The unconstitutionality of the congressional GOP's ACORN obsession

The Supreme Court, more than 60 years ago, ruled such attacks "were too dangerous to liberty to exist"


Glenn Greenwald
October 23, 2009 2:24PM (UTC)

Yesterday, GOP Rep. Paul Broun  had a five-minute dialogue with Rep. Alan Grayson about the unconstitutionality of the Congressional GOP's numerous amendments directed exclusively at ACORN, all of which bar ACORN from receiving any government contracts due to alleged wrongdoing (not adjudicated by any court).  While being questioned by Grayson about whether these measures are unconstitutional "bills of attainder" -- acts of Congress that punish specific individuals for alleged, unadjudicated wrongdoing -- Broun was handed a piece of paper, which he dutifully read, claiming that these amendments do not impose "punishment" on ACORN.  Instead, he claimed, Congress is merely barring ACORN from receiving government contracts, and since nobody has the "right" to receive government contracts, there is no "punishment" here.  It's simply a case of the government exercising its prerogative as to who it will and will not hire.

As always happens, numerous people who never gave a moment's thought to what a "bill of attainder" is rushed forward to declare that Broun was correct, because they want to believe that.  But it's false, and clearly so.

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Under the law as pronounced by the Supreme Court -- i.e., the authoritative source on this question -- it is "punishment" when the Congress targets specific individuals and denies them even discretionary benefits otherwise available based on allegations of guilty behavior.  Just read for yourself what the Court has said.  Or -- for those of you who want to argue otherwise -- think about what you're endorsing.

In 1946, the Court decided the interesting case of U.S. v. Lovett.  That suit was brought by three government employees who, despite uniformly positive performance evaluations, were specifically named by an amendment passed by Congress as possessing "subversive beliefs" and "subversive associations," and were therefore barred from receiving future pay for any work for the Federal Government.  The Court observed that the bill (Section 304) "was designed to force the employing agencies to discharge respondents and to bar their being hired by any other governmental agency."  As the Court put it:  "what is involved here is a congressional proscription of Lovett, Watson, and Dodd, prohibiting their ever holding a government job."

Obviously, there is no "right" to receive a job from the Federal Government, and Congress has the Constitutional power to make appropriations decisions.  Nonetheless, the Supreme Court held that the law imposed "punishment" on these specific individuals and was thus an unconstitutional bill of attainder.  Here's what the Court said; its applicability to these anti-ACORN amendments is too self-evident to require much explanation (emphasis added): 

In Cummins v. Missouri, 4 Wall. 277, 323, this Court said, "A bill of attainder is a legislative act which inflicts punishment without a judicial trial."

Section 304 was designed to apply to particular individuals. [n4] Just as the statute in the two cases mentioned, it "operates as a legislative decree of perpetual exclusion" from a chosen vocation. Ex parte Garland, supra, at 377. This permanent proscription from any opportunity to serve the Government is punishment, and of a most severe type.

Section 304, thus, clearly accomplishes the punishment of named individuals without a judicial trial. The fact that the punishment is inflicted through the instrumentality of an Act specifically cutting off the pay of certain named individuals found guilty of disloyalty makes it no less galling or effective than if it had been done by an Act which designated the conduct as criminal. [n5] No one would think that Congress could have passed a valid law stating that, after investigation, it had found Lovett, Dodd, and Watson "guilty" of the crime of engaging in "subversive activities," defined that term for the first time, and sentenced them to perpetual exclusion from any government employment. Section 304, while it does not use that language, accomplishes that result. The effect was to inflict punishment without the safeguards of a judicial trial and [p317] "determined by no previous law or fixed rule." [n6] The Constitution declares that that cannot be done either by a State or by the United States. . . .

When our Constitution and Bill of Rights were written, our ancestors had ample reason to know that legislative trials and punishments were too dangerous to liberty to exist in the nation of free men they envisioned. And so they proscribed bills of attainder. Section 304 is one. Much as we regret to declare that an Act of Congress violates the Constitution, we have no alternative here.

Section 304 therefore does not stand as an obstacle to payment of compensation to Lovett, Watson, and Dodd.

Barring specific parties from working with the Government based on allegations of wrongdoing -- exactly what the GOP's anti-ACORN bills do -- constitutes "punishment" under Supreme Court law and is thus an unconstitutional bill of attainder.  Period.  As clearly as could be, the Court rejected the two arguments made by Broun-defenders:  that (a) it's not "punishment" if Congress denies something to which one does not have a "right," and (b) denying government contracts cannot be a "bill of attainder." The Supreme Court, as recently as 1976 in Paul v. Davis, explained the meaning of Lovett as follows:

In United States v. Lovett, 328 U.S. 303 (1946), the Court held that an Act of Congress which specifically forbade payment of any salary or compensation to three named Government agency employees was an unconstitutional bill of attainder. The three employees had been proscribed because a House of Representatives subcommittee found them guilty of "subversive activity," and therefore unfit for Government service.

Could that be any clearer?  These anti-ACORN bills -- beginning with the very first one passed by Congress -- single out ACORN and deny them government contracts based on alleged (though unadjudicated) allegations of wrongdoing.  They're exactly the Congressional adjudications of guilt, followed by punishment, which the Constitution forbids.  The prohibition on bills of attainder isn't some hyper-technical or obsolete right.  Acts of that sort are toxic and pernicious, because they permit the Congress to punish parties without any of the safeguards that judicial proceedings provide.  That's exactly what Congress is doing to ACORN.

For those who want to ignore the actual law and insist that it's not "punishment" for Congress to prohibit specific people from receiving discretionary government benefits (such as government contracts), it should be the case that you'd have no Constitutional objection to bills which provide for the following:

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* Only registered Democrats, but not registered Republicans, shall be eligible for unemployment benefits.

* Any individual belonging or contributing to the NRA shall be permanently barred from government employment.

* Anyone who has been employed by Blackwater at any time during the past decade -- including those who performed contracting services for said corporation -- shall not be permitted to participate in the Medicare or Medicaid program.

* Any organization which helps more Republicans than Democrats register to vote shall be barred from holding tax-exempt status.

* Any person or company providing services, or entering into contracts with, Fox News shall be barred from receiving government contracts.

By the reasoning of Rep. Broun and his defenders, such measures cannot be unconstitutional because Congress is not "punishing" anyone here.  Nobody has the "right" to receive unemployment benefits, or be employed by the government, or to have government-provided health care benefits or to receive special tax-exemptions.  Those are purely discretionary benefits which the Congress is free to dole out, or not dole out, as it wishes.  Nobody who is singled out by the Congress can possibly complain that they are being unconstitutionally "punished" merely because Congress has decided to deny them these discretionary benefits.  Is that what anti-ACORN crusaders are prepared to defend?

Whatever else is true, it is settled law that denial of government employment aimed at specific parties is "punishment" and therefore an unconstitutional "bill of attainder."  There may be other reasonable grounds for claiming that the anti-ACORN laws do not constitute bills of attainder, but the claim that mere denial of discretionary benefits does not constitute "punishment" is not such a ground.


Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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