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December 11, 2009

Breaking: Judge Enjoins Congress from Cutting Off ACORN's Supply of Shakedown Money
Updated: Judge's Claims Analyzed A Bit

A Clinton-appointed judge, I'm told. Here is a PDF of the decision.

ACORN has claimed the cutoff constitutes a Bill of Attainder, which is frankly silly, I think (although I think the Volokh guys argued, somewhat persuasively, this was a plausible finding).

The judge claims, weirdly, that there is a separation of powers issue that somehow restrains Congress from exercising its constitutionally-specified power to raise and spend money. Huh? The judge claims some sort of finding of guilt by a court or an executive administrative magistrate is required before Congress can exercise its major constitutionally-specified power. Odd, it seems, but I suppose not so odd if you start out with the idea this is a Bill of Attainder.

I'll get some quotes but for now I'm just posting it.

Interesting quote:

At first blush, the idea that the deprivation of the ability to apply for discretionary federal funds is "punitive" within the meaning of the bill of attainder clause seems implausible.

With all due respect, Geinus: It seems that way at first blush, at second blush, at seventh blush, and at eighty-eighth blush too.

This judge is effectively stating that Congress has no right to decide how it directs discretionary funding to organizations, and that once an organization is on the federal teat, it has the right to continue suckling in perpetuity until some finding of "guilty" is made against it by some other branch of the government.

By the Way: If you don't know, an injunction is not, in theory, the court's last word on the matter. Rather it is is a form of temporary relief, a temporary injunction against the action until the court can consider the matter fully.

But the bases for granting injunctive relief includes the idea that "the plaintiff is likely to win on the merits at full trial," so very often, a granting of injunctive relief indicates how the judge is going to come down in the end.

Link Problems: I was sent the PDF of the decision. I just stupidly "linked" that, which doesn't work, since you can't read a PDF in my email. I will try to find the decision somewhere on the web.

LINK: Okay, here is the file. PDF of Order on Injunction.

Judge Nina Gershon... about whom Rep. Darryl Issa says:

This left-wing activist Judge is setting a dangerous precedent that left-wing political organizations plagued by criminal accusations have a constitutional entitlement to taxpayer dollars. The Obama Administration should immediately move to appeal this injunction.

You know what's ridiculous here? Obama is pressing this suit, supposedly, against his ally, his creature, ACORN. It is entirely within his power to tank the case and deliberately lose it.

Weak: The judge relies on a previous case in which Congress had stripped funding from 39 specified federal employees. The court there found the stripping of funding for their jobs to be a bill of attainder because the workers already had a vested property interest in their jobs.

Plus, and this isn't mentioned, but let's face it, those are individuals. A corporation is legally, fictively a "person" too, but not really. I don't know what principle of law this is, but surely there's Oh come on with that nonsense caveat somewhere.

Anyway, this particular judge looks at that case and relies on it. She notes the problem -- in that case, the employees were already found to have a vested right in their jobs, which could not be stripped away without some due-process type finding of guilt. But in this case, ACORN has "no right" (emphasis in original) to these funds.

So doesn't that mean, immediately, the two cases are different?

No, the judge claims, because ACORN is being denied the right to offer its services to the government in the future.

Um: So what? They also have "no right" to demand the government do business with them in the future. They simply have no right to demand any money at all. It is entirely an at-will employment situation, and the government has fired ACORN.

But the judge spins this into a cotton-candy confection that's really tasty for ACORN. Apparently you can't prohibit any organization from receiving federal funds -- and that means the KKK can start petitioning the government for its own "community outreach" efforts.

It cannot be stressed enough that these funds are entirely discretionary, entirely by whim of Congress. This is not a case of someone who qualifies for some federal cash according to the letter of the law spelling out the entitlement being wrongly denied the money -- in that case, the person can point to the law and say "According to that law, I qualify; give me that money."

In that sort of case, there exists -- if only arguably -- a right of the person to claim the money and thus a right to challenge the government's refusal to pay it.

In this case, ACORN has the same right to millions of dollars from the government that I do: Namely, none whatsoever. And yet Congress' finding that it may exercise its discretion and end funding of ACORN is treated as if, well, not within its discretion at all.

If the government cannot deny millions to ACORN, then it cannot also simply deny the money to me, and I too would like to enjoin the government from its continuing refusal to pay me money.


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posted by Ace at 07:48 PM

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