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Judge Rules ACORN Funding Cut Unconstitutional

By: Steve Maley (Diary) | December 12th, 2009 at 08:00 AM |

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ACORN funding cut-off was unconstitutional, federal judge rules

U.S. District Judge Nina Gershon issued the preliminary injunction against the government, saying it’s in the public’s interest for the organization to continue receiving federal funding.

ACORN claimed in its lawsuit that Congress’ decision to cut off its funding was unconstitutional because it punitively targeted an individual organization.

Gershon said in her ruling that ACORN had raised a “fundamental issue of separation of powers. They have been singled out by Congress for punishment that directly and immediately affects their ability to continue to obtain federal funding, in the absence of any judicial, or even administrative, process adjudicating guilt.”

…

ACORN has been dogged by allegations of voter-registration fraud and embezzlement.

Several of its offices were the subject of an embarrassing hidden-camera sting in which ACORN employees were shown advising a couple posing as a prostitute and her pimp to lie about her profession and launder her earnings. The videos sparked a political uproar, with Republicans trying to use the group’s troubles to portray Democrats as corrupt.

…

Adam Goldman of The Associated Press wrote this report.

Tags: ACORN, Thugs, Travesties of Justice

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The_Gadfly

E Pluribus Unum

rbdwiggins

Although, Judge Gershon is the guilty party, because she has to willfully ignore the constitutional authority granted under Article I and the limitations imposed under Article III in order to reach her opinion.

The Judiciary does not have the constitutional authority to mandate that Congress must use Taxpayer’s dollars to fund a suspected criminal organization.

penguin2

Your second line seems to indicate grounds for appeal. This is another example of an activist judge. Have to say, the ruling did not surprise me.

Scope

that the defendents would appeal the ruling as they are all Obama picks. Below I have wondered why the Congress that passed the law was not named as the defendents.
rbdwiggins

It affords political cover for inaction by Obama’s Justice Department and congressional Democrats.

spepper

go figure– Gershon: Clinton appointee!

Scope

and was appointed by Bill Clinton. Need we know more.

The sickest part of this is the judge cites that “there was an absence of any administrative process in adjudicating guilt.” Atty. Gen. Holder refused to investigate them. What about the cases throughout the country that did find them guilty of voter fraud among other things?

I’m curious why the defendents named in the ACORN lawsuit are Shaun Donovan, Secretary of Housing and Urban Development, former N. Y. city housing development commissioner, who in that role worked closely with ACORN. Peter Orszag, Obamas Director of Office of Management and Budget, and Tim Geithner, turbo tax cheat and current Secretary of the Treasury. They have all been wildly partisan hacks of the Obama administration. They were carrying out the Defund ACORN Act voted for overwhelmingly by the Congress, even with a majority of Democrats. Why didn’t the lawsuit name the Congress as the Defendents?

It’s laughable that ACORN and the judge cite unconstitutionality when almost everything this administration and the Congress have done has been unconstitutional. Obamacare is dramatically unconstitutional in that they cannot force anyone to purchase anything, especially health insurance. I bet this judge wouldn’t find that unconstitutional.
dennism

The Judge held that the legislation that cut off ACORN was a bill of attainder. It’s in the Constitution. Art 1 Sec 9.

The Congress doesn’t have the right to find guilt and lay on punishment. That’s reserved to Judges and wives with 5 irons. A bill introduced recently was going to tax AIG executives at 90%. It failed. It was probably a bill of attainder.

We’d all have our panties in a bunch if the Congress singled out one industry to punish, say the oil industry, with onerous duties that it didn’t impose on a sister industry like gold extraction.

http://www.hakubi.us/ Neil Stevens

Withholding federal funding is not a punishment. Federal funding is not a right.

Give me a break. That argument doesn’t even come close to holding water.

RedBeard

Someone please show me the constitutional authority for funding ACORN in the first place. Hint: It ain’t in there. Therefore, removing the funding cannot be considered a punishment or a finding of guilt.

Gershon is yet another example of why presidential elections matter so terribly. Why any conservative would have stayed home rather than vote for McCain remains a great mystery. Judicial appointments are not just important, they are crucial.

Scope

The article specifically states that the ruling was made because there has not been any “adjudication of guilt” found by the administration. Holder has refused to have any investigation done with respect to the videos, the Republican report citing numerous questionable practices involving ACORN, the numerous cases across the country that have found ACORN guilty of dirty deeds.

The Democrats don’t have to pass any bills to punish big oil, they have accomplished that by banning all and any new oil and gas drilling anywhere in the US. I’d say that would be considered “onerous” punishments. And that doesn’t only punish the big oil companies, it punishes all of the citizens of the US

So then you must agree that anything Congress passes is subject to run away Liberal judges. I hope that when the Republicans take control of the Congress that they are awarded the same powers to overturn anything they don’t like in the court system.

dennism

Dear Scope. I bet you’re so mad you’re shaking like Betty Ford on Christmas morning.

Calm down and think about it. You know you’d be the first one to squawk if the IRS showered down on you without an audit, without an appeal, without any hearings or opportunities to plead your case… voiding all your contracts with them and with third parties, all on the basis of a law that says “we don’t think Scope ought to be doing business across State lines.”

Good gosh, I hate ACORN as much as you do, but when a liberal Judge tries to interpret the Constitution literally, we ought to be giving our applause. Count me: embegrudgened.

Scope

It seems that you never bothered to read the link I provided somewhere around 2:30 this afternoon. So, let me do this again. According to a very lengthy Heritage Foundation article, by Hans A. van Spakovsky, Senior Legal Fellow, and, Manager of the Civil Just Reform Initiative, written back in September 2009, he clearly makes the case that the Defund ACORN Act, was absolutely within the legal bounds of the Congress to pass. In case you didn’t read further down in the thread, here it is again-

http://www.heritage.org/research/legalissues/wm2630.cfm

Before you come back with more snark, and what you may believe to be a superior intellect, it would be advisable that you do the research before spouting off more nonsense.

The last sentence of the article is- “There is no basis for a court to overcome the presumption of constitutionality of the Act and rule otherwise.”

Some of the references in the article are more than a little interesting, for example-

Reference #11- “It should be noted that although the Act specifically defines ACORN as a “covered organization,” ACORN would meet the general defination even if it were not specifically named.” In other words, the state court findings that ACORN violated election laws, as to voter fraud, and, in several states, defines federal restrictions that prohibit any organization from receiving federal funds to promote a particular party over another. And, that only speaks to the election fraud findings. Mr. von Spakovsky states in the article- “ACORN has had dozens of employees indicted for voter registration fraud in numerous states meeting the general criteria in Sec. 602(C)(3) of the Act.

Reference # 24- “If this were so, there would be a long list of dissapointed defense contractors who would be in line to collect future earnings from their cancelled, decades-long defense contracts.”

dennism, before you come back to denigrate the research I have done with the issue, and, being mostly correct with my original post, you might consider laying off the sauce before you do so. The Betty Ford clinic does some wonderful work with those kinds of problems.

dennism

…dear Scope, you might want to look closer to home. For example, contrary to your first post, drilling hasn’t been suspended in the US. So much for the doctrine of infallibility.

I could be wrong but I THINK that the ACORN decision is limited to existing contracts. The money can’t be turned off for contracts in progress, but I THINK that ACORN has effectively been shut out of future contracts.

Now. The judiciary has a check on the legislative branch. It’s not in the Constitution. See Marbury v. Madison. We don’t like the ACORN outcome but I can assure you that we are going to have to live with it. These contracts will have run their course before the next round of lawyering. It doesn’t make any difference if Mr. von Spakovsky’s point is correct or not. The horse is out of the barn.

We can only hope that the ACORN employees will start to see the handwriting on the wall and jump ship and maybe seek honest employment.

On another matter, just because you disagree with me, that doesn’t give you the power to compel me to read Mr. von Spakovsky’s article. You made me remember one evening a few months ago when Hannity or someone like him was trying to interview Rev. Wright, and when he was pressed, the Good Rev said (and I’m paraphrasing) “If you haven’t read all the books that I get these ideas from, then you have no right to dispute me.”

And finally, I re-read my earlier comments and I didn’t think they were snarky at all.
Scope

or “that’s my story and I’m sticking to it.” It makes no sense to even try to debate with someone who thinks they know it all, even when they have been proven wrong with facts. When you have attained the level of stature and knowledge that Mr. von Spavosky has, I might be interested in what you have to say. Until then, you have nothing of interest to say that I choose to listen to. You may be willing to just sit back and get a backhand across the face from a liberal activist judge, who obviously was wrong in her ruling, but, I doubt that you will find many here, or anywhere else in the conservative community, that is that spineless and weak kneed. I certainly wouldn’t consider you in the “we must fight for our country” column.
http://impudent.blognation.us/blog kyle8

because there was no real constitutional authority for funding Acorn in the first place. Now I understand that we don’t actually go by the constitution anymore. But since we do not, then your argument that this is not simple judicial activism at it’s worse does not hold water.
dennism

…is Mr. von Spakovsky’s mouth ’cause the Judge kicked his teeth in.
Scope

Apparently you don’t understand, or seem to care that the moderators have some clout here. Neil asked you earlier today if you were only here to troll. You have just proved it.
Scope

Apparently you don’t understand, or seem to care that the moderators have some clout here. Neil asked you earlier today if you were only here to troll. You have just proved it.
RedBeard

If that’s not your argument, Dennism, then your argument is not being clearly made here.

Arguing contract law and arcane legal decisions is a great way to misdirect the discussion, which should be focused upon the Constitution itself.

But then, to some, the Constitution is merely an annoying impediment, an absolutist foil to the enlightened nuancing (dancing faster and faster) preferred by some (but thankfully not all) in the legal profession.
Vladimir

Any Federal judge’s interpretation of the Constitution holds until it’s overturned.

That’s why we have Federal judges.

How do you think it’s supposed to work?
RedBeard

My argument runs along the very lines you mentioned, that a judge’s opinion (in this case, a wrong one) is written in erasable pencil, not permanent ink as the Constitution is, and is subject to being overturned when the error of the decision is revealed.

It simply seems to me that Dennism is focusing on the wrong things, i.e. seeming to place bedrock importance on the fact that one judge issued an opinion, and in reference to the comments of von Spakovsky, “kicked his teeth in.”

This isn’t a chess game, nor a pick-up game of street softball. It’s the deadly serious matter of the Constitution being wrinkled, ripped, and shredded by anyone who has a personal beef with its clearly stated principles and delegation of powers.

As others have stated, Judge Gershon is way out of line hanging the argument upon the bill of attainder provision, when the standards of that provision cannot be met due to there being no finding of guilt, and more basic than that, no constitutional authority for the president to enter into irreversable contracts for the spending of taxpayers’ money, a job only constitutionally granted to Congress.
dennism

…and I ain’t saying no more.

Achance here had a good analysis, so does www.powerlineblog.com,

The contracts with ACORN will have expired before the wheels of justice will let this thing come to appeal.

I think you have misunderstood the “finding of guilt” aspect of a bill of attainder. The “bill of attainder” prohibition forbids the legislature from performing judicial functions. It’s a due process issue, There’s a right way and a wrong way to terminate a contract with a government contractor whether that contractor is ACORN or Halliburton.

Achance

with a contract or a Constitutionally impermissible interference with a contract, a Congressional action to “cut off” funding under existing grants and contracts made by the Executive Branch was merely for show. The judge is following the Constitution, people just don’t like the result; funny how that happens when the Constitution doesn’t do what we on the right want it to do.

Congress could perhaps pass legislation directing the EB not to give further grants or contracts to ACORN, but it cannot terminate the grants and contracts that the Executive Branch has already entered into. As the judge says, there are EB adminstrative processes that must be followed to terminate a grant or contract.

http://www.hakubi.us/ Neil Stevens

Achance

impairment of a contract issue but it could be a Bill of Attainder or tortious interference depending on the precise facts. ACORN had presumably properly awarded grants and contracts in place upon which it was presumably performing and which the Executive Branch was paying on. Thus, even if there was some infirmity in the awards, the EB had ratified by performance. Either in the contracts themselves or in statute or regulation, the EB has a process by which those contracts and grants could be voided or terminated. Those processes were not followed and they are the only means by which funding under those particular contracts could be cut off.

Congress could direct the EB to not give them further contracts from already appropriated funds or put language in prohibiting contracts to them in future funding, though that might raise Bill of Attainder issues, I don’t like ACORN anymore than anyone else here but I’m kinda fond of the notion that the Constitution prohibits a hostile Congress from sending me, or anyone else, to the outer darkness.

RedBeard

If we fail to get the basics straight, then all the lawyeresque wrangling over the details is moot.

Where is the executive branch granted the power to dole out taxpayers’ money willy-nilly, with immunity from correction by the branch of government (the legislative) which actually does have authority over spending?
Achance

of the programs that the grants or contracts come under; I can’t find the arguments or the full decision. Courts rarely answer questions that aren’t put to them. The question here is whether Congress can legislatively terminate otherwise valid contracts. They can’t, and I’m glad. It’s actually a conservative, textualist decision. Since it doesn’t achieve a political goal that many here seek, they think it is wrong or activist. Actually, it’s real basic law that even laypeople should easily understand. If you have a contract to, say, plow the roads in your county for a year and you are dutifully performing under that contract a new city council of the other party shouldn’t be able to just void your contract because you’re not in their party. Same thing.
Born Again Capitalist

In your hypothetical, Achance, you talk about the new city council voiding your contract because you are of the wrong party. But could the city council void your contract if you plow the roads while wasted, destroying property and endangering lives? We’re talking about a different situation here.
Achance

Presuming a valid contract upon which you are performing, you are entitled to some process in having that contract terminated unless it is a term of the contract that the government can terminate at its discretion. Anyone of the examples you cite is a performance issue that should be addressed by the Executive Branch.

There are probably termination provisions in ACORN’s grants and contracts themselves but even if there aren’t, there are such provisions in federal law and regulation. They are entitled to those termination provisions.

There is not doubt that the Executive Branch should take action against ACORN, perhaps the USDOJ should take action against them, but they won’t. You can’t draw a line to establish where Comrade Obama’s administration ends and SEIU/ACORN begins, so the whole funding cutoff was a sham.
RedBeard

…until some court rules upon them, we are in, using terminology derived from my vast legal experience, deep doodoo.
http://www.hakubi.us/ Neil Stevens

“Since it doesn?t achieve a political goal that many here seek, they think it is wrong or activist.”

Consider the possiblity that there is genuine disagreement with you on the law here.

You really need to figure out that not everyone who disagrees with you does so in bad faith, quickly.
Achance

I’ve just been in enough of these discussions to know that for many the difference between sound law and judicial activism is whether or not they agree with the decision. On this one, the claim was bill of attainder and all I know is that the judge rulled for them, but there are plenty of grounds to rule for them without going further than statute. The whole Congressional action was simply for show.
http://www.hakubi.us/ Neil Stevens
http://www.hakubi.us/ Neil Stevens

The US Congress, in passing a valid law according to the US Constitution and with the assent of the President, cannot be committing a wrongful act.

Tortious interference cannot apply because a valid law is not a tort.

The Bill of Attainder argument is the key one, and I don’t see it, but the idea that that a contract entered into is inviolable by any law, to me seems to be a super-Lochner because it not only denies the Congress the right to restrict contracts, but the right to touch them at all under any circumstances.
Achance

is most on point though it is too early in the morning and there’s not enough money in it for me to research where the doctrine extends to the federal government. It stands to reason that it does, but I ain’t paying for the WestLaw for this argument.

The whole thing was just a sham; ACORN is an essential part of the Democrat Party; they ain’t cutting off funding for their stormtroopers and shakedown artists.
dvdmsr

in the Constitution. No such prohibition exists in section 10 of article 1, which actually deals w/ powers prohibited to the States, or in section 9 which is the main section where the limits on the Congress were originally enumerated.
Scope

was perfectly legal. It is not a bill of attainder. It was not unconstitutional for the Congress to pass the Defund Acorn Act. It is unconsitutional for the judge to find in favor of ACORN, especially on constitutional grounds.

http://www.heritage.org/Research/LegalIssues/wm2630.cfm
Scope

to defund ACORN as the defendents. I know they would be sympathetic to ACORNS issue, but, why would it not have been ACORN vs the US Congress. They were the ones who passed the legislation.
http://impudent.blognation.us/blog kyle8

Congress can terminate all awards and contracts at any time and for any reason, or no reason. In fact they have done so in the past many times.

The courts can of course disagree, but congress can always have the final word if they have the will to do it.

http://www.eyeconshirts.com anastas

If singling them out as a punishment is illegal, then why is singling them out for reward legal? Any way you look at it, it’s illegal. So are we to fund ACORN forever? If they are breaking federal laws by helping people conduct illegal activity, that should disqualify them from being eligible for federal funding.

Besides, who is charge: ACORN or Congress?

Also, does that mean that tea party organizations can demand funding as well? Can of worms wide open.

johnt

And Congress can vote to increase funding, but Congress cannot vote to cease funding, or logically, to decrease funding.
The entity therefore that initiated the spending, once it does so, loses control of that spending, except of course to increase it.
Quite an argument, because after all, who could not claim they are being punished, discriminated against, treated unfairly, ad nauseam.

I am sure Gershon would not have ruled the same way were the group named the Heritage Foundation & they were engaged in fraud and pimping consultations.
This is both justice and sanity in the hands of a liberal, vicious and degraded.
http://www.tenmilestonowhere.com mead

Does this decision impact the ability of Congress to deny funding in future HUD appropriations bills?

Basically, ban funding for ACORN in future years, without touching existing contracts.

Achance

It is just a sham to get them past the news cycle. We’ll have to hang ACORN around their necks in the ’10 election; the Democrats aren’t going to do anything to them because their antics are a vital part of the Democrats’ ground machine.

rbdwiggins

However, it is a moot point. The Act sunsets on Dec. 18th, and the House Appropriations Committee rejected on a party line vote an amendment by Rep. Tom Latham (R-Iowa) that would have blocked federal funding of ACORN.

http://www.eyeconshirts.com anastas

I agree, what about defunding wars? Does that mean Congress can’t stop spending on anything because it may be perceived as a punishment?

I’m being punished right now and I think I deserve a piece of the pie!

Superheater

“The Congress doesn?t have the right to find guilt and lay on punishment. That?s reserved to Judges and wives with 5 irons. A bill introduced recently was going to tax AIG executives at 90%. It failed. It was probably a bill of attainder.”

That’s a stretch. They voted to cut off funding, not to issue a declaration of guilt.

which is the purview of legislative branch. According to the judge, the “power of the purse” is limited by ethereal judicial review. Its also not the first time she’s interfered in fiscal affairs, either.

This is NONE of her business. Great precedent, when do we start funding the nazi party or the kkk? They aren’t guilty of anything, either.

Time to start responding to judges the way Jackson did (ignore) or Lincoln did (threaten arrest).

dennism

Revisited.

http://www.hakubi.us/ Neil Stevens

Or are you just going to troll?

dennism

I have no more pearls to cas. I’ll leave it up to Achance. He seems to be smart and have a lot of experience.

And no, I’m not a troll. A troll tries to provoke other users into an emotional response. Mine was a voice of calm. If you scroll back you’ll see that before people started calling me names, my first post said “let’s hold our collective horses.”

Consider the possiblity that there is genuine disagreement with you on the law. Not everyone who disagrees with you does so in bad faith.

http://www.hakubi.us/ Neil Stevens

What does that make us?
http://www.hakubi.us/ Neil Stevens

The last guy who sarcastically threw my words back at me is banned. Don’t follow in his footsteps, troll.

Disagreements over the law have nothing to do with your pointless mention of Godwin’s Law.

E Pluribus Unum

What were the odds! Who knew!
mdyou

how do we persuade judges to do their jobs properly?

Can we appeal?

Can we recall?

Maybe if these judges started experiencing some personal adverse circumstances, the others may become more reasonable.

I’m just axing. This has to stop somewhere.
http://www.veronicaestrada.com/ Veronica Estrada

That sense of dread you feel is real.

Thanks for the post, Vladimir.

I’ve referenced you.
Menlo

I was thinking the Obama administration had already decided to fund the group under its current contract. Was I mistaken?

RS

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Judge Rules ACORN Funding Cut Unconstitutional

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