The Bill of Attainder Clause in the U.S. Constitution

Since 2018, the United States has leveraged state power and resorted to “legal means” to suppress Chinese company Huawei Technologies Co., Ltd. (hereinafter referred to as “Huawei“), a leading player in high-tech sectors such as 5G. In the legislative branch, the U.S. Congress passed The National Defense Authorization Act for Fiscal Year 2019, which not only bars U.S. government agencies from buying Huawei equipment and services, it also bars them from contracting with or awarding grants or loans to Huawei’s customers.[1] The executive branch also took action against Huawei; the U.S. Department of Commerce added Huawei and over 150 of its affiliated companies to the Entity List.[2] As for the judicial branch, the United States requested that Canada arrest Huawei’s Chief Financial Officer Meng Wanzhou during her transit through Vancouver,[3] and filed criminal charges against her, requesting her extradition from Canada.[4]

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In the face of all-round suppression from the U.S., Huawei filed a constitutional lawsuit in the U.S. District Court for the Eastern District of Texas in March 2019[5], alleging that Section 889 of The National Defense Authorization Act for Fiscal Year 2019 (hereinafter referred to as “NDAA Section 889 of NDAA”) targets and punishes Huawei, violates the Bill of Attainder Clause in the U.S. Constitution, and thus requested the Court to declare the Act unconstitutional.[6]

It is both reasonable and necessary for Huawei to defend its legal rights by filing the lawsuit challenging the constitutionality of Section 889 of NDAA, citing the Bill of Attainder Clause as the core legal basis of the challenge. First, according to the U.S. Constitution, after a bill is debated and passed by the House and the Senate, it is submitted to the President for approval. Once signed, the legislative process is completed. During this process, parties who may be affected by the bill are not endowed with the procedural rights to plead or be heard. As a result, Huawei is not entitled to seek relief directly from the U.S. Congress other than to challenge the constitutionality of the legislation at issue by filing a constitutional lawsuit. This makes Huawei’s countermeasures against this act of Congress significantly different from its countermeasures to the U.S. administrative and judicial actions. Second, prohibiting the legislature from enacting bills of attainder is an important clause in the U.S. Constitution. It is one of the fundamental institutional safeguards for maintaining the U.S. constitutional order and ensuring the separation of powers.[7] There are as many as 5 judicial precedents where the U.S. Supreme Court ruled that the alleged legislations were unconstitutional on the grounds of the Bill of Attainder Clause[8]. Therefore, Huawei cut to the point and challenged the congressional legislation on the grounds that it violated this clause.

However, in February 2020, the District Court ruled against Huawei. Citing the “two-pronged test,”[9] the judge held that Section 889 of NDAA satisfied the “specificity” element, yet did not impose a “punishment”, and therefore was not a bill of attainder.[10] The plaintiffs in both this case and the similar case of Kaspersky v. United States were rejected by the court, which are of particular theoretical significance.[11] In recent years, the U.S. Congress has frequently enacted particularized legislations against specific targets on the grounds of national security, and the justice system has repeatedly endorsed the constitutionality of such legislation. Does this mean that American courts’ interpretation of the Bill of Attainder Clause has deviated from the once long-held position of the Supreme Court? Is this a departure from the original intention of the Framers, who banned bills of attainder in the U.S. Constitution? Will this weaken or even undermine the constitutional function of the Bill of Attainder Clause? Will the U.S. constitutional order based on the separation of powers be affected? Such questions have attracted attention and prompted discussion in academic circles.[12]

This book traces the origin of bills of attainder, then examines the historical background and considerations of the Framers who wrote the Bill of Attainder Clause into the U.S. Constitution. On this basis, the book outlines the landmark judicial precedents set by the U.S. Supreme Court on bills of attainder, then refines and summarizes the constitutional functions of the clause. Finally, the book analyzes the reasoning behind the District Court’s decision in Huawei v. United States and evaluates the possible impact of this case.

Please follow this link to download the e-book: The Bill of Attainder Clause in the U.S. Constitution: Origin, Evolution, and Reflection — From Huawei v. U.S.

Thanks to China Going Global Thinktank Service (CGGT) for sponsoring this post.

[1] See John S. McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. No. 115-232, §889, 132 Stat. 1636, 1917 (2019).

[2] Commerce Department Further Restricts Huawei Access to U.S. Technology and Adds Another 38 Affiliates to the Entity List, https://www.commerce.gov/news/press-releases/2020/08/commerce-department-further-restricts- huawei-access-us-technology-and

[3] Daisuke Wakabayashi & Alan Rappeport, Huawei CF.O. is Arrested in Canada for Extradition to the U.S., N.Y. TIMES (Dec. 5, 2018), https://www.nytimes.com/2018/12/05/business/ huawei-cfo-arrest-canada-extradition.html [https://perma.cc/WM42-YC8M].

[4] Press Release, U.S. Dep’t of Justice, Chinese Telecommunications Conglomerate Huawei and Huawei CFO Wanzhou Meng Charged with Financial Fraud (Jan. 28, 2019), https://www.justice.gov/opalpr/chinese- telecommunications-conglomerate-huawei-and-huaweicfo-wanzhou-meng-charged-financial [https://perma.cc/5FTX-HJTC]. Meng was charged with bank fraud, wire fraud, and their accompanying conspiracies. Superseding Indictment at 10-20, United States v. Huawei Techs. Co., No. 1:18-CR-00457 (E.D.N Y. filed Jan. 24, 2019).

[5]The plaintiffs in this case are Huawei Technologies Co., Ltd. and its subsidiary Huawei Technologies USA,Inc., and the defendants are the United States, Secretary of Agriculture, Acting Secretary of the Interior, and several other federal government secretaries. See Complaint, Huawei Technologies USA, Inc. v. United States, No. 4:19-cv-00159(E.D. Tex. 2019), https://www.wsj.com/public/resources/documents/huawei.pdf?mod=article_inline; see also Motion for Summary Judgment, Huawei Technologies Co., Ltd. v. United States, No. 4:19-cv-159- ALM(E.D. Tex., May 28, 2019).

[6] In addition, Huawei made another two claims: Section 889 of NDAA violates the Due Process Clause by effectively branding Huawei a tool of the Chinese government, denying it any opportunity or legal process to confront the charges against it. By enacting this rule, U.S. Congress acted as a legislator, prosecutor and jury at the same time, which violated the principle of separation of powers established by the Vesting Clauses. Wilson C. Freeman, Huawei v. United States: The Bill of Attainder Clause and Huawei’s Lawsuit Against the United States, Congressional Research Service, 7-5700 http://www.crs.gov LSB10274.

[7] John J. Cavaliere II., “The Bill of Attainder Clauses: Protections from the Past in the Modern Administrative State,” Ave Maria Law Review 12, no. 1 (Winter 2014):149-172, p.149.

[8] See Brown, 381 U.S. 437 (1965); Lovett, 328 U.S. 303 (1946); Pierce v. Carskadon, 83 U.S. 234(1872);

Cummings v. Missouri, 71 U.S. 277 (1867); Ex parte Garland, 71 U.S. 333 (1866).

[9] See below for the content of this test.

[10] Memorandum Opinion and Order, Huawei Technologies USA, Inc. et al v. United States of America, et al, No.4:19-cv159-ALM (E.D. Tex., Feb. 18, 2020), pp.16-51.

[11] In 2017, amid concerns that Kaspersky was using its antivirus software to help the Russian government infiltrate U.S. networks and steal sensitive information, the U.S. Department of Homeland Security issued a directive to the federal government to stop using Kaspersky’s software within 90 days. Subsequently, The National Defense Authorization Act for Fiscal Year 2017 established a rule prohibiting the use of Kaspersky products by the U.S. government and its affiliated agencies. In December 2017, Kaspersky filed a lawsuit in the DC Court against the U.S. Department of Homeland Security, alleging that the U.S. government violated the U.S. Constitution’s prohibition against Congress passing bills of attainder and the Due Process Clause in both The U.S Administrative Procedure Act and the U.S. Constitution, and deprived Kaspersky of the right to complain through due process. However, both the DC Court and the Court of Appeals ruled against Kaspersky, mainly on the grounds that the U.S. federal legislation and the Department of Homeland Security’s ban on Kaspersky was to protect U.S. networks from Russian intrusion, which was a preventive measure, not a punitive one, and therefore constituted sufficient legality and was not unconstitutional. Kaspersky Lab, Inc. v. U.S. Dep’t of Homeland Sec., 909 F.3d 446, 454 (D.C. Cir. 2018).

[12] See eg., Alina Veneziano, “The Relationship between the Bill of Attainder Clause, the Use of Sanctions as a Regulatory Tool for Foreign Trade, and Corporate Personhood,” Journal of Legislation 46, no. 2 (2019): 276-302; Alina Veneziano, “What is the Huawei Case Really About? Sanctions to Regulate Technology?” Journal of International & Comparative Law Harrison A. Newman, “Corporations under the Bill of Attainder Clause,” Duke Law Journal 69, no. 4 (January 2020): 923-958.