On the law, Huawei has a substantial claim in its suit against the U.S. government ban. Our constitution bans a “Bill of Attainder,” a law passed that is designed to enforce a judgement against an individual person.
The 2018 U.S. National Defense Authorization Act (NDAA) (PDF link) section 889 (Prohibition on certain telecommunications and video surveillance services) prevents the government and many others from buying
“Telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities).”
The U.S. Constitution is clear “No Bill of Attainder or ex post facto Law shall be passed.”
A Bill of Attainder bypasses the ordinary procedure of a judge and jury, considered a basic human right in the U.S. They were used by English King Henry VIII in 1542 to execute opponents.
I am not a lawyer, of course.
In addition, this is a highly charged case more likely to be settled politically than in court.
Thanks to Mikey Campbell for an article with a direct link to the passage.
Bill of attainder
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A bill of attainder (also known as an act of attainder or writ of attainder or bill of pains and penalties) is an act of a legislature declaring a person or group of persons guilty of some crime and punishing them, often without a trial. As with attainder resulting from the normal judicial process, the effect of such a bill is to nullify the targeted person’s civil rights, most notably the right to own property (and thus pass it on to heirs), the right to a title of nobility, and, in at least the original usage, the right to life itself. Bills of attainder passed in Parliament by Henry Vlll on 29 January 1542 resulted in the executions of a number of notable historical figures.
The use of these bills by Parliament eventually fell into disfavour due to the obvious potential for abuse and the violation of several legal principles, most importantly the right to due process, the precept that a law should address a particular form of behaviour rather than a specific individual or group, and the separation of powers.
- 2See also
- 4External links
Unlike the United States Constitution, there is no specific provision prohibiting the Commonwealth Government from passing bills of attainder. However, the High Court of Australia has ruled that bills of attainder are unconstitutional, because it is a violation of the separation of powers doctrine for any body other than a Chapter III court to wield judicial power. One of the core aspects of judicial power is the ability to make binding and authoritative decisions on questions of law, that is, issues relating to life, liberty or property. The wielding of judicial power by the legislative or executive branch includes the direct wielding of power and the indirect wielding of judicial power.
The state constitutions in Australia contain few limitations on government power. Bills of attainder are considered permissible because there is no entrenched separation of powers at the state level. However, section 77 of the Constitution of Australia permits state courts to be invested with Commonwealth jurisdiction, and any state law that renders a state court unable to function as Chapter III court (Commonwealth jurisdiction) is unconstitutional. The States cannot structure their legal systems to prevent them from being subject to the Australian Constitution.
An important distinction is that laws seeking to direct judicial power (e.g. must make orders) are unconstitutional, but laws that concern mandatory sentencing, rules of evidence, non-punitive imprisonment, or tests, are constitutional.
In two cases of attempts to pass bills (in 1984 for Clifford Olson and in 1995 for Karla Homolka) to inflict a judicial penalty on a specific person, the speakers of the House and Senate, respectively, have ruled that Canadian parliamentary practice does not permit bills of attainder or bills of pains and penalties.
Usage under English law
The word “attainder“, meaning “taintedness”, is part of English common law. Under English law, a criminal condemned for a serious crime, whether treason or felony (but not misdemeanour, which referred to less serious crimes), could be declared “attainted”, meaning that his civil rights were nullified: he could no longer own property or pass property to his family by will or testament. His property could consequently revert to the Crown or to the mesne lord. Any peerage titles would also revert to the Crown. The convicted person would normally be punished by judicial execution—when a person committed a capital crime and was put to death for it, the property left behind escheated to the Crown or lord rather than being inherited by family. Attainder functioned more or less as the revocation of the feudal chain of privilege and all rights and properties thus granted.
Due to mandatory sentencing, the due process of the courts provided limited flexibility to deal with the various circumstances of offenders. The property of criminals caught alive and put to death because of a guilty plea or jury conviction on a not guilty plea could be forfeited, as could the property of those who escaped justice and were outlawed; but the property of offenders who died before trial, except those killed during the commission of crimes (who fell foul of the law relating to felo de se), could not be forfeited, nor could the property of offenders who refused to plead and who were tortured to death through peine forte et dure.
On the other hand, when a legal conviction did take place, confiscation and “corruption of blood” sometimes appeared unduly harsh for the surviving family. In some cases (at least regarding the peerage) the Crown would eventually re-grant the convicted peer’s lands and titles to his heir. It was also possible, as political fortunes turned, for a bill of attainder to be reversed. This sometimes occurred long after the convicted person was executed.
Unlike the mandatory sentences of the courts, acts of Parliament provided considerable latitude in suiting the punishment to the particular conditions of the offender’s family. Parliament could also impose non-capital punishments without involving courts; such bills are called bills of pains and penalties.
Bills of attainder were sometimes criticised as a convenient way for the King to convict subjects of crimes and confiscate their property without the bother of a trial – and without the need for a conviction or indeed any evidence at all.
The first use of attainder was in 1321 against both Hugh le Despenser, 1st Earl of Winchester and his son Hugh Despenser the Younger, Earl of Gloucester. They were both attainted for supporting King Edward II during his struggle with the queen and barons.
In England, those executed subject to attainders include George Plantagenet, Duke of Clarence (1478); Thomas Cromwell (1540); Margaret Pole, Countess of Salisbury (1540); Catherine Howard (1542); Baron Thomas Seymour (1549); Duke Thomas Howard of Norfolk (1572); Earl Thomas Wentworth of Strafford (1641); Archbishop William Laud of Canterbury (1645); and the Duke James Scott of Monmouth. In the case of Catherine Howard, in 1541 King Henry VIII was the first monarch to delegate Royal Assent, to avoid having to assent personally to the execution of his wife.
After defeating Richard III and replacing him on the throne of England, Henry VII had Parliament pass a bill of attainder against his predecessor. It is noteworthy that this bill made no mention of the Princes in the Tower, although it does declare him guilty of “shedding of Infants blood.”
Although deceased by the time of the Restoration, the regicides John Bradshaw, Oliver Cromwell, Henry Iretonand Thomas Pride were served with a bill of attainder on 15 May 1660 backdated to 1 January 1649 (NS). After the committee stages, the bill passed both the Houses of Lords and Commons and was engrossed on 4 December 1660. This was followed with a resolution that passed both Houses on the same day:
That the Carcases of Oliver Cromwell, Henry Ireton, John Bradshaw, and Thomas Pride, whether buried in Westminster Abbey, or elsewhere, be, with all Expedition, taken up, and drawn upon a Hurdle to Tiburne, and there hanged up in their Coffins for some time; and after that buried under the said Gallows: And that James Norfolke Esquire, Serjeant at Arms attending the House of Commons, do take care that this Order be put in effectual Execution.
In 1685, when the Duke of Monmouth landed in West England and started a rebellion in an effort to overthrow his uncle, the recently enthroned James II, Parliament passed an bill of attainder against him. After the Battle of Sedgemoor, this made it possible for King James to have the captured Monmouth put summarily to death. Though legal, this was regarded by many as an arbitrary and ruthless act.
In 1753, the Jacobite leader Archibald Cameron of Locheil was summarily put to death on the basis of a seven-year-old bill of attainder, rather than being put on trial for his recent subversive activities in Scotland. This aroused some protests in British public opinion at the time, including from people with no Jacobite sympathies.
The Great Act of Attainder
In 1688, King James II of England (VII of Scotland), driven off by the ascent of William III and Mary II in the Glorious Revolution, came to Ireland with the sole purpose of reclaiming his throne. After his arrival, the Parliament of Ireland assembled a list of names in 1689 of those reported to have been disloyal to him, eventually tallying between two and three thousand, in a bill of attainder. Those on the list were to report to Dublin for sentencing. One man, Lord Mountjoy, was in the Bastille at the time and was told by the Irish Parliament that he must break out of his cell and make it back to Ireland for his punishment, or face the grisly process of being drawn and quartered. The parliament became known in the 1800s as the “Patriot Parliament“.
Later defenders of the Patriot Parliament pointed out that the ensuing “Williamite Settlement forfeitures” of the 1690s named an even larger number of Jacobite suspects, most of whom had been attainted by 1699.
In the Westminster system (and especially in the United Kingdom), a similar concept is covered by the term “private bill” (a bill which upon passage becomes a private Act). Note however that “private bill” is a general term referring to a proposal for legislation applying to a specific person; it is only a bill of attainder if it punishes them; private bills have been used in some Commonwealth countries to effect divorce. Other traditional uses of private bills include chartering corporations, changing the charters of existing corporations, granting monopolies, approving of public infrastructure and seizure of property for those, as well as enclosure of commons and similar redistributions of property. Those types of private bills operate to take away private property and rights from certain individuals, but are usually not called “bill of pains and penalties”.
The last United Kingdom bill called a “Pains and Penalties Bill” was Pains and Penalties Bill 1820 and was passed by the House of Lords in 1820, but not considered by the House of Commons; it sought to divorce Queen Carolinefrom King George IV and adjust her titles and property accordingly, on grounds of her alleged adultery, as did many private bills dealing with divorces of private persons.
It has been reported that no bills of attainder have been passed since 1820 in the UK. Attainder as such was also a legal consequence of convictions in courts of law, but this ceased to be a part of punishment in 1870.
World War II
Previously secret British War Cabinet papers released on 1 January 2006 have shown that, as early as December 1942, the War Cabinet had discussed their policy for the punishment of the leading Nazis if captured. British Prime Minister Winston Churchill had then advocated a policy of summary execution with the use of an Act of Attainder to circumvent legal obstacles. He was dissuaded by cabinet minister Richard Law who pointed out that the United States and Soviet Union still favoured trials.
Bills of attainder were used through the 18th century in England, and were applied to British colonies as well. Some colonists were inspired to the American Revolution because of anger at the injustice of attainder. Although at least one American state used a bill of attainder to confiscate the property of a British loyalist (called Tories) during the war (New York, in the 1779 case of Parker Wickham), American dissatisfaction with British attainder laws resulted in their being prohibited in the U.S. Constitution ratified in 1789.
Excerpt from Article One, Section 9 of the United States Constitution, prohibiting the passing of bills of attainder
The United States Constitution forbids legislative bills of attainder: in federal law under Article I, Section 9, and in state law under Article I, Section 10. The fact that they were banned even under state law reflects the importance that the framers attached to this issue.
Within the U.S. Constitution, the clauses forbidding attainder laws serve two purposes. First, they reinforced the separation of powers, by forbidding the legislature to perform judicial or executive functions—since the outcome of any such acts of legislature would of necessity take the form of a bill of attainder. Second, they embody the concept of due process, which was partially reinforced by the Fifth Amendment to the Constitution. The text of the Constitution, Article I, Section 9, Clause 3 is “No Bill of Attainder or ex post facto Law shall be passed”.
No bill of attainder, ex post facto law, nor any law impairing the obligation of contracts, shall ever be passed, and no conviction shall work corruption of blood or forfeiture of estate.
Contrast this with the Texas version: Article 1 (Titled Bill of Rights) Section 16, entitled Bills of Attainder; Ex Post Facto or Retroactive Laws: Impairing Obligation of Contracts: “No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made”. It is unclear whether a contract that calls for heirs to be deprived of their estate is allowed under this law.
Cases before the U.S. Supreme Court
The U.S. Supreme Court has invalidated laws under the Attainder Clause on five occasions.
Two of the United States Supreme Court‘s first decisions on the meaning of the bill of attainder clause came after the American Civil War. In Ex parte Garland, 71 U.S. 333 (1866), the court struck down a federal law requiring attorneys practising in federal court to swear that they had not supported the rebellion. In Cummings v. Missouri, 71 U.S. 277 (1867), the Missouri constitution required anyone seeking a professional’s license from the state to swear they had not supported the rebellion. The Supreme Court overturned the law and the constitutional provision, arguing that the people already admitted to practice were subject to penalty without judicial trial. The lack of judicial trial was the critical affront to the Constitution, the Court said.
Two decades later, however, the Court upheld similar laws. In Hawker v. New York, 170 U.S. 189 (1898), a state law barred convicted felons from practising medicine. In Dent v. West Virginia, 129 U.S. 114 (1889), a state law imposed a new requirement that practising physicians had to have graduated from a licensed medical school or they would be forced to surrender their license. The Court upheld both laws because, it said, the laws were narrowly tailored to focus on an individual’s qualifications to practice medicine. That was not true in Garland or Cummings.
The Court changed its “bill of attainder test” in 1946. In United States v. Lovett, 328 U.S. 303 (1946), the Court confronted a federal law that named three people as subversive and excluded them from federal employment. Previously, the Court had held that lack of judicial trial and the narrow way in which the law rationally achieved its goals were the only tests of a bill of attainder. But the Lovett Court said that a bill of attainder 1) specifically identified the people to be punished; 2) imposed punishment; and 3) did so without benefit of judicial trial. As all three prongs of the bill of attainder test were met in Lovett, the court held that a congressional statute that bars particular individuals from government employment qualifies as punishment prohibited by the bill of attainder clause.
The Taft–Hartley Act (enacted in 1947) sought to ban political strikes by Communist-dominated labour unions by requiring all elected labour leaders to take an oath that they were not and had never been members of the Communist Party USA, and that they did not advocate violent overthrow of the U.S. government. It also made it a crime for members of the Communist Party to serve on executive boards of labour unions. In American Communications Association v. Douds, 339 U.S. 382 (1950), the Supreme Court had said that the requirement for the oath was not a bill of attainder because: 1) anyone could avoid punishment by disavowing the Communist Party, and 2) it focused on a future act (overthrow of the government) and not a past one. Reflecting current fears, the Court commented in Douds on approving the specific focus on Communists by noting what a threat communism was. The Court had added an “escape clause” test to determining whether a law was a bill of attainder.
In United States v. Brown, 381 U.S. 437 (1965), the Court invalidated the section of the statute that criminalized a former communist serving on a union’s executive board. Clearly, the Act had focused on past behaviour and had specified a specific class of people to be punished. But if this specific focus in Brown was constitutionally invalid, why was it not constitutionally invalid in Douds? (Many legal scholars assumed that the Brown case effectively, if not officially, overruled Douds.) Additionally, the Court did not apply the punishment prong of its test, leaving legal scholars confused as to whether the Court still intended it to apply.
The Supreme Court emphasised the narrowness and rationality of bills of attainder in Nixon v. Administrator of General Services, 433 U.S. 425 (1977). During the Watergate scandal, in 1974 Congress passed the Presidential Recordings and Materials Preservation Act, which required the General Services Administration to confiscate former President Richard Nixon‘s presidential papers to prevent their destruction, screen out those which contained national security and other issues which might prevent their publication, and release the remainder of the papers to the public as fast as possible. The Supreme Court upheld the law in Nixon, arguing that specificity alone did not invalidate the act because the President constituted a “class of one”. Thus, specificity was constitutional if it was rationally related to the class identified. The Court modified its punishment test, concluding that only those laws which historically offended the bill of attainder clause were invalid. The Court also found it significant that Nixon was compensated for the loss of his papers, which alleviated the punishment.The Court modified the punishment prong by holding that punishment could survive scrutiny if it was rationally related to other, nonpunitive goals. Finally, the Court concluded that the legislation must not be intended to punish; legislation enacted for otherwise legitimate purposes could be saved so long as punishment was a side-effect rather than the main purpose of the law.
Cases considered by lower courts
A number of cases which raised the bill of attainder issue did not reach or have not reached the Supreme Court, but were considered by lower courts.
In 1990, in the wake of the Exxon Valdez oil spill, Congress enacted the Oil Pollution Act to consolidate various oil spill and oil pollution statutes into a single unified law, and to provide for a statutory regime for handling oil spill cleanup. This law was challenged as a bill of attainder by the shipping division of ExxonMobil.
In 2003, the United States Court of Appeals for the District of Columbia Circuit struck down the Elizabeth Morgan Act as a bill of attainder.
After the United States House of Representatives passed a resolution in late 2009 barring the community organising group Association of Community Organizations for Reform Now (ACORN) from receiving federal funding, the group sued the U.S. government. 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. 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”.
Some analysts considered a proposed Congressional bill to confiscate 90 percent of the bonus money paid to executives at federally rescued investment bank American International Group a bill of attainder, although disagreement exists on the issue. The bill was not passed by Congress.
In 2009, the City of Portland’s attempt to prosecute more severely those on a “secret list” of 350 individuals deemed by police to have committed “liveability crimes” in certain neighbourhoods was challenged as unconstitutional bill of attainder.
In 2011, the House voted to defund Planned Parenthood. Democratic Representative Jerry Nadler called that vote a bill of attainder, saying it was unconstitutional as such because the legislation was targeting a specific group.