Michael Gaynor
Injunction against ACORN funding ban stayed and appeal expedited
By Michael Gaynor
April 23, 2010

What the Second Circuit will be deciding shortly is NOT whether ACORN is good or bad, or righteous or rotten, but whether the ban on ACORN funding is banned by the Constitution's ban on bills of attainder. The decision is supposed to be the same if the circumstances were the same but the entity banned from receiving federal funds was the Salvation Army instead of ACORN.

On April 21, 2010, the United States Court of Appeals for the Second Circuit (1) stayed pending appeal an order of Judge Nina Gershon of the United States District Court for the Eastern District of New York that granted a declaratory judgment declaring the Association of Community Organizers for Reform Now (ACORN) funding ban unconstitutional under the Constitution's Bill of Attainder Clause and permanently enjoined enforcement of the ban and (2) and expedited the appeal. (Oral argument will be soon after May 24, 2010, when the last brief is due to be filed.)

One commenter wrote: "As i understand it, they have to believe that the government is most likely going to win this one, to justify a stay" (www.humanevents.com/article.php?id=36636).

That's not true. A "fair prospect" of success is all that is required, and a judge who issued a stay may decide on the merits in favor of the order he or she stayed.

The standard for an appellate court to use in determining whether or not to issue a stay of a lower court order is explained in Rostker v. Goldberg, 448 U.S. 1306 (1980).

That case involved an application to stay, pending review on appeal, a three-judge District Court's order invalidating the registration provisions of the Military Selective Service Act on the ground that exclusion of females from such provisions constitutes gender-based discrimination in violation of the equal protection component of the Fifth Amendment.

The stay was granted by Justice William Brennan because it appeared that (1) there was a "reasonable probability" that four Justices will note probable jurisdiction, (2) there were "fair" prospects for a reversal, and (3) in balancing the irreparable harm that allegedly would result to the Government if the stay is denied against the harm that allegedly would result to the persons required to register under the Act if the stay is granted, the equities favored the Government.

In his opinion, Justice Brennan wrote: "In my judgment, the case is a difficult and perplexing one. My task, however, is not to determine my own view on the merits, but rather to determine the prospect of reversal by this Court as a whole. In the past, the standard of review to be applied in gender-based discrimination cases has been a subject of considerable debate.... And my Brethren's application of the standard upon which we have finally settled in a context as sensitive as that before me cannot be predicted with anything approaching certainty. Nonetheless, it does seem to me that the prospects of reversal can be characterized as 'fair.'"

Certiorari was granted, as Justice Brennan expected, and the three-judge district court was reversed, with 6 justices concluding that the Military Service Act's registration provisions do not violate the Fifth Amendment and Congress acted well within its constitutional authority to raise and regulate armies and navies when it authorized the registration of men and not women. Three justices dissented, including Justice Brennan.

The question as to the constitutionality of the ACORN funding ban is serious, not frivolous, as I noted when the ban was passed. See "Is De-funding ACORN Constitutional?" (September 21, 2009) (www.webcommentary.com/php/ShowArticle.php?id=gaynorm&date=090921).

I began that article:

"Ardent ACORN defender Congressman Jerrold Nadler (Dem., N.Y.), Chair of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, claims that de-funding ACORN would be unconstitutional.

"On September 17, 2009, Congressman Nadler issued a press release in support of his claim stating in part: 'During the McCarthy era, ...Congress enacted legislation prohibiting the use of funds to pay the salaries of three federal employees who Congress deemed subversive. The Supreme Court ruled this legislation unconstitutional as a Bill of Attainder."

"Congressman Nadler is flatly wrong...about when that legislation was enacted. (It was enacted in 1943, during the World War II era. Joseph McCarthy was serving in the United States Marines then, having foregone his automatic exemption as a judge. He did not join the Senate until 1947 and the term 'McCarthyism' was not coined until 1950.)

"But the Constitution is the Constitution and says what it says and Congressman Nadler did not make up a Supreme Court ruling.

"ACORN is a criminal enterprise, a corrupt unofficial arm of Congressman Nadler's political party and a slimy, subversive disgrace, but this time Congressman Nadler has a genuine legal argument!"

That is because our federal system involves checks and balances and the law is not a respecter of persons. The federal judicial oath (28 USC 453) states: "I, ________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ________ under the Constitution and laws of the United States. So help me God."

What the Second Circuit will be deciding shortly is NOT whether ACORN is good or bad, or righteous or rotten, but whether the ban on ACORN funding is banned by the Constitution's ban on bills of attainder. The decision is supposed to be the same regardless of whether you (or even I) approve of the person or entity banned.

I concluded that article:

"Will courts hold a law de-funding ACORN unconstitutional on the ground that disqualifying ACORN from receiving federal funds in punishment?

"Perhaps ACORN will implode before a court has to decide.

"Hopefully, Americans agree that ACORN should be exposed, investigated, prosecuted and punished as appropriate, but only in accordance with the Constitution."

That's how it should be.

© Michael Gaynor


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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)


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