The Federalist Blog

This may be old news by now, but I wanted to add a few remarks regarding the Association of Community Organizations (ACORN) argument that a

House resolution amounted to a “bill of attainder” that resulted in a cut off federal grant money to the group. Judge Nina Gershon agreed, writing, “They [ACORN] have been singled out by Congress for punishment that directly and immediately affects their ability to continue to obtain federal funding, in the absence of any judicial, or even administrative, process adjudicating guilt.”

Interesting how discretionary funding can lead to complaints of a “bill of attainder” over discretionary defunding, especially when no individual was attainted nor was there ever a bill demanding an individual to be attainted. Would it be a “bill of attainder” for Congress to cut off funds because of ethical questions or because of cost overruns? Could bills of attainder become the new tool of the courts to get more deeply involved in legislative matters under the ruse of protecting companies or groups against attainders?

Perhaps more interesting how a bill of attainder can be confused with a “bill of pains and penalties.” This would be as if the court saying the word “apple” generically includes all “oranges” – leading to court’s arguing over “oranges” even though the only issue before them is “apples.”

The confusion can most likely be traced to passing comments of Chief Justice John Marshall’s attainder dicta in Fletcher v. Peck when he wrote, “A bill of attainder may affect the life of an individual, or may confiscate his property, or both.” It is important to note the issue before the court was not bills of attainders.

Marshall clearly is speaking of punishment under Article III §3 which reads, “no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.” Congress is empowered to declare the punishment of treason which may, or may not, include death, but is prevented from extending the period of corruption of blood and forfeiture beyond the life of the accused, unlike under the English custom of mandatory death and loss of property.

Bill of attainders were bills in parliament used in cases of treason and were death and corruption of blood was sought, and where the accused was condemned only by the united judgment of the Crown, the Lords, and the Commons and were never used to inflict general criminal penalties. Bills of attainder were resorted to when there was fear there might not be enough evidence to convict someone of treason in a court of law.

Bills of attainder and bills of pains and penalties are different bills with different results, much like the difference between a traffic ticket and lethal injection. One results in the pain of death and attaintment while the other results in pain of penalties.

No one had ever used a parliamentary bill of attainder to obtain “pains and penalties,” which makes current confusion between the two bills more baffling. There is zero evidence that Gerry and McHenry understood a bill of attainder to also include bills of pains when they proposed prohibiting its use for legislative conviction during the convention.

So was ACORN’s defunding an act of attainder? The answer is clearly no because there was no bill of attainder that stated the accused is hereby convicted, attainted and “shall suffer the pains of death.” Same general arguments with a bill of pains as there was never any bill calling for congressional conviction through enactment.

Instead, Congress simply made a determination to stop funding the group based upon legal or ethical questions surrounding the group, not punishment as a result of a bill for legislative conviction. Since funding is an exclusive function of a legislature, they and they only control the purse strings that require no judicial finding of fact to grant or withhold.