Congressional Research Service: House ACORN ban may be unconstitutional

[rmp yellow]

Source: Politico

The Congressional Research Service has analyzed the case law and other legal issues surrounding last week's ACORN ban passed in the House and found the measure could be interpreted as a "bill of attainder" and therefore unconstitutional, according to copy of the report obtained by POLITICO.

A bill of attainder – which is prohibited in Article 1 of the Constitution -- is a law targeted to hurt or help an individual. If a bill is regarded primarily as punitive, instead of being strictly regulatory, it could be interpreted as an attainder bill, according to legal experts.

The conclusion of the executive summary, written by CRS legislative attorney Kenneth R. Thomas :

"While the regulatory purpose of ensuring that federal funds are properly spent is a legitimate one,
it is not clear that imposing a permanent government-wide ban on contracting with or providing grants to ACORN fits that purpose."

Read more: http://www.politico.com/blogs/glennthrush/0909/CRS_House_ACORN_ban_may_be_unconstitional.html

[Melinda]

1. And once again DU calls it.

Proud to be first rec and a :kick: to boot!

[Igel]

2. It called it oddly.

Some people said yes, some said no, some said maybe.

Given that, it's pretty hard to say that DU didn't call it.

CRS weighs in with a maybe that seems to imply the question wasn't, "Is the bill legal?" but "Is the bill illegal?"

The answer is that the courts may have sufficient justification for overturning it. That answers the question "Will courts have justification for overturning it?" more neatly, IMO, than "Will it stand judicial scrutiny?" For the latter, I'd have expected the answer to have not looked at weaknesses but strengths. Then again, "Thus, it appears that a court may have a sufficient basis to overcome the presumption of constitutionality, and find that it violates the prohibition against bills of attainder" entails "Thus, it appears that a court may not have a sufficient basis to overcome the presumption of constitutionality." One could also argue that it entails the somewhat stronger, "Thus, it appears that a court probably will not find sufficient basis to overcome . . .", but both are still solid maybes.

I'd like to see who requested the report and, more importantly, what the request looked like.

[unblock]

4. the way i "called it" was to say that as the media protrayed it, it was unconstitutional. BUT,

the bill could easily be (re)written to be constitutional so as to not mention acorn by name, but instead by a narrow set of characteristics that are known to match acorn and possibly an innocent bystander or two.

[struggle4progress]

7. Remind me never to hire you as a constitutional lawyer! If Congress passed a bill

saying No one, who was born on MM-DD-YYYY in the hospital A in the city B between midnight and 6AM , shall be eligible to enjoy the Federal privilege X, the bill would certainly be held unconstitutional

[unblock]

9. well, if it were that transparent, then yes, you are correct.

in the example you provide, there's nothing to hang your hat on. it begs the question, why would you care about births during those hours? and you've got no plausible answer other than to punish specific people.

the trick is to widen it up just big enough, and find some other way of characterizing it, so that you've got something to hang your hat on. lobbyists get this done all the time, crafting tax breaks for their client corporation and nearly no one else, without mentioning the company by name.

in the case of acorn, i'm sure there's some way to narrow it down fairly closely without being unconstitutional. perhaps, something like, no organization engaged in voter registration activities and having received more than $x for each of the previous y years and so on shall receive any further federal funding.

in any event, don't take my word for it, ask a corporate lobbyist. this is exactly how they get away with nearly everything they do.

[Canuckistanian]

3. The ACORN defunding vote is the very definition of "bill of attainder"

Punishing an individual or group without a conviction or even a Congressional investigation is illegal - as it is in all civilized countries.

Either get a conviction or withdraw the motion.

[nashville_brook]

5. no doubt -- and it doesn't take a head full of rhetoric to call it.

[rasputin1952]

6. Considering the notion came from the GOP...

it is not surprising that they haven't the foggiest idea of what the Constitution is about...;)

I'd be surprised if 50% of them ever read it!

[marshall]

8. Back in the day they also debated over the Emancipation Proclamation and Bills of Attainder

They were careful in the way they approached the emancipation of slavery so that it was constitutional, but there was still broad debate about the process.