Holder Clears Acorn for Payment: Darrell Issa Objects

What a slap in the face of taxpayers. The Justice Department has just directed payments be made to ACORN for costs incurred before they were caught trying to help a pimp and a prostitute set up an illegal smuggling operation of 13-year-old-girls brought to the U.S. for prostitution. Rep. Darrell Issa (R-CA) is objecting to the DOJ’s decision. Perhaps Congress can get over the turkey and stuffing and do something about the DOJ’s latest in a long list of obscenities.

 Darrell Issa

Issa’s statement at the bottom of this article accuses the administration of “a payback” to one of Obama’s political allies and says this latest move is “nothing more than old-fashioned cronyism.”

In this piece in the New York Times “reports,” if that’s what we can call it it, that ACORN has become a “target” of “conservative critics.” Obama was forced to sign legislation saying that no taxpayer monies would be provided to ACORN or it’s affiliates. Later in the article, the NYTs explains that the pimp and prostitute sought financial advice, but did not mention that the business involved 13-year-old girls, illegally smuggled for the purpose of prostitution.

An attorney for the Housing and Urban Development Department (HUD) queried the DOJ “whether the new law meant that pre-existing contracts with ACORN should be broken.” Since 1994, ACORN has received approximately $53 million of your hard-earned money and mine – most of it in grants from HUD.

The acting assistant attorney general for the Office of Legal Counsel, David Barron, wrote a five-page memorandum addressing the question. Here’s the bottom line of that memo:

We conclude, in agreement with the views we solicited and received, that the language of section 163 [the ban on payments to ACORN] is not clear with respect to whether its prohibition applies in cases where pre-existing law apart from section 163, including the contract itself, compels such a payment and where, accordingly, failure to make such a payment would subject the federal Government to contractual liability.  In accord with established interpretive principles for resolving such lack of clarity, we conclude that section 163 does not direct or authorize HUD to refuse payment on binding contractual obligations that predate the Continuing
Appropriations Resolution.

Then there is this government gibberish:

Section 163 states, “None of the funds made available by this joint resolution or any prior Act may be provided to the Association of Community Organizations for Reform Now (ACORN), or any of its affiliates, subsidiaries, or allied organizations.”  The term “provided to” has no established meaning in appropriations law.  As explained by the GAO Redbook, “[t]he two basic authorities conferred by an appropriation law are the authority to incur obligations and the authority to make expenditures.  An obligation results from some action that creates a liability or definite commitment on the part of the government to make an expenditure. . . . The expenditure is the disbursement of funds to pay the obligation.” …

By contrast, as we have noted, the term Congress elected to employ in section 163, “provided to,” has no clearly defined meaning in appropriations law.  See, e.g., GAO Glossary (containing no definition of “provision” or “provide”).  Moreover, appropriations case law and reference materials we have consulted, including the GAO Redbook, do not shed light on whether “provided to” in section 163 should be understood to prohibit a federal agency from making payments to satisfy pre-existing contractual obligations…

This is what we pay the Department of Justice to do on our behalf – to go to the American Heritage Dictionary to define the words “supply,” “furnish,” and “provide:”

To be sure, some common definitions of “provide,” such as “supply” or “furnish,” American Heritage Dictionary 1411 (4th ed. 2006), would appear to describe any transfer of funds, presumably including a transfer in satisfaction of an existing obligation.  Other definitions, however, connote a discretionary action.  For instance, “provide” may mean “contribute,” Webster’s New International Dictionary 1994 (2d ed. 1958), or “make available,” American Heritage Dictionary 1411 (4th ed. 2006), and “offer” is among its synonyms, Roget’s II: The New Thesaurus 780 (3d ed. 1995). 

And in common parlance, the verb “provide” frequently describes discretionary action taken to benefit another. Moreover, several of the word’s definitions incorporate a forward-looking aspect, see, e.g., Webster’s New International Dictionary 1994 (2d ed. 1958) (“to look out for in advance”; “to prepare”); Black’s Law Dictionary 1224 (6th ed. 1990) (“[t]o make, procure, or furnish for future use, prepare”), consistent with the etymology of “provide,” which derives from the Latin providere, meaning to see before, foresee, or be cautious, 12 Oxford English Dictionary 713 (2d ed. 1989).  Definitions of the word “expend,” we note, do not carry a similarly discretionary or forward-looking connotation, in keeping with the etymology of that word, which comes from the Latin expendere, meaning simply to pay or weigh.  5 id. at 561. 

But in the end, Mr. Barron’s conclusion is that Congress had the proper language at their disposal to stop payments to ACORN for contractual agreements prior to legislation banning additional government funds, and chose not to use that language. After looking at court cases that Barron saw as other “interpretative tools:” Cherokee Nation of Oklahoma v. Leavitt, Lynch v. United States, and United States v. Winstar Corp., Barron concludes:

Reading section 163 to prohibit payments to ACORN or its affiliates, subsidiaries, or allied organizations to satisfy a binding contractual obligation undertaken before enactment of section 163 would “undo a binding governmental contractual promise.”  Cherokee Nation, 543 U.S. at 646.  In accord with Cherokee Nation, the better reading of the section is therefore that it does not prohibit such payments.  This reading of “provided to” is especially appropriate here because, consistent with the canon of constitutional avoidance, see, e.g., Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 483 U.S. 568, 575 (1988), it not only avoids abrogating binding governmental contractual promises but also avoids the particular constitutional concerns that may be presented by reading the statute, which applies to specific named entities, to abrogate such contracts, including even in cases where performance has already been completed but payment has not been rendered.  

In sum, section 163 should not be read as directing or authorizing HUD to breach
a pre-existing binding contractual obligation to make payments to ACORN or its
affiliates, subsidiaries, or allied organizations where doing so would give rise to
contractual liability.  

 This from Rep. Issa, the ranking minority member on the House Committee on Oversight and Government Reform:

“the bipartisan intent of Congress was clear — no more federal dollars should flow to ACORN.”

“It is telling that this administration continues to look for every
excuse possible to circumvent the intent of Congress,” Issa said in a
statement. “Taxpayers should not have to continue subsidizing a
criminal enterprise that helped Barack Obama get elected president. The
politicization of the Justice Department to payback one of the
president’s political allies is shameful and amounts to nothing more
than old-fashioned cronyism.”

ACORN is already suing the government over the ban on funds:

The Constitution prohibits “bills of attainder” — legislation intended
to punish specific people or groups. Acorn has filed a lawsuit arguing
that the statute banning the government from providing it money amounts
to a bill of attainder.

If ACORN can sue the government, then taxpayers surely must sue the government for giving this incredibly corrupt organization funds for all these many years. How long will we let this go on?

See a list of Committee on Oversight and Government Reform members here, and call at (202) 225-5051 or the individual offices.