Constitutional Law - Separation of Powers - Second Circuit Holds That Law Barring ACORN from Receiving Federal Funding Is Not a Bill of Attainder

Harvard Law Review, January 2011 | Go to article overview

Constitutional Law - Separation of Powers - Second Circuit Holds That Law Barring ACORN from Receiving Federal Funding Is Not a Bill of Attainder


--ACORN v. United States, 618 F.3d 125 (2d Cir. 2010).

The Bill of Attainder Clause (1) is one of the least successfully litigated provisions of the Constitution. In fact, the Supreme Court has invalidated legislation on this ground only five times since 1789. (2) Recently, in ACORN v. United States, (3) the Second Circuit held that an appropriations act barring a nonprofit organization and its affiliates from receiving federal funding was not an unconstitutional bill of attainder. (4) The court concluded that the withholding of federal funds did not meet the historical or functional definition of "punishment," and that the legislative record did not contain sufficient proof of punitive intent. (5) Because Supreme Court jurisprudence on this subject is so limited, ACORN is facially consistent with precedent. In reaching its decision, however, the Second Circuit failed to give due consideration to legislative determination of guilt, thus undermining the separation of powers underpinnings of the Bill of Attainder Clause.

The Association of Community Organizations for Reform Now (ACORN) is a nonprofit corporation dedicated to organizing low-and moderate-income individuals. (6) Funded in part by federal grant money, (7 )ACORN has helped millions register to vote, advocated for increasing the minimum wage, worked against predatory lending, prevented foreclosures, and aided the poor in various other ways. (8) Recently, however, ACORN's reputation has come under severe attack. In 2009, hidden camera videos were released that showed employees of an ACORN affiliate advising a purported prostitute on how to conceal illegal activities, causing a national firestorm. (9) ACORN has also been accused of tax evasion, voter fraud, and election law violations. (10)

On October 1, 2009, Congress passed a "stop-gap" appropriations measure to provide temporary funding prior to the enactment of the fiscal year 2010 appropriations bill. (11) Section 163 of that Continuing Appropriations Resolution provides: "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." (12) Accordingly, the Director of the Office of Management and Budget (OMB) instructed the heads of all executive branch agencies to cut off funding to ACORN, and to suspend existing contracts "where permissible." (13)

On November 12, 2009, ACORN and two of its affiliates, ACORN Institute, Inc. and MHANY Management, Inc. (formerly known as New York ACORN Housing Company), sued to enjoin the United States and various executive agencies from enforcing section 163 on the ground that the provision was an unconstitutional bill of attainder. (14) ACORN alleged that, because of section 163, agencies had refused to review ACORN's grant applications, grants promised to ACORN had been rescinded, previously awarded grants had not been renewed, and agencies had refused to honor contractual obligations for work already performed. (15) On December 11, 2009, District Judge Gershon granted ACORN's request for a preliminary injunction. (16)

On December 16, 2009, Congress enacted the 2010 Consolidated Appropriations Act. (17) Using language similar or identical to that in section 163, Congress excluded ACORN and its affiliates from eligibility for federal funding in several provisions. (18) Congress also instructed the Government Accountability Office (GAO) to conduct an audit to determine if ACORN was misusing funds. (19)

On March 10, 2010, the district court granted plaintiffs' request for declaratory and permanent injunctive relief. (20) Specifically, Judge Gershon found that (1) the contested provisions amounted to a bill of attainder, (2) plaintiffs had standing to bring suit against the named defendants, and (3) a permanent injunction was warranted in light of the irreparable harm and absence of adequate remedy at law. …

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