Posted by Eugene Volokh:
Congressional Research Service on Whether the "Defund ACORN Act" Is an
Unconstitutional Bill of Attainder:
http://volokh.com/archives/archive_2009_09_20-2009_09_26.shtml#1253827358
Here's the [1]report, published Tuesday. An excerpt from the Summary:
The two main criteria which the courts would likely look to in
order to determine whether legislation is a bill of attainder are
(1) whether �specific� individuals or entities are affected by the
statute, and (2) whether the legislation inflicts a �punishment� on
those individuals. Under the instant bills, the fact that ACORN and
its affiliates are named in the legislation for differential
treatment would appear to meet a per se criteria for specificity.
The U.S. Supreme Court has also identified three types of
legislation which would fulfill the �punishment� prong of the test:
(1) where the burden is such as has �traditionally� been found to
be punitive; (2) where the type and severity of burdens imposed are
the �functional equivalent� of punishment because they cannot
reasonably be said to further �non-punitive legislative purposes;�
and (3) where the legislative record evinces a �congressional
intent to punish.� The withholding of federal contracts or grants
does not appear to be a �traditional� punishment, nor does the
legislative record so far appear to clearly evince an intent to
punish. The question of whether the instant legislation serves as
the functional equivalent of a punishment, however, is more
difficult to ascertain.
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, at least when the ban is applied
to ACORN and its affiliates jointly and severally. In theory, under
the House bill, the behavior of a single employee from a single
affiliate could affect not only ACORN but all of its 361
affiliates. Thus, there may be issues raised by characterizing this
legislation as purely regulatory in nature. While the Supreme Court
has noted that the courts will generally defer to Congress as to
the regulatory purpose of a statute absent clear proof of punitive
intent, there appear to be potential issues raised with attempting
to find a rational non-punitive regulatory purpose for this
legislation. 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.
My much more tentative thoughts on the subject are [2]here.
References
1. http://volokh.com/files/acornattainder.pdf
2. http://www.volokh.com/posts/1253048051.shtml
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