The ACORN Case and the Bill of Attainder Clause

In a few weeks, the Second Circuit will hear argument in an important test case for one of the less-frequently litigated constraints on Congress's power--Article I, Section 9's Bill of Attainder Clause, which generally prohibits the legislative imposition of "punishment." (Section 10 includes a similar ban on state legislatures.) What's specifically at issue are the "de-fund ACORN" provisions enacted into various of the appropriations bills passed late last year (e.g., "[n]one of the funds made available under this Act may be distributed to the Association of Community Organizations for Reform Now (ACORN) or its subsidiaries.”). 

In March, Judge Gershon of the U.S. District Court for the Eastern District of New York struck down these provisions, reasoning that they singled out ACORN for punishment, and that they could not be justified as serving a valid, non-punitive purpose. Whatever one thinks of ACORN and the charges that have been leveled against it, there's a fairly compelling argument that this is exactly why we have a Bill of Attainder Clause--to protect against the concern the Supreme Court worried about in Nixon, i,e,, “that the legislature, in seeking to pander to an inflamed popular constituency, will find it expedient openly to assume the mantle of judge or, worse still, lynch mob."

The Government's brief to the Second Circuit is here; ACORN's response is here; and I've co-authored an amicus brief on behalf of a handful of prominent constitutional law scholars (here). The briefs are worth reading in their own right, but I think it's safe to say that there are three critical questions at play:

1. Does the Bill of Attainder Clause protect corporate entities, and not just private persons?
2. What must Congress show to demonstrate that its purpose was not punitive? 
3. Can the deprivation of access to governmental benefits constitute "punishment"? 

What's telling about this appeal is that the Second Circuit has already answered the first question--and in the affirmative. So if the Government is to prevail on that point, it would have to be either en banc or in the Supreme Court (as we note in our brief, both the limited case law and the deeper purpose of the Bill of Attainder Clause suggest that it should apply to any private entity susceptible to legislative punishment). And as for the third question, one of the few Supreme Court precedents on attainder--the 1946 decision in the Lovett case--seems to support the proposition that the denial of access to a benefit (there, government employment) can be "punishment." If so, then everything boils down to the second question, on which the case law is surprisingly unclear. If the standard is just rational basis review (i.e., does Congress have any plausible non-punitive purpose), it's easy to see both (1) what Congress's rational basis might have been here; and (2) why that would render the Bill of Attainder Clause all-but a dead letter. On the flip side, no court has ever suggested that strict scrutiny is the appropriate standard.

What we ended up arguing in our brief was somewhere in between, drawing an analogy to the "congruence and proportionality" standard articulated in Boerne. As we put it, "legislation challenged as imposing punishment on identifiable individuals or groups must not only have a nonpunitive purpose, but that nonpunitive purpose must itself support the singling out of the targeted individuals or groups." In other words, there's a tailoring requirement with respect to the relationship between the identified non-punitive purpose and the basis for singling out the group that is singled out. By that logic, here, Congress overstepped its bounds.

But regardless of the answer, my own view is that this question is the key, and so this case may be destined for the Supreme Court regardless of how the Second Circuit decides the Government's appeal. If, like me, you don't spend a whole lot of time (re: none) on the Bill of Attainder Clause in your Constitutional Law courses, this could certainly be a fun, intriguing, and potentially important diversion!