A curious item in Politico today suggests that there might be a constitutional challenge to the recently passed Defund ACORN Act:

Article 1, Sections 9 and 10, of the Constitution explicitly prohibit the passage of “bills of attainder”: legislation targeted to benefit or penalize an individual or group, most often by excluding it from government service.

Does the House’s Defund ACORN Act, which passed 345-75 last week, constitute a bill of attainder? The case law on the issue is inconclusive, but it’s provided a glimmer for ACORN’s diminishing cadre of defenders.

A bill of attainder is basically a congressional finding of guilt.  Congress could not, for instance, determine that Joe Bob committed treason and then send him to hang.  That’s properly considered a judicial function.

There is no application to the present situation. Congress has neither concluded guilt nor imposed punishment on ACORN. As is so often said, Congress has “the power of the purse,” which means they have the authority to fund constitutionally permitted programs and policies as they see fit. They also must have the authority to defund them. Moreover, they can do so at their prerogative without offering any sort of explanation beyond what their constituents demand.

Some seem confused by the fact that Congress acted on the appearance of criminality by ACORN. Therefore, they conclude, ACORN was “punished” by having its funding revoked without a trial.  This is mistaken. While it was the appearance of criminality that politically forced the hand of Congress, the actual commission of a crime was not relevant to the legality of the legislation. They no more had to conclude ACORN’s guilt of anything than they would have to first show the commission of a crime before halting funding for the F-22, or any other government program. It was more than enough that Congress had finally lost faith in the ability of ACORN to carry out its charge in receiving federal dollars.

As it works with government agencies ACORN is expected to execute certain functions with a degree of competency. Congress has a responsibility for oversight to ensure that they fulfill these obligations.  Their determinations are not the equivalent of criminal findings as dealt with by bills of attainder.