Thread: Bill of Attainder Board: Oblivion / Ship of Fools.


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Posted by Gwai (# 11076) on :
 
So I was reading this opinion piece about Congress and Planned Parenthood and debating with a friend about whether he's right. On one level it doesn't feel as punitive as putting a person in jail. But then Planned Parenthood is not a person except in the legal sense--thank you Citizens United--so you can't punish them by putting them in jail. I think I'd say that making a bill just to defund them is quite punishing and certainly directed right at Planned Parenthood.
 
Posted by Palimpsest (# 16772) on :
 
I'm sympathetic to Planned Parenthood and find the Republican Congress Loathsome. However, not funding a group is not punishment. Am I being punished by not being funded by Congress?
 
Posted by Golden Key (# 1468) on :
 
It's punishment if they were funding you and took the funding away in order to punish you.
 
Posted by mousethief (# 953) on :
 
quote:
Originally posted by Palimpsest:
I'm sympathetic to Planned Parenthood and find the Republican Congress Loathsome. However, not funding a group is not punishment. Am I being punished by not being funded by Congress?
This is disingenuous or just dumb. Were you funded last week by Congress? Did they make nasty noises about you and say they were going to defund you because of something you did, and then did they go ahead and do it?

No?

Then you are an irrelevant comparision.

To not fund and to defund are not the same thing.

Consider:

I do not pay the next door neighbor's son an allowance. From this it does not follow that if I cut off my son's allowance, I am not punishing him.
 
Posted by Barnabas62 (# 9110) on :
 
I guess it is consistent with the "small government, roll back the state" thesis. Plus it's another dig at federal funded health care.

By European standards (both on the Left and the Right), these actions of Congress are indeed loathsome. "We've got the votes, so yah, boo, sucks to you". This is just willful destruction of support for dogmatic reasons.
 
Posted by Enoch (# 14322) on :
 
What's this row actually about please? Government, whether central or local, stops funding organisations all the time, particularly when they want to control expenditure. People grumble, protest, campaign and demonstrate, but they don't usually argue with any prospect of success that it's unconstitutional not to give them money any more. It's unusual tending towards the unknown that one could say that the organisation is entitled by law to be funded.

Besides, what has attainder got to do with this? Unless it means something very different in the US, that sounds like dishonest rhetoric.

[ 01. October 2015, 11:17: Message edited by: Enoch ]
 
Posted by Sioni Sais (# 5713) on :
 
quote:
Originally posted by Barnabas62:
I guess it is consistent with the "small government, roll back the state" thesis. Plus it's another dig at federal funded health care.

By European standards (both on the Left and the Right), these actions of Congress are indeed loathsome. "We've got the votes, so yah, boo, sucks to you". This is just willful destruction of support for dogmatic reasons.
From what I can see* few in Congress are truly in favour of small government. Even if they don't want to intervene overseas (which is definitely big government) they will I'm sure campaign for federal support for their state/district's farmers and manufacturers.

*OK, 3,000 miles away.
 
Posted by Gwai (# 11076) on :
 
Enoch, I'm guessing you read the linked article, so I'm not sure what you are asking. Also, how is it disingenuous.
 
Posted by Alan Cresswell (# 31) on :
 
quote:
Originally posted by Enoch:
What's this row actually about please? Government, whether central or local, stops funding organisations all the time, particularly when they want to control expenditure.
Governments don't usually target a single organisation with a sudden, total end to funding removing 40% of that organisations income overnight. Budgets do get cut to control expenditure, but those cuts would be across the board (or, large parts of it anyway) rather than fall on a single organisation. And, finally, governments would make those cuts stating how regrettable it is, but financial circumstances no longer permitted such generous support. They don't explicitly link those cuts to allegations of illegal activity in the funded organisation - especially when every legal investigation conducted has found that the allegations are unfounded and the widely circulated "evidence" largely fabricated.
 
Posted by mousethief (# 953) on :
 
Over the last few years the national discussion about women's reproductive health has amped up. The SCOTUS gave corporations religious personhood so that one corporation (Hobby Lobby) could weasel out of the Obamacare requirement that health care plans include contraception.

There was a nasty scrap over contraception in which Rush Limbaugh accused a young woman of being a sex fiend because she used hormonal birth control to regulate her period, and he was incapable of imagining "the pill" to be for anything else but fucking like a bunny without getting caught.

Into the midst of all this, an anti-abortion group created a bunch of heavily doctored films purporting to show that Planned Parenthood was selling body parts from aborted foetuses. The rightwingosphere was outraged, and the outrage did not subside even when the films were shown to be bogus -- basically an impious fiction intended to deceive. What they purported to show wasn't there.

Scant weeks later Congress votes to cut off funding for Planned Parenthood.

And anybody in this room wants to claim this is just a routine matter of cutting pork from the budget?

It staggers the imagination that anybody could be that naive.
 
Posted by leftfieldlover (# 13467) on :
 
As I have read elsewhere, the US seems to be happy to continue with the death penalty in the face of most of the western world abandoning it years ago - BUT they will not allow access to contraception or abortion clinics. I am so sorry for Obama.
 
Posted by Brenda Clough (# 18061) on :
 
The death penalty falls almost solely upon poor people and persons of color. The abortion and birth control cuts inevitably affect only women. All you need do is to look at the pictures of the legislators (aging white male millionaires) to see why they could give a flying fart.
 
Posted by Barnabas62 (# 9110) on :
 
quote:
Originally posted by Sioni Sais:
quote:
Originally posted by Barnabas62:
I guess it is consistent with the "small government, roll back the state" thesis. Plus it's another dig at federal funded health care.

By European standards (both on the Left and the Right), these actions of Congress are indeed loathsome. "We've got the votes, so yah, boo, sucks to you". This is just willful destruction of support for dogmatic reasons.
From what I can see* few in Congress are truly in favour of small government. Even if they don't want to intervene overseas (which is definitely big government) they will I'm sure campaign for federal support for their state/district's farmers and manufacturers.

*OK, 3,000 miles away.
If someone is an asshole, they can be in favour of small government and pork barrel politics at the same time without even noticing the cognitive dissonance. Or not caring even if they do notice.
 
Posted by Enoch (# 14322) on :
 
Yes, that bit of background is helpful, though it still strikes me as dishonest rhetoric to be likening this to an Act of Attainder. A lot of confusion between legal systems derives from the fact that they categorise similar issues in quite different ways. But, as I said, unless US law is very different from ours on this, I would have expected better of a Professor of Law.


I can also see, though, and would regard it as legitimate, that if an organisation is being hired by government to deliver one area of public service is caught doing something else that government or a substantial part of the electorate regard as criminal or semi-criminal, then the government is entitled not to want the organisation to be associated with the state's public good repute any more.

Not knowing anything more about the background, though, I can't and am not going to comment on whether the accusations are true, false or unproven. Isn't asking for trouble though, for an organisation to call itself Planned Parenthood, and then to offer abortions as well as contraception? If that is the case, that also sounds like dishonest rhetoric.
 
Posted by Alan Cresswell (# 31) on :
 
As an organisation Planned Parenthood offer a large range of services - pregnancy screening, counselling, a range of medical screening (cervical, breast and testicular cancer, HIV and other STDs etc), contraception advice etc. Abortions account for 3% of their work.

The vast majority of what they do is about avoiding the unplanned and unwanted. But, they do have a very small part of their services which covers the what to do it the unplanned happens.
 
Posted by Mere Nick (# 11827) on :
 
The precipitating event was the release of a series of undercover videos with executives and staffers talking about and demonstrating human organ harvesting and the fetal body part trade.
 
Posted by Belle Ringer (# 13379) on :
 
Taking one valium one while pregnant is a crime

Long list of crimes for doing otherwise non-crime things while pregnant

In an environment where prison seems to some the right punishment for anything less than ideal a pregnant woman does (even if medically helpful), the person who set out to create a lying video that knowingly falsely intentionally portrays Planned Parenthood as selling aborted baby body parts for profit, is a hero doing God's work.

My friends who are totally anti all abortion will tell you no matter what the evidence that the video is totally false, they are sure it's true, and even if it's false God must have inspired its making because it attacks Planned Parenthood. These friends will tell you the lie was made and is being circulated in Jesus name.

Only 3% spent on abortions? To some people, the health of all women and the health of all developing pregnancies is less important than stopping one abortion.

It's an issue the "Christian" right did a superb job of turning into an emotionally charged absolute to create a political base that will never stray.

[ 01. October 2015, 15:18: Message edited by: Belle Ringer ]
 
Posted by Golden Key (# 1468) on :
 
Barnabas--

quote:
Originally posted by Barnabas62:
I guess it is consistent with the "small government, roll back the state" thesis. Plus it's another dig at federal funded health care.

By European standards (both on the Left and the Right), these actions of Congress are indeed loathsome. "We've got the votes, so yah, boo, sucks to you". This is just willful destruction of support for dogmatic reasons.
Ah, but a) they don't want the support of the people they're alienating; and b) it will get/keep the support of the people who agree with them.

Question (and no, I didn't take offense at what you said): Does the UK parliament really do that much differently? Not specifically re abortion, but in general.

Thx.
 
Posted by Golden Key (# 1468) on :
 
Re the Planned Parenthood videos:

FactCheck.org has a good analysis: "Unspinning the Planned Parenthood Video".

Politicususa: "The Producer Of The Planned Parenthood Videos Admits That They Are A Fraud."

And on the wide range of health services PP offers and how vital they are, Vox: "Stat check: No, women couldn’t just 'go somewhere else' if Planned Parenthood closed."
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Alan Cresswell:
quote:
Originally posted by Enoch:
What's this row actually about please? Government, whether central or local, stops funding organisations all the time, particularly when they want to control expenditure.
Governments don't usually target a single organisation with a sudden, total end to funding removing 40% of that organisations income overnight. Budgets do get cut to control expenditure, but those cuts would be across the board (or, large parts of it anyway) rather than fall on a single organisation.
Sorry, I don't think any of that is automatically true.

I'm with Enoch. I just can't see how receiving government money generates any accrued right to government money.

The nearest thing to such an argument I've ever seen mounted is that, in our system, if Parliament has established a body, then the Executive ought to be required to give the body enough money to fulfil it's statutory functions. But that only works when talking about the Executive attempting to strip funding, not the legislature.

And it is simply not accurate to describe withdrawal of money as a punishment. It's withdrawal of a benefit. People might think that's a semantic difference, but it's actually a pretty crucial distinction. A pay cut is not a fine.

Note that this has nothing to do with whether I think defunding Planned Parenthood is appropriate. From what little I know about the case, I don't. But I think that while this article's assertion that "clearly this is a punishment" might have emotional appeal, legally I think that's hogwash. It isn't clear at all, it's an extremely dubious claim.

[ 02. October 2015, 06:23: Message edited by: orfeo ]
 
Posted by Gee D (# 13815) on :
 
Conservative governments here regularly reduce funding to community legal centres, and threaten to do so when a particular centre has acted for a party promoting a case contrary to the government's policy. Earlier this year cuts of 30%, to start in a couple of years, were announced. Even in the ACT, substantial cuts have been foreshadowed.
 
Posted by Alan Cresswell (# 31) on :
 
But, it's not a pay cut. It's getting the sack. Planned Parenthood could probably cope with a small cut in Federal support, they may need to look at their operations and cut a few services in some locations, but they'll cope. Cutting the entire federal support is going to make the whole programme non-viable and it will sink without any hope of resurfacing.

It is functionally equivalent to picking a single disabled person dependent on benefits and deciding that, because they were accused of a minor misdemeanor, therefore their benefit is being cut. Yes, benefits are not a universal human right and a government making budget cuts is legally capable of cutting benefit for whatever reason. But, that doesn't stop the former recipient of benefits from starving to death because they depended on that income. And, it doesn't make it justified to claim that the reasons the benefits are being cut is because of the accusation of a misdemeanor without an opportunity for those accusations to be tested in a court of law.

As I see it, there are two aspects of this affair.

1. The actual cut in funding and the effect that has on an organisation supplying essential services to people without access to primary health care elsewhere. It is right and proper for people to protest against those cuts, just as it's right for people in the UK to protest against cuts in benefits to people in need.

2. There is the attempt to justify these cuts on the basis of Planned Parenthood having done something wrong without an appropriate legal prosecution for wrong doing being undertaken. If PP had done something illegal - used federal funds for abortions, sold body parts, financial irregularites or whatever - then perhaps a cut in federal funding could be justified on those grounds. But, cuts justified by those reasons must surely follow conviction in a court of law.
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Alan Cresswell:
But, it's not a pay cut. It's getting the sack.
Well then, amend my answer to "getting the sack is not the same as incurring a hefty fine".

Whether they in some practical sense both have the same effect on someone, of "having less money", isn't the point. Two things that have the same practical effect are not therefore the same thing. A rhinoceros hitting you at high speed will have the same effect as a car hitting you at high speed, but that doesn't prove that it's a vehicle.

And whether a legislature's reasons for doing something are grossly misconceived is hardly ever relevant to whether what they've done is legal. If a legislature has the power to ban stepladders, then it can ban stepladders even if it's reason for doing so is utterly stupid. If a Congressman votes to ban stepladders because they think stepladders promote homosexuality, that doesn't render their vote ineffective.

I honestly can't conceive of a sensible argument that would show how a power to fund doesn't inherently carry with it a power to un-fund. If you have a power to fund, then a part of that power is the ability to decide not to fund. For that not to be the case you have to find an obligation to fund, and saying that a sudden loss of funding will have a bad practical effect is a million miles from a legal obligation.

[ 02. October 2015, 07:02: Message edited by: orfeo ]
 
Posted by Alan Cresswell (# 31) on :
 
quote:
Originally posted by orfeo:
quote:
Originally posted by Alan Cresswell:
But, it's not a pay cut. It's getting the sack.
Well then, amend my answer to "getting the sack is not the same as incurring a hefty fine".
Again, it depends on why someone gets the sack, doesn't it.

If someone is laid off because the company isn't doing very well and they need to cut back on the staff salary bill, then no it isn't punishment.

If someone is sacked because they repeatedly made sexist comments in contravention of the company Equality and Diversity policy then that is a punishment, and if due process was followed it is fair.

If someone is sacked because although they've always done good work the new boss doesn't like them, and someone sucking up to the new boss makes an allegation that they made a sexist comment without the accused having a chance to defend himself against the allegations and no internal procedure followed then I would say a case for unfair dismissal would be justified.
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Alan Cresswell:
quote:
Originally posted by orfeo:
quote:
Originally posted by Alan Cresswell:
But, it's not a pay cut. It's getting the sack.
Well then, amend my answer to "getting the sack is not the same as incurring a hefty fine".
Again, it depends on why someone gets the sack, doesn't it.

If someone is laid off because the company isn't doing very well and they need to cut back on the staff salary bill, then no it isn't punishment.

If someone is sacked because they repeatedly made sexist comments in contravention of the company Equality and Diversity policy then that is a punishment, and if due process was followed it is fair.

If someone is sacked because although they've always done good work the new boss doesn't like them, and someone sucking up to the new boss makes an allegation that they made a sexist comment without the accused having a chance to defend himself against the allegations and no internal procedure followed then I would say a case for unfair dismissal would be justified.
No, it doesn't depend. None of your examples of "why sacking someone is bad" makes the sacking into a fine. Not one example of not continuing to pay someone a wage is equivalent to actually taking money away from someone.

Your entire argument is built on trying to tell me that a failure to put a credit in my bank account is exactly the same as taking a debit from my bank account. Which is simply not true, even if the end result is the same bank balance. The two things operate on fundamentally different principles. Who has an obligation to pay you money is not the same question as who is entitled to take money off you.

[ 02. October 2015, 08:24: Message edited by: orfeo ]
 
Posted by Barnabas62 (# 9110) on :
 
quote:
Originally posted by Golden Key:
Barnabas--

quote:
Originally posted by Barnabas62:
I guess it is consistent with the "small government, roll back the state" thesis. Plus it's another dig at federal funded health care.

By European standards (both on the Left and the Right), these actions of Congress are indeed loathsome. "We've got the votes, so yah, boo, sucks to you". This is just willful destruction of support for dogmatic reasons.
Ah, but a) they don't want the support of the people they're alienating; and b) it will get/keep the support of the people who agree with them.

Question (and no, I didn't take offense at what you said): Does the UK parliament really do that much differently? Not specifically re abortion, but in general.

Thx.
The current UK government is hell-bent on reducing the cost of the public sector by any means that come to hand. The only thing they are doctrinaire about is deficit reduction. They came not to praise John Maynard Keynes but to bury him.
 
Posted by Alan Cresswell (# 31) on :
 
quote:
Originally posted by orfeo:
None of your examples of "why sacking someone is bad" makes the sacking into a fine.
No, they don't. They are about whether sacking someone is a punishment for breaking their terms of employment. In the same way as it appears that de-funding Planned Parenthood is presented as a punishment for ... well, something in the eyes of some members of Congress.

I don't think I've ever referred to this as a fine.
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Alan Cresswell:
quote:
Originally posted by orfeo:
None of your examples of "why sacking someone is bad" makes the sacking into a fine.
No, they don't. They are about whether sacking someone is a punishment for breaking their terms of employment. In the same way as it appears that de-funding Planned Parenthood is presented as a punishment for ... well, something in the eyes of some members of Congress.

I don't think I've ever referred to this as a fine.
You didn't refer to a fine, I did, and you chose to ignore that part of my post when responding to my post.

The purpose of the rule against bills of attainder is to prevent the legislature from imposing the punishments that the judiciary imposes. Exactly when you have heard a court sentence an organisation to not receiving its funding?

It is simply not true that in legal terms, you can describe something as a punishment just because it involves putting someone in a worse position than they were previously in. The implications of such a proposition are astounding. No grant system would work, because anyone who received funding in one round and didn't receive it the next round would start court cases about how their money had been "withdrawn" in an illegal fashion.

But the very idea that a previous grant of money entitles you to a future grant of money is complete bunkum. Nothing is being removed, any more than me cancelling my gym membership would involve withdrawing money from my gym's bank account. Someone might have an expectation that money will keep coming in, but the gap between people assuming that life will go on as it has and them having a legal entitlement to things going on as before is an utterly vast one that can't be crossed by saying that "changing things is a punishment".

[ 02. October 2015, 10:30: Message edited by: orfeo ]
 
Posted by Enoch (# 14322) on :
 
Exactly, Orfeo. Indeed, your gym membership example strikes me as rather a good one. What the professor seems to be arguing would be that if I've joined the gym and paid my subscription for last year, I can't decide not to carry on next year. Because the gym's business plan depends on my going on paying my subscription that obliges me, once I've joined, to carry on belonging.

I also like your point that what's wrong with attainder in the US context, isn't just that enacting that someone is guilty and shall be fined, imprisoned, forfeited or whatever without a trial goes against basic principles of justice. It's that if one has a constitution which is based on strict separation of powers, it would mean the legislature was trying to steal the judicature's job.

Allocating and not allocating funds for next year is not the role of the judicature.


Curiously, there have been a few cases in the UK where organisations have successfully judicially reviewed public bodies for not renewing their funding. I think all have been to do with defects in the decision making process, usually rather technical defects, and in ways that would merely postpone the same eventual result. I've no idea whether judicial review in the sense we know it exists in the US. Wikipedia implies that it probably doesn't and that the term means something completely different there.

It isn't attainder though, and its legal basis bears no resemblance to attainder. It still seems to me that the professor is using dishonest rhetoric to impugn the validity of a decision of government that he doesn't like in stead of arguing why he thinks government has made the wrong decision.

Conceptually, there's no reason why a bad decision should necessarily be an invalid one. People make valid bad decisions all the time, and so do governments.
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Enoch:
Curiously, there have been a few cases in the UK where organisations have successfully judicially reviewed public bodies for not renewing their funding. I think all have been to do with defects in the decision making process, usually rather technical defects, and in ways that would merely postpone the same eventual result.
Yes, very true, there are definitely methods of challenging a defective administrative process in this way - at least, in the UK and Australia. But that's for challenging what the executive branch does on the grounds that it wasn't according to law. I don't think it's possible to challenge what the legislature does in that fashion.
 
Posted by Alan Cresswell (# 31) on :
 
OK, I'm going to try this again.

I have already said that there is no legal problem with governments making cuts in grants to other organisations, or other branches of government. Of course, many organisations rely on those grants - Planned Parenthood looking very much like one of those organisations. It's probably unwise to take government funding for granted, but when there isn't an alternative income stream there's little choice. And, when that funding has been in place for more than 40 years it is only human to expect it to continue.

As I have already said, that isn't a potential legal issue. It would be a political issue as people are likely to protest cuts to services they and/or others depend on.

The potential legal issues, ISTM, start to raise their heads when the decision to cut funding is couched in the language of punishment for something. Especially when that is something that if true would warrant proper criminal proceedings which have not been pursued, and instead a cut in funding is imposed.

The analogy of employment has already been raised. So, let's play with that. For an employee on a short term contract there is no reason why their contract should be renewed when it expires. It's the nature of short term contracts. But, when it has been renewed several times so that the employee has done the job for a considerable period of time, it is not unreasonable for that employee to consider renewal of contract to be a formality. Even though there is no legal reason why the contract should be renewed. Now if that one employee doesn't get the contract renewed when everyone else does, especially if couched in vague statements of "failure to fulfil the job requirements" which are not substantiated, then there may be a case for unfair dismissal. The act of trying to justify the decision not to renew the contract (which didn't need justification) in terms of performance or something opens the door to have those justifications challenged.
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Alan Cresswell:
The potential legal issues, ISTM, start to raise their heads when the decision to cut funding is couched in the language of punishment for something.
Ah. Well, see, the principles of law I've learned pretty much say what what someone says they're doing is pretty much irrelevant.

It's well established here, for example, that if someone completely misidentifies their power to do something it doesn't matter. What matters is whether they actually had the power. I've seen legislative instruments that point to the wrong section or subsection as the source of power, but it doesn't matter, the instrument is legally effective so long as the power exists.

And American laws are fairly notorious in my book for having a whole lot of meaningless fluff. Giving legislation names just so they can come up with an acronym like PATRIOT Act is one example that springs to mind.

So from my perspective I'm completely disinterested in whether Congress declares that they are "punishing" Planned Parenthood. If what they're actually doing is not funding Planned Parenthood, and the legally operative section is exactly the same, then that's what they're doing.
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Alan Cresswell:
For an employee on a short term contract there is no reason why their contract should be renewed when it expires. It's the nature of short term contracts. But, when it has been renewed several times so that the employee has done the job for a considerable period of time, it is not unreasonable for that employee to consider renewal of contract to be a formality.
As a matter of social convention? Sure.

quote:
Even though there is no legal reason why the contract should be renewed.
See, minimising this is the problem. You've just said that the social convention is more important than the actual legal position. I doubt a court would agree with you.

quote:
Now if that one employee doesn't get the contract renewed when everyone else does, especially if couched in vague statements of "failure to fulfil the job requirements" which are not substantiated, then there may be a case for unfair dismissal.
There can't be unfair dismissal when there isn't any dismissal. Again, you're trying to claim that the absence of an effect is the same as the presence of the opposite effect. It's just not true. Dismissal is a positive action to end employment. Not renewing a contract requires no action whatsoever. If there is no legal obligation to renew the contract, as you've admitted, you've completely collapsed any basis for saying that the person was dismissed.

When you say "it's in the nature of short term contracts", you've set up a proposition which you then spend a lot of time undercutting by saying "yeah, but not really". Yeah. Really.

[ 02. October 2015, 12:13: Message edited by: orfeo ]
 
Posted by orfeo (# 13878) on :
 
I should add it is possible that your rolling short-term contract worker might gain some rights, if some promises were made to them (eg, they were induced to accept a short-term contract with a promise of becoming permanent later on).

But not from the mere fact that they were given short-term contracts several times over. The entire point is that there is no promise of employment after a given date and no process required in order to end the employment at that date.
 
Posted by Alan Cresswell (# 31) on :
 
quote:
Originally posted by orfeo:
The entire point is that there is no promise of employment after a given date and no process required in order to end the employment at that date.
Yes, I thought I'd said that.

What I had added was what happens when the employer makes the non-renewal part of a process? For example using the same sort of language ("failure to fulfil the requirements of the job" or even a violation of company policy) that would be used in dismissing someone mid-contract.

Now, you've said that's irrelevant, because in non-renewal of a contract that would be a misidentification of powers, if I understand this correctly.
quote:
It's well established here, for example, that if someone completely misidentifies their power to do something it doesn't matter. What matters is whether they actually had the power.
OK, from a legal point. But, if a boss calls in his employee and says "Now Fred, your contract is due for renewal next month. I'm sorry but as you've not really fulfilled the requirements of the job we're not renewing your contract" I would say it's not unreasonable for Fred to know in what ways he's been falling below the job requirements. And, if that's been stated as the only reason for not renewing the contract and it is demonstrably untrue ... well, it feels distinctly out of order to me, even if legally Fred has no leg to stand on to challenge the decision.
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Alan Cresswell:
And, if that's been stated as the only reason for not renewing the contract and it is demonstrably untrue ... well, it feels distinctly out of order to me, even if legally Fred has no leg to stand on to challenge the decision.
Like I said, if a Congressman wants to ban stepladders on the grounds that they promote homosexuality, that doesn't negate his ability to vote to ban stepladders. It just makes him stupid.

Having dumb reasons for a decision only matters if the decision is legally one you have to have a reason for, or if a reason is expressly forbidden. In some places, at least, there are anti-discrimination laws that prevent you from acting in a sexist or racist way (assuming they apply to non-permanent employment, which I'm not sure about), but there certainly isn't any anti-discrimination law that prevents a boss from having a dumb opinion about the quality of your work.

You're basically mounting a lot of arguments about what is fair and reasonable. The thing is, there simply isn't a general legal obligation to be fair and reasonable. There sure as hell isn't a general obligation on Congress to be fair and reasonable, otherwise they'd be taken to court every 5 minutes.

[ 02. October 2015, 14:13: Message edited by: orfeo ]
 
Posted by Belle Ringer (# 13379) on :
 
The Planned Parenthood situation is different from getting sacked from a job in a significant way I'll address by asking -- why is Planned Parenthood partially funded by government?

Most charity non-profits don't get any government money. That PP does suggests the government year after year has believed PP helps the government with something the government wants done and is glad to subsidize with some tax money so it doesn't have to pay the whole cost by doing the job itself. Or at minimum the government sees the cost of subsidizing as being less than the cost to the government of letting the charity die.

For governments, the issue is usually money. So I'll bet PP is viewed as reducing the otherwise much higher number of emergency room visits by low income women needing routine women's health services. (I'm not talking abortion, but the many many other health services PP provides.)

I don't know if also factored in is the reduction in welfare costs when low income women use contraceptives to avoid pregnancy.

The reasons PP was funded should be looked at when considering defunding. Will emergency room be overrun? How will that be paid for?

But I fear there are some people in politics today who don't care if the whole country goes down the tubes so long as it is "moral" when it dies. Health and wellbeing of residents is considered irrelevant in judging morality. Alas.
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Belle Ringer:
The reasons PP was funded should be looked at when considering defunding. Will emergency room be overrun? How will that be paid for?
This is yet another way of saying "is defunding PP a good idea".

The Bill of Attainder argument is an attempt to claim that defunding PP isn't legal. Which is just a totally different issue. I certainly don't think defunding PP is a good idea, but heck, I write plenty of laws that I think contain dumb ideas.

The solution for dumb laws isn't a court case, it's a ballot box.
 
Posted by Crœsos (# 238) on :
 
quote:
Originally posted by Alan Cresswell:
I have already said that there is no legal problem with governments making cuts in grants to other organisations, or other branches of government.
This isn't quite accurate, or might be described as accurate in part but omitting key details of the actual situation. Part of the complexity stems from the Rube Goldberg-esqe methods the U.S. uses to fund health care. There are two main sources of federal funding for Planned Parenthood (and other similar clinics). The first is Title X, which generates grants to contraceptive and family planning organizations in the manner you characterize. The other is Medicaid, a health insurance program covering low income Americans. The problem here is that Congress is not seeking to defund Title X or Medicaid (which would be within their power), but rather to single out Planned Parenthood as ineligible to participate in those federal programs. That comes a lot closer to a "punishment" than simply cutting funding.

The Medicaid situation is particularly complicated since the actual recipients of the benefits are the poorer Americans whose medical care at Planned Parenthood is subsidized through the program. One of the problems in recent years is the number of medical professionals unwilling to take Medicaid patient due to the fact that the program is underfunded to a degree that seeing such patients is often a financial loss for them. So in that sense the decision to "fund" Planned Parenthood (or other Medicaid medical provider) is actually being made by the Medicaid recipient rather than Congress. To exclude an organization from participating in a federal program open to other, similar organizations seems very close to a bill of attainder.

[ 02. October 2015, 14:56: Message edited by: Crœsos ]
 
Posted by Enoch (# 14322) on :
 
quote:
Originally posted by orfeo:
This is yet another way of saying "is defunding PP a good idea".

The Bill of Attainder argument is an attempt to claim that defunding PP isn't legal. Which is just a totally different issue. I certainly don't think defunding PP is a good idea, but heck, I write plenty of laws that I think contain dumb ideas.

The solution for dumb laws isn't a court case, it's a ballot box.
[Overused] Bang on.

I said earlier
quote:
Yes, that bit of background is helpful, though it still strikes me as dishonest rhetoric to be likening this to an Act of Attainder. A lot of confusion between legal systems derives from the fact that they categorise similar issues in quite different ways. But, as I said, unless US law is very different from ours on this, I would have expected better of a Professor of Law.
I have next to no knowledge of US law. But nobody who has, has come back to say that under US law, the professor has a point, yet alone to explain why.

In the same way, with what I said about categorisation, arguments from unfair dismissal aren't likely to be either useful or relevant. 'Unfair dismissal' is a concept from employment law in the three UK jurisdictions. Here, it doesn't have any bearing on withdrawing government funding. But in other countries, it may not be part of their employment law either.

Whether true or false, one gets the impression that in the US, employers have a more or less unlimited right to hire and fire at whim.


On the other hand, in contrast to what Belle Ringer has said, in the UK quite a lot of assorted social work is outsourced by funding charities to do it.
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Crœsos:
To exclude an organization from participating in a federal program open to other, similar organization seems very close to a bill of attainder.
Do you think a bouncer deciding to exclude someone from a nightclub while letting other, similar people in is putting a person in jail?
 
Posted by Crœsos (# 238) on :
 
quote:
Originally posted by orfeo:
quote:
Originally posted by Crœsos:
To exclude an organization from participating in a federal program open to other, similar organization seems very close to a bill of attainder.
Do you think a bouncer deciding to exclude someone from a nightclub while letting other, similar people in is putting a person in jail?
I'm pretty sure we've already covered the fact that private organizations (like a nightclub) can behave in arbitrary ways most governments (or at least most governments with a limited government style constitution) cannot.

So yes, a nightclub bouncer can say "Jane Doe isn't welcome at this club because that bitch broke my heart". On the other hand, Congress cannot say "Jane Doe is no longer eligible to claim the mortgage deduction on her income tax", despite the fact that it's not imprisoning her.

[ 02. October 2015, 15:07: Message edited by: Crœsos ]
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Crœsos:
quote:
Originally posted by orfeo:
quote:
Originally posted by Crœsos:
To exclude an organization from participating in a federal program open to other, similar organization seems very close to a bill of attainder.
Do you think a bouncer deciding to exclude someone from a nightclub while letting other, similar people in is putting a person in jail?
I'm pretty sure we've already covered the fact that private organizations (like a nightclub) can behave in arbitrary ways most governments (or at least most governments with a limited government style constitution) cannot.
But that's not the question I'm asking. It could be a government-run nightclub and my question would be exactly the same. It could be a government-run facility of any kind with a policeman at the door with the ability to escort people off the premises or prevent them from entering.

The question has nothing to do with the reasonableness of excluding a person or preventing them from entering. The question has to do with the effect of doing so.

And the reason is because if people are going to logically equate denial of funding with imposition of a fine and say they are both punishment, the physical equivalent is to equate denial of entry with deprivation of liberty and say they are both punishment.

[ 02. October 2015, 15:08: Message edited by: orfeo ]
 
Posted by Crœsos (# 238) on :
 
quote:
Originally posted by orfeo:
But that's not the question I'm asking. It could be a government-run nightclub and my question would be exactly the same. It could be a government-run facility of any kind with a policeman at the door with the ability to escort people off the premises or prevent them from entering.

The question has nothing to do with the reasonableness of excluding a person or preventing them from entering. The question has to do with the effect of doing so.
All right, let's say a polling station. The U.S. has a fairly extensive history of preventing certain types of people from entering that particular type of government facility. I'd argue that the effect of government favoritism is pernicious in such cases. Historically this was enforced against a class of people, rather than specific individuals, so it's not a bill of attainder in the classic sense. On the other hand I don't think enforcing such exclusions on a person-by-person basis would be any less pernicious.

[ 02. October 2015, 15:16: Message edited by: Crœsos ]
 
Posted by orfeo (# 13878) on :
 
Still not the question.

Why is everybody so keen to tell me that excluding people is bad? I never said it wasn't.
 
Posted by Crœsos (# 238) on :
 
Your point, as near as I can tell, is that you don't think changing funding can ever qualify as a bill of attainder. So passing a law saying (for example "Jane Doe's kids are no longer eligible for the school lunch program" doesn't count as such. My point is that laws targeting specific individuals (or specific organizations, for that matter) are at least colorably within that category.
 
Posted by orfeo (# 13878) on :
 
Yes, my point is that excluding people from benefits is not functionally equivalent to imposing a punishment, and cannot be so.

Why? Because the whole point is that legislatures have powers to confer benefits, and must therefore have the power to take them away again. There might be arguments about whether particular decisions as to who does and doesn't get benefits are rational or fair, but if a legislature has power over benefits it basically has power to decide who's in and who's out.

But legislatures don't have power over who gets punished. That's the purpose of forbidding a bill of attainder. Legislatures simply have no business in deciding on an individual basis who gets jailed and who gets freed, or who gets a fine and who doesn't. It's the executive that decides to charge someone with breach of a law, and the judiciary that decides whether the charge is made out.

Complaining that a legislature has done something unfair in relation to a topic that they undoubtedly have power over is fundamentally different to complaining that the legislature has entered a topic they have no power over. The second that people accept that the legislature had power over the funding that was flowing to PP, the "bill of attainder" claim runs into some very serious problems.
 
Posted by Gwai (# 11076) on :
 
So if Jane Doe's daughter is sent home with a note that s he will not be able to participate in afterschool anymore because said daughter did something she didn't do, wouldn't that qualify as punishment? It's just excluding her from a program, but it still seems a lot like a punishment to me. Planned Parenthood is similarly being singled out to be excluded from a program.
 
Posted by Arethosemyfeet (# 17047) on :
 
quote:
Originally posted by orfeo:
Yes, my point is that excluding people from benefits is not functionally equivalent to imposing a punishment, and cannot be so.
Really? I think the two are functionally equivalent, at least in so far as they are done on a targeted basis. Take, for example, the practice of stopping the benefits of recipients of Jobseeker's Allowance in the UK if the claimant misses an appointment. That is identified by the relevant agency as a sanction, i.e. a punishment, even though the action is simply withdrawal of a benefit. Likewise, being suspended without pay from a job is very clearly a punishment, whether or not your employer is the government. Singling out a particular organisation to be deprived of funding is a punishment just as much as if you imposed a fine of the same amount. If that punishment is carried out by legislative means then, given the US legal understanding that corporate entities and people are equivalent, it follows that such legislation constitutes a Bill of Attainder.
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Gwai:
So if Jane Doe's daughter is sent home with a note that s he will not be able to participate in afterschool anymore because said daughter did something she didn't do, wouldn't that qualify as punishment? It's just excluding her from a program, but it still seems a lot like a punishment to me. Planned Parenthood is similarly being singled out to be excluded from a program.
Sure, it would qualify as punishment in a colloquial sense.

But why does it depend on it being something she says it didn't do? Do you think it stops being punishment if she admits to doing it? Is it still punishment if she's excluded because Jane didn't pay the fees? Is it still punishment if the rules change and Jane's daughter no longer qualifies? Is it still punishment if the program loses staff, has to downsize, has to prioritise children and Jane's daughter is one who misses out (although they'd have loved to keep her on if they could)?

One of my big problems with this whole notion is that there's this strong focus on Congress' reasons for doing something, when in general there's no obligation at all on Congress to give any reasons for its actions. The idea that the nature of a legislative action, and therefore whether it's permissible or not (permissible, not liked) could depend on the motive behind it is just deeply worrying to me.

Part of that is because the very notion of Congress having a "motive" is a piece of fiction. You've got hundreds of people in a legislature, and it's simply not accurate to think that even among those that vote Yes to a given law there is a shared intention. The vote of a legislator who completely misunderstand the nature of a law and what it will do is still a valid vote. The vote of a legislator who is mindlessly following orders from his or her party and hasn't read the legislation is still a valid vote.

This is stark contrast to the obligations of administrators and judges to give reasons.

A rule that says that Congress is not allowed to jail someone or fine someone is clear. It means Congress can't perform that action, even if everyone thinks the action would be an absolutely fantastic idea. A rule that says Congress can take away funding in some circumstances, but not others, runs into problems because it then says that the courts get to start looking into the reasons for doing something.

And certainly around here, courts back away from ideas that they ought to be making pronouncements about whether legislators exercised their powers in a good way and for good reasons. Maybe not in America - sometimes court behaviour over there surprises me a bit. But my starting point is that the validity of laws doesn't have to do with the reasons for them.
 
Posted by Leorning Cniht (# 17564) on :
 
quote:
Originally posted by Palimpsest:
I'm sympathetic to Planned Parenthood and find the Republican Congress Loathsome. However, not funding a group is not punishment. Am I being punished by not being funded by Congress?
The "funding" that Planed Parenthood gets from the government isn't a big check that says "we like Planned Parenthood and are going to pay for it to exist".

PP has two major sources of federal money - Medicaid and Title X. Neither of these is PP-specific. Title X is family planning for poor people - it funds clinics that provide contraception, pap smears and breast exams, STD tests and treatment. 25% of the money goes to Planned Parenthood affiliates.

Medicaid is general government health insurance for some poor people. Again, not PP-specific.

The proposal is to make Planned Parenthood ineligible for these general programs, because it also provides abortions (but not with federal money).

If a bill is phrased as "healthcare providers who provide abortions are not eligible for Medicare to Title X funding", I don't think it's a bill of attainder. My evidence is that it's apparently completely fine for the federal government to say "states who don't make the drinking age 21 don't get road funding".

The Supreme Count seems to have stepped back from that a bit in NFIB vs Sebelius. Interestingly, in that case it's mostly the justices on the left arguing that Congress has the power to make these kinds of restrictions on funding, and those on the right arguing that Congress can't threaten to take away existing medicaid funding in order to coerce states into accepting Obamacare.

Anyone want to guess if they'll take up the same positions on the logically equivalent abortion/PP issue?
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Arethosemyfeet:
quote:
Originally posted by orfeo:
Yes, my point is that excluding people from benefits is not functionally equivalent to imposing a punishment, and cannot be so.
Really? I think the two are functionally equivalent, at least in so far as they are done on a targeted basis. Take, for example, the practice of stopping the benefits of recipients of Jobseeker's Allowance in the UK if the claimant misses an appointment. That is identified by the relevant agency as a sanction, i.e. a punishment, even though the action is simply withdrawal of a benefit. Likewise, being suspended without pay from a job is very clearly a punishment, whether or not your employer is the government. Singling out a particular organisation to be deprived of funding is a punishment just as much as if you imposed a fine of the same amount. If that punishment is carried out by legislative means then, given the US legal understanding that corporate entities and people are equivalent, it follows that such legislation constitutes a Bill of Attainder.
An administrative action authorised by the law is simply not a good analogy for a legislative action. Stopping the receipt of Jobseeker's Allowance is authorised by a law that says Jobseeker's Allowance can be stopped on a particular basis, in exactly the same way that people are jailed because they've broken a law that says jail is an available penalty for the breach. If the reason for stopping Jobseeker's Allowance is not on the list of reasons the law provides, then the allowance has to be restored. If a person didn't in fact break the law, they have to be set free.

Where exactly do you propose we find this law that says Parliament has to give reasons for withdrawing money and that only some reasons are valid reasons?
 
Posted by Arethosemyfeet (# 17047) on :
 
That's actually my point. Withdrawing funding for a specific reason is legal because it's associated with the reason, and not the person. A Bill of Attainder is one that targets the person, and is not dependent on any broader reason.
 
Posted by Fr Weber (# 13472) on :
 
quote:
Originally posted by mousethief:


There was a nasty scrap over contraception in which Rush Limbaugh accused a young woman of being a sex fiend because she used hormonal birth control to regulate her period, and he was incapable of imagining "the pill" to be for anything else but fucking like a bunny without getting caught.
I believe this was the same Mr Limbaugh who was detained returning to the US from the Dominican Republic in 2006, after customs officials found a bottle of Viagra in his suitcase which had been prescribed to someone else. At the time, I believe he was unmarried as well.
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Arethosemyfeet:
That's actually my point. Withdrawing funding for a specific reason is legal because it's associated with the reason, and not the person.
For administrative actions, yes. My point is that a legislator is not an administrator, and separation of powers means something.

[ 02. October 2015, 18:12: Message edited by: orfeo ]
 
Posted by Crœsos (# 238) on :
 
quote:
Originally posted by orfeo:
One of my big problems with this whole notion is that there's this strong focus on Congress' reasons for doing something, when in general there's no obligation at all on Congress to give any reasons for its actions. The idea that the nature of a legislative action, and therefore whether it's permissible or not (permissible, not liked) could depend on the motive behind it is just deeply worrying to me.
Because you're taking a wrong-headed approach to the bill of attainder prohibition. It doesn't depend on whether the action is intended as a punishment or not but, as Arethosemyfeet points out, whether the law is generally applicable or targeted to specific individuals (or organizations).

You claim that legislatures (or at least those legislatures functioning under bill of attainder restrictions) aren't allowed to fine individual citizens. Yet they're allowed to tax citizens. Is there any real difference between a bill of attainder fining John Doe $10,000 and levying a special tax on John Doe of $10,000 in the current tax year? The latter would seem to fall within the taxation power of the legislature, and you seem to reject the idea that individually-targeted laws constitute bills of attainder.
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Crœsos:
You claim that legislatures (or at least those legislatures functioning under bill of attainder restrictions) aren't allowed to fine individual citizens. Yet they're allowed to tax citizens. Is there any real difference between a bill of attainder fining John Doe $10,000 and levying a special tax on John Doe of $10,000 in the current tax year?
Calling something a tax does not make it a tax, any more than calling something a punishment makes it a punishment. Or, to refer to a famous legal judgement here, calling something a lighthouse does not make it a lighthouse.

In Australia at the federal level we have to specifically deal with a whole bunch of constitutional provisions about taxes which mean we have a lot of law about the differences between fees, taxes and penalties. Levying a tax that only applies to John Doe is only possible if you can find an activity that only John Doe in fact undertakes, for which you have a taxation power. Just naming John Doe and taking money from him is a penalty, whether you call it one or not.

This whole thread revolves people wanting everything to be about practical effect. But legal requirements aren't about practical effect. It is perfectly possible to have 2 methods of achieving the exact same practical effect and to have one of them be legal and one of them not. You just gave me two ways of wording a requirement that John Doe pay $10,000, and my response is that legally they are the same thing. But that's because they are in truth the same method.

What we're talking about with the whole bill of attainder thing is that people want to equate 2 methods of achieving the same outcome, of John Doe having $10,000 dollars less than he would have before the legislature acted, and that's just not how the law works. Requiring John Doe to pay $10,000 is not, in any legal sense, the same as deciding not to pay John Doe $10,000 he was expecting to get. Methods matter in the law. The very essence of my job is working out the correct method of achieve the result that government wants to achieve, and I have most certainly had cases where I said to an agency "no, that way of doing it is not allowed, but I can achieve the exact same practical result for you in a different way".

And I know what arethosemyfeet pointed out. My answer is that arethosemyfeet is wrong. Singling out people is not sufficient to make something a bill of attainder.

[ 02. October 2015, 18:36: Message edited by: orfeo ]
 
Posted by Crœsos (# 238) on :
 
quote:
Originally posted by orfeo:
Levying a tax that only applies to John Doe is only possible if you can find an activity that only John Doe in fact undertakes, for which you have a taxation power. Just naming John Doe and taking money from him is a penalty, whether you call it one or not.
Not necessarily. Some jurisdictions, including the United States, allow head taxes. In fact, the constitutional clause allowing capitations is right below the one on bills of attainder. So Congress is allowed to levy taxes on people just for existing, regardless of what activities they're engaged in. There is a constitutional ban on levying such taxes in any manner other than by census count, but it doesn't take much creativity to pass a $10,000 per person tax, a $10,000 per person tax exemption, and a law revoking that exemption (but not the tax) for John Doe. By your argument this doesn't count as a bill of attainder because the legislature has the power to levy taxes and can levy them in any way it pleases, even selectively targeting individuals.

quote:
Originally posted by orfeo:
It is perfectly possible to have 2 methods of achieving the exact same practical effect and to have one of them be legal and one of them not. You just gave me two ways of wording a requirement that John Doe pay $10,000, and my response is that legally they are the same thing. But that's because they are in truth the same method.
Nope. One's a fine, which would be a bill of attainder, and the other's a tax. Says so right on the tin.

quote:
Originally posted by orfeo:
What we're talking about with the whole bill of attainder thing is that people want to equate 2 methods of achieving the same outcome, of John Doe having $10,000 dollars less than he would have before the legislature acted, and that's just not how the law works.
Right. Because one's a fine (bad!) and the other's a tax (perfectly permissible). The fact that the outcome is identical is irrelevant, by your argument.

quote:
Originally posted by orfeo:
And I know what arethosemyfeet pointed out. My answer is that arethosemyfeet is wrong. Singling out people is not sufficient to make something a bill of attainder.
So explain why a $10,000 head tax on everyone is a tax, but a $10,000 tax that singles out John Doe is a bill of attainder, if singling out John Doe is irrelevant?
 
Posted by Gwai (# 11076) on :
 
Many of the relevant points have been addressed by you and Croesus while I was off. I agree with much of what Croesus said, but to answer:
quote:
Originally posted by orfeo:
quote:
Originally posted by Gwai:
So if Jane Doe's daughter is sent home with a note that s he will not be able to participate in afterschool anymore because said daughter did something she didn't do, wouldn't that qualify as punishment? It's just excluding her from a program, but it still seems a lot like a punishment to me. Planned Parenthood is similarly being singled out to be excluded from a program.
Sure, it would qualify as punishment in a colloquial sense.

But why does it depend on it being something she says it didn't do? Do you think it stops being punishment if she admits to doing it?
It's still a punishment if she did it and admits it, but then it's a situation that will have been addressed when Ms. Doe enrolled her daughter. The program would have said that in X cases they might need to exclude a child. That is not how it is with Planned Parenthood. There was no statement that if PP did X they would lose funding, and as noted they also haven't done what they were accused of anyway.
quote:
Originally posted by orfeo:
Is it still punishment if she's excluded because Jane didn't pay the fees? Is it still punishment if the rules change and Jane's daughter no longer qualifies? Is it still punishment if the program loses staff, has to downsize, has to prioritise children and Jane's daughter is one who misses out (although they'd have loved to keep her on if they could)?
If Jane didn't pay the fees, that goes back to situations agreed upon beforehand. If the program downsizes and they cut Jane, then it's not targeted. Congress has cut funding before for many programs I approve of, but it was never a bill of attainder because they weren't targeted at just one person.

quote:
Originally posted by orfeo:
One of my big problems with this whole notion is that there's this strong focus on Congress' reasons for doing something, when in general there's no obligation at all on Congress to give any reasons for its actions. The idea that the nature of a legislative action, and therefore whether it's permissible or not (permissible, not liked) could depend on the motive behind it is just deeply worrying to me.
It would still be a bill of attainder if we didn't know why they were doing it. It's just a particularly stupid one as it is.

quote:
Originally posted by orfeo:
A rule that says that Congress is not allowed to jail someone or fine someone is clear. It means Congress can't perform that action, even if everyone thinks the action would be an absolutely fantastic idea. A rule that says Congress can take away funding in some circumstances, but not others, runs into problems because it then says that the courts get to start looking into the reasons for doing something.
Of course this would all easily be solved if corporations were not persons. Sigh.
 
Posted by Alan Cresswell (# 31) on :
 
quote:
Originally posted by orfeo:
quote:
Originally posted by Arethosemyfeet:
That's actually my point. Withdrawing funding for a specific reason is legal because it's associated with the reason, and not the person.
For administrative actions, yes. My point is that a legislator is not an administrator, and separation of powers means something.
I think the problem is that in this instance it appears that some members of Congress want to blur those separations of powers.

Congress has the power to legislate. That can certainly include reducing the funding to Federal programs such as Title X. It can include passing legislation on whether organisations that provide abortions are eligible to Title X funding.

But, then below Congress there is an administrative function that takes applications from organisations seeking Title X funding. That administrative organisation will assess those applications, and decide whether or not they fall within the eligibility criteria established by the legislature, and take the difficult decisions of how to divvy up the limited pot of funding Congress has approved.

When Congress takes up the role of administrator by deciding themselves whether or not a particular organisation should receive funding then they have stepped outside their remit of authority. Or, at least that seems to be what's happening to me.

Whether that is "Bill of Attainder" or not I haven't a clue. But, it certainly looks like some members of Congress trying to side step around the due process of the administrative functions of assessing eligibility for funding under established schemes.
 
Posted by Golden Key (# 1468) on :
 
Look, it's simple: Certain people in Congress decide they want to get rid of and/or punish something or someone.

So they pull funding--and, in this case, they're being quite open about it. And/or they summon the person to testify before Congress, and haul out the rusty farm implements and the grill. (The head of PP was subjected to this.) Much of the furor and posturing is to gain votes from the home state crowd, and to exercise egos, and look good on TV while doing it. They've done it many times before, and will again. It's one of Congress's favorite things.

I neither know nor care whether it involves a "bill of attainder", or nasty comments in a "slam book" at a slumber party.

It's Congress being Congress--particularly the GOP/Republicans being Congress--and they most assuredly intend it as punishment.
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Alan Cresswell:
quote:
Originally posted by orfeo:
quote:
Originally posted by Arethosemyfeet:
That's actually my point. Withdrawing funding for a specific reason is legal because it's associated with the reason, and not the person.
For administrative actions, yes. My point is that a legislator is not an administrator, and separation of powers means something.
I think the problem is that in this instance it appears that some members of Congress want to blur those separations of powers.

Congress has the power to legislate. That can certainly include reducing the funding to Federal programs such as Title X. It can include passing legislation on whether organisations that provide abortions are eligible to Title X funding.

But, then below Congress there is an administrative function that takes applications from organisations seeking Title X funding. That administrative organisation will assess those applications, and decide whether or not they fall within the eligibility criteria established by the legislature, and take the difficult decisions of how to divvy up the limited pot of funding Congress has approved.

When Congress takes up the role of administrator by deciding themselves whether or not a particular organisation should receive funding then they have stepped outside their remit of authority. Or, at least that seems to be what's happening to me.

Whether that is "Bill of Attainder" or not I haven't a clue. But, it certainly looks like some members of Congress trying to side step around the due process of the administrative functions of assessing eligibility for funding under established schemes.
You misunderstand me. I'm not arguing that the role of administrator is sacrosanct and the legislator must not step into that arena. I'm pointing out that the legislator sets the rules for the administrator.

Which is in fact exactly what is happening here. Congress is setting a particular exception to a more general rule, to say "don't pay money to X".

Setting rules and conditions and exceptions is precisely what legislators do. And that's precisely why I think this claim that there's a Bill of Attainder involved in a legislature creating an exception to its own rules is nuts. If naming particular organisations in rules is not allowed, then quiet a few laws I've drafted are invalid. A theory that suggests it's only invalid if the exception is created later on simply runs counter to every notion of the powers of legislatures I've ever come across.

A Bill of Attainder involves doing the judiciary's job, not the administrator's job. A Bill of Attainder is declaring PP is guilty of a criminal offence, not declaring that we don't like PP and don't want to give money to it.

Around here there are a bunch of declarations that various organisations are terrorist organisations. The UK has the same system. It then becomes an offence to do certain things with the organisation. The logic you're using is going to come perilously close to saying that's not allowed, that there's no legislative power to declare an organisation is bad.

[ 03. October 2015, 01:24: Message edited by: orfeo ]
 
Posted by Gee D (# 13815) on :
 
From Alan Cresswell:

When Congress takes up the role of administrator by deciding themselves whether or not a particular organisation should receive funding then they have stepped outside their remit of authority. Or, at least that seems to be what's happening to me.

Whether that is "Bill of Attainder" or not I haven't a clue. But, it certainly looks like some members of Congress trying to side step around the due process of the administrative functions of assessing eligibility for funding under established schemes.

There seems a real contradiction between these 2 paragraphs and what you said before. What you originally said is that the legislature sets the guidelines against which the administrators assess the eligibility of an applicant for funding. That is correct, and one of the criteria in this case is that a particular organisation is not eligible. Whether it should be or not is a different question but it is perfectly proper for the legislature to say that Planned Parenthood is not an eligible applicant. In doing this, the legislature is not trespassing on an administrative function, a concept which I find difficult to understand in any event.

And for the reasons given by Orfeo, this is not an attainder. An attainder would be impermissible under US constitutional law, and probably beyond the power of the Federal Parliament here. It would still be possible in the UK, and quite likely in our State parliaments as well.
 
Posted by Dave W. (# 8765) on :
 
The Wikipedia Bill of Attainder article notes a case that bears some similarities to the Planned Parenthood situation:
quote:
After the United States House of Representatives passed a resolution in late 2009 barring the community organizing group Association of Community Organizations for Reform Now (ACORN) from receiving federal funding, the group sued the U.S. government.[33] Another, broader bill, the Defund ACORN Act, was enacted by Congress later that year. In March 2010, a federal district court declared the funding ban an unconstitutional bill of attainder.[34] On 13 August 2010, the United States Court of Appeals for the Second Circuit reversed and remanded on the grounds that only 10 percent of ACORN's funding was federal and that did not constitute "punishment."[35][36]
According to the appellate decision the district court judge found that "the appropriations laws singling out ACORN and its affiliates from obtaining federal funds (a) fell within the historical meaning of legislative punishment, (b) did not further a nonpunitive legislative purpose, and (c) were supported by a legislative record that evinced an intent to punish."

The appeals court that ruled against ACORN held that government withholding funds in this case didn't rise to the level of "punishment" because it was temporary and only accounted for 10% of ACORN's budget, that the government had a plausible non-punishment purpose (avoiding funding mismanaged organizations), and that the appropriations bill didn't explicitly spell out a punitive intent.
 
Posted by Enoch (# 14322) on :
 
At last! Somebody who appears they might know what they are talking about, has produced some possible evidence that there might be a quirk of US precedent that just may enable a litigant to argue that in US terms the concept of attainder may expand into areas into which it does not encroach elsewhere or in its historic sense.

However, since the claim failed on appeal, it also looks as though this possibility for creative jurisprudence may not be going anywhere.

I still think that throughout this thread, Orfeo's reasoning has been consistently better than anyone else's.
 
Posted by Dave W. (# 8765) on :
 
I am not a lawyer - on this topic I don't know anything that can't quickly be found by someone with a computer and an internet connection.

It appears that in 2012 PP won a summary judgment and permanent injunction against North Carolina from a federal district court which found that a law denying state or federal funds to PP was unconstitutional as (among other things) a bill of attainder.

The decision includes this brief overview of the prohibition on bills of attainder on pages 16-17 (citations removed for clarity and brevity):
quote:
“A legislative act is an unconstitutional bill of attainder if it singles out an individual or narrow class of persons for punishment without a judicial proceeding.” The Supreme Court has held that “the Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, or more simply - trial by legislature.” Thus, legislative bodies must accomplish their objectives by “rules of general applicability” and “cannot specify the people upon whom the sanction it prescribes is to be levied.” (“The singling out of an individual for legislatively prescribed punishment constitutes an attainder whether the individual is called by name or described in terms of conduct which, because it is past conduct, operates only as a designation of particular persons.”). “To constitute a bill of attainder, the statute must (1) specify affected persons, (2) impose punishment, and (3) fail to provide for a judicial trial.” “To rise to the level of ‘punishment’ under the Bill of Attainder Clause, harm must fall within the traditional meaning of legislative punishment, fail to further a nonpunitive purpose, or be based on a congressional intent to punish.”

 
Posted by orfeo (# 13878) on :
 
Perfectly reasonable description, except that it fails to explain how not providing funding to someone falls within the judicial notion of punishment.

Because, as I've already observed, since when did judges withhold money from people? They don't. They impose fines on people.
 
Posted by Dave W. (# 8765) on :
 
There's more to the decision than that excerpt - hence the link for those who are interested in the court's reasoning.

From pages 21-22:
quote:
Rather, the evidence in this case establishes that Section 10.19 singles out and excludes Planned Parenthood, and its affiliates, from any opportunity to apply for and/or receive DHHS-administered grants and contracts for non-abortion-related services, which Planned Parenthood had effectively provided to the public in the past. See Florida Youth Conservation Corps. v. Stutler, No. 4:06CV275, 2006 WL 1835967, at *1 (N.D. Fla. June 30, 2006) (noting that the effect of the unconstitutional legislation “would be to put plaintiff out of business, or at least to put plaintiff out of the business in which it has been engaged to date”). The Court finds that such a categorical exclusion is analogous to legislation that prohibits a person or entity from engaging in certain employment, which courts have historically found to be associated with punishment. See Nixon, 433 U.S. at 474-75, 97 S. Ct. at 2806; see also Florida Youth Conservation Corps., 2006 WL 1835967, at *2 (noting that “plaintiff has in effect been found guilty of an unspecified charge and, as its sentence, has been barred from state contracting” and that “this legislative action is very much akin to the enactments that prompted the framers to include in the Constitution a prohibition on bills of attainder”). As such, the Court concludes that Section 10.19 is punitive in nature based on a traditional understanding of punishment.

 
Posted by orfeo (# 13878) on :
 
Yeah, except I don't agree with the analogy. I think that court decision is wrong on that point. The two situations are not analogous.

Excluding someone from employment means they can't be employed by anyone, anywhere.

Having the government not give money to you is not preventing you from obtaining money from elsewhere.

I think that's exactly why the appeal court overturned the decision saying that taking some funding away from Planned Parenthood was a bill of attainder.

[ 04. October 2015, 01:54: Message edited by: orfeo ]
 
Posted by Dave W. (# 8765) on :
 
quote:
Originally posted by orfeo:
I think that's exactly why the appeal court overturned the decision saying that taking some funding away from Planned Parenthood was a bill of attainder.
As far as I know, the decision in favor of Planned Parenthood of Central North Carolina has not been overturned.
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Dave W.:
quote:
Originally posted by orfeo:
I think that's exactly why the appeal court overturned the decision saying that taking some funding away from Planned Parenthood was a bill of attainder.
As far as I know, the decision in favor of Planned Parenthood of Central North Carolina has not been overturned.
Sorry, I mean the ACORN decision.
 
Posted by Arethosemyfeet (# 17047) on :
 
quote:
Originally posted by orfeo:
Yeah, except I don't agree with the analogy. I think that court decision is wrong on that point. The two situations are not analogous.

Excluding someone from employment means they can't be employed by anyone, anywhere.

Having the government not give money to you is not preventing you from obtaining money from elsewhere.

I think that's exactly why the appeal court overturned the decision saying that taking some funding away from Planned Parenthood was a bill of attainder.
Given that ACORN was only getting 10% of its funding from the government, that was less clearly punitive than it is in the case of Planned Parenthood. Given the rulings in this area that fall on either side of the argument, you must at least concede that, were such a bill to pass, it would have to be carefully demonstrated that it did not fall under the category of attainder.
 
Posted by Gee D (# 13815) on :
 
I have read the decision - rather hard going as the style of writing is rather different to that used here. If I read it correctly, it would have been perfectly proper for the legislation to set as a test for funding eligibility that the organisation did not recommend abortion in any circumstances, or only in certain cases clearly set out. As it did not do so, it was struck down.
 
Posted by Dave W. (# 8765) on :
 
quote:
Originally posted by orfeo:
quote:
Originally posted by Dave W.:
quote:
Originally posted by orfeo:
I think that's exactly why the appeal court overturned the decision saying that taking some funding away from Planned Parenthood was a bill of attainder.
As far as I know, the decision in favor of Planned Parenthood of Central North Carolina has not been overturned.
Sorry, I mean the ACORN decision.
Right - which leaves the NC district court decision as an example of PP successfully arguing that defunding can amount to a bill of attainder.

I don't think the appellate decision in the ACORN case is necessarily as damaging to PP's prospects as you think. The court said "we doubt that the direct consequences of the appropriations laws temporarily precluding ACORN from federal funds are "so disproportionately severe" or "so inappropriate" as to constitute punishment per se." This is not a broad conclusion that withholding funding can never be considered punishment in determining whether a law is a bill of attainder.
 
Posted by Belle Ringer (# 13379) on :
 
quote:
Originally posted by Leorning Cniht:
The "funding" that Planed Parenthood gets from the government isn't a big check that says "we like Planned Parenthood and are going to pay for it to exist".

PP has two major sources of federal money - Medicaid and Title X. Neither of these is PP-specific...

The proposal is to make Planned Parenthood ineligible for these general programs, because it also provides abortions (but not with federal money).
Thanks for outlining the situation. I've not paid much attention, and mistakenly got the impression from headlines that PP is directly (partially) funded by government.

So the issue is redefining who qualifies as a medical care provider for Medicaid and Title X purposes? And the reason for proposing to define PP as not a valid provider has nothing to do with the care that has or hasn't been provided? Nor with any actual illegal activity? Not a good precedent.
 
Posted by Crœsos (# 238) on :
 
quote:
Originally posted by Belle Ringer:
Thanks for outlining the situation. I've not paid much attention, and mistakenly got the impression from headlines that PP is directly (partially) funded by government.
I suspect that mis-portrayal is deliberately cultivated by various opponents of Planned Parenthood.
 


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