ACORN has been in the news quite a bit recently and some of the recent coverage has been based on misinformation regarding an arcane but important bit of Constitutional Law about bills of attainder.  The Defund ACORN Act was added as an amendment to an existing bill and the Congressional Research Service (CRS) prepared a report about whether the act was a bill of attainder as prohibited by Article I of the Constitution.

I watched this video yesterday and I had a hard time determining if MSNBC is stupid, doesn’t do their homework, or is just dumbing down the news even more so that we can be equally misinformed about bills of attainder.  Rachel Maddow explains that the prohibition against bills of attainder means “you can’t pass legislation that directly targets one individual or one specific group of people” (just after the 1 minute mark).   The rest of Rachel Maddow’s report focuses on the point that if the law were applied and enforced equally then many of our fine defense contractors would also be forced to quit all government contracts too.

Politico reported on this same issue as well and also led with this mis-information: “A bill of attainder – which is prohibited in Article 1 of the Constitution — is a law targeted to hurt or help an individual.”

Neither report got it right, but Politico was worse because they have a link right at the bottom of their report to show the text of the CRS report.  In the summary of the report is given the correct definition of a bill of attainder.  The Politico writer did not even bother to read the summary before reporting on what a bill of attainder is or whether this bill would qualify as one.  From the report on the expanded page:

The two main criteria which the courts would likely look to in order to determine whether legislation is a bill of attainder are (1) whether “specific” individuals or entities are affected by the statute, and (2) whether the legislation inflicts a “punishment” on those individuals.

So in summary, a bill of attainder must be specific to individual(s) or entitie(s) and must be punitive, not regulatory in nature.  Legislatures can target individuals without it being a problem, like the censure of Joe (“you lie”) Wilson which would also be punitive in nature but Congress is allowed to punish its’ members.  Bills can also target individuals for benefits like special legislation granting immigration status to named individuals or commemorative days for specific individuals.  Only when someone is singled out for punitive treatment does it become an issue of constitutional law.

After reading most of the report, it appears that the CRS attorney (like most good ones) does his best to explain the issues and risks with the bill.  The most stringent warning about the bill is in these words: “Thus, it appears that a court may have a sufficient basis to overcome the presumption of constitutionality, and find that it violates the prohibition against bills of attainder.”  Not likely, not probably, but “may”.  This is how a cautious attorney describes one of the possible outcomes of litigation because it may happen.

I’d still say it is not likely.

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