Last Friday, U.S. district judge Nina Gershon granted a preliminary injunction that orders the United States not to enforce a recently enacted provision of law (“Section 163”) that restricts funding of ACORN. Specifically, Judge Gershon ruled that Section 163 is “unconstitutional under the Bill of Attainder Clause.” I’ll explain here why I find Judge Gershon’s opinion unpersuasive on its face.
Enacted in October as part of a continuing-appropriations law, Section 163 states:
“None of the funds made available by this joint resolution or any prior Act may be provided to the Association of Community Organizations for Reform Now (ACORN), or any of its affiliates, subsidiaries, or allied organizations.”
The continuing-appropriations law is scheduled to expire on December 18, 2009 (though it might well be extended).
By its terms, Section 163 might seem to bar the disbursement to ACORN of any funds appropriated under the continuing-appropriations law or under previous laws, including disbursements under pre-existing contracts. But the Department of Justice’s Office of Legal Counsel has opined, in advice that governs the executive branch, that Section 163 “should not be read as directing or authorizing [the federal government*] to breach a pre-existing binding contractual obligation to make payments to ACORN or its affiliates, subsidiaries, or allied organizations.” Notably, OLC’s reading of Section 163 was expressly driven by the desire to avoid the bill-of-attainder concerns that it believed might otherwise arise.
Judge Gershon begins her opinion by stating that the task of invalidating a provision of federal law “can be approached only with the utmost gravity” and that such provisions “enjoy a high presumption of legitimacy.” That is “particularly true,” she says, for challenges under the Bill of Attainder Clause, “which has been successfully invoked only five times in the Supreme Court since the signing of the Constitution.” Unfortunately, Judge Gershon’s opinion does not manifest the care that she promises.
The major defect in Judge Gershon’s opinion is her assessment of the question whether Section 163 “falls within the historical meaning of legislative punishment.” Judge Gershon starts off well:
“At first blush, the idea that the deprivation of the opportunity to apply for discretionary federal funds is ‘punitive’ within the meaning of the attainder clause seems implausible. Neither the Supreme Court nor the Second Circuit has been faced with such a claim.”
But she then quickly falters, as she finds “particularly instructive” the Supreme Court’s 1946 ruling in United States v. Lovett.
In Lovett, the Court addressed a provision that barred the use of any funds, whether already appropriated or appropriated at any time in the future, to pay any part of the salary of three named government employees. The Court determined that the purpose of the provision was “permanently to bar [the three men] from government service,” and that it “‘operate[d] as a legislative decree of perpetual exclusion’ from a chosen vocation”:
“This permanent proscription from any opportunity to serve the Government is punishment, and of a most severe type. It is a type of punishment which Congress has only invoked for special types of odious and dangerous crimes, such as treason ….”
Three differences between Section 163 and the provision at issue in Lovett are obvious: (1) Section 163 applies to an organization, not to individuals; (2) Section 163 applies to applications for discretionary federal funds, not to the continuation of federal employment; (3) Section 163 is temporary (it doesn’t apply to future appropriations), not permanent. I don’t mean to contend that these differences are necessarily dispositive, but they need to be addressed with care. Yet, remarkably, Judge Gershon pays zero attention to the first two differences and offers a very brisk and unsatisfactory footnote dismissal of the third. [Clarification on the second difference: Judge Gershon does address the government’s effort to distinguish Lovett on the ground that the plaintiffs in that case had a “vested property interest” in their jobs. That is one of the issues that would arise in considering the difference between application for discretionary federal funds and continuation of federal employment. But Judge Gershon doesn’t pose the general question whether there is a difference—and therefore doesn’t meaningfully address, for example, whether the loss of employment is more severe, or more distinctive of punishment for crimes, than the loss of the right to apply for discretionary federal funds.] Judge Gershon, in other words, provides no meaningful explanation why Section 163 should be thought to be governed by Lovett.
* OLC’s specific advice responds to a request from HUD, but its reasoning plainly applies to all executive-branch agencies.
Update: One reader contends that Judge Gershon has opined merely that ACORN is likely to succeed on the merits. I think that the better reading of her opinion is that she has decided that ACORN has satisfied the likelihood-of-success component of the preliminary-injunction test because she has determined that Section 163 is unconstitutional. See slip op. at 17-18 & n. 11. In any event, my objections would apply equally to a mere likelihood-of-success determination.