Ed Whelan’s analysis of Judge Nina Gershon’s pernicious opinion in the ACORN funding case — Gershon granted an injunction — is right on the money (pun intended). Gershon’s opinion — that not receiving discretionary federal funding fits the definition of “punishment” as a prohibited Bill of Attainder — would be laughable if there were not such serious issues at stake. Of course, that probably does seem like punishment to someone who has never, ever had a job in the private sector and has spent her entire legal career working for the government or as a law professor.
Most interesting is Gershon’s substitution of her own judgment for that of members of Congress: She concludes, without giving any explanation, that the “public will not suffer harm by allowing the plaintiffs to continue work on contracts duly awarded by federal agencies.” I guess it would be too much to ask Judge Gershon to resign from the judicial branch and run for Congress before she decides that her judgment on such legislative questions takes priority over the judgment of elected members of that body.
Judge Gershon also has a skewed understanding of how the legislative and executive branches interact, and how the Constitution separates their responsibilities. For example, she justifies her decision by stating Congress did not “order any agency of government to conduct an investigation” of ACORN’s wrongdoing. Excuse me? Congress does not have the authority to “order” executive-branch agencies like the Justice Department and HUD to “conduct an investigation.” Such agencies report to the president, who is constitutionally tasked with enforcement of the law. Congress can conduct oversight hearings or defund agencies, but it cannot “order” those agencies to conduct an investigation.
Gershon also complains that Congress did not initiate a “congressional investigation of ACORN,” nor did it apply the “comprehensive regulations that have been promulgated” by federal agencies to govern grant-making and the suspension or debarment of federal contractors. Huh? Does Judge Gershon really believe that it is unconstitutional for Congress to decide who to fund with federal tax dollars “without hearings”? Does she really believe that Congress has to abide by regulations issued by executive-branch agencies before deciding on appropriations of discretionary federal funds?
Hopefully, the Justice Department will continue to fight this lawsuit and not give in to ACORN (which is no doubt what certain members of Congress and this administration would like it to do).