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Are the ACORN Amendments Bills of Attainder?


There are a few provisions of the US Constitution which are rarely mentioned in even rigorous Con Law classes in Law School.  The reasons are myriad and include that the evil against which it was to guard is no longer present or the Supreme Court has rendered a decision with such a hard, "bright line" that it is avoided.    The prohibition against the enactment of Bills of Attainder is one such provision  The Supreme Court issued a very hard, "bright line" decision about 60 years ago. The professional Congressional bill drafters are well aware of it and know how to avoid it--note emphasis on professional.   The Senate and House enacted amendments to different bills this past week purporting to bar an organization called ACORN from receiving Federal funds.  The Senate provision contains the precise formulation which the Supreme Court struck down 60 years ago as a Bill of Attainder.    The House provision makes an attempt to avoid this Constitutional prohibition but most attorneys I have talked with attorneys familiar with this clause (and there are very few in this category--I know of two in addition to myself but there are a few others I am certain) do not think it succeeded. One has expressed the opinion that the provision is so poorly drafted that it would apply to any organization which has an employee under indictment and would include, for example, any financial institution  with FDIC insured deposits.  The basic opinion is that the House provision, in order to avoid the Bill of Attainder absolute prohibition, must apply to more than ACORN; if it only applies to ACORN, which is named in the House amendment, then it falls afoul of the prohibition.  The "bright line" is the naming of specific organizations or individuals.   It will be difficult to fix this provision, and I am not certain it can be fixed.  In any event, it will be a boon to those who write articles for law journals and are looking for a topic upon which there is little analysis.

15 Comments

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It will make for great TV commercials though.

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Unfortunately you're right. This has nothing to do with protecting the country from ACORN and the abuses we saw on the videos. It has everything to do with demagoguery and politics. An opportunity to now pile on with an "activist judges" enjoinder only strengthens the ability to stir the hatred a bit more.

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This brings up a question:

How does ACORN receive Federal Funds? Is it through some general program, or is there direct funding specifically for ACORN? The latter presumably can be revoked by Congress, although I agree that the former could run into some problems.

Perhaps there will be pressure put on whatever executive branch office deals with such subsidies to use their discretion to deny ACORN funds in order to avoid this problem.

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Dude, they fight for contracts in an open bid process just like every other group that gets contracts from the government.

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The bill does not make ACORN illegal or impose any punishment on them, it simply disqualifies them from receiving federal funds, which no group has a 'right' to receive. They are lucky they are not being prosecuted under RICCO statutes, since the organization has been involved in criminal activity in numerous states.

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What criminal activity?

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Bulldog, have you no facts?

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That's a joke right?

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Uh, how about voter fraud? They are being investigated in at least 5 states for that. Then as these videos show they are guilty of conspiracy and aiding and abetting at a minimum. (It is a crime to discuss or plan the commission of a crime, and it is a crime to assist others in the commission of a crime) Good enough for you?

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Uh, how about voter fraud? They are being investigated in at least 5 states for that. Then as these videos show they are guilty of conspiracy and aiding and abetting at a minimum. (It is a crime to discuss or plan the commission of a crime, and it is a crime to assist others in the commission of a crime) Good enough for you?

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I've seen nothing other than they are assisting in investigations of voter fraud, not being investigated for voter fraud. If you have a link might we see it? The rest of your legal analysis is pure conjecture or is that poor conjecture. FACTS BULLDOG?

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Since there was actual illicit sexual activity going on at the Interior Dept, why is Interior still receiving funding?

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Women should have to pay for their own rape kits; after all, they were involved in criminal activity.

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Don't forget about the State Department and its "Whacky-hut" contractors.

I cannot excuse the abuses perpetrated by the ACORN staff that were highlighted in the tapes. But I also cannot excuse the expressions of "moral outrage" from the very same people who were apologists for the abuses at Abu Ghraib and otherwise support the criminal enterprise that was the Bush/Cheney Administration.

Consistency has never been the long suit of demagogues.

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State Department's gotta go!

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david46

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