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"And ye shall know the truth, and the truth shall make you free." - John 8:32
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Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  September 21, 2009
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Topic category:  Government/Politics

Is De-funding ACORN Constitutional?

Hopefully, Americans agree that ACORN should be exposed, investigated, prosecuted and punished as appropriate, but only in accordance with the Constitution.

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!

Congressman Nadler:

"A little while ago, the House passed an amendment to the bill that we were considering that says no contract or federal funds may ever go to ACORN, a named organization, or to any individual or organization affiliated with ACORN. Unfortunately, this was done in the spirit of the moment and nobody had the opportunity to point out that this is a flat violation of the Constitution, constituting a Bill of Attainder. The Constitution says that Congress shall never pass a Bill of Attainder. Bills of Attainder, no matter what their form, apply either to a named individual or to easily ascertainable members of a group, to inflict punishment. That’s exactly what this amendment does.

“It may be that ACORN is guilty of various infractions, and, if so, it ought to be vetted, or maybe sanctioned, by the appropriate administrative agency or by the judiciary. Congress must not be in the business of punishing individual organizations or people without trial.

“That’s what this Amendment did. It is flatly prohibited by the Constitution, and once we ignore the Constitution we ignore constitutional principles. Whatever one may think of the subject matter or the organization, the Constitution and the ban on Bills of Attainder are there for the protection of all of our liberties. It is unfortunate that we passed this, and I hope it is removed in the conference committee.”

In 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.

The Court summarized the facts as follows:

"In 1943, the respondents, Lovett, Watson, and Dodd, were, and had been for several years, working for the Government. The government agencies which had lawfully employed them were fully satisfied with the quality of their work, and wished to keep them employed on their jobs. Over the protest of those employing agencies, Congress provided in § 304 of the Urgent Deficiency Appropriation Act of 1943, by way of an amendment attached to the House bill, that, after November 15, 1943, no salary or compensation should be paid respondents out of any monies then or thereafter appropriated except for services as jurors or members of the armed forces, unless they were, prior to November 15, 1943, again appointed to jobs by the President with the advice and consent of the Senate. 57 Stat. 431, 450. Notwithstanding the congressional enactment, and the failure of the President to reappoint respondents, the agencies kept all the respondents at work on their jobs for varying periods after November 15, 1943; but their compensation was discontinued after that date. To secure compensation for this post-November 15th work, respondents brought these actions in the Court of Claims. They urged that § 304 is unconstitutional and void on the grounds that...the section violates Article I, § 9, Clause 3, of the Constitution, which provides that 'No Bill of Attainder...shall be passed'...."

The Court observed: "In the background of the statute here challenged lies the House of Representatives' feeling in the late thirties that many 'subversives' were occupying influential positions in the Government and elsewhere, and that their influence must not remain unchallenged."

The Court held that the case presented a justiciable controversy.

"We hold that the purpose of § 304 was not merely to cut off respondents' compensation through regular disbursing channels, but permanently to bar them from government service, and that the issue of whether it is constitutional is justiciable. The section's language, as well as the circumstances of its passage which we have just described, show that no mere question of compensation procedure or of appropriations was involved, but that it was designed to force the employing agencies to discharge respondents and to bar their being hired by any other governmental agency.... Any other interpretation of the section would completely frustrate the purpose of all who sponsored § 304, which clearly was to 'purge' the then existing and all future lists of government employees of those whom Congress deemed guilty of 'subversive activities,' and therefore 'unfit' to hold a federal job. What was challenged, therefore, is a statute which, because of what Congress thought to be their political beliefs, prohibited respondents from ever engaging in any government work except as jurors or soldiers. Respondents claimed that their discharge was unconstitutional; that they consequently rightfully continued to work for the Government, and that the Government owes them compensation for services performed under contracts of employment. Congress has established the Court of Claims to try just such controversies. What is involved here is a congressional proscription of Lovett, Watson, and Dodd, prohibiting their ever holding a government job. Were this case to be not justiciable, congressional action, aimed at three named individuals, which stigmatized their reputation and seriously impaired their chance to earn a living, could never be challenged in any court. Our Constitution did not contemplate such a result. To quote Alexander Hamilton,

. . . a limited constitution . . . [is] one which contains certain specified exceptions to the legislative authority, such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Federalist Paper No. 78. [p315]"

Then the Court held the statute at issue unconstitutional.

"We hold that § 304 falls precisely within the category of congressional actions which the Constitution barred by providing that 'No Bill of Attainder or ex post facto Law shall be passed." In Cummins v. Missouri, 4 Wall. 277, 323, this Court said,

A bill of attainder is a legislative act which inflicts punishment without a judicial trial. If the punishment be less than death, the act is termed a bill of pains and penalties. Within the meaning of the Constitution, bills of attainder include bills of pains and penalties.

"The Cummins decision involved a provision of the Missouri Reconstruction Constitution which required persons to take an Oath of Loyalty as a prerequisite to practicing a profession. Cummins, a Catholic Priest, was convicted for teaching and preaching as a minister without taking the oath. The oath required an applicant to affirm that he had never given aid or comfort to persons engaged in hostility to the United States, and had never 'been a member of, or connected with, any order, society, or organization, inimical to the government of the United States . . .' In an illuminating opinion which gave the historical background of the constitutional prohibition against bills of attainder, this Court invalidated the Missouri constitutional provision both because it constituted a bill of attainder and because it had an ex post facto operation. On the same day the Cummins case was decided, the Court, in Ex parte Garland, 4 Wall. 333, also held invalid on the same grounds an Act of Congress which required attorneys practicing before this Court to take a similar oath. Neither of these cases has ever been overruled. They stand for the proposition that legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution. Adherence to this principle requires invalidation of § 304. We do adhere to it.

"Section 304 was designed to apply to particular individuals. Just as the statute in the two cases mentioned, it 'operates as a legislative decree of perpetual exclusion' from a chosen vocation. Ex parte Garland, supra, at 377. 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, 18 U.S.C. 2; acceptance of bribes by members of Congress, 18 U.S.C. 199 202, 203; or by other government officials, 18 U.S.C. 207 and interference with elections by Army and Navy officers, 18 U.S.C. 58.

"Section 304, thus, clearly accomplishes the punishment of named individuals without a judicial trial. 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 makes it no less galling or effective than if it had been done by an Act which designated the conduct as criminal. No one would think that Congress could have passed a valid law stating that, after investigation, it had found Lovett, Dodd, and Watson 'guilty' of the crime of engaging in 'subversive activities,' defined that term for the first time, and sentenced them to perpetual exclusion from any government employment. Section 304, while it does not use that language, accomplishes that result. The effect was to inflict punishment without the safeguards of a judicial trial and 'determined by no previous law or fixed rule.' The Constitution declares that that cannot be done either by a State or by the United States.

"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."

Will courts hold a law de-funding ACORN unconstitutional on the ground that disqualifying ACORN from receiving federal funds in punishment?

Perhaps ACORN will implode before a court has to decide.

Hopefully, Americans agree that ACORN should be exposed, investigated, prosecuted and punished as appropriate, but only in accordance with the Constitution.

Michael J. Gaynor

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Biography - Michael J. 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.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.


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