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The Substance of Punishment Under the Bill of Attainder Clause

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The Substance of Punishment Under the Bill of Attainder Clause DICK-63 STAN. L. REV. 1177 (DO NOT DELETE) 5/8/2011 11:03 PM THE SUBSTANCE OF PUNISHMENT UNDER THE BILL OF ATTAINDER CLAUSE Anthony Dick* This Note argues that the hallmark of illegal punishment under the Bill of At- tainder Clause is the targeted deprivation of life, liberty, or property. While many have highlighted the due process function of prohibiting legislative punishment, no commentator has paid adequate attention to the substantive rights that this prohibition was designed to protect. The result has been widespread confusion as to when Congress may legislate with particularity and when it may not. This con- fusion manifested itself recently when a federal district court in New York struck down a law barring federal funding for the scandal-plagued Association of Community Organizations for Reform Now (ACORN). The Second Circuit re- versed that decision on appeal, but it did nothing to fill the vacuum of guidance for determining when an individualized enactment is a legitimate regulation and when an illegal punishment. Beginning with the Constitution’s special emphasis on the rights of “life, liberty, [and] property,” this Note’s interpretation finds ample support in the text, structure, and history of the Constitution. It also re- veals an underlying symmetry in the protections of the Due Process and Bill of Attainder Clauses, which together prevent arbitrary deprivations at the hands of the executive and legislative branches. And finally, the Note’s central argument fits with the common intuition that legislators, like executive officials, have much greater latitude when dealing with subsidies rather than individual rights. INTRODUCTION..................................................................................................... 1178 I. THE TWO POLES OF PUNISHMENT UNDER THE BILL OF ATTAINDER CLAUSE . 1181 A. The Narrow Originalist Reading: Death and Corruption of Blood ......... 1182 B. The Free-Form Test for Punishment ........................................................ 1190 1. The doctrine of motive and function .................................................. 1190 2. Punishment as deprivation in the abstract ........................................ 1193 II. THE STRUCTURAL SYMMETRY OF LIFE, LIBERTY, AND PROPERTY PROTECTION UNDER THE CONSTITUTION ....................................................... 1197 A. Federalism and the Historical Symmetry ................................................. 1198 B. The Amorphous Content of Life, Liberty, and Property ........................... 1203 C. The Standard of Review ............................................................................ 1205 D. Subsidy Denials and Other Constitutional Violations .............................. 1205 * Law Clerk to the Honorable Thomas B. Griffith, U.S. Court of Appeals for the District of Columbia Circuit; J.D., Stanford Law School, 2010. The views expressed in this Note are entirely the author’s. 1177 DICK-63 STAN. L. REV. 1177 (DO NOT DELETE) 5/8/2011 11:03 PM 1178 STANFORD LAW REVIEW [Vol. 63:1177 III. APPLICATIONS ................................................................................................ 1206 A. The Civil War Cases ................................................................................. 1206 B. Brown ....................................................................................................... 1207 C. Lovett ....................................................................................................... 1207 D. ACORN .................................................................................................... 1208 E. Public Utilities and Baseline Subsidies .................................................... 1209 F. The Bank Tax ............................................................................................ 1209 G. Legislative Censure .................................................................................. 1210 CONCLUSION ........................................................................................................ 1211 INTRODUCTION In October 2009, President Barack Obama signed into law a congressional enactment halting the disbursement of federal funds to the scandal-plagued As- sociation of Community Organizations for Reform Now (ACORN).1 This came in the wake of widespread allegations of fraud, corruption, embezzlement, and other criminality among the group and its affiliates.2 On a motion for injunctive and declaratory relief, the Eastern District of New York struck down the de- funding law on the ground that it singled out a named group for punishment without trial, in violation of the Bill of Attainder Clause.3 A few months later, the Second Circuit reversed: Although the law did single out ACORN for unfa- vorable treatment, it was not a bill of attainder because it did not inflict any “punishment” on the group. It rather evinced a good faith effort by Congress to serve the legitimate purpose of maintaining integrity in the exercise of its spending power.4 These two cases showcase a deep and abiding puzzle in how the Bill of At- tainder Clause is understood. It is generally agreed that Congress must be al- lowed to single out groups and individuals for some types of treatment. Con- gress can pass private bills, earmark unique subsidy recipients, and legislate with respect to “legitimate class[es] of one.”5 The overwhelming history and 1. See Continuing Appropriations Resolution, 2010, Pub. L. No. 111-68, div. B, § 163, 123 Stat. 2023, 2053 (2009) (“None of the funds made available by this joint resolu- tion or any prior Act may be provided to [ACORN], or any of its affiliates, subsidiaries, or allied organizations.”). 2. See Andy Sullivan, US Congress Denies Funds to Scandal-Hit Activist Group, REUTERS, Sept. 17, 2009, available at http://www.reuters.com/article/2009/09/17/ idUSN17220793. 3. ACORN v. United States, 692 F. Supp. 2d 260, 277, 281 (E.D.N.Y. 2009), rev’d, 618 F.3d 125 (2d Cir. 2010), petition for cert. filed, 79 U.S.L.W. 3514 (U.S. Feb. 22, 2011) (No. 10-1068). The Constitution bars bills of attainder at both the state and federal level. See U.S. CONST. art. I, § 9, cl. 3 (“No Bill of Attainder or ex post facto Law shall be passed.”); id. art. I, § 10, cl. 1 (“No State shall . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.”). For the sake of con- venience, I refer to these provisions together as “the Bill of Attainder Clause” throughout this Note. 4. ACORN v. United States, 618 F.3d 125, 137, 142 (2d Cir. 2010). 5. See Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 472 (1977). DICK-63 STAN. L. REV. 1177 (DO NOT DELETE) 5/8/2011 11:03 PM May 2011] THE SUBSTANCE OF PUNISHMENT 1179 practice on this point render implausible the simple view that legislation must always be general and never particular. The challenge is how to identify “pu- nishment,” and thereby to define the scope of “singling out” that the Bill of At- tainder Clause prohibits. Current doctrine meets this challenge by offering three deeply unsatisfying criteria of what constitutes punishment: first, “whether the challenged statute falls within the historical meaning of legislative punishment”; second, a func- tional test of “whether the statute, ‘viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative pur- poses’”; and third, “whether the legislative record ‘evinces a congressional in- tent to punish.’”6 The problem here is that the second and third factors are hopelessly circu- lar, vague, and indeterminate. They are circular because any determination of punishment based on a law’s “nonpunitive” characteristics itself requires a de- finition of punitiveness. The factors are vague and indeterminate because “pu- nitiveness” admits of many different definitions that can dramatically alter the outcome of any case. As the ACORN case illustrates, the function and intent of almost any law can be characterized as either punitive or policy oriented, de- pending on the emphasis supplied. Even core examples of punishment, such as prison sentences and fines, serve some policy functions that can be described in nonpunitive terms: deterrence, incentivization, social coordination, etc. This makes any exclusive characterization of “punitive” intent and function at least incomplete, if not entirely arbitrary. Others have recognized problems with the current doctrinal focus on legis- lative function and intent,7 but no work to this point has properly focused on the substantive scope of punishment that the Bill of Attainder Clause prohibits. Of the two most prominent views of the clause, one focuses on narrow histori- cal practice and the other on the abstract requirement of legal generality. This Note argues that both of these approaches miss the mark. This Note’s central claim is that “punishment” under the Bill of Attainder Clause must be understood in terms of the baseline of individual entitlements that the Constitution is designed to protect. The text, history, and structure of the document reveal a privileged place for the substantive rights of “life, liber- ty, [and] property.”8 The Fifth and Fourteenth Amendments guarantee that no person shall be deprived of these rights without due process of law.9 The Bill of 6. Selective Serv. Sys. v. Minn. Pub. Interest Research Grp., 468 U.S. 841, 852 (1984) (quoting Nixon, 433 U.S. at 473, 475-76, 478). For a comprehensive survey of bill of attainder doctrine, see Michael
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