# ACORN workers caught on tape apparently advising on child prostitution **URL:** \ **Category:** Great Debates\ **Created:** [September 11, 2009, 1:19pm UTC](https://boards.straightdope.com/t/acorn-workers-caught-on-tape-apparently-advising-on-child-prostitution/509681 "2009-09-11T13:19:32Z")\ **Posts on this page:** 20\ **Page:** 43
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [December 15, 2009, 3:34pm UTC](https://boards.straightdope.com/t/acorn-workers-caught-on-tape-apparently-advising-on-child-prostitution/509681/841 "2009-12-15T15:34:37Z")
> [@Nars\_Glinley](#): > > That Congress can’t cut funding “in the absence of any judicial, or even administrative, process adjudicating guilt”? No such ruling was made. The law is that no individual or group can be _punished_ without due process, and it’s not new law, it’s in the Constitution (Article 1, Sections 9 and 10). You wouldn’t want some activist judge ignoring the Constitution, would you? ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [December 15, 2009, 3:35pm UTC](https://boards.straightdope.com/t/acorn-workers-caught-on-tape-apparently-advising-on-child-prostitution/509681/842 "2009-12-15T15:35:36Z")
> [@Diogenes\_the\_Cynic](#): > > What reason is there to even think it _will_ be appealed? Because Congress, the Treasury Department, and the OMB don’t like being told they acted unconstitutionally, and they have more attorneys than you can shake a stick at to defend their actions. I’d be shocked, amazed, and bamboozled if they didn’t appeal it. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [December 15, 2009, 3:46pm UTC](https://boards.straightdope.com/t/acorn-workers-caught-on-tape-apparently-advising-on-child-prostitution/509681/843 "2009-12-15T15:46:37Z")
The latter two work for Obama, who I’m guessing will not make any priority out of appealing a ruling that he probably likes. Does Congress have any standing as a plaintiff by itself? How does that work? What can they do if they get no support from the Executive Branch? ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [December 15, 2009, 3:53pm UTC](https://boards.straightdope.com/t/acorn-workers-caught-on-tape-apparently-advising-on-child-prostitution/509681/844 "2009-12-15T15:53:46Z")
After reading the article again, I see that HUD, The Treasury Department, the OMB and “the US Government” were named as defendants in the lawsuit, but not specifically Congress. Can Congress represent itself _per se_ as “the US Government?” Also, Congress is still controlled by Democrats, last I checked. I don’t know how the process of Congress appealing a Constitutional ruling would work, but it doesn’t seem to me that the leadership in either House is likely to make this a priority any more than the Executive Branch. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 15, 2009, 3:59pm UTC](https://boards.straightdope.com/t/acorn-workers-caught-on-tape-apparently-advising-on-child-prostitution/509681/845 "2009-12-15T15:59:17Z")
> [@Hamlet](#): > > **Bricker**. I get the distinct feeling that you didn’t read my questions to you. I have only a minor problem with your decision to call cases of first impression being called “making new law”. However, If you read my post, the questions were about why you thought the opinion would be overturned on appeal and why you disagreed with it. You’re only saying that because it’s true. Yes, guilty. I quoted your post but wrote a response that targeted a mishmash of **Diogenes** and **elucidator** ’s comments. There are two reasons that I think the decision will be overturned. First, formost, and unassailably, it is in conflict with my personal experience of the Constitution. As we all know, this is an argument that brooks no contradiction and allows no rebuttal. Almost as an unnecessary afterthought, though, I also have some legally-based reasons. First I’ll point out that of the injuries ACORN alleges, some of them are indeed covered by the Bill of Attainder clause. Judge Gershon’s opinion relates the ACORN says botht hat agencies have refused to review their grant applications, and that agencies have refused to continue processing grants already awarded, or pay for work already performed. As I indicated in earlier discussions on this topic, I believe that the latter two categories are an unconstitutional interpretation of the law, and DO fall under the Bill of Attainder’s prohibitions. So to the extent that her decision involves payments for work already done and grants already awarded, I believe it’s sound. However, her decision reaches farther, declaring that even a restriction on future funding is unconstitutional. Her decision relies ona district court opinion from Florida, rather than on the precedent-setting Flemming v. Nestor and Selective Service v. Minnesota PIRG, both Supreme Court cases that show similar statutes to be non-punitive. I agree, for what it’s worth, that if the Florida district court’s opinion were binding precedent, this would be a closer call. But it isn’t, and it’s not for a district judge to rely on nonbinding precedent from another district judge who’s not even in her circuit over binding precedent in her circuit, and, indeed, the country. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 15, 2009, 4:00pm UTC](https://boards.straightdope.com/t/acorn-workers-caught-on-tape-apparently-advising-on-child-prostitution/509681/846 "2009-12-15T16:00:21Z")
> [@Diogenes\_the\_Cynic](#): > > What reason is there to even think it _will_ be appealed? Um… Call it a crazy hunch. ---
**Author:** ![Nars\_Glinley](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nars_glinley/32/8177_2.png) [@Nars\_Glinley](https://boards.straightdope.com/u/Nars_Glinley)\ **Post date:** [December 15, 2009, 4:06pm UTC](https://boards.straightdope.com/t/acorn-workers-caught-on-tape-apparently-advising-on-child-prostitution/509681/847 "2009-12-15T16:06:36Z")
> [@Diogenes\_the\_Cynic](#): > > No such ruling was made. The law is that no individual or group can be _punished_ without due process, and it’s not new law, it’s in the Constitution (Article 1, Sections 9 and 10). > > You wouldn’t want some activist judge ignoring the Constitution, would you? Sadly, my subscription to “Bill of Attainder Monthly” has expired. At what point did the courts decide that denial of future funding was “punishment”? ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [December 15, 2009, 4:07pm UTC](https://boards.straightdope.com/t/acorn-workers-caught-on-tape-apparently-advising-on-child-prostitution/509681/848 "2009-12-15T16:07:23Z")
Who’s going to appeal it? Which defendant? ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [December 15, 2009, 4:08pm UTC](https://boards.straightdope.com/t/acorn-workers-caught-on-tape-apparently-advising-on-child-prostitution/509681/849 "2009-12-15T16:08:44Z")
> [@Nars\_Glinley](#): > > Sadly, my subscription to “Bill of Attainder Monthly” has expired. At what point did the courts decide that denial of future funding was “punishment”? Congrss made the decision to use it as a form of punishment. All the Court did was call them on it. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 15, 2009, 4:10pm UTC](https://boards.straightdope.com/t/acorn-workers-caught-on-tape-apparently-advising-on-child-prostitution/509681/850 "2009-12-15T16:10:04Z")
> [@Nars\_Glinley](#): > > Sadly, my subscription to “Bill of Attainder Monthly” has expired. At what point did the courts decide that denial of future funding was “punishment”? See my post. One federal district court in the Northern District of Florida in 2006, and now this court. Neither set precedent. And there’s existing Supreme Court precedent that tends to cut in the other direction. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 15, 2009, 4:11pm UTC](https://boards.straightdope.com/t/acorn-workers-caught-on-tape-apparently-advising-on-child-prostitution/509681/851 "2009-12-15T16:11:09Z")
> [@Diogenes\_the\_Cynic](#): > > Congrss made the decision to use it as a form of punishment. All the Court did was call them on it. But they didn’t have any _right_ to future funding. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [December 15, 2009, 4:20pm UTC](https://boards.straightdope.com/t/acorn-workers-caught-on-tape-apparently-advising-on-child-prostitution/509681/852 "2009-12-15T16:20:18Z")
But Congress did this specifically as a punitive measure, and it’s disingenuous to say otherwise. The Bill of Attainder argument also involves more than just the appearance of punishment. It involves cutting off future funding for ACORN on the basis of a stipulation which applies to far more organizations (and far more egregiously) than ACORN. So ACORN was clearly being singled out. Congress can’t use an unequal application of the standard for funding. If it’s going to cut off ACORN, then it has to cut off all those sugar daddy defense contracters too. NOt to do so means that ACORN is being specifically singled out and punished. ACORN has the same rights as those defense contractors. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [December 15, 2009, 4:20pm UTC](https://boards.straightdope.com/t/acorn-workers-caught-on-tape-apparently-advising-on-child-prostitution/509681/853 "2009-12-15T16:20:56Z")
> [@Nars\_Glinley](#): > > Sadly, my subscription to “Bill of Attainder Monthly” has expired. At what point did the courts decide that denial of future funding was “punishment”? Where can I find a succinct summary of the action taken by Congress that resulted in ACORN being declared ineligible to participate in programs that involve participants receiving federal funds? 'Cos whether it fits the definition of “punishment” a prior determination of ineligibility strikes me as fishy. But that’s probably because I’m not sufficiently informed about what happened. Hence my request. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [December 15, 2009, 4:31pm UTC](https://boards.straightdope.com/t/acorn-workers-caught-on-tape-apparently-advising-on-child-prostitution/509681/854 "2009-12-15T16:31:05Z")
> [@Bricker](#): > > There are two reasons that I think the decision will be overturned. First, formost, and unassailably, it is in conflict with my personal experience of the Constitution. As we all know, this is an argument that brooks no contradiction and allows no rebuttal. I want $300,000 cash in small bills or I send pictures of you and the Constitutions involved in “personal experiences” at the Watergate hotel to the press. > [@Bricker](#): > > First I’ll point out that of the injuries ACORN alleges, some of them are indeed covered by the Bill of Attainder clause. Judge Gershon’s opinion relates the ACORN says botht hat agencies have refused to review their grant applications, and that agencies have refused to continue processing grants already awarded, or pay for work already performed. As I indicated in earlier discussions on this topic, I believe that the latter two categories are an unconstitutional interpretation of the law, and DO fall under the Bill of Attainder’s prohibitions. We agree on this. > [@Bricker](#): > > So to the extent that her decision involves payments for work already done and grants already awarded, I believe it’s sound. However, her decision reaches farther, declaring that even a restriction on future funding is unconstitutional. To be fair, she does not rule that Congress has to fund ACORN in the future. What she found was that a blanket prohibition that cuts ACORN, and only ACORN (specificity) out of all funding past and future (punishment) without concern for the regulations already in place to deal with debarrments violate the Constitution’s prohibition on Bill of Attainder. > [@Bricker](#): > > Her decision relies ona district court opinion from Florida, rather than on the precedent-setting Flemming v. Nestor and Selective Service v. Minnesota PIRG, both Supreme Court cases that show similar statutes to be non-punitive. Both SS v. Minnesota and Flemming came down to whether the legislative action had a “non-punitive legislative purpose” (in Flemming a whole system of Social Security disbursements and SS the registration for the draft), and not a single piece of legislation that singled out a single group for singular punishment. In this case, there already is a regulatory scheme already in place for stopping payment to groups that are involved in misconduct (oddly enough Blackwater and tons of defense contractors still get payments. Go figure how that works). Both cases aren’t even close to being “binding precedent”. But putting aside all the legal mumbo jumbo and dealing with the issue in a realistic manner (like Judge Gershon did), I see no possible way to argue the Defund ACORN Act (hard to argue that’s not punitive isn’t it?) isn’t meant to be a punishment, which is clearly forbidden by the Bill of Attainder. Were the facts different and it weren’t so blatantly obvious what Congress was doing, you could have convinced me that it isn’t punishment to stop one specific group from obtaining government payments in the future. But when there is an entire regulatory scheme for handling those kinds of issues, and Congress simply ignored that scheme in order to appease the demogoguery of the right, reality and common sense make it obvious it is a punishment. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 15, 2009, 4:39pm UTC](https://boards.straightdope.com/t/acorn-workers-caught-on-tape-apparently-advising-on-child-prostitution/509681/855 "2009-12-15T16:39:21Z")
> [@Hamlet](#): > > But putting aside all the legal mumbo jumbo and dealing with the issue in a realistic manner (like Judge Gershon did)… I agree with you: that’s _exactly_ what she did. Problem is, she doesn’t have the right to do that. She can’t say, “Forget all the legal mumbo-jumbo, we all know what happened here.” How would you react if a federal judge in Massachusetts enjoined the state legislature from their latest changeabout with respect to how replacement seantors are handled? It would be interesting indeed to have that imaginary judge say, “Look, we all know what’s happening here – you had a Democratic governor who could appoint replacement senators, then you had a Republican governor and you took away the power to appoint a senator; now you have a Democratic one and you bring it back. It’s hidden behind legal mumbo-jumbo, but it’s a violation of substantive due process, which at its heart is a guarantee of fairness. So you’re enjoined.” You would (I assume) rightly be enraged. > [@](#): > > I see no possible way to argue the Defund ACORN Act (hard to argue that’s not punitive isn’t it?) isn’t meant to be a punishment, which is clearly forbidden by the Bill of Attainder. Were the facts different and it weren’t so blatantly obvious what Congress was doing, you could have convinced me that it isn’t punishment to stop one specific group from obtaining government payments in the future. But when there is an entire regulatory scheme for handling those kinds of issues, and Congress simply ignored that scheme in order to appease the demogoguery of the right, reality and common sense make it obvious it is a punishment. It’s a punishment, but it’s not the sort of punishment that the Bill of Attainder is meant to prohibit. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [December 15, 2009, 4:44pm UTC](https://boards.straightdope.com/t/acorn-workers-caught-on-tape-apparently-advising-on-child-prostitution/509681/856 "2009-12-15T16:44:47Z")
If you agree that it’s a punishment, then it’s game over. The Constitution doesn’t distinguish between “sorts of” punishment. I’d still kind of like an answer as to which defendant you think is going to appeal, by the way. I’m also still curious (an this is a genuine question, not a rhetorical or loaded one) as to whether Congress can represent itself _per se_ as “The US Government.” If not, then how can Congress have the standing to appeal? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 15, 2009, 4:50pm UTC](https://boards.straightdope.com/t/acorn-workers-caught-on-tape-apparently-advising-on-child-prostitution/509681/857 "2009-12-15T16:50:14Z")
> [@Diogenes\_the\_Cynic](#): > > If you agree that it’s a punishment, then it’s game over. The Constitution doesn’t distinguish between “sorts of” punishment. That’s simply not true. I don’t mean to be personally insulting, but I’m also not interested in doing thirty minutes of research to provide cites that you will just ignore, something that’s happened enough in the past that I’m reasonably confident of a similar outcome here. So – if there’s anyone reading this who might be interested in different types of punishment from a Constitutional perspective, please chime in. > [@](#): > > I’d still kind of like an answer as to which defendant you think is going to appeal, by the way. Any agency whose actions were flouted by this decision will appeal. > [@](#): > > I’m also still curious (an this is a genuine question, not a rhetorical or loaded one) as to whether Congress can represent itself _per se_ as “The US Government.” If not, then how can Congress have the standing to appeal? No, unless the action were being taken directly by Congress. Congress passes a law saying, “Agencies: do X.” Aggrieved party sues agency, saying doing X is unconstitutional. Court orders agency to stop doing X. Agency is the one that appeals. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [December 15, 2009, 4:55pm UTC](https://boards.straightdope.com/t/acorn-workers-caught-on-tape-apparently-advising-on-child-prostitution/509681/858 "2009-12-15T16:55:12Z")
> [@Bricker](#): > > That’s simply not true. Where does the Constution say that some forms of punishment are allowed without due process but not others? > [@](#): > > Any agency whose actions were flouted by this decision will appeal. All of those agencies are controlled by a President who is not likely to have any interest in appealing a decision he probably likes. Do you really think Obama is going to make any priority out of appealing this? Why would he? > [@](#): > > No, unless the action were being taken directly by Congress. Congress passes a law saying, “Agencies: do X.” Aggrieved party sues agency, saying doing X is unconstitutional. Court orders agency to stop doing X. Agency is the one that appeals. So Congress has no standing to appeal, and Obama has no motivation to appeal. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [December 15, 2009, 5:00pm UTC](https://boards.straightdope.com/t/acorn-workers-caught-on-tape-apparently-advising-on-child-prostitution/509681/859 "2009-12-15T17:00:01Z")
> [@Diogenes\_the\_Cynic](#): > > If you agree that it’s a punishment, then it’s game over. The Constitution doesn’t distinguish between “sorts of” punishment. I’m still trying to learn what’s happening in this case, but that strikes me as a nonsensical pronouncement. The Constitution doesn’t “distinguish between ‘sorts of’ free speech” either. Or “sorts of” searches and seizures. Or “sorts of” cruel and unusual punishments. That kind of stuff falls under the rubric of “interpreting the Constitution” doesn’t it? Something the judiciary does. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [December 15, 2009, 5:03pm UTC](https://boards.straightdope.com/t/acorn-workers-caught-on-tape-apparently-advising-on-child-prostitution/509681/860 "2009-12-15T17:03:51Z")
I’m talking about as it pertains to a Bill of Attainder. [Previous page](https://boards.straightdope.com/t/acorn-workers-caught-on-tape-apparently-advising-on-child-prostitution/509681.md?page=42) [Next page](https://boards.straightdope.com/t/acorn-workers-caught-on-tape-apparently-advising-on-child-prostitution/509681.md?page=44)