Justice Department Questions Retroactive Ban on Federal Funds to ACORN

By MichaelJames

Nov 27, 2009 8:26pm

The Justice Department’s Office of Legal Counsel this week posted a legal opinion saying that the Obama administration may continue paying the Association of Community Organizations for Reform Now (ACORN) for contracts signed before Congress in September passed — and President Obama in October signed — legislation banning federal funds from going to ACORN.

The opinion was written on Oct. 23 by Acting Assistant Attorney General David Barron in response to a request for clarification from the deputy general counsel for the Department of Housing and Urban Development as to the full meaning of the legislative language, which states, "None of the funds made available by this joint resolution or any prior Act may be provided to the Association of Community Organizations for Reform Now (ACORN), or any of its affiliates, subsidiaries, or allied organizations."

You can read the opinion HERE.

Barron said the language could be interpreted "categorically to prohibit any outlay of money to the identified entities, including pursuant to pre-existing contractual obligations," but, "one could also read the phrase not to prohibit payments made pursuant to a prior binding contractual duty."

Because of this perceived ambiguity, Barron concluded that the law "should not be read as directing or authorizing HUD to breach a pre-existing binding contractual obligation to make payments to ACORN or its affiliates, subsidiaries or allied organizations where doing so would give rise to contractual liability."

The federal government has given more than $50 million to ACORN since 1994, much of it in the form of HUD grants.

The ranking Republican on the House Committee on Oversight and Government Reform, Rep. Darrell Issa, R-Calif., blasted the DOJ opinion as "political cronyism."

“The bipartisan intent of Congress was clear – no more federal dollars should flow to ACORN," Issa said. "It is telling that this administration continues to look for every excuse possible to circumvent the intent of Congress.  Taxpayers should not have to continue subsidizing a criminal enterprise that helped Barack Obama get elected president.  The politicization of the Justice Department to pay back one of the president’s political allies is shameful and amounts to nothing more than old-fashioned cronyism.”   

The Justice Department opinion comes at the same time as a lawsuit filed by Center for Constitutional Rights on behalf of ACORN saying the ban is unconstitutional. (Read that lawsuit HERE.)

Article I, Section 9, cl. 3 of the Constitution of the United States "is one of the crown jewels of the founding instrument of our nation. It explicitly provides that 'No bill of attainder of ex post facto law shall be passed,'" the suit says, alleging that the ban on federal funding denied ACORN due process of law. "Congress has adjudged ACORN guilty of the allegations of fraud, misconduct and other illegal conduct."

The suit alleges that the legislation "reveals a malicious and punitive intent against, and a singling out of the plaintiffs that arises from the heavily funded and orchestrated political campaign against the plaintiffs." The suit says that "ACORN has been penalized by Congress without an investigation. ACORN was never even the subject of a hearing in Congress."

It praises ACORN, saying the group has helped more than two million people to register to vote, has helped more than 150,000 file their tax returns, and has "worked on thousands of issues that arise from the predicaments and problems of the poor, the homeless, the underpaid, the hungry and the sick."

The CCR suit notes that "[d]espite numerous press reports and congressional, independent, and other governmental investigations of many other scandals involving serious misconduct such as fraud or corruption among government contractors, some of which involved corporations which were convicted of serious crimes, Congress has thus far enacted no laws singling out for suspension of debarment any government contractor, other than the plaintiffs."

As you may recall, following videotapes filmed furtively by conservatives showing ACORN employees offering to help a purported pimp and prostitute participate in crimes, on Sept. 11 the Census Bureau announced it was severing ties with ACORN, which bills itself as “the nation's largest community organization of low and moderate income families.”

Not long afterwards, the Senate voted overwhelmingly to prohibit HUD grants from going to the group.  On Sept. 16, White House press secretary Robert Gibbs assailed ACORN, saying, "obviously the conduct you see on those tapes is completely unacceptable. … The administration takes accountability extremely seriously."

-jpt

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