ACORN v. USA

In a lawsuit filed today, ACORN is suing Congress for cutting its funding under a relatively obscure legal theory, the constitutional prohibition on bills of attainder.  A bill of attainder is an act of Congress that effectively finds guilt or imposes punishment outside of a trial.  As a legal argument, it has come up fairly infrequently.

The closest precedent may be US v. Lovett, 328 U.S. 303 (1946), which invalidated provisions of the Urgent Deficiency Appropriation Act of 1943 which barred government funds from going to certain individuals suspected of subversive communist activities.  The Court found this bill to be an unconstitutional bill of attainder. The CRS has reported that the Defund ACORN Act may be a bill of attainder.

The constitutional test for bills of attainder has two prongs.  The first prong is whether specific individuals or entities are affected.  The second is whether the statute inflicts “punishment.”  The first prong is easily satisfied by the act which includes its target in the name.  The second one is more tricky.

The Court has established at least three indicators of punishment:

1. When the burden has been traditionally found to be punitive
2. Where the burden is the functional equivalent of punishment
3. Where the legislative record indicates a congressional intent to punish

No cases to date have tested whether Congressional defunding similar to the ACORN defunding qualifies as punitive.  This case may test the bounds of the obscure legal realm.

The complaint in ACORN v. USA alleges that Congress violated several Constitutional protections:

• The Bill of Attainder provision in Article 1, Sections 9-10
• Due process protections in the Fifth Amendment,
• Freedom of association in the First Amendment

Jules Lobel, an attorney with ACORN’s legal counsel, CCR, said:

It’s not the job of Congress to be the judge, jury, and executioner. We have due process in this country, and our Constitution forbids lawmakers from singling out a person or group for punishment without a fair investigation and trial. Congress, as well as individuals and organizations must abide by the rule of law.