Planned Parenthood Defunding as Unconstitutional Bill of Attainder?

David Cohen (Drexel) had an interesting op-ed in the Philadelphia Inquirer on Sunday arguing that the current legislative efforts (at both the federal and state levels) would, if successful, result in unconstitutional bills of attainder. 

From David's piece, which is available here ...

"A bill of attainder is a law that inflicts punishment upon a particular individual without a judicial trial.     In other words, a bill of attainder is, as the Supreme Court has termed it, a 'trial by legislature' rather     than by court.

"The Constitution prohibits both Congress and state legislatures from enacting bills of attainder for two     important reasons that go to the heart of our democracy. One, laws that target individuals threaten civil     liberties because legislatures do not afford individuals the protections of a trial. Two, bills of attainder     conflict with basic notions of separation of powers. . . .

"Though no one is talking about it, this most recent dust-up over federal funding for Planned Parenthood   is very clearly an example of an unconstitutional bill of attainder: Congress is singling out Planned     Parenthood and punishing the organization for allegedly improper and illegal actions.

"More specifically, a bill of attainder has to meet three legal requirements: The law has to 'determine guilt and inflict punishment,' it must act 'upon an identifiable individual,' and it must do so 'without provision of the protections of a judicial trial.' All these requirements are met here."

While I am not a Constitutional Law expert, David makes a pretty compelling argument.  Thoughts?

Comments

[VivaNonprofits]

Certainly a plausible argument, and a strong one on policy grounds, but the Second Circuit rejected a very similar challenge when Congress defunded ACORN a few years back. http://caselaw.findlaw.com/us-2nd-circuit/1534979.html

[twbb]

I found it very unconvincing. Refraining from funding a non-governmental organization outside any legislative mandate to do so does not constitute a Bill of Attainder under any reasonable legal interpretation of the term. Congress has the Constitutional authority to spend federal funds for the general welfare of the public, and that authority is not constrained by past funding decisions. To interpret it as such would make every budget debate a "trial" and every decision to fund one thing instead of another a "punishment."

[TS]

I think it's meritless but ultimately it's a baseline issue. Congress can legislate with regard to proper nouns without a bill becoming a bill of attainder. We call these private bills. These are discretionary acts of legislative clemency. A bill of attainder (or lesser bills of pains and penalties) is a particular species of prohibited private bills that legislatively metes out punishment. Unless the claim is that somehow PP is constitutionally entitled to continue to receive funding such that a departure from that baseline is a punishment, I just don't buy the argument. The more natural baseline for congressional spending would be that Congress can give and that Congress can take away.

[anon]

What is so sad is that, in this hyper partisan environment, law profs go to the public with patently specious and ridiculous misstatements of law, in order to garner publicity and popularity with a certain group of persons for whom the merits of an argument are irrelevant and who have no idea that the law prof is peddling bunk. This cheapens and dilutes the whatever is left of the authority that legal academy should have when it speaks on legal matters.

There should be some sort of ombudsman or other position of authority at law schools to speak against this sort of clap trap in the public sphere.

Even a cursory understanding of attainder would reveal the complete and utter lack of any even arguable merit to this contention.

[djwhite]

the use of the word "defunding" is misleading. They are not threatening to defund a non-profit who gets some federal grants that will be revoked, as is suggested in the other comments. They are threatening to remove PP's entitlement to seek compensation for medical services provided under Medicare and Title X. Entitlements that any other health care service provider is entitled to. And these entitlements are being revoked based on PPs provision of abortion services which not only comprise only 3% of their overall services, but also themselves do not typically qualify for reimbursement under federal law except in some limited extreme circumstances. So yes, it is punishment....

[twbb]

Djwhite, there are a couple of different bills in the pipeline right now; presumably you and Cohen are referring to something like the 9/18 bill, which disallows funding under Medicare/Medicaid/Title X explicitly for Planned Parenthood by name. That still does not qualify as punishment under the Bill of Attainder clause.

Just because other health care service providers are entitled to seek those funds doesn't excluding them a punishment; the Supreme Court specifically foreclosed on that argument in Nixon v. Administrator of General Services:

"However expansive is the prohibition against bills of attainder, it was not intended to serve as a variant of the Equal Protection Clause, invalidating every Act by Congress or the States that burdens some persons or groups but not all other plausible individuals. While the Bill of Attainder Clause serves as an important bulwark against tyranny, it does not do so by limiting Congress to the choice of legislating for the universe, or legislating only benefits, or not legislating at all. Pp. 468-471. - See more at: http://caselaw.findlaw.com/us-supreme-court/433/425.html#sthash.39FTpYV5.dpuf

The Bill of Attainder provision in the Constitution was created primarily to prevent Congress from usurping the Courts' role; here there is no such usurpation. Planned Parenthood hasn't committed a crime; the decision to defund them, as much as we may dislike it, is a policy decision rather than an attempt at a quasi-judicial punishment. And under Supreme Court jurisprudence, appropriations are firmly under control of Congress.

[anon]

djwhite

Geez, if law profs can't get it right, what hope is there for this country? Why stray into political issues with bogus "constitutional" arguments rejected by the courts and characterizations of what "they" want that are cherry picked and way off the mark.

Read Politifacts well researched and written article on 9.29, which found Tom Cole's statements, on Sunday, to be true.

It is a constant balance between finding the hysteria ("they" is always understood, isn't it: the evil ones) funny or sad.

It is clear that the US is becoming ungovernable due to this sort of thread.

[twbb]

Apparently my last response was caught in the spam filter; I'll try it without the link:

Djwhite, there are a couple of different bills in the pipeline right now; presumably you and Cohen are referring to something like the 9/18 bill, which disallows funding under Medicare/Medicaid/Title X explicitly for Planned Parenthood by name. That still does not qualify as punishment under the Bill of Attainder clause.

Just because other health care service providers are entitled to seek those funds doesn't excluding them a punishment; the Supreme Court specifically foreclosed on that argument in Nixon v. Administrator of General Services:

"However expansive is the prohibition against bills of attainder, it was not intended to serve as a variant of the Equal Protection Clause, invalidating every Act by Congress or the States that burdens some persons or groups but not all other plausible individuals. While the Bill of Attainder Clause serves as an important bulwark against tyranny, it does not do so by limiting Congress to the choice of legislating for the universe, or legislating only benefits, or not legislating at all. Pp. 468-471.

The Bill of Attainder provision in the Constitution was created primarily to prevent Congress from usurping the Courts' role; here there is no such usurpation. Planned Parenthood hasn't committed a crime; the decision to defund them, as much as we may dislike it, is a policy decision rather than an attempt at a quasi-judicial punishment. And under Supreme Court jurisprudence, appropriations are firmly under control of Congress.

[David S. Cohen]

Thanks for highlighting the piece. The Second Circuit case is definitely an obstacle to this theory, but the Middle District of North Carolina found the opposite specifically with respect to Planned Parenthood in 2012. http://op.bna.com/hl.nsf/id/psts-8vqr7w/$File/can.pdf

[confused by your post]

I am confused as to how Professor Cohen could write that piece asserting that the recent House vote to defund PP would violate the Bill of Attainder Clause(Article 1, Section 9 of the Constitution). Was it simply to "put himself out there" in the media as a partisan legal authority on reproductive rights? The article is GARBAGE. The legal analysis is sloppy and wrong. He should be embarrassed as a legal professor for having written it.

Was Professor Cohen so blinded by his personal views on the topic that he was unable to objectively assess the House bill and correctly apply the law to the facts at hand?

Did Professor Cohen even read the House bill? He certainly didn't refer to its language specifically at all in his piece.

No law professor should be making categorical assertions as Professor Cohen does that the bill "is very clearly an example of an unconstitutional bill of attainder." Professor Cohen should know that the House bill is a 1 year legislative decision on appropriations. It continues the funding of Planned Parenthood and its affiliates if such funded entities certify they don't fund or perform abortions (other than those related to rape, incest or harm to the mother). The cases say such a law would not violate the Bill of Attainder Clause. It is not an open question. For a law professor to publicly assert otherwise and to assert that others do not know what is (or is not) an unconstitutional bill of attainder at the same time is a BAD thing. It reflects badly on Professor Cohen.

I am pro choice and happy that the House bill has no chance of ever becoming law for multiple reasons. There historically have been numerous meritorious challenges to most Republican attempts to limit family planning in the US. However, asserting a challenge to this House bill based on the Bill of Attainder Clause would not be one of them. I am fine with pandering to those sharing your beliefs but we have to be able to separate personal beliefs from our ability to do basic legal analysis. Law professors seeking to educate the public as to their particular areas of legal expertise have a duty to get it right. Other law professors should step up and say something publicly about this in order to help self-police their profession.

[anon]

David:

You state: "The Second Circuit case is definitely an obstacle to this theory, but the Middle District of North Carolina found the opposite specifically with respect to Planned Parenthood in 2012."

Nope. Sorry. The state legislation at issue in N. Carolina has zero to do with the issues here, and the court did not find "the opposite" with respect to any of the bills being considered by Congress. A cursory review of the N. Carolina case reveals numerous distinguishing factors.

You claim: "this most recent dust-up over federal funding for Planned Parenthood is very clearly an example of an unconstitutional bill of attainder."

Do you really stand by that statement?

[A. Nonymous]

Anon:

You said "A cursory review of the N. Carolina case reveals numerous distinguishing factors."

Which do you think are the most relevant distinguishing factors?

[Camilla Highwater]

"Highlighting" in dark gray is less than helpful. At least you didn't use black, though.

[anon]

I don't have time to go back to re read today, but as I recall the district court in N. Carolina, ruling at a very early stage of the proceedings, on action by a state, found significant that the state rule did not permit PP to establish a separate, non funded affiliate to perform abortions (to thus qualify for funds otherwise) and also suggested that the state law had no rational basis.

That decision has nothing to do with the example above of partisan, speculative ("this most recent dust-up over federal funding for Planned Parenthood is very clearly an example of an unconstitutional bill of attainder" yet no bill is mentioned) and overstated legal hyperbole propounded to an unsuspecting public, IMHO, in a therefore misleading manner.

[Mark]

While the specific bills in question might arguably constitute a bill of attainder, even though they are facially cast as legislative funding bills, it shouldn't be that hard to recast the provisions in more general terms to avoid singling out an individual or specific group. For example, - My legislative crafting skills are limited here so bear with me. -

"Any and all organizations (or any of whose affiliates) that provide any abortion services whatsoever, even if only a minority of total medical services offered by such organization or affiliate, shall be ineligible for reimbursement for all medical services under Medicare or Title X."

Of course, there are hospitals that do provide abortion services of some kind, or have affiliated clinics, so they'd probably hate this general language. But, because it is generally applicable and doesn't single anyone out with particularity, it could not qualify as a bill of attainder.

As some of the other posters have noted, there are also reasonable legal arguments on the other side that the PP defunding bills are not bills of attainder. I cynically suspect that judges (despite their best efforts at trying to be impartial) will manage to define "bill of attainder", narrowly or broadly, in such a way as to fit their political preconceptions on the issue.