CRS: House ACORN Ban Unconstitutional?

The Congressional Research Service has analyzed the case law and other legal issues surrounding last week's ACORN ban passed in the House and found the measure could be interpreted as a "bill of attainder" and therefore unconstitutional, according to copy of the report obtained by POLITICO.

A bill of attainder – which is prohibited in Article 1 of the Constitution -- is a law targeted to hurt or help an individual. If a bill is regarded primarily as punitive, instead of being strictly regulatory, it could be interpreted as an attainder bill, according to legal experts.

The conclusion of the executive summary, written by CRS legislative attorney Kenneth R. Thomas [paragraph breaks are added for clarity]:

"While the regulatory purpose of ensuring that federal funds are properly spent is a legitimate one,
it is not clear that imposing a permanent government-wide ban on contracting with or providing grants to ACORN fits that purpose."

"Thus, there may be issues raised by characterizing this legislation as purely regulatory in nature. While the Supreme Court has noted that the courts will generally defer to Congress as to the regulatory purpose of a statute absent clear proof of punitive intent, there appear to be potential issues raised with attempting to find a rational non-punitive regulatory purpose for this legislation."

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."