Obama DOJ heads to appeals court hearing Thursday to fight to maintain Congress’s (judge-defined-and-enjoined Bill of Attainder) ACORN funding ban

As originally posted in the reader-diary section of Firedoglake.com; the post’s 2010 comment thread is available at that link. On Friday, August 13, 2010 [“As Corrected” September 7, 2010 (see Appendix A)], the Second Circuit appellate panel of Roger J. Miner, José A. Cabranes, and Richard C. Wesley overturned Judge Nina Gershon’s findings below, by unanimously declaring that the Congressional singling-out of ACORN – on a regular annual basis, to bar it and its undefined “affiliates, subsidiaries, or allied organizations” even from consideration for federal funding programs – did not qualify as legislative “punishment” or an Unconstitutional Bill of Attainder. [The panel then “…remand[ed] for further proceedings as to the plaintiffs’ First Amendment and due process claims.”] A judgement with which the Harvard Law Review, for one, laudably disagreed, in this January, 2011 review of the ACORN case and Second Circuit opinion [HLR: “In holding that the denial of funds was not punitive in this case, the Second Circuit relied on Congress‘s implicit conclusion that ACORN had committed the acts of fraud and mismanagement of which it was accused [without formal indictment], a judgment Congress is not entitled to make.45 Extrapolating from past acts, the court also assumed that ACORN’s allegedly fraudulent conduct would continue, and that the instances of mismanagement could be imputed to ACORN’s various affiliates and subsidiaries,46 many of which carried out tasks wholly unrelated to the charges of fraud. […] Had Congress not determined that ACORN was guilty of fraud and misconduct, there would have been no reason to bar the organization from receiving federal funding.55 This species of legislative action is exactly the evil that the Bill of Attainder Clause aims to prevent: congressional pandering to popular whims and the subversion of separation of powers for the sake of political expediency.” (emphasis added)]. Yet, without explanation, on November 23, 2010, the Second Circuit as a whole declined ACORN’s petition for an en banc review of the panel decision.  Subsequently, on February 22, 2011, ACORN, working with the Center for Constitutional Rights, filed a petition for a writ of certiorari of the Second Circuit panel decision with the Supreme Court. But the Supreme Court couldn’t be bothered to address this rare and important Bill of Attainder case, and, on June 20, 2011 (after twice granting the government month-long extensions of time in which to file its response to ACORN’s petition), refused to hear or review ACORN’s case, thus rebuffing ACORN’s plea for justice in the American courts, and dismissing out-of-hand Judge Gershon’s two careful, thoughtful rulings. Like the Supreme Court, Congress didn’t convene, or invite ACORN to, even a single public hearing to allow the ACORN organization to respond to the wild and highly-politicized accusations that Members of Congress were making against it, before depriving ACORN, and ACORN alone (at least until the next animosity-fueled passionate impulse sweeps through Congress and a cowed presidency, this time with advance Judicial Branch blessing), of the opportunity to even be considered for taxpayer-financed federal funding opportunities for which it might like – or have liked – to apply.

Specifically, government counsel from the Obama DOJ, and ACORN and its attorneys from the Center for Constitutional Rights (CCR), head to:

United States Court of Appeals for the Second Circuit [in New York City]
[Ceremonial Courtroom (9th Floor)]

on Thursday, June 24, 2010 (sometime late in the morning) in

ACORN, et al
United States of America, et al

Docket numbers 09-5172-cv and 10-0992-cv


Roger J. Miner, Senior Circuit Judge
José A. Cabranes, Circuit Judge
Richard C. Wesley, Circuit Judge

Background of the case, from Federal Judge Nina Gershon’s final ruling on March 10, 2010:

While there are minor disputes about factual matters, the parties agree that there are no material issues of fact that prevent resolution of this case without a trial.


ACORN’s critics consider it responsible for fraud, tax evasion, and election law violations, and members of Congress have argued that precluding ACORN from federal funding is necessary to protect taxpayer money. ACORN, by contrast, while acknowledging that it has made mistakes, characterizes itself as an organization dedicated to helping the poor and argues that it has been the object of a partisan attack against its mission. This case does not involve resolution of these contrasting views. It concerns only the means Congress may use to effect its goals. Nor does this case depend upon whether Congress has the right to protect the public treasury from fraud, waste, and abuse; it unquestionably does. The question here is only whether Congress has effectuated its goals by legislatively determining ACORN’s guilt and imposing punishment on ACORN in violation of the Constitution’s Bill of Attainder Clause.


Section 163 [of the Continuing Resolution Congress passed last fall to temporarily fund government agencies because of its failure to pass the appropriations bills for FY 2010 before the year began on October 1, 2009] provides that:

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 Resolution containing Section 163 went into effect on October 1, 2009, and was extended on October 31, 2009 to December 18, 2009.


Plaintiffs [ACORN] filed suit in this court on November 12, 2009, arguing that Section 163 is an unconstitutional bill of attainder and that it violates their rights under both the First Amendment and the Due Process Clause. In their initial complaint, plaintiffs alleged that, as a direct consequence of Section 163, agencies have refused to review their grant applications; that grants they were told they would receive have been rescinded; that previously-awarded grants have not been renewed; and that HUD had refused to pay on its contractual obligations even for work already performed. Plaintiffs also alleged that other organizations, such as private corporations and foundations, have cut ties to them as a result of Section 163.


Plaintiffs sought emergency relief on November 13, 2009, arguing that Section 163 was an unconstitutional bill of attainder and that it violated their rights under both the First Amendment and the Due Process Clause. On December 11, 2009, I preliminarily enjoined then-defendants the United States, Peter Orszag, in his official role as Director of OMB, Shaun Donovan, in his official role as Secretary of HUD, and Timothy Geithner, in his official role as Secretary of the Treasury, from enforcing the provision, on the grounds that plaintiffs had shown irreparable harm and a likelihood of success on the merits of their claim that Section 163 is a bill of attainder.[Footnote 3] ACORN I, 662 F. Supp. 2d at 299-300.

[Footnote 3:] The government appealed that decision on December 16, 2009, but has not moved in the Second Circuit to expedite the appeal. By letter dated February 12, 2010, the government asked for a due date of May 13, 2010 for its opening brief in the Court of Appeals, which request was “so ordered” on February 17, 2010.

On December 16, 2009, President Obama signed into law the 2010 Consolidated Appropriations Act. Consolidated Appropriations Act, 2010, Pub. L. No. 111-117, 123 Stat. 3034 (2009). This Act, described by the government as a “minibus” Act, is a consolidation of various appropriations acts for Fiscal Year 2010.

Several of the consolidated acts contain provisions prohibiting the award of funding to ACORN.


Following the enactment of the minibus bill, Congress passed and the President signed into law the final outstanding appropriations bill, the Department of Defense Appropriations Act of 2010, which prohibits distribution of funds under the act to ACORN or “its subsidiaries.” Department of Defense Appropriations Act, Pub. L. No. 111-118, Section 8123, 123 Stat. 3409, 3458 (2009). Once this final appropriations act was passed, the Continuing Resolution, and thus Section 163 included in it, expired.

On consent of the government, plaintiffs filed a second amended complaint including all five Fiscal Year 2010 appropriations provisions that prohibit funding to ACORN as well as Section 163. Plaintiffs named three new defendants: Lisa P. Jackson, Administrator of the Environmental Protection Agency (“EPA”); Gary Locke, Secretary of Commerce; and Robert Gates, Secretary of Defense.

Plaintiffs and defendants agree that, for the purposes of the bill of attainder argument, the challenged provisions should be analyzed as one statute. Although several of the full year appropriations acts use language slightly different from that of Section 163, neither plaintiffs nor defendants have suggested that any of these differences is significant, either practically or legally.


Plaintiffs acknowledge that HUD, pursuant to the OLC memorandum [requested by HUD, and issued privately on October 23, 2009 and publicly in late November, 2009] has paid, or has agreed to pay, for work already performed under existing contracts. […]

The defendants recognize that ACORN has been singled out by Congress and that there has been no judicial trial at which ACORN has been found guilty and deserving of punishment, but argue that the challenged legislation is not a bill of attainder because it does not impose punishment. The government relies heavily on Section 535 of Division B of the 2010 Consolidated Appropriations Act, which directs the United States Government Accountability Office (“GAO”) to “conduct a review and audit of the Federal funds received by [ACORN] or any subsidiary or affiliate of ACORN” to determine

(1)whether any Federal funds were misused and, if so, the total amount of Federal funds involved and how such funds were misused; (2) what steps, if any, have been taken to recover any Federal funds that were misused; (3) what steps should be taken to prevent the misuse of any Federal funds; and (4) whether all necessary steps have been taken to prevent the misuse of any Federal funds.

Commerce, Justice, Science, and Related Agencies Appropriations Act, 2010, Pub. L. No. 111-117, Div. B, Section 535, 123 Stat. 3034, 3157-58 (2009). Section 535 directs that within 180 days of enactment of the Act, the Comptroller General “shall submit to Congress a report on the results of the audit…, along with recommendations for Federal agency reforms.” Id. Plaintiffs do not challenge the Section 535 provision as a bill of attainder, but the government relies on the investigation to argue that Congress had a non-punitive reason for passing the challenged provisions.

The mandated GAO review and audit of ACORN

The said GAO review and audit was issued in preliminary form last week:

The Consolidated Appropriations Act, 2010, directed us to issue a report on ACORN within 180 days (by June 14, 2010).3 We also received three request letters from a total of 23 members of Congress asking that we provide information on federal funding provided to ACORN and oversight of the use of this funding.


Given that our analysis related to these objectives is ongoing, the information in this report is preliminary and subject to change. We plan to issue a report later this year with our final results related to ACORN and potentially related organizations.


Scope and Methodology

To identify funding awarded to ACORN or potentially related organizations and its purpose, we asked 31 federal agencies to identify funding (grants, contracts, or cooperative agreements) awarded to ACORN or potentially related organizations from fiscal years 2005 through 2009 and, to the extent possible, any funding that may have gone to ACORN or a potentially related organization as a subaward (subgrant or subcontract) during this period.8 We requested information on federal funding that was awarded to ACORN or potentially related organizations, regardless of whether the funding had been dispersed to or expended by the organizations.


To identify the monitoring processes for funds awarded to ACORN or potentially related organizations, we obtained and compared the agencies’ monitoring protocols with documentation of the steps agencies took to monitor these awards.10 We interviewed and obtained documentation from grant program managers and staff from six of the nine agencies that reported providing funding to organizations on the CRS [Congressional Research Service] list: NeighborWorks, the Election Assistance Commission (EAC), the Corporation for Public Broadcasting (CPB), the Environmental Protection Agency (EPA), the Department of the Treasury (Treasury), and the National Endowment for the Arts (NEA).11 We discussed their monitoring processes and how they decided which mechanisms to apply for particular awards. We also asked grant program managers and staff to identify any problems that agencies found through the oversight process and explain how these were resolved. […]

For our third objective, we reviewed information from DOJ—including the Federal Bureau of Investigation (FBI) and DOJ litigating divisions12—as well as the 31 agencies within the scope of our review and the investigative components of the IGs of those 31 agencies to identify any investigations or prosecutions they have conducted of ACORN or potentially related organizations since fiscal year 2005.


We conducted this performance audit from December 2009 through June 2010 in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

Results in Brief

Nine agencies—HUD, DHS, DOJ, EAC, NeighborWorks, CPB, EPA, Treasury, and NEA—identified approximately $37.5 million in direct federal grants and at least $2.9 million in subawards (i.e., grants and contracts awarded by federal grantees) to ACORN or potentially related organizations, primarily for housing-related purposes during fiscal years 2005 through 2009. […]

Agencies employed several mechanisms—ranging from reviews of progress reports submitted by grant recipients to on-site monitoring—to oversee the eight direct grants for which we received documentation on their oversight process; agencies generally did not identify any problems with seven of the eight grants.15 Agency officials said that they considered the grant amount and availability of personnel and resources as factors in deciding what type of monitoring to conduct. Agency monitoring efforts identified and resolved a problem with one of eight direct grants to ACORN or potentially related organizations for which we obtained information on oversight. Specifically, NeighborWorks determined that ACORN Housing Corporation had not provided a description of what it planned to accomplish under the grant, as required. After NeighborWorks brought this to the attention of ACORN Housing Corporation officials, these officials subsequently provided the documentation.


In addition to their routine grant oversight, all six of the agencies included in our review that have provided funding directly to ACORN or potentially related organizations since fiscal year 2005 have initiated either IG or internal reviews of these organizations’ use of federal funds in response to congressional requests or at the agency’s own initiative. The DOJ IG completed its review in November 2009 and the CPB, DHS, EAC, and HUD IG reviews, as well as the NeighborWorks review, were ongoing as of May 24, 2010. Table 4 includes the information we obtained from these agencies regarding their reviews.

Distinct from routine grant oversight and monitoring efforts, which are intended to assess whether grantees are meeting the purposes of the grant program and spending funds appropriately, federal agencies may also conduct investigations of an organization or an employee of an organization to determine whether the organization or employee violated federal law. In the closed matters, closed investigations, and prosecutions since fiscal year 2005 provided by the FEC, the FBI, and EOUSA, ACORN and four potentially related organizations (Project Vote, Citizens Consulting, Inc., Citizen Services Inc., and SEIU Local 100) or their employees were involved to varying degrees in the investigated allegations, as detailed in the tables below. The allegations involved generally related to voter registration fraud and election fraud. IGs can also conduct investigations to determine whether an organization or individual violated federal law. However, of the 31 IGs that we contacted, 29 stated that they had no ongoing or closed investigations of ACORN or potentially related organizations since fiscal year 2005.26 Officials from TIGTA stated that they could not comment on whether their office had conducted any investigations of any ACORN or potentially related organizations since 2005 because section 6103 of the Internal Revenue Code prohibits the disclosure of taxpayer information by the Internal Revenue Service, except in specifically enumerated circumstances.27 The HUD IG’s Office of Investigations declined to comment on whether it had any open or closed investigations involving ACORN or potentially related organizations.


The FEC identified four closed matters that involved allegations that ACORN or potentially related organizations violated the Federal Election Campaign Act.28 For each of these matters, the FEC determined that there was no evidence that such violations occurred. These matters are summarized in table 5.


EOUSA identified six closed cases that involved employees of ACORN. The charges filed did not allege wrongdoing by ACORN or any potentially related organizations. The six cases generally involved alleged voter registration fraud; all but one of these cases resulted in a guilty plea by the defendant. These cases are summarized in table 7.


Five of the federal agencies—DOJ, HUD, NEA, Treasury and NeighborWorks—did not provide formal written comments to be included in this report, but instead provided technical comments, which we incorporated as appropriate. In an email received June 8, 2010, the EPA liaison stated that EPA had no comments on the report and on June 9, 2010, CPB and DHS’s liaisons said that their agencies had no comments on the report. In an email received June 9, 2010, EAC’s Director indicated that the draft report accurately reflected the agency’s grants to Project Vote and their management, and had no further comments.


According to ACORN and Project vote officials, the organizations provided information to local election officials that helped initiate prosecutions against their employees who may have been involved in voter registration fraud. We are working to verify this information and will include the results of our efforts in our final report on ACORN to be issued later this year. ACORN and Project Vote officials also stated that they have a comprehensive quality control system in place designed to identify voter registration fraud.

Yup, sounds like a real “federal case” outlined there, all right…

No wonder the House and Senate jumped all over it last year, instead of focusing their collective attention on or meaningfully tackling egregious and ongoing matters like this, which was being publicly reported last November just as the screws were being put to ACORN:

“U.S. taxpayer dollars are feeding a protection racket in Afghanistan that would make Tony Soprano proud,” [Representative John] Tierney said, referring to the fictional mob leader in the TV series “The Sopranos.”

Military authorities in Afghanistan have only been concerned that the supplies reach their destination and the warnings they received from the trucking companies about extortion payments “fell on deaf ears,” said Tierney, who chairs the House Oversight and Government Reform national security subcommittee.

Army Lt. Gen. William Phillips, a senior Pentagon acquisition official, said he was unaware of the allegations that U.S. tax dollars may be indirectly bankrolling the insurgency and promoting instability in Afghanistan.


Members of the subcommittee weren’t impressed. “Warlord Inc.,” a report released Monday by the panel’s Democratic staff, noted that a military task force has been examining allegations since last year of extortion and corruption stemming from the contract. But the report paints the inquiry as slow moving and unfocused.

“There seems to be very little indication the Department of Defense is doing anything,” said Rep. Jeff Flake of Arizona, the subcommittee’s top Republican.


Nearly $700,000 per day is spent on average moving supplies throughout Afghanistan, Phillips said.

– Richard Lardner, Associated Press, June 22, 2010

The GAO report, moreover, is only the latest in a string of independent investigations that have cleared ACORN of wrongdoing since the middle of last year. ACORN itself hired a former Massachusetts Attorney General to do an internal investigation, and the District Attorney for Kings County, New York spent five months looking into ACORN operations after Congressionally-trumpeted doctored hidden-camera videos surfaced last September. The Congressional Research Service also investigated, and was unable to document any wrongdoing on ACORN’s part in a report issued to little notice during the holiday season last December.

I’ll continue below with some lengthy excerpts about the merits of the case from Judge Gershon’s decision, which is now under appeal by the Obama administration. I’m going to include quite a bit from her careful opinion here, in an effort to highlight the argument that the government is trying to make [of which, see this early sample] in order to defend Congressional (and Presidential) action that seems clearly unConstitutional on its face. Note, too, that three federal appellate judges, subsequent to Gershon’s March opinion, in a one-paragraph order issued one day after a hearing on the matter, completely disregarded Judge Gershon’s rationale for imposing her preliminary and permanent injunctions, and agreed to stay her injunction at the government’s request, as I elaborate further below.

First, a reminder of what’s at stake here for ACORN:

NEW YORK (AP) – The head of activist group ACORN came to a federal court Tuesday [4/20/10] to observe a legal fight over its funding and said the group was on “life support” after waves of bad publicity and an attempt by Congress to cut off its money.

Bertha Lewis, the chief executive officer for the group, said ACORN was getting by on about $4 million annually rather than its one-time $25 million budget and had reduced its staff to four, down from between 350 and 600 employees.

“We’re still alive. We’re limping along. We’re on life support,” Lewis said in an interview just after a government lawyer asked a federal appeals court to temporarily block a judge’s ruling that it was unconstitutional for Congress to cut funding to ACORN.


Attorney Mark Stern argued for the Justice Department that Congress did nothing wrong when it took action last year against ACORN after it identified “widespread mismanagement.”


Lewis said the legal fight was critical to ACORN’s recovery.

“If we can survive this, inch by inch, little by little, this organization can build itself back up,” she said. “We’re going to fight like hell to stay alive.”

– Larry Neumeister, Associated Press, April 20, 2010

Judge Gershon’s March 10, 2010 decision, on the merits of ACORN’s claims

This is the reasoning that the Obama administration will be attempting to overturn during oral argument in the Second Circuit tomorrow:

Enacted as a “bulwark against tyranny” by Congress, “the Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, or more simply – trial by legislature.” United States v. Brown, 381 U.S. 437, 443, 442 (1965).


Plaintiffs assert, and defendants do not dispute, that this is the first time Congress has denied federal funding to a specifically named person or organization in this way. […] For the reasons explained below, I agree with the district court in Florida and conclude that the discretionary nature of governmental funding does not foreclose a finding that Congress has impermissibly singled out plaintiffs for punishment.


The government relies on two Supreme Court cases to argue that the denial of the opportunity to apply for federal funding cannot be punishment.


As discussed further below, I cannot discern any valid, non-punitive purpose for Congress enacting the legislation challenged in this case. Further, unlike the plaintiffs affected by the statute at issue in Selective Service, plaintiffs here cannot avoid the restrictions imposed upon them. Nothing in the challenged provisions affords plaintiffs an opportunity to overcome the funding ban. […]

Notably, in neither Flemming nor Selective Service did Congress single out any particular individual or entity for adverse treatment; rather, each statute applied to an entire category of people. Here, in contrast, the congressional deprivation is imposed only on ACORN and its affiliates. […]

Accordingly, a close reading of the cases indicates that a deprivation of the opportunity to apply for funding in fact fits comfortably within the definition of “punishment” for bill of attainder purposes.


The government again argues that, because there was no formal congressional finding of misconduct against ACORN, the year-long ban on all funding to ACORN is not punitive. But, as in Con Ed, the nature of the bar and the context within which it occurred make it unmistakable that Congress determined ACORN’s guilt before defunding it. […] In sum, wholly apart from the vociferous comments by various members of Congress as to ACORN’s criminality and fraud, as described below, no reasonable observer could suppose that such severe action would have been taken in the absence of a conclusion that misconduct had occurred. […]

The government also argues that Congress withheld funds from plaintiffs for the non-punitive reason of protecting “the public fisc,” not to penalize ACORN for past wrongdoing. But Congress’s interest in preventing future misconduct does not render the statute regulatory rather than punitive. Deterring future misconduct, as Con Ed stressed, is a traditional justification of punishment.


Congress is entitled to investigate ACORN [as with the GAO audit] and to determine whether the executive agencies with whom plaintiffs have contracted have properly held them to account. But Congress could not rely on the negative results of a congressional or executive report as a rationale to impose a broad, punitive funding ban on a specific, named organization; explicit non-judicial findings of guilt would exacerbate, rather than mitigate, the punitive nature of the challenged provisions. […] [Footnote 14]

[Footnote 14:] […] But, as plaintiffs point out, Representatives Smith and Issa wrote their letter [requesting a GAO investigation] only after they had voted to prohibit ACORN from receiving federal funds on a permanent basis. See Defund ACORN Act, H.R. 3571, 111th Congress (passed in the House September 17, 2009). Moreover, several of the senators requesting an investigation had previously introducted Senate Bill 1687, the Protect Taxpayers from ACORN Act, sponsored by Senator Mike Johanns, which would also have permanently prohibited ACORN and ACORN affiliates from receiving any federal funding. And, indeed, the same members of Congress voted for the funding prohibition in the Department of the Interior’s appropriations act before they knew whether the GAO would investigate at all.

Further, as noted previously, the unavailability of any means for ACORN to overcome the funding ban if the [GAO] investigation report is favorable [as it is, in its present form, as of tomorrow’s oral argument] underscores the lack of a connection between the burdens of the statute and Congress’s purpose in enacting it.


As in Con Ed, none of the government’s justifications stand up to scrutiny. I can discern no non-punitive rationale for a congressional ban on plaintiffs, and plaintiffs alone, from federal funding.


Determining Congress’s intent is often a difficult exercise; the stated comments of one legislator do not necessarily represent the unspoken thoughts of others who voted for a bill. Nevertheless, since the Supreme Court instructs that legislative intent is a key part of the framework for determining whether a legislative act is a bill of attainder, I must consider it. See Nixon, 433 U.S. at 478.

Here, the task is made easier because the government fails to offer any legislative history that would indicate a non-punitive intent. In ACORN I, in justifying Section 163, the government relied on the statements of Senator Mike Johanns, who introduced all of the challenged provisions in this case. […] Such statements [as those made by Johanns] require an implicit finding of wrongdoing by plaintiffs; protection of taxpayers’ money is a logical justification for a funding ban only if wrongdoing is assumed.


Statements by other legislators echoed the punitive purpose of the legislation. […] In addition, the staff of Representative Darrell Issa authored an 88-page report entitled “Is ACORN Intentionally Structured as a Criminal Enterprise?”, which states that “ACORN has repeatedly and deliberately engaged in systemic fraud” and accuses ACORN of conspiring to use taxpayer funds for partisan purposes. The government correctly notes that the Issa Report was authored solely by Representative Issa’s office and was not commissioned by Congress. Nevertheless, because Senator Johanns himself requested that its executive summary be entered into the congressional record, the Issa Report is relevant to this inquiry.


Here, as in Lovett, Congress deprived plaintiffs of an opportunity available to all others. Especially where plaintiffs have received federal funds from many federal grants and contracts over the years, it cannot be said that such deprivation is anything short of punishment as that has been understood in the bill of attainder cases. The challenged provisions, by singling out ACORN and its affiliates for severe, sweeping restrictions, constitute punishment under the three factors the Supreme Court has articulated for making this determination.


Following ACORN I [Gershon’s preliminary injunction last December against the funding ban], OMB did send an email to all federal agencies’ general counsels informing them of the injunction entered in ACORN I and that the government was considering appeal, but OMB did not direct them to inform their agencies, grantees, and grantees’ subcontractors of this court’s ruling. The reputational harm, therefore, continues, as the original [October 7, 2009] advice from OMB to the hundreds, if not thousands, of recipients of that advice has never been rescinded. [Footnote 18]

[Footnote 18:] The government has separately moved to vacate the December 11, 2009 Injunction and Order, referred to in this opinion as ACORN I, on the ground that the preliminary injunction became moot before the government had the opportunity to appeal. The government takes the position that the subject of the decision, Section 163 of the Continuing Resolution, was “without effect” through “happenstance” as the Continuing Resolution had expired on its own terms on December 18, 2009.

The government’s motion to vacate is denied. As described in the text, the expiration of the Continuing Resolution did not end Section 163’s impact on plaintiffs. […] Of course, the relief to be entered today will supersede the decision in ACORN I, which was limited to preliminary relief.


For the reasons explained above, I now direct entry of a declaratoy judgment that the challenged provisions are unconstitutional because they violate the Bill of Attainder Clause.

In addition to the declaratory judgment, plaintiffs seek a permanent injunction to undo the damage the challenged provisions are causing. “To obtain a permanent injunction, a plaintiff must succeed on the merits and show the absence of an adequate remedy at law and irreparable harm if the relief is not granted.” Roach v. Morse, 440 F.3d 53, 56 (2d Cir. 2006)(internal quotation marks omitted). Plaintiffs have prevailed on their bill of attainder claim. As for irreparable harm, it is undisputed that prior to the funding ban, plaintiffs had received significant amounts of federal funding, either directly or indirectly as subcontractors; that grants with the government have been suspended; and that they cannot receive renewals or new grants under the challenged legislation. Because the government’s sovereign immunity prevents plaintiffs from bringing suit against the government for monetary damages for these injuries, these harms are, by definition, irreparable. […] A finding of significant violation of constitutional rights also supports the finding of irreparable harm. […]

In addition to their irreparable economic harms, plaintiffs have also established reputational injuries for which they can never recover damages at law from the defendants. […] To date OMB has not rescinded that [10/7/09 Section 163-enforcing] memorandum. Therefore, injunctive relief will issue to assure that, so far as possible, the harms caused by the unconstitutional legislation will be undone.

– United States District Judge Nina Gershon, March 10, 2010

It’s subtly stated, in Judge Gershon’s even-handed, duty-driven opinion, but it seems clear that her orders protecting ACORN’s rights have been effectively ignored twice by the Obama administration, particularly by its OMB director, Peter Orszag, starting last December.

First, Orszag apparently only went through the motions in reaction to Judge Gershon’s December preliminary injunction (enjoining Section 163 in the Continuing Resolution funding bill), and followed the DOJ’s lead in pretending that Section 163, and thus her injunction, had “expired” by “happenstance” (while the DOJ was considering whether to appeal), so that he had no need to formally rescind his far-reaching October 7th directive warning agencies not to fund ACORN [while the DOJ was disregarding the amended complaint of ACORN, which added the other funding bans soon passed in the regular appropriations bills enacted before the continuing resolution expired on 12/18 (one of which was worded identically to the expired Section 163 provision)]. Thus, any effect of Judge Gershon’s December preliminary injunction against the funding ban was apparently mostly illusory, as a practical matter, to zero consequence for government actors, but to grave consequence for ACORN.

Then, as soon as Judge Gershon issued her final judgement on March 10th this year, the Federal Programs Branch of the Civil Division of the Department of Justice quickly appealed [on March 17th], and moved to stay her permanent injunction, which had been made necessary by the intransigence of the Obama administration in response to her December preliminary injunction. Judge Gershon denied the goverment’s motion for a stay of her injunction on March 31. The same day the DOJ moved in the Second Circuit for a stay pending a decision on the merits of their appeal of Gershon’s decision. On April 1, Circuit Judge Gerard Lynch granted a temporary stay of Judge Gershon’s injunction. A hearing was held on the DOJ’s request on April 20, and one day later, the three-member appellate panel unanimously granted a stay of Judge Gershon’s permanent injunction for the duration of the government’s appeal in the Second Circuit.

The three federal appellate judges – Roger J. Miner, José A. Cabranes and Richard C. Wesley (who will be hearing the oral argument tomorrow) – granted that stay despite the failure of the government to meet its burden under the law, as CCR’s Jules Lobel noted [link broken, 2/2012; on-line search failed to locate/retrieve article]:

Attorney Jules Lobel, of the Center for Constitutional Rights, represented ACORN and said he was considering taking the unusual step of appealing the temporary order to the U.S. Supreme Court. He said government lawyers needed to show the appeals court that it would suffer irreparable harm to block Gershon’s rulings.

“They never even attempted to show that,” he said.

– Larry Neumeister, Associated Press, April 22, 2010

Lots of harm, but no foul, provided you’re a government actor, in the eyes of an increasing number of power-serving federal appellate judges, eh?

Not for nothing, but two of those three judges (José Cabranes and Richard Wesley), who quickly sided with the government in the matter of ACORN in April, joined Second Circuit Chief Judge Dennis Jacobs’s “anodyne” [as aptly described by one of the dissents] and shockingly-unjust 7-4 majority opinion throwing Maher Arar’s rendition-to-torture claims out of the American court system in November, 2009 – six years after Arar was released from Syrian custody and immediately filed suit to hold accountable those American government actors responsible for his kidnapping and savagely-abusive imprisonment (all, ultimately, to no avail in the American “justice” system).

More than one of the important and laudable Arar dissents powerfully documented the flaws in the majority opinion, but Senior Circuit Judge Barrington Parker’s dissent perhaps put it best, with regard to the sort of case the government will be attempting to “win” against ACORN tomorrow in the same federal appellate court in New York City:

Where appropriate, deference to the coordinate branches is an essential element of our work. But there is, in my view, an enormous difference between being deferential and being supine in the face of governmental misconduct. The former is often necessary, the latter never is. At the end of the day, it is not the role of the judiciary to serve as a help-mate to the executive branch, and it is not its role to avoid difficult decisions for fear of complicating life for federal officials. Always mindful of the fact that in times of national stress and turmoil the rule of law is everything, our role is to defend the Constitution. We do this by affording redress when government officials violate the law, even when national security is invoked as the justification. See U.S. Const., Art. I, § 9, cl. 2; Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

Senior Circuit Judge Barrington Parker,
dissenting in Arar, November, 2009

[Thanks (I think…) to Jeff Kaye for the clue and prompt that led to the writing of this diary. Note too this recent diary by David Swanson, which includes an excerpt from an interview he conducted, marking the 40th anniversary of ACORN’s founding last Friday, with the founder of ACORN, Wade Rathke.]

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