Bench Memos

Law & the Courts

Re: Law Professors Say the Darnedest Things—Part 3,642,112

Just a quick follow-up to my post yesterday on Drexel law professor David S. Cohen’s assertion that defunding Planned Parenthood would be an unconstitutional bill of attainder:

Cohen’s position bears a striking resemblance to federal district judge Nina Gershon’s 2009 implausible ruling that a restriction on ACORN’s funding was an unconstitutional bill of attainder. Why, then, did Cohen not cite Gershon’s ruling? Perhaps because the Second Circuit promptly reversed Gershon in an analysis that bodes very poorly for Cohen’s claim for Planned Parenthood. Among other things, the Second Circuit, applying a three-factor inquiry into whether the restriction qualified as punishment for purposes of the Bill of Attainder Clause, ruled that the “withholding of appropriations … does not constitute a traditional form of punishment,” that the defunding “reasonably can be said to further nonpunitive legislative purposes,” and that Congress did not conduct a “legislative trial” that led to a “finding of guilt.”


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