rifle Association.

Washington Examiner staff writer Gregory Kane, in "Gregory Kane: Not everything is unconstitutional" (December 14, 2009)(http://www.washingtonexaminer.com/opinion/columns/Not-everything-is-unconstitutional-8655257-79171507.html):

"Imagine my shock when I learned a federal judge had used the 'u' word in describing Congress' decision to no longer dole out taxpayers' dollars to ACORN. "That 'u' word would be 'unconstitutional,' and the dismaying details are contained in the Associated Press story quoted below:

'The U.S. government's move this fall to cut off funding to ACORN was unconstitutional, a federal judge ruled Friday, handing the embattled group a legal victory. U.S. District Judge Nina Gershon issued the preliminary injunction against the government, saying it's in the public's interest for the organization to continue receiving federal funding.'"

Kane should not have been shocked.

In "Is De-funding ACORN Constitutional?" (September 21, 2009) (http://www.webcommentary.com/php/ShowArticle.php?id=gaynorm&date=090921), I warned that ACORN had a case:

"Ardent ACORN defender Congressman Jerrold Nadler (Dem., N.Y.), Chair of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, claims that de-funding ACORN would be unconstitutional.

"On September 17, 2009, Congressman Nadler issued a press release in support of his claim stating in part: 'During the McCarthy era, ...Congress enacted legislation prohibiting the use of funds to pay the salaries of three federal employees who Congress deemed subversive. The Supreme Court ruled this legislation unconstitutional as a Bill of Attainder."

"Congressman Nadler is flatly wrong...about when that legislation was enacted. (It was enacted in 1943, during the World War II era. Joseph McCarthy was serving in the United States Marines then, having foregone his automatic exemption as a judge. He did not join the Senate until 1947 and the term 'McCarthyism' was not coined until 1950.)

"But the Constitution is the Constitution and says what it says and Congressman Nadler did not make up a Supreme Court ruling.

"ACORN is a criminal enterprise, a corrupt unofficial arm of Congressman Nadler's political party and a slimy, subversive disgrace, but this time Congressman Nadler has a genuine legal argument!"

In the case relied upon by Congressman Nadler, United States v. Lovett, 328 U.S. 303 (1946), the United States Supreme Court upheld a claim that the constitutional prohibition on a bill of attainder had been violated.

In that case, the Court explained: "Those who wrote our Constitution well knew the danger inherent in special legislative acts which take away the life, liberty, or property of particular named persons because the legislature thinks them guilty of conduct which deserves punishment. They intended to safeguard the people of this country from punishment without trial by duly constituted courts. See Duncan v. Kahanamoku, 327 U.S. 304. And even the courts to which this important function was entrusted were commanded to stay their hands until and unless certain tested safeguards were observed. An accused in court must be tried by an impartial jury, has a right to be represented by counsel, he must be clearly informed of the charge against him, the law which he is charged with violating must have been passed before he committed the act charged, he must be confronted by the witnesses against him, he must not be compelled to incriminate himself, he cannot twice be put in jeopardy for the same offense, and, even after conviction, no cruel and unusual punishment can be inflicted upon him. See Chambers v. Florida, 309 U.S. 227, 235-238. When our Constitution and Bill of Rights were written, our ancestors had ample reason to know that legislative trials and punishments were too dangerous to liberty to exist in the nation of free men they envisioned. And so they proscribed bills of attainder. Section 304 is one. Much as we regret to declare that an Act of Congress violates the Constitution, we have no alternative here."

Edward Whelan, president of the Ethics and Public Center, in a Bench Memo at National Review Online posted on December 14, 2009, rightly pointed out that Lovett can be distinguished.


"In Lovett, the Court addressed a provision that barred the use of any funds, whether already appropriated or appropriated at any time in the future, to pay any part of the salary of three named government employees. The Court determined that the purpose of the provision was 'permanently to bar [the three men] from government service,' and that it '"operate[d] as a legislative decree of perpetual exclusion' from a chosen vocation': 'This permanent proscription from any opportunity to serve the Government is punishment, and of a most severe type. It is a type of punishment which Congress has only invoked for special types of odious and dangerous crimes, such as treason ....'

"Three differences between Section 163 [the ACORN de-funding provision] and the provision at issue in Lovett are obvious: (1) Section 163 applies to an organization, not to individuals; (2) Section 163 applies to applications for discretionary federal funds, not to the continuation of federal employment; (3) Section 163 is temporary (it doesn't apply to future appropriations), not permanent. I don't mean to contend that these differences are necessarily dispositive, but they need to be addressed with care. Yet, remarkably, Judge Gershon pays zero attention to the first two differences and offers a very brisk and unsatisfactory footnote dismissal of the third. [Clarification on the second difference: Judge Gershon does address the government's effort to distinguish Lovett on the ground that the plaintiffs in that case had a 'vested property interest' in their jobs. That is one of the issues that would arise in considering the difference between application for discretionary federal funds and continuation of federal employment. But Judge Gershon doesn't pose the general question whether there is a difference — and therefore doesn't meaningfully address, for example, whether the loss of employment is more severe, or more distinctive of punishment for crimes, than the loss of the right to apply for discretionary federal funds.] Judge Gershon, in other words, provides no meaningful explanation why Section 163 should be thought to be governed by Lovett."

Whelan's points are valid, but it does not follow that Lovett should have been distinguished or that Judge Gershon reached the wrong conclusion.

Judge Gershon ruled that ACORN had raised a "fundamental issue of separation of powers. They have been singled out by Congress for punishment that directly and immediately affects their ability to continue to obtain federal funding, in the absence of any judicial, or even administrative, process adjudicating guilt."

Kane asserted:

"It's interesting that Gershon brought up the matter of separation of powers, since it's doubtful she understands them herself. Congress has the power to appropriate tax money, not the judicial branch.

"Gershon may be overstepping her judicial authority by dictating to Congress whom the body can and cannot fund. And she's yanked yet another right out of thin air: the 'right' to federal funding. The arrogance of some federal officials — that they have a right to taxpayers' money — continues unabated."

I think that Kane misunderstands Judge Gershon's ruling: Judge Gershson did NOT presume to appropriate tax money. Rather, she ruled that Congress could not disqualify ACORN from receiving federal funds, deeming that punishment within the meaning of the constitutional ban on bills of attainder.

Whether that was punishment is a matter on which reasonable persons may disagree.

Judge Gershon wrote: ""At first blush, the idea that the deprivation of the opportunity to apply for discretionary federal funds is 'punitive' within the meaning of the attainder clause seems implausible. Neither the Supreme Court nor the Second Circuit has been faced with such a claim."

Then she found Lovett "particularly instructive" and determined either that Section 163 is unconstitutional and that ACORN is likely to succeed on the merits. (Whelan thinks "the better reading of her opinion is that she has decided that ACORN has satisfied the likelihood-of-success component of the preliminary-injunction test because she has determined that Section 163 is unconstitutional.)

Frustrated Kane railed:

"This abuse of the word 'unconstitutional' has been going on for some time. With some people, whatever displeases them is, by definition, unconstitutional.

"ACORN honchos feel they are entitled to federal funding and scream 'it's unconstitutional' when it's cut off, the information revealed in those video stings notwithstanding. Opponents of the death penalty don't like capital punishment, and then declare it's 'unconstitutional' and forbidden by the Eighth Amendment."

ACORN is NOT entitled to federal funding, but, in Judge Gershon's opinion, it is entitled not to be disqualified from receiving federal funding by Congress.

Kane conceded that "Gershon said in her ruling that ACORN had been deprived of funding without due process. That, according to her, ACORN and Bill Quigley of the Center for Constitutional Rights, which brought the suit to court for ACORN, is by definition 'unconstitutional.'"

But Kane argued that the Fifth Amendment prohibition on deprivation of "life, liberty or property" without due process does not help ACORN.

Kane: "That means the person's own property, not taxpayers' money, but Gershon, ACORN and Quigley are incapable of making those distinctions. The people at ACORN feel taxpayer money is their money; they've been deprived of it, and they want it back."

Kane may well be right about the attitude of "[t]he people at ACORN," but ACORN did not have to a right to "taxpayers' money" in order to win. It merely had to have a right not to be disqualified by Congress.

In Torasco v. Watkins, 367 U.S. 488, 81 S. Ct. 1680, 6 L. Ed. 2d 982 (1961), the United States Supreme Court ruled that the State of Maryland cannot prohibit atheists from being notary publics.

The Court declared:

"The fact...that a person is not compelled to hold public office cannot possibly be an excuse for barring him from office by state-imposed criteria forbidden by the Constitution. This was settled by our holding in Wieman v. Updegraff, 344 U.S. 183 . We there pointed out that whether or not 'an abstract right to public employment exists,' Congress could not pass a law providing '". . . that no federal employee shall attend Mass or take any active part in missionary work."'

"This Maryland religious test for public office unconstitutionally invades the appellant's freedom of belief and religion and therefore cannot be enforced against him."

No one has a constitutional right to be a notary public, but everyone has a constitutional right not to be disqualified from being a notary public because he or she does or does not believe in God and therefore will not swear an oath.

Likewise, ACORN does not have a right to federal funding, but, like everyone else, ACORN has a constitutional right not to be the subject of a bill of attainder and Judge Gershon ruled that Section 163 was a bill of attainder.

Kane concluded his article: "Bertha Lewis, the chief executive officer of ACORN, is celebrating now, but when Congress opens hearings about what her organization has done with federal funds, and starts subpoenaing records, account books and receipts for expenditures, she may rue the day Gershon made her ruling."

May it be so!

But ACORN should be exposed, investigated, prosecuted and punished as appropriate in accordance with the Constitution and Congress cannot serve as the judicial branch because the executive branch won't prosecute ACORN.

© Michael Gaynor


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)


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