Federal Judge Nina Gershon ruled unequivocally that the Congressional defunding restrictions on ACORN and all affiliated organizations were unconstitutional by breaching the U.S. Constitution’s prohibitions on Bills of Attainder and “ex post facto” laws. Reading the decision this morning, I can say that are arguments are straightforward, clear, and well researched
Judge Gershon eviscerates the sham attempts by the government to establish that their actions were not targeting ACORN by quoting from the the naked prejudicial attacks by Senators Kit Bond (R-Missouri) and Mike Johanns (R-Nebraska) and by carefully referencing the government’s admission that Congressman Darryl Issa (R-Ohio) and his own private office staff report on ACORN being a “criminal enterprise” was not commissioned by Congress, but were simply his own wild rantings, which she quotes in a footnote from one of his many press releases. The decision is understated but devastating to the government’s weak hand. Bill Quigley, our old friend from New Orleans who is now on leave from Loyola Law School and serving as legal director of the Center for Constitutional Reform in New York which represented ACORN, was quoted in an AP story in the New Orleans Times-Picayune saying he did not believe the government would appeal. That may be wistful spinning, but it is clear that whether the government appeals or not, the appeal has no chance of success against the ironclad Gershon decision. [Incidentally, Quigley was orginally contacted for help on this matter by longtime Louisiana ACORN director, Beth Butler, who set this defense in motion, but was abruptly and unjustly fired by current management inexplicably in mid-October, but that’s another kettle of fish.]
It is interesting to note that the U. S. Supreme Court has only needed to rule five times on cases concerning “bills of attainder” in the last more than 200 years. Legislative punishment in the absence of fair trials are just really not part of the American way. Except it seems in reading Judge Gershon’s decision when it comes to politically reviled organizations like in this case suddenly ACORN and historically the Communists. In several of the cases discussed by Judge Gershon the Supreme Court had overturned attempts by Congress either in the open or behind closed doors to punish people and government employees that it believed to be commies by pushing them from employment and barring them from future employment. Have I mentioned that all of this ACORN-baiting is neo-McCarthyism? Yes, I think I have, and not surprisingly many of the lead cases here flowed from the original McCarthy era.
The decision issue a preliminary injunction in defense of ACORN stripped bare is simple: Congress has a lot of power but cannot single out a specific named organization – ACORN and its family of organizations – and punish them without investigation or trial. Normally that would seem beyond debate.
All of this leads me to the next question: how was this kind of prejudicial railroading of ACORN possible under this Congress in the age of Obama and supposedly with a significant Democratic majority. How can we have any leadership in this panicked herd mentality where so few are willing to stand against obvious injustice? How can so many of ACORN’s friends and allies who have hidden under the covers in recent months feel anything but shame?
I can only still marvel at Congressman Barney Frank’s comments to the Wall Street Journal after the original defunding amendments were passed where in two days of contradictory comments he said he would have voted for the defunding amendments even though he believed that such amendments were unconstitutional bills of attainder. Frank is more candid than most, but when even modestly liberal Congressmen are willing to embrace their own participation in admittedly unconstitutional actions, the admission of political cowardice is resounding.
I encourage people to read Judge Gershon’s decision. The attempts to silence a voice of the poor has to end. The madness must be stopped. There is no place to hide on this issue. No voice should go unheard.