Friday, December 11, 2009
ACORN DEFUNDING IS A BILL OF ATTAINDER: Court Enjoins the Continuining Appropriations Resolution Barring Funding of ACORN
Finding that the Constitution, art I, Section 9, prohibiting a "Bill of Attainder," does not allow "Congress to declare that a single, named organization is barred from all federal funding in the absence of a trial," District Judge Nina Gershon, EDNY, has just issued a preliminary injunction against enforcing the continuing appropriations bills that provide "None of the funds made available by this joint resolution or any prior Act may be provided to the Association of Community Organizations for Reform Now (ACORN), or any of its affiliates, subsidiaries, or allied organizations."
Gershon's opinion is well-reasoned and relatively straightforward, beginning with a brief recitation of the controversy surrounding ACORN and the opposing positions. Quoting United States v. Brown, 381 US 437 [typo corrected; thanks Joi Kush!) (1965), Judge Gershon notes that the prohibition against bills of attainder reflect “the Framers’ belief that the Legislative branch is not so well suited as politically independent judges and juries to the task of ruling upon the blameworthiness of, and levying appropriate punishment upon, specific persons.” She then painstakingly applies the three factor test: whether the statute falls within the historical meaning of legislative punishment, whether the statute furthers nonpunitive purposes (the functional test), and whether the legislative record evinces an intent to punish.
She concludes that the continuing appropriations bills meet these criteria, and thus that there is a likelihood of success on the merits. Her irreparable harm analysis focuses on the continued viability of ACORN, but also notes that the existence of a constitutional violation may lessen the need to prove harm. She also finds the injunction to be in the public interest.