Bill of Attainder - U.S. Usage - Cases

Cases

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 practicing 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.

Just 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 practicing medicine. In Dent v. West Virginia, 129 U.S. 114 (1889) a state law imposed a new requirement that practicing 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 which 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. 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. All three new prongs of the bill of attainder test were met in Lovett, and the court held that a congressional statute which bars particular individuals from government employment qualifies as punishment prohibited by the bill of attainder clause.

The Court shifted its position again just a few years later. The Taft–Hartley Act (enacted in 1947) sought to ban political strikes by Communist-dominated labor unions by requiring all elected labor leaders to take an oath that they were not and have 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 labor unions. In American Communications Association v. Douds, 339 U.S. 382 (1950), the Supreme Court had said that 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. The Court went to great length in Douds to approve of the specific focus on Communists by noting what a threat communism was. Now the Court had added an "escape clause" test to determining whether a law was a bill of attainder. But just a year later, in United States v. Brown, 381 U.S. 437 (1965), the Court invalidated the section of the statute that made it a crime to serve on a union's executive board. Clearly, the Act had focused on past behavior 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 Douds was effectively, if not officially, overruled.) Additionally, the Court did not apply the punishment prong of its test, leaving legal scholars confused as to whether the Court still wished it to apply.

The Supreme Court returned to emphasizing the narrowness and rationality of bills of attainder in Nixon v. Administrator of General Services, 433 U.S. 425 (1977). 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 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 further 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 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.

As of 2010, the U.S. Supreme Court has invalidated laws under the Attainder Clause on only five occasions. However, several recent cases (which have not reached the Supreme Court) have raised the bill of attainder issue. 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 has been 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. There is argument over whether the Palm Sunday Compromise in the Terri Schiavo case was also a bill of attainder. Some analysts consider the ultimately unsuccessful bill Congress proposed 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. In another recent case, the community organizing group Association of Community Organizations for Reform Now (ACORN) sued the U.S. government after the United States House of Representatives passed a resolution in early 2009 barring the group from receiving federal funding. 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."