Michael Gaynor
Beware the corruption of America's federal constitutional republic
By Michael Gaynor
August 16, 2010

The Second Circuit acknowledged that "some evidence in the record indicating that ACORN was precluded from receiving federal funds upon the legislature's determination that ACORN was guilty of abusive and fraudulent practices" and stated that the "Pimp and Pro" ACORN videos "were heavily edited, 'manipulated,' and 'distorted,'' but upheld the defunding laws based on the absence of a finding of guilt in the defunding laws themselves and a deferential determination that the evidence of "punitive intent" in the laws' legislative history is not "unmistakable."

ACORN would be a suitable candidate for a bill of attainder if bills of attainder were appropriate, but they are not and making them constitutional would destroy the American governmental system of separation of powers and checks and balances. Each branch of government should do its job.

Bill Quigley, legal director for the Center for Constitutional Rights, commenting upon last Friday's 23-page Second Circuit opinion affirming in part and vacating in part a district court judgment in the case that challenged the federal appropriation laws blocking ACORN organizations from obtaining federal funds and remanding the case to the district court for further proceedings as to the First Amendment and due process claims of plaintiffs ACORN, ACORN Institute, Inc. and MHANY Management, Inc. (formerly known as New York ACORN Housing Company, Inc.: "We cannot let Congress be pushed around by the right-wing media machine into becoming prosecutor, judge, jury and executioner of politically unpopular people or organizations" (www.breitbart.com/article.php?id=D9HIOI900&show_article=1).

A broken clock is right twice a day. Quigley did not mention that President Obama signed those federal appropriation laws defunding ACORN, but Quigley has a legitimate separation of powers point: judicial functions are beyond the scope of the legitimate power of both the Congress and the President. America was designed to be a federal republic, certainly not a dictatorship and not even a pure democracy. The concept of separation of powers is enshrined in the Constitution. The executive, legislative and judicial branches of the federal government are supposed to be independent and no one or even two of them may do what is for the other to do.

Judge Nina Gershon of the United States District Court for the Eastern District of New York had issued first a preliminary injunction and then a permanent injunction and a declaratory judgment declaring the ACORN defunding laws unconstitutional bills of attainder and enjoining the defendants in the case — the United States of America, Secretary of Housing and Urban Development Shawn Donovan, Management and Budget Director Peter Orszag, Secretary of Treasury Timothy Geithner, Environmental Protection Agency Administrator Lisa Jackson, Secretary of Commerce Gary Locke and Secretary of Defense Robert Gates from enforcing those laws against the plaintiffs.

The particulars of Judge Gershon's controversial decision are illuminating and important in evaluating the Second Circuit's controversial decision.

Judge Gershon ruled that the plaintiffs have standing under Article III of the Constitution to challenge the defunding laws against all defendants, including the Secretary of Defense and the OMB Director.

On appeal, the Government challenged the plaintiffs' standing to sue the Secretary of Defense and the OMB Director, arguing, as stated in the Second Circuit opinion, "that, unlike the other defendants in this appeal, the plaintiffs have never received — and do not intend to apply for — grants or contracts from the Department of Defense" and 'the plaintiffs have not suffered any injury caused by OMB because Section 163 is no longer effective; OMB rescinded its memorandum advising the heads of all the executive agencies; and, in any event, OMB has no authority to enforce federal statutes."

In rejecting the Government's argument, the Second Circuit relied on a 2003 District of Columbia Circuit case that ruled that "Congress's act of judging [the plaintiff in that case] and legislating against him on the basis of that judgment...directly give[s] rise to a cognizable injury to his reputation." The Second Circuit stated: "Even if the plaintiffs are not and never will be interested in applying for grants or funding from the department of Defense, the fact that the defense department's appropriations law specifically prohibits ACORN and its affiliates from being eligible for federal funds affects the plaintiffs' reputation with other agencies, states, and private donors.

Likewise, standing was found as against OMB based on injury to reputation.

Second Circuit: "...OMB's now-rescinded memorandum — which is the basis for the plaintiffs' claim of reputational injury with respect to Section 163 — was issued. As explained by the District Court, notwithstanding the rescission of the OMB memorandum and expiration of Section 163, the OMB memorandum continues to exert influence over the plaintiffs' reputation...."

Further, the Second Circuit visited the OMB website on August 10, 2010 and concluded that "what is called a rescission in fact functioned in no such way."

In sharp contrast to the way in which the Second Circuit refused to accept the OMB rescission assurance, the Second Circuit deferred to Congress and rejected Judge Gershon's conclusions that the defunding laws "(a) fell within the historical meaning of legislative punishment, (b) did not further a non-punitive legislative purpose, and (c) were supported by a legislative record that evinced an intent to punish."

The United States Supreme Court has identified three elements of an unconstitutional bill of attainder: (1) "specification of the affected persons," (2) "punishment," and (3) "lack of a judicial trial."

Judge Gershon found all elements to be present and on appeal the Government only denied that the defunding constituted punishment.

The Second Circuit quoted the United States Supreme Court's statement that the constitutional prohibition against bills of attainder "was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, or more simply — trial by legislative").

Judge Roger J. Miner, author of the Second Circuit opinion, cited a law review article he had written more than 15 years ago for the proposition that the bill of attainder prohibition was "more a reflection of the Constitution's concern with fragmenting the government power than merely preventing the recurrence of unsavory British practices of the time."

But then the Second Circuit decided that the defunding was NOT punishment and therefore the defunding laws were not bills of attainder.

Second Circuit: "With respect to the existence vel non of punishment, three factors guide our consideration: (1) whether the challenged statute fails within the historical meaning of legislative punishment (historical test of punishment); (2) whether the statute, 'viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes' (functional test of punishment); and (3) whether the legislative record 'evinces a [legislative] intent to punish' (motivational test of punishment)'....All three factors need not be satisfied to prove that a law constitutes 'punishment'; rather, 'th[e] factors are the evidence that is weighed together in resolving a bill of attainder claim'...."

The Second Circuit decision suggests that political reality may be ignored and a bill of attainder is a bill of attainder only if it is badly drafted.

The ACORN defunding laws did not include a declaration of "guilt," and the defunding was temporary, not "a permanent ban or disqualification of ACORN from federal funds...."

Thus the Second Circuit concluded that '[t]he withholding of appropriations...does not constitute a traditional form of punishment that is 'considered to be punitive per se'" and "Congress's decision to withhold funds from ACORN and its affiliates constitutes neither imprisonment, banishment, nor death."

The Second Circuit acknowledged that '[t]he withholding of funds may arguably constitute a punitive confiscation of property at some point," but noted that "the plaintiffs do not assert that they have property to federal funds that have yet to be disbursed at the agency's discretion" and, having earlier noted that the bill of attainder prohibition protects corporations as well as individuals, "note[d], further, that 'there may well be actions that would be considered punitive if taken against an individual, but not if taken against a corporation.'"

Apparently, in the view of the Second Circuit, ACORN and its affiliates may be being inconvenienced, but they are not being punished.

Second Circuit: "In comparison to penalties levied against individuals, a temporary disqualification from funds or deprivation of property aimed at a corporation may be more an inconvenience than punishment.

The Second Circuit noted that a report obtained by ACORN itself revealed that only 10% of ACORN's funding was derived from federal grants and thus the Second Circuit "doubt[ed] that the direct consequences of the appropriations laws temporarily precluding ACORN from federal funds are 'so disproportionately severe' or 'so inappropriate' as to constitute punishment per se. Quoting a United States Supreme Court case, the Second Circuit distinguished "[f]orbidden legislative punishment" from "impose[d] burdensome consequences."

Alleged reputational injury, which sustained standing against the Secretary of Defense and the OMB Director, did not constitute punishment.

The plaintiffs argued that the defunding laws "attaint ACORN with a note of infamy...[and] encourage others to shun ACORN," but the Second Circuit retorted that "the plaintiffs are not prohibited from any activities; they are only prohibited from receiving federal funds to continue their activities."

The Second Circuit ruled: "Although the appropriations laws may have the effect of alienating ACORN and its affiliates from their supporters, Congress must have the authority to suspend federal funds to an organization that has admitted to significant mismanagment. the exercise of Congress's spending powers in this way is not 'so disproportionately severe and so inappropriate to nonpunitive ends' as to invalidate the resulting legislation as a bill of attainder."

In addition, the Second Circuit noted that New York State, which previously had suspended funding to the plaintiffs, had restored funding to New York Acorn and concluded that the plaintiffs' claim to have been tainted with "a note of infamy" was "not as severe as the plaintiffs assert."

The Second Circuit acknowledged that "some evidence in the record indicating that ACORN was precluded from receiving federal funds upon the legislature's determination that ACORN was guilty of abusive and fraudulent practices" and stated that the "Pimp and Pro" ACORN videos "were heavily edited, 'manipulated,' and 'distorted,'" but upheld the defunding laws based on the absence of a finding of guilt in the defunding laws themselves and a deferential determination that the evidence of "punitive intent" in the laws' legislative history is not "unmistakable."

Second Circuit: "...evidence points in the direction of a traditional form of punishment.... 'The fact that the punishment is inflicted through the instrumentality of an act specifically cutting off the pay of certain named individuals found guilty of disloyalty [by Congress], makes it no less galling or effective than if it had been done by an Act which designated the conduct as criminal'.... Nonetheless, despite statements about ACORN's guilt on the legislative floor, the appropriations laws themselves do not mention ACORN's guilt in any way.... "

The Second Circuit distinguished United States v. Lovett, 328 U.S. 303 (1946), in which a law cutting off pay to specified government employees who had been found guilty in a secret Congressional trial was held to violate the Bill of Attainder Clause, finding "the congressional record...'unmistakably' clear as to Congress's intent to punish the subject individuals" in that case.

To be sure, the Second Circuit stated: "To be sure, a congressional finding following a legislative trial is not the only way to establish the 'unmistakable evidence' of punitive intent in the legislative record." But, it seems that Congress can enact de facto bills of attainder if it takes care to avoid a legislative trial and a declaration of guilt and protectively recites that it is motivated by a desire to "ensur[e] the effective expenditure of taxpayer dollars."

© 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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