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A Slap at a Judge’s Nutty ACORN Ruling



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Good news on the efforts to defund ACORN: On Friday, a three-judge panel of the Second Circuit Court of Appeals threw out the injunction against the federal funding ban that had been granted by a federal district judge in New York, Clinton nominee Nina Gershon.

Last fall, the ultra-radical Center for Constitutional Rights brought suit on behalf of ACORN, claiming the provisions in several federal appropriations laws barring distribution of U.S. taxpayers’ money to ACORN were unconstitutional “bills of attainder.” As I wrote at the time for the Corner, Judge Gershon’s opinion would have been laughable if there were not such serious issues at stake.

Judge Gershon’s opinion showed a completely flawed understanding of the Constitution. It improperly substituted her judgment for that of Congress on the appropriateness of a funding ban– the most obvious sign of an activist liberal judge.

Fortunately, the Second Circuit has agreed with my assessment. Its analysis of the “bill of attainder” issue focused on ACORN’s claim that a cutoff of federal funding was unacceptably punitive. However, as the court pointed out, withholding appropriations “does not constitute a traditional form of punishment that is ‘considered to be punitive per se.’”

In what may have been an unintentionally funny line underscoring the absurdity of the arguments made by ACORN (and unfortunately accepted by Judge Gershon), the court notes that “Congress’s decision to withhold funds from ACORN and its affiliates constitutes neither imprisonment, banishment, nor death.”

Judge Gershorn also accepted ACORN’s claim that the so-called community activist group would be driven into bankruptcy if the ban were upheld. Yet the Second Circuit points out that ACORN admitted getting only 10 percent of its funding from federal grants. As the Second Circuit understood (and Judge Gershon apparently did not), Congress “must have the authority to suspend federal funds to an organization that has admitted to significant mismanagement.” What’s more, such an exercise of congressional spending powers is not so severe and inappropriate as to “invalidate the resulting legislation as a bill of attainder.”

One factual item of interest in the court order shows just how far the tentacles of ACORN extend into the housing area: “New York ACORN controls [owns, develops, and manages] over 140 buildings and 1,200 apartments located throughout the boroughs of New York City.”

For all of ACORN’s claims of relative poverty, that is quite a collection of real estate for a “nonprofit.”

Although the Second Circuit tossed out ACORN’s bill of attainder claim, it remanded the case to Judge Gershon to review ACORN’s even more dubious claims that the funding ban violated the First Amendment and due process.

Gershon made no ruling on those claims when she issued her injunction. Hopefully, she will be chastised by the slap on the wrist she just got from the Second Circuit and will not make up the law on these additional claims in an effort to show “empathy” for ACORN as opposed to the American taxpayer.

— Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation and a former counsel to the assistant attorney general for civil rights.



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