At Philly.com, David S. Cohen (Drexel): Congress Violates Constitution with Planned Parenthood Vote. The core of the argument:
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.
At NRO, Ed Whelan is a little skeptical:
Cohen asserts, without citing any authority, that “removing Planned Parenthood’s federal funding … is a clear instance of punishment.” Oh, really?? So discontinuing a federal subsidy is punishment? That’s quite an extraordinary claim—one that would seem to call for some actual argument in support.
Cohen may be right that the Court would hold that corporations have protections against bills of attainder. But he seems not to understand that the proposition that a corporation is a legal person is not equivalent to the proposition that a corporation is an individual. In any event, what counts as punishment for a corporation isn’t easy to extrapolate from what counts as punishment for an individual.
(See also his followup here, noting that the Second Circuit rejected a similar attainder argument in the ACORN litigation, reversing a district court that had accepted it).
The issue illustrates nicely the basic difference between originalism and living constitutionalism. Under originalism, we would investigate the actual practices of the eighteenth century to understand whether denying funding in this sort of context (that is, in response to alleged bad acts) counts as attainder. (I'd be pretty surprised if it did, but the key is you can't know without looking). Under living constitutionalism, Professor Cohen can make his argument, and we will agree or disagree based on our policy preferences (and the matter will eventually be resolved by judges based on their policy preferences). Which system is better is the core of the debate. Some people say putting the choice this starkly oversimplifies, but in this case I think it doesn't.
Posted at 6:07 AM