Article 1, Section 9, Clause 3

No Bill of Attainder or ex post facto Law shall be passed.

Supreme Court cases have given “broad and generous meaning to the constitutional protection against bills of attainder” by interpreting it to ban not only legislation imposing a death sentence, as the term was used at English common law, but also legislation that imposes other forms of punishment on specific persons without trial.1 However, the Court has emphasized that legislation does not violate the Bill of Attainder Clause simply because it places legal burdens on a specific individual or group.2 Rather, as discussed in more detail below, a bill of attainder must also inflict punishment.3 Another key feature of a bill of attainder is that it applies retroactively: the Supreme Court has held that the Bill of Attainder Clause does not apply to legislation that “is intended to prevent future action rather than to punish past action.” 4 The Court has also held that the prohibition on bills of attainder does not safeguard the states against allegedly punitive federal legislation5 and does not protect U.S. citizens who commit crimes abroad and face trial in other jurisdictions.6 Overall, the Supreme Court’s decisions suggest that the Court has applied the Bill of Attainder Clause to prevent legislatures from circumventing the courts by punishing people without due process of law.

The Supreme Court applied the constitutional prohibitions on bills of attainder in a pair of Reconstruction-era cases, Ex parte Garland7 and Cummings v. Missouri.8 Garland concerned a federal statute, while Cummings involved a post-Civil War amendment to the Missouri constitution, but both of the challenged provisions required persons engaged in certain professions to swear an oath that they had never been disloyal to the United States.9 In both cases, the Court held that the effect of the challenged provisions was to punish a group of individuals who had been disloyal to the United States, and the punishment they faced was effective exclusion from the covered professions.10

Based on that holding, the Supreme Court invalidated the provisions as unconstitutional bills of attainder.11 In Cummings, the Court noted that the challenged state constitutional provisions did not expressly “define any crimes, or declare that any punishment shall be inflicted, but they produce[d] the same result upon the parties, against whom they are directed, as though the crimes were defined and the punishment was declared.” 12 The provisions “aimed at past acts, and not future acts,” and were “intended to operate by depriving such persons of the right to hold certain offices and trusts, and to pursue their ordinary and regular avoications.” 13 The Court held that this deprivation constituted a punishment, and that the purported option to avoid the restriction by swearing a loyalty oath did not make it less so:

In Garland, the Court applied its reasoning in Cummings to strike down the similar federal law.15

In the 1946 case United States v. Lovett, the Supreme Court struck down as a bill of attainder an appropriations bill cutting off the pay of certain named federal employees accused of being “subversives.” 16 The Court explained that the challenged legislation effectively declared specific persons guilty of the crime of subversive activities “without the safeguards of a judicial trial.” 17 The legislation further permanently barred those persons from government service, which qualified as “punishment . . . of a most severe type.” 18 Similarly, in the 1965 case United States v. Brown, the Court held that a federal statute making it a crime for a member of the Communist Party to serve as an officer of a labor union was a bill of attainder.19 The Brown Court eschewed a rigid historical view of the Bill of Attainder Clause, explaining that the clause

The Court concluded that Congress had “exceeded the authority granted it by the Constitution” in enacting the challenged statute because, rather than creating generally applicable rules for courts to apply, the statute “designate[d] in no uncertain terms the persons who possess . . . feared characteristics and therefore cannot hold union office without incurring criminal liability—members of the Communist Party.” 21 By contrast, in roughly contemporaneous cases, the Supreme Court rejected bill of attainder challenges to a decision of the Secretary of Health, Education and Welfare terminating old-age insurance benefits of an individual who had been deported22 and an order of the Subversive Activities Control Board requiring the Communist Party of the United States to register as a “Communist-action organization.” 23

The Supreme Court articulated the current test for whether a law is a bill of attainder in the 1977 case Nixon v. Administrator of General Services.24 In that case, former President Richard M. Nixon challenged provisions of a federal statute that directed the Administrator of General Services to take custody of and preserve his presidential papers and tape recordings.25 The Court held that a statute constitutes a bill of attainder only if it both applies with specificity and imposes punishment without trial.26 With respect to the legislation before it, the Supreme Court acknowledged “the Act’s specificity—the fact that it refer[red] to [President Nixon] by name.” 27 However, the Court rejected the proposition that an individual or defined group is subject to a bill of attainder “whenever he or it is compelled to bear burdens which the individual or group dislikes.” 28 Instead, the Court explained, Congress may in some circumstances regulate “a legitimate class of one.” 29 If such a law applies with specificity but does not impose punishment, it will not be struck down as a bill of attainder.30

The Nixon Court then proceeded to lay out three tests for assessing whether a law imposes punishment: (1) historical, (2) functional, and (3) motivational. The historical test looks to “[t]he infamous history of bills of attainder” to determine whether the law was one of a limited set of legislative actions that were deemed to be bills of attainder before the Founding and in prior Supreme Court cases.31 Those historical punishments included pre-Founding legislation imposing death sentences, imprisonment, and banishment, as well as the employment bans that were struck down in Cummings, Lovett, and Brown.32 The functional test considers “whether the law under challenge, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes.” 33 The motivational test looks to legislative history to determine “whether the legislative record evinces a congressional intent to punish.” 34 Finding that none of the three tests were satisfied in Nixon, the Supreme Court concluded that the law requiring the transfer and preservation of the presidential records did not qualify as a punishment under any of these three tests.35

The Court has continued to apply the Nixon framework in its rare Bill of Attainder cases since 1977. In Selective Service System v. Minnesota Public Interest Research Group, the Supreme Court rejected a bill of attainder challenge to a federal statute that denied student financial assistance to male students who failed to register for the draft.36 After holding that the statute did not single out a specific group based on past actions because “those failing to register timely can qualify for aid by registering late,” the Court concluded that none of the Nixon tests suggested that the law was punitive.37

Footnotes

1

Nixon, 433 U.S. at 469; see also Fletcher v. Peck, 10 U.S. 87, 138 (1810) ( “A bill of attainder may affect the life of an individual, or may confiscate his property, or may do both.” ).

2

Id. at 470–71.

3

Id. at 472–73; see also Trop v. Dulles, 356 U.S. 86, 95–96 (1958) ( “Each time a statute has been challenged as being in conflict with the constitutional prohibitions against bills of attainder and ex post facto laws, it has been necessary to determine whether a penal law was involved, because these provisions apply only to statutes imposing penalties.” (footnotes omitted)).

4

American Communications Ass’n, C.I.O., v. Douds, 339 U.S. 382, 414 (1950). The Bill of Attainder Clause is one of several constitutional provisions that limit the ability of the Federal Government and the states to legislate retroactively. See Landgraf v. USI Film Prods., 511 U.S. 244, 266 (1994).

5

South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966) ( “[C]ourts have consistently regarded the Bill of Attainder Clause of Article I and the principle of the separation of powers only as protections for individual persons and private groups, those who are peculiarly vulnerable to non-judicial determinations of guilt. . . . Nor does a State have standing as the parent of its citizens to invoke these constitutional provisions against the Federal Government, the ultimate parens patriae of every American citizen.” (internal citations omitted)).

6

Neely v. Henkel, 180 U.S. 109, 122 (1901) (holding that constitutional provisions including the Bill of Attainder Clause “have no relation to crimes committed without the jurisdiction of the United States against the laws of a foreign country” ).

7

71 U.S. 333 (1866).

8

71 U.S. 277 (1866).

9

See Garland, 71 U.S. at 334–35 (federal statute required attorneys practicing in federal court to swear an oath that they had never voluntarily borne arms against the United States or “given . . . aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto” ); Cummings, 71 U.S. at 280 (state constitutional provision required members of the clergy and others to swear, “I have always been truly and loyally on the side of the United States against all enemies thereof, foreign and domestic” ).

10

See Garland, 71 U.S. at 377 ( “The statute is directed against parties who have offended in any of the particulars embraced by these clauses [related to past disloyalty]. And its object is to exclude them from the profession of the law, or at least from its practice in the courts of the United States.” ); Cummings, 71 U.S. at 320 (The oath requirement “was exacted, not from any notion that the several acts designated indicated unfitness for the callings, but because it was thought that the several acts deserved punishment, and that for many of them there was no way to inflict punishment except by depriving the parties, who had committed them, of some of the rights and privileges of the citizen.” ).

11

Cummings, 71 U.S. at 325–29; Garland, 71 U.S. at 380.

12

Cummings, 71 U.S. at 327.

13

Id.

14

Id.

15

Garland, 71 U.S. at 377–78.

16

328 U.S. 303, 315 (1946).

17

Id. at 317. See also Bigelow v. Forrest, 76 U.S. 339, 345 (1869) ( “[The] limitation upon bills of attainder does not apply to proceedings in courts, in individual cases, where there are regular trials and formal proceedings in which the individual has full opportunity to defend.” ).

18

Id. at 313, 316.

19

381 U.S. 437, 440 (1965).

20

Id. at 442.

21

Id. at 450.

22

Flemming v. Nestor, 363 U.S. 603, 617 (1960) (holding that “the mere denial of a noncontractual governmental benefit” was not sufficently punitive to constitute a bill of attainder).

23

Communist Party of U.S. v. Subversive Activities Control Bd., 367 U.S. 1, 86 (1961) (registration requirement was not a bill of attainder because “[i]t attache[d] not to specified organizations but to described activities in which an organization may or may not engage,” the registration requirement applied only “after full administrative hearing, subject to judicial review,” and the law was not retroactive since parties subject to it could “escape regulation merely by altering the course of their own present activities” ).

24

433 U.S. 425 (1977).

25

Id. at 429.

26

Id. at 471–73.

27

Id. at 471–72.

28

Id. at 470.

29

Id. at 472.

30

Id.

31

Id. at 473.

32

Id. at 474–75.

33

Id. at 475–76. See also Trop v. Dulles, 356 U.S. 86, 96 (1958) ( “If [a] statute imposes a disability for the purposes of punishment—that is, to reprimand the wrongdoer, to deter others, etc., it has been considered penal. But a statute has been considered nonpenal if it imposes a disability, not to punish, but to accomplish some other legitimate governmental purpose.” ).

34

Id. at 478. “[O]nly the clearest proof could suffice to establish the unconstitutionality of a statute” based on punitive intent. Flemming v. Nestor, 363 U.S. 603, 617 (1960).

35

Id. at 484. In Local 28 of Sheet Metal Workers’ Int’l Ass’n v. Equal Employment Opportunity Com’n, the Supreme Court rejected as without merit the argument that a construction of Title VII of the Civil Rights Act of 1964 allowing a court to impose an affirmative action plan on an entity that violated Title VII had “the effect of making the Civil Rights Act an unconstitutional bill of attainder, visiting upon white persons the sins of past discrimination by others.” 478 U.S. 421, 481 n.50 (1986).

36

468 U.S. 841, 856 (1984).

37

Id. at 850–56.