National Constitution Center
Rediscovering the ancient “bill of attainder”
May 24, 2019 by Lyle Denniston
Federal and state judges these days are finding a new assignment: reading up on what the Supreme Court once called “the infamous history of bills of attainder.”
A federal judge in Sherman, Texas, is going to be doing that soon, and there is a real prospect that a judge in New York State will also be doing so shortly.
By coincidence, the Trump Administration’s lawyers are trying to thwart a Chinese telecom company’s challenge to a federal law that the company calls a “bill of attainder,” while personal lawyers for President Trump are expected to be making a similar challenge in a separate case to a measure that shortly will become a state law in New York.
The Chinese firm Huawei is challenging a new federal law seeking to thwart suspected Chinese government manipulation of software used by federal agencies, while President Trump’s personal team seems poised to challenge a just-passed state law affecting disclosure of his personal and business tax records.
Both cases appear likely to be significant tests of the concept of a “bill of attainder.”
Those have been defined by the Supreme Court as actions of legislatures (federal or state) that single out a specific individual (or entity), declare that person or entity to be guilty, and impose punishment – all without a court trial.
The Court has been examining bills of attainder since 1810 and the time of Chief Justice John Marshall to define how these kinds of legislation that would fit into the forbidden category.
Since 1787, the Constitution has contained a clause – not further defined – saying simply that “no bill of attainder…shall be passed.”
That clause probably was originally aimed at barring Congress from passing such a bill, since it is contained in a long list of clauses dealing with congressional powers.
The Supremacy Clause in Article VI also means that the ban applies to state legislatures, too.
In fact, two of the Supreme Court’s most significant precedents on the clause’s meaning, issued in 1867 and still followed, involved a state law in Missouri as well as a federal law requiring a loyalty oath of former supporters of the Confederacy during the Civil War.
The concept of “attainder” by legislation dates back at least to 16th Century England.
Traditionally, it was used by Parliament to single out and punish – often, by death — the political enemies of the crown.
Some of America’s pre-constitutional colonies followed the practice to punish individuals loyal to the English crown, but those who wrote the Constitution in Philadelphia in 1787 were determined to forbid the practice and did so as part of Article I.
The Supreme Court once remarked that the clause was “an important bulwark against tyranny.”
Since the likelihood today is that the two highest-profile cases testing new laws as forbidden “bills of attainder” both involve President Trump or his Administration in one way or another, it is useful to note that the Supreme Court went the furthest to spell out the meaning of the clause in a famous decision in 1977, Nixon v. Administrator Of General Services, involving another President, Richard M. Nixon.
Reacting to the Watergate scandal which had led to Nixon’s resignation from the presidency in 1972, Congress two years later passed a presidential records law that, for the first time in U.S. history, overturned the long-standing view that a President’s records were the personal, private property of the occupant of the office.
The law gave the federal government control of the famous Nixon White House audiotapes and some 138 boxes of Nixon’s documents and papers.
That overturned an agreement that a government agency had made with Nixon that would have allowed him, later on, to destroy the tapes.
Nixon was given access to the materials, but they belonged to the government.
Among other unsuccessful constitutional challenges to the law, Nixon’s lawyers claimed that it was a bill of attainder, punishing him for what Congress saw as the wrongs of the Watergate scandal.
In its decision, by a vote of 7-to-2, the Court declared that the clause was meant to apply only to a legislative measure that (1) actually singled out an identified individual or group, (2) imposed a form of punishment, and (3) barred any trial in court of that individual or group for the alleged wrongdoing.
In applying those three tests, the Court told lower courts to take into account the history of punishment that was traditionally forbidden or strictly limited, to look at whether the legislators passing such a bill were motivated to punish, and to determine whether the measure served a legislative goal other than punishing the specified individual or group.
Since March 2019, that 1977 precedent has been undergoing a new review in the Sherman, Texas, court of U.S. District Judge Amos T. Mazzant III in a case filed by Huawei Technologies, USA.
That is the U.S. affiliate of the Chinese telecom giant, Huawei.
The lawsuit, in which Trump Administration lawyers are scheduled to file in July a formal motion to dismiss, raised several constitutional challenges to a defense authorization bill passed last year by Congress that imposes a ban on federal government agencies using Huawei electronic equipment and devices and a ban on those agencies doing business with users of those supplies.
The law was prompted by worries in Congress that Huawei was essentially a part of the Chinese military and was likely to use those devices, when installed in government facilities, as a way to manipulate software in ways that are harmful to U.S. defense and commerce.
The bill of attainder claim is the first and most prominent of Huawei’s constitutional arguments.
Since that lawsuit was filed, President Trump has issued an executive order declaring a national emergency in the telecom field, further isolating Huawei from U.S. business opportunity.
That order is clearly targeting Huawei and it is being applied by the Commerce Department to the Chinese company and 70 of its affiliates.
So far, that presidential order has not become a part of Huawei’s lawsuit in Texas, but no doubt will become part of the evidence supporting the basic claim that the company is being singled out unconstitutionally.
The next lawsuit that seems likely to be filed, and quite soon, would challenge a measure that cleared the New York legislature on Wednesday, and it is expected to be signed into law promptly by Governor Andrew Cuomo.
That measure was challenged throughout the legislative session by supporters of President Trump, including some Republican legislators, who argued that it will impose punishment on President Trump alone, and thus is an unconstitutional bill of attainder.
The law as passed by the legislature would authorize New York state officials to turn over to any of three committees of Congress the state tax returns filed by the President and his businesses that are headquartered in New York.
The measure provides that a congressional committee must first attempt to obtain Trump’s federal tax returns from the U.S. Treasury, and can then seek the state returns from New York officials.
President Trump and his associates have refused to obey subpoenas to turn over to congressional committees six years of the President’s federal returns.
State returns probably contain much of the same information, and thus could supply at least some of what a congressional panel has been unable to obtain from the Treasury.
Because of the President’s strong resistance to disclosure of his personal and business records, it is generally expected that the New York law will be tested in court as soon as it becomes law with the governor’s signature.
An initial move probably would be a plea to put the state law on hold while the legal challenge proceeds.
The bill of attainder claim could be put forth in a lawsuit either in federal or state court since both have authority to apply constitutional provisions.
Lyle Denniston has been writing about the Supreme Court since 1958. His work has appeared here since mid-2011.
https://constitutioncenter.org/blog/red ... -attainder
ON ATTAINDER
Re: ON ATTAINDER
ENCYCLOPÆDIA BRITANNICA
Attainder
Attainder, in English law, the extinction of civil and political rights resulting from a sentence of death or outlawry after a conviction of treason or a felony.
The most important consequences of attainder were forfeiture and corruption of blood.
For treason, an offender’s lands were forfeited to the king.
For felonies, lands were forfeited to the king for a year and a day and then, because felonies were considered a breach of the feudal bond, escheated (forfeited) to the lord from whom the offender held his tenure.
Subsequently, in Magna Carta (1215), the crown renounced its claim to forfeiture in the case of felony.
Even harsher than attainder was the doctrine of corruption of blood, by which the person attainted was disqualified from inheriting or transmitting property and his descendants were forever barred from any inheritance of his rights to title.
All forms of attainder — except the forfeiture that followed indictment for treason — were abolished during the 19th century.
As a result of the English experience, the framers of the Constitution of the United States provided (Article III, Section 3) that “the Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.”
Historically, a legislative act attainting a person without a judicial trial was known as a bill of attainder or — if punishment was less than death — as a bill of pains and penalties.
The power of Parliament to declare guilt and impose punishment by such measures was well established by the 15th century.
During the Wars of the Roses (1455–85), bills of attainder were used by rival factions to rid themselves of each other’s leaders, and later King Henry VIII (reigned 1509–47) induced both the House of Lords and the House of Commons to pass such bills against ministers whom he had ceased to trust.
Unlike impeachment, which is a judicial proceeding in the House of Lords on charges made by the House of Commons, a bill of attainder was a legislative act adopted by both houses with the formal consent of the king.
The offenses charged in such bills were usually characterized as treason but did not have to satisfy established legal definitions of that or any other crime.
Thus, bills of attainder have generally been deplored not only because they deprived the accused of a fair trial but also because of their typically ex post facto quality.
The dominant faction of the legislature could make any past conduct that it found offensive into a crime.
In England the last bill of attainder was against Lord Edward Fitzgerald, who was condemned to death by an act of Parliament for leading the 1798 rebellion in Ireland.
The last bill of pains and penalties, introduced in 1820, led to a legislative trial of Queen Caroline, wife of King George IV, on charges of adultery, but the bill was not passed.
Acts of attainder or of pains and penalties were passed by some of the American colonial legislatures until the Constitution forbade them.
In applying these prohibitions, the Supreme Court of the United States has expanded the historical conception of attainder.
It invoked these clauses in 1867 in Cummings v. Missouri and Ex parte Garland to strike down loyalty oaths passed after the American Civil War to disqualify Confederate sympathizers from practicing certain professions.
Similarly, in United States v. Lovett (1946), the court invalidated as a bill of attainder a section of an appropriation bill forbidding the payment of salaries to named government officials who had been accused of being subversive.
Later decisions, however, have declined to treat requirements of loyalty oaths as bills of attainder, though they have invalidated such requirements on other grounds.
Nixon v. Administrator of General Services (1977) held that the Presidential Recordings and Materials Preservation Act was not a bill of attainder even though the law referred to President Richard Nixon by name.
This law directed the administrator of the General Services Administration to seize tape recordings, papers, and other materials then in Nixon’s possession.
The law did not impose a punishment and did not evidence a congressional intent to punish.
In light of the fact that Nixon was the only president to resign under threat of impeachment by the House of Representatives, the court held that the “appellant constituted a legitimate class of one.”
https://www.britannica.com/topic/attainder
Attainder
Attainder, in English law, the extinction of civil and political rights resulting from a sentence of death or outlawry after a conviction of treason or a felony.
The most important consequences of attainder were forfeiture and corruption of blood.
For treason, an offender’s lands were forfeited to the king.
For felonies, lands were forfeited to the king for a year and a day and then, because felonies were considered a breach of the feudal bond, escheated (forfeited) to the lord from whom the offender held his tenure.
Subsequently, in Magna Carta (1215), the crown renounced its claim to forfeiture in the case of felony.
Even harsher than attainder was the doctrine of corruption of blood, by which the person attainted was disqualified from inheriting or transmitting property and his descendants were forever barred from any inheritance of his rights to title.
All forms of attainder — except the forfeiture that followed indictment for treason — were abolished during the 19th century.
As a result of the English experience, the framers of the Constitution of the United States provided (Article III, Section 3) that “the Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.”
Historically, a legislative act attainting a person without a judicial trial was known as a bill of attainder or — if punishment was less than death — as a bill of pains and penalties.
The power of Parliament to declare guilt and impose punishment by such measures was well established by the 15th century.
During the Wars of the Roses (1455–85), bills of attainder were used by rival factions to rid themselves of each other’s leaders, and later King Henry VIII (reigned 1509–47) induced both the House of Lords and the House of Commons to pass such bills against ministers whom he had ceased to trust.
Unlike impeachment, which is a judicial proceeding in the House of Lords on charges made by the House of Commons, a bill of attainder was a legislative act adopted by both houses with the formal consent of the king.
The offenses charged in such bills were usually characterized as treason but did not have to satisfy established legal definitions of that or any other crime.
Thus, bills of attainder have generally been deplored not only because they deprived the accused of a fair trial but also because of their typically ex post facto quality.
The dominant faction of the legislature could make any past conduct that it found offensive into a crime.
In England the last bill of attainder was against Lord Edward Fitzgerald, who was condemned to death by an act of Parliament for leading the 1798 rebellion in Ireland.
The last bill of pains and penalties, introduced in 1820, led to a legislative trial of Queen Caroline, wife of King George IV, on charges of adultery, but the bill was not passed.
Acts of attainder or of pains and penalties were passed by some of the American colonial legislatures until the Constitution forbade them.
In applying these prohibitions, the Supreme Court of the United States has expanded the historical conception of attainder.
It invoked these clauses in 1867 in Cummings v. Missouri and Ex parte Garland to strike down loyalty oaths passed after the American Civil War to disqualify Confederate sympathizers from practicing certain professions.
Similarly, in United States v. Lovett (1946), the court invalidated as a bill of attainder a section of an appropriation bill forbidding the payment of salaries to named government officials who had been accused of being subversive.
Later decisions, however, have declined to treat requirements of loyalty oaths as bills of attainder, though they have invalidated such requirements on other grounds.
Nixon v. Administrator of General Services (1977) held that the Presidential Recordings and Materials Preservation Act was not a bill of attainder even though the law referred to President Richard Nixon by name.
This law directed the administrator of the General Services Administration to seize tape recordings, papers, and other materials then in Nixon’s possession.
The law did not impose a punishment and did not evidence a congressional intent to punish.
In light of the fact that Nixon was the only president to resign under threat of impeachment by the House of Representatives, the court held that the “appellant constituted a legitimate class of one.”
https://www.britannica.com/topic/attainder