Topic category:  Government/Politics

In "Is De-funding ACORN Constitutional?" (September 21, 2009) (www.webcommentary.com/php/ShowArticle.php?id=gaynorm&date=090921), I reported that "[a]rdent 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" because, in Congressman Nadler's words, "Congress [had] enacted legislation prohibiting the use of funds to pay the salaries of three federal employees who Congress deemed subversive" and '[t]he Supreme Court ruled this legislation unconstitutional as a Bill of Attainder." I opined that "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!"and expressed my hope that "Americans agree that ACORN should be exposed, investigated, prosecuted and punished as appropriate, but only in accordance with the Constitution."

Even before ACORN was created, the United States Supreme Court determined that, for purposes of the constitutional prohibition against bills of attainder, "punishment" is NOT limited to deprivation of life, liberty or property. In United States v. Brown, 381 U.S. 437 (1965), the Supreme Court unambiguously rejected narrow construction of the constitutional prohibition against bills of attainder.

The Supreme Court stated:

"...the Bill of Attainder Clause not only was intended as one implementation of the general principle of fractionalized power, but also reflected 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.

"'Everyone must concede that a legislative body, from its numbers and organization, and from the very intimate dependence of its members upon the people, which renders them liable to be peculiarly susceptible to popular clamor, is not properly constituted to try with coolness, caution, and impartiality a criminal charge, especially in those cases in which the popular feeling is strongly excited -- the very class of cases most likely to be prosecuted by this mode....'

"By banning bills of attainder, the Framers of the Constitution sought to guard against such dangers by limiting legislatures to the task of rulemaking.

"'It is the peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments.'"

"It is in this spirit that the Bill of Attainder Clause was consistently interpreted by this Court -- until the decision in American Communications Ass'n v. Douds, 339 U. S. 382, which we shall consider hereafter. In 1810, Chief Justice Marshall, speaking for the Court in 10 U. S. 138, stated that '[a] bill of attainder may affect the life of an individual, or may confiscate his property, or may do both.' This means, of course, that what were known at common law as bills of pains and penalties are outlawed by the Bill of Attainder Clause. The Court's pronouncement therefore served notice that the Bill of Attainder Clause was not to be given a narrow historical reading (which would exclude bills of pains and penalties), but was instead to be read in light of the evil the Framers had sought to bar: legislative punishment, of any form or severity, of specifically designated persons or groups. See also 25 U. S. 286.

"The approach which Chief Justice Marshall had suggested was followed in the twin post-Civil War cases of Cummings v. Missouri, 4 Wall. 277, and Ex parte Garland, 4 Wall. 333. Cummings involved the constitutionality of amendments to the Missouri Constitution of 1865 which provided that no one could engage in a number of specified professions (Cummings was a priest) unless he first swore that he had taken no part in the rebellion against the Union. At issue in Garland was a federal statute which required attorneys to take a similar oath before they could practice in federal courts. This Court struck down both provisions as bills of attainder on the ground that they were legislative acts inflicting punishment on a specific group: clergymen and lawyers who had taken part in the rebellion and therefore could not truthfully take the oath. In reaching its result, the Court emphatically rejected the argument that the constitutional prohibition outlawed only a certain class of legislatively imposed penalties:

"'The deprivation of any rights, civil or political, previously enjoyed, may be punishment, the circumstances attending and the causes of the deprivation determining this fact. Disqualification from office may be punishment, as in cases of conviction upon impeachment. Disqualification from the pursuits of a lawful avocation, or from positions of trust, or from the privilege of appearing in the courts, or acting as an executor, administrator, or guardian, may also, and often has been, imposed as punishment.'

"4 Wall. at 71 U. S. 320."

Whether or not the ACORN defunding law (Section 163) is constitutional depends upon whether defunding constitutes punishment. (There is no serious dispute that the other elements--specificity and lack of judicial trial--are present.)

When Judge Nina Gershon enjoined the enforcement of the ACORN defunding law, she found it to constitute punishment within the meaning of the constitutional ban on bills of attainder.

Edward Whelan, president of the Ethics & Public Policy Center, took Judge Gershon to task on that finding in a Bench Memo (www.nationalreview.com/bench-memos/49418/implausible-ruling-acorn/ed-whelan).

Whelan:

"The major defect in Judge Gershon’s opinion is her assessment of the question whether Section 163 'falls within the historical meaning of legislative punishment.' Judge Gershon starts off well:

'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.'

But she then quickly falters, as she finds 'particularly instructive' the Supreme Court’s 1946 ruling in United States v. Lovett.

"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 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."

On August 13, 2010, a three-judge panel of the United States Court of Appeals for the Second Circuit purported to rely on Selective Serv. Sys. v. Minn. Pub. Interest Research Grp.,, 468 U.S. 841 (1984) in determining that Section 163 did not constitute punishment in a 23-page opinion (http://www.ca2.uscourts.gov/decisions/isysquery/5f9986c5-a84a-4077-a840-1a5a363f0cf6/4/doc/09-5172-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5f9986c5-a84a-4077-a840-1a5a363f0cf6/4/hilite/).

That opinion lacks adequate explanation of why the defunding is NOT punishment, especially in view of the Supreme Court's statement in Brown that "[t]he deprivation of any rights, civil or political, previously enjoyed, may be punishment...." ACORN previously enjoyed the right to apply for and to receive federal funds and being disqualified by a law enacted by Congress and signed by the President surely seems punitive.

Nathaniel Hawthorne's The Scarlet Letter is a "novel takes place during the summer in 17th-century Boston, Massachusetts in a Puritan village. A young woman, named Hester Prynne, has been led from the town prison with her infant daughter in her arms and on the breast of her gown 'a rag of scarlet cloth' that 'assumed the shape of a letter.' It is the uppercase letter 'A'. The Scarlet Letter 'A' represents the act of adultery that she has committed and it is to be a symbol of her sin—a badge of shame—for all to see. A man, who was elderly and a stranger to the town, enters the crowd and asks another onlooker what's happening. He responds by explaining that Hester is being punished for adultery.... the scarlet letter, along with her subsequent public shaming, is the punishment for her sin and secrecy...." (http://en.wikipedia.org/wiki/The_Scarlet_Letter)

The ACORN defunding seems to have been a greater punishment than Hester Prynne's scarlet letter. Especially in an age of Big Government, isn't being disqualified from receiving federal funds, by Act of Congress, punishment?

The panel opined that "withholding federal funds may constitute punishment in certain circumstances," but "a temporary ban on federal assistance to the groups at issue here--ACORN (which admitted to mismanagement and embezzlement and suffered numerous convictions of its workers), and ACORN Institute and New York Acorn (which were part of a complex web of interrelated entities with ACORN)--is not comparable to congressional acts of punishment such as permanent disqualification from a certain vocation or criminalizing past conduct. See, e.g., Brown, 381 U.S. at 455; Pierce v. Carskadon, 83 U.S. 234 (1872); Ex Parte Garland, 71 U.S. 333 (1867); Cummings v. Missouri, 71 U.S. 227 (1867)...." (Note: Cummings involved a state act of punishment, not a congressional act of punishment.)

Second Circuit: "With respect to the existence vel non of punishment, three factors guide our consideration: (1) whether the challenged statute falls 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 (30 whether the legislative record 'evinces a [legislative] intent to punish' (motivational test of punishment). Selective Serv. Sys., 468 U.S. at 852. 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.' Con Edison, 292 F.3d at 350."

In Selective Serv. Sys., Section 12(f) of the Military Selective Service Act was held not to be a bill of attainder because it was not punishment. Section 12(f)denied federal financial assistance under Title IV of the Higher Education Act of 1965 to male students between the ages of 18 and 26 who failed to register for the draft and required applicants for Title IV assistance to file a statement with their institutions of higher education attesting to their compliance with the Act and implementing regulations. A Presidential Proclamation required young men to register for the draft within 30 days of their 18th birthday, and failure to register within that time was a criminal offense. The regulations permit late registrants to establish eligibility for Title IV assistance.

The District Court had ruled that Section 12(f) was a bill of attainder and the denial of federal financial assistance constituted the requisite punishment.

The Supreme Court reversed.

Supreme Court:

"...the District Court's view that § 12(f) requires registration within the time fixed by Proclamation No. 4771....is plainly inconsistent with the structure of § 12(f) and with the legislative history. Subsection (f)(4) of the statute requires the Secretary of Education to issue regulations providing that 'any person' to whom the Secretary proposes to deny Title IV assistance shall be given notice of the proposed denial and 'not less than thirty days' after such notice to 'establis[h] that he has complied with the registration requirement.' 50 U.S.C.App. § 462(f)(4). The statute clearly gives nonregistrants 30 days after receiving notice that they are ineligible for Title IV aid to register for the draft and qualify for aid. See 34 CFR § 668.27(b)(1) (1983). To require registration within the time fixed by the Presidential Proclamation would undermine this provision allowing 'any person' 30 days after notification to establish compliance with the registration requirement. This was clearly a grace period.

"The District Court also ignored the relevant legislative history. Congress' purpose in enacting § 12(f) was to encourage registration by those who must register, but have not yet done so.... Proponents of the legislation emphasized that those failing to register timely can qualify for aid by registering late.... The District Court failed to take account of this legislative purpose...."

The Supreme Court distinguished two post-Civil War cases, Cummings and Garland, in which bills of attainder were struck down, stating: Cummings and Garland dealt with absolute barriers to entry into certain professions for those who could not file the required loyalty oaths; no one who had served the Confederacy could possible comply, for his status was irreversible. By contrast, § 12(f)'s requirements, far from irreversible, can be met readily by either timely or late filing. 'Far from attaching to. . . past and ineradicable actions,' ineligibility for Title IV benefits 'is made to turn upon continuingly contemporaneous fact' which a student who wants public assistance can correct...."

With respect to the punishment requirement, the Supreme Court explained:

"In determining whether a statute inflicts punishment within the proscription against bills of attainder, our holdings recognize that the severity of a sanction is not determinative of its character as punishment.... That burdens are placed on citizens by federal authority does not make those burdens punishment.... Conversely, legislative intent to encourage compliance with the law does not establish that a statute is merely the legitimate regulation of conduct. Punishment is not limited solely to retribution for past events, but may involve deprivations inflicted to deter future misconduct.... It is thus apparent that, though the governing criteria for an attainder may be readily indicated, 'each case has turned on its own highly particularized context.'..."

In Cummins v. Missouri, 71 U.S. 277 (1867), the United States Supreme Court explained why the Constitutions prohibits bills of attainder, defined a bill of attainder and ruled that substance, not form, determines whether the constitutional prohibition against bills of attainder is violated.

Supreme Court:

"It was against...excited action...that the framers of the Federal Constitution intended to guard. In Fletcher v. Peck, ...Mr. Chief Justice Marshall, speaking of such action, uses this language:

'...it is not to be disguised that the framers of the Constitution viewed with some apprehension the violent acts which might grow out of the feelings of the moment, and that the people of the United States, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed. The restrictions on the legislative power of the States are obviously founded in this sentiment, and the Constitution of the United States contains what may be deemed a bill of rights for the people of each State.'

"'No State shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.'

"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. In these cases, the legislative body, in addition to its legitimate functions, exercises the powers and office of judge; it assumes, in the language of the textbooks, judicial magistracy; it pronounces upon the guilt of the party without any of the forms or safeguards of trial; it determines the sufficiency of the proofs produced, whether conformable to the rules of evidence or otherwise; and it fixes the degree of punishment in accordance with its own nations of the enormity of the offence.

"'Bills of this sort,' says Mr. Justice Story,

'have been most usually passed in England in times of rebellion, or gross subserviency to the Crown, or of violent political excitements -- periods in which all nations are most liable (as well the free as the enslaved) to forget their duties and to trample upon the rights and liberties of others....'"

"...The legal result must be the same, for what cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows. Its inhibition was leveled at the thing, not the name. It intended that the rights of the citizen should be secure against deprivation for past conduct by legislative enactment, under any form, however disguised. If the inhibition can be evaded by the form of the enactment, its insertion in the fundamental law was a vain and futile proceeding."

"The clauses in the Missouri Constitution which are the subject of consideration do not, in terms, define any crimes or declare that any punishment shall be inflicted, but they produce the same result upon the parties against whom they are directed as though the crimes were defined and the punishment was declared. They assume that there are persons in Missouri who are guilty of some of the acts designated. They would have no meaning in the constitution were not such the fact. They are aimed at past acts, and not future acts. They were intended especially to operate upon parties who, in some form or manner, by action or words, directly or indirectly, had aided or countenanced the Rebellion, or sympathized with parties engaged in the Rebellion, or had endeavored to escape the proper responsibilities and duties of a citizen in time of war, and they were intended to operate by depriving such persons of the right to hold certain offices and trusts, and to pursue their ordinary and regular avocations. This deprivation is punishment, nor is it any less so because a way is opened for escape from it by the expurgatory oath. The framers of the constitution of Missouri knew at the time that whole classes of individuals would be unable to take the oath prescribed. To them there is no escape provided; to them the deprivation was intended to be, and is, absolute and perpetual. To make the enjoyment of a right dependent upon an impossible condition is equivalent to an absolute denial of the right under any condition, and such denial, enforced for a past act, is nothing less than punishment imposed for that act. It is a misapplication of terms to call it anything else."

"The provisions of the constitution of Missouri accomplish precisely what enactments like those supposed would have accomplished. They impose the same penalty, without the formality of a judicial trial and conviction, for the parties embraced by the supposed enactments would be incapable of taking the oath prescribed; to them, its requirement would be an impossible condition. Now, as the State, had she attempted the course supposed, would have failed, it must follow that any other mode producing the same result must equally fail. The provision of the Federal Constitution, intended to secure the liberty of the citizen, cannot be evaded by the form in which the power of the State is exerted. If this were not so, if that which cannot be accomplished by means looking directly to the end can be accomplished by indirect means, the inhibition may be evaded at pleasure. No kind of oppression can be named, against which the framers of the Constitution intended to guard, which may not be effected...."

The same reasoning applies to a federal bill of attainder and the law protects all.

Michael J. Gaynor

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.