Acorn’s Surprising Court Win

December 15, 2009

O.K. I admit it. Yes, I passed the Bar, but I couldn’t remember what a Bill of Attainder was. To be more precise, I couldn’t remember whether I ever knew what a Bill of Attainder was.  Now that the Center for Constitutional Rights has succeeded in helping Acorn get a preliminary injunction in its lawsuit against Congress, I decided to learn about this legal concept that is causing so much fuss.

The American Heritage Dictionary defines a Bill of Attainder as “a legislative act finding a person guilty of treason or felony without a trial;”

Under English Common Law, a criminal condemned for a serious crime (treason or a felony, but not a misdemeanor) could be declared “attainted”, meaning that he no longer enjoyed his civil rights, including rights to his property.

The United States Constitution bars Bills of Attainder. Article 1, Section 9 reads in part that “No bill of attainder or ex post facto Law shall be passed.”

Last week Judge Nina Gershon granted Acorn’s request for a preliminary injunction, thereby preventing Congress from cutting off funding of the organization pending the final outcome of the case. In so doing, the court found that Acorn would likely succeed in having Congress’s action in defunding the group declared an unlawful Bill of Attainder.

This is a big deal from a legal standpoint.  As the court pointed out in its decision, only five times in the history of the nation has the Supreme Court declared an act of Congress to be a Bill of Attainder.  In all of those cases, Congress had interfered in an individual or group’s political freedom in denying them employment.

Judge Gershon made a major legal leap in finding that Acorn is in the same situation. As the court itself noted, “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.”

The court admitted that there is no Supreme Court or Circuit Court precedent for its opinion, so instead it relied in part on a Florida District Court case.  It also referred to the Supreme Court decision in  United States v. Lovett, though it’s not clear why. The Government distinguished the Lovett case in arguing that Acorn employees had no vested property interest in their jobs, as they admit.  The Lovett plaintiffs had actual government jobs. The Court seemed unmoved by this argument and others presented by the government. Reading the opinion, you get the distinct impression that the court knew how it wanted to rule, and ignored obvious precedent against Acorn’s claim. An example would be the court’s disregard for the Supreme Court decision in  Flemming v. Nestor, which held that denial of an opportunity to apply for federal funding cannot be “punishment” for purposes of a Bill of Attainder claim.

Judge Gershon’s decision is being attacked on the right (here, here, and here) and praised on the left.  Before the decision, it seemed that the lawsuit was a last ditch move by Acorn that was unlikely to succeed. Cynics are saying that Judge Gershon’s decision is more about politics than law.

Cynics are also saying that the government won’t appeal the ruling, because Acorn is very important to Obama’s political base.

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