The Federal Bill of Attainder Clause

No Bill of Attainder . . . shall be passed.

—Matthew Steilen

Introduction

Bills of attainder are “legislative acts . . . that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial.”¹ There are two Bill of Attainder Clauses in the Constitution. The clause in Article I, Section 9 applies to federal laws. The clause in Article I, Section 10 applies to state laws. Most of the cases involving bills of attainder to reach the U.S. Supreme Court have concerned the federal ban. This essay will consider the judicial precedent interpreting the federal ban and its relationship to the constitutional text. The history of bills of attainder is covered in Essay No. 80, the entry for the state ban.

United States v. Lovett

The Supreme Court’s leading authority on the federal Bill of Attainder Clause is United States v. Lovett (1946). At issue was Section 304 of the Urgent Deficiency Appropriation Act of 1943. This law directed that no salary be paid to Dr. Robert Morss Lovett, Government Secretary to the Virgin Islands and a well-known left-wing activist, and two other named federal employees, Goodwin B. Watson and William E. Dodd.² Representative Martin Dies (D–TX), chairman of the House Special Committee on Un-American Activities, had accused them of being “‘irresponsible, unrepresentative, crackpot, radical bureaucrats’ and affiliates of ‘Communist front organizations.’”³ Lovett and others named by Dies were invited to testify at a closed hearing. However, they were not allowed the assistance of a lawyer or an opportunity to inspect FBI reports containing evidence against them.⁴ The Supreme Court declared Section 304 to be unconstitutional. Justice Hugo Black’s majority opinion described Section 304 as “precisely within the category” of a bill of attainder. The law punished Lovett and the others by withholding their government salaries but without the “safeguards” of a judicial trial.⁵

The Court identified four elements of an unconstitutional bill of attainder: (1) a legislative act (2) that applies to named individuals or members of a group, (3) that inflicts punishment on them, and (4) does not provide a judicial trial.⁶ The overall effect of this standard is to prohibit legislatures from sentencing and punishing as a court does. The Court’s bill of attainder doctrine has become an arm of the Constitution’s separation of powers.⁷

What Is a Legislative Act?

An act must be “legislative” to count as a bill of attainder. This requirement is not explicit in the text of Section 9, which simply states that “No bill of attainder . . . shall be passed.”⁸ At the time the Constitution was ratified, the term “bill” possessed both legislative and judicial meanings.⁹ “Bill” could also be used to describe private legislation, often called “private bills,” which were legislative acts that concerned the rights or interests of a single person, group, or region. Private bills were passed in the legislature but often in a judicial-type proceeding. Such hearings might include the presentation of a written complaint or “petition,” notice to other persons involved, a hearing, and the presentation of evidence.¹⁰ Private bills were common in state legislatures at the time of ratification and remained common in Congress for some time after ratification.¹¹ The placement of the Bill of Attainder Clause in Section 9, which contains exceptions to congressional power, suggests that it bans one particular type of private legislation in Congress.

Would a similar type of proceeding in the executive branch be a bill of attainder? Like Parliament, some early American legislative “assemblies” could act both as legislatures and courts of law.¹² Whether or not such a body was acting as a legislature when it passed a bill of attainder was not always clear in the record and in some cases may not have a definite answer. Would a federal agency that is nominally in the executive branch but possesses both legislative and judicial powers be subject to the Bill of Attainder Clause?

In Joint Anti-Fascist Refugee Committee v. McGrath (1951), Justice Hugo Black’s concurrence addressed this question. In this case, the Attorney General compiled a list of “totalitarian, fascist, communist and subversive organizations” at the direction of President Harry S. Truman.¹³ This list was not based on an act of Congress. But according to Black, “officially prepared and proclaimed governmental blacklists” by the Attorney General “possess[ed] almost every quality of bills of attainder.” Black thought it difficult to believe “that the authors of the Constitution, who outlawed the bill of attainder, inadvertently endowed the executive the power to engage in the same tyrannical practices.”¹⁴

Black’s view has never been adopted by a majority of the Court. Challenges to no-fly lists and kill lists maintained by the executive branch have been rejected for lack of a legislative act.¹⁵

To Whom Does the Legislative Act Apply?

The paradigmatic bill of attainder condemns named individuals. Under Supreme Court precedent, however, this is not necessary for a bill to count as a bill of attainder within the meaning of the Constitution.¹⁶ Even acts punishing a relatively large class of individuals have been held to be bills of attainder. For example, Ex Parte Garland (1866) found that a law that applied to former confederates in the Civil War was a bill of attainder.¹⁷ Conversely, an act that applies to a single named individual is not necessarily a bill of attainder.¹⁸ This was the case in Nixon v. Administrator of General Services (1977), which upheld a law that ostensibly required only one person—former President Richard Nixon—to return certain documents to the federal government.

Congress has the power to legislate with specificity or particularity without passing a bill of attainder.¹⁹ What Congress cannot do is to punish a class of persons on the basis of a judgment that its members are prone to certain behaviors. Rather, Congress must punish the behavior generally.²⁰ In this respect, bill-of-attainder doctrine intersects with equal-protection doctrine, which contains similar ideas.²¹

When Does a Legislative Act Inflict Punishment?

A legislative act must impose a punishment to count as a bill of attainder.²² The Supreme Court wrestled with the question of what counted as a punishment in a string of cases involving anti-Communist legislation. United States v. Brown (1965), for example, concerned a federal labor law that prohibited Communists from serving as union officers. The Brown Court rejected the view that punishments were necessarily “retributive” rather than “preventive.” Rather, sometimes punishment aimed to prevent future crimes.²³ Thus, bills of attainder might focus on future conduct, as did the legislation in Brown, by condemning a political group whose members were thought likely to endanger national security.

Nixon v. Administrator of General Services identified three tests for deciding whether the law regulating presidential records was punitive under the Bill of Attainder Clause: (i) whether a sanction was one historically imposed by bills of attainder in England or the United States; (ii) whether the sanction could reasonably be said to further nonpunitive legislative purposes; and (iii) whether the legislative record evinced an intent to punish.²⁴ The Nixon Court found that the federal law was not a punitive bill of attainder. Lower federal courts have tended to narrowly apply the Nixon tests. In TikTok v. Garland (2024), the D.C. Circuit held that a federal law requiring foreign divestment from a social media company did not count as a bill of attainder under these tests.²⁵ First, the court reasoned that divestment differed from the historically imposed sanction of confiscation. Second, the panel found that forced divestment was “a rather conventional response to a security risk” and thus did not function as a punishment. Finally, in this case, there was insufficient evidence of a congressional intent to punish, which “is difficult to establish,” despite dozens of statements from individual legislators in the record.

The Supreme Court’s broad construction of the meaning of “punishment” touched off heated scholarly criticism. Raoul Berger, an early originalist, severely criticized the Court for departing from the historical understanding of bills of attainder, which he argued always imposed a death sentence and disinherited the target’s heirs. This feature was called “corruption of blood.”²⁶ A more recent examination of the issue from an originalist point of view, however, took a different view.²⁷ As discussed in Essay No. 80, medieval bills of attainder rarely included an explicit death sentence.

Is a Judicial Trial Provided?

One of the principal objections to bills of attainder is that the legislature does not provide accused persons with the same rights they would enjoy in a court of law.²⁸ For example, Lovett was denied the assistance of an attorney and an opportunity to confront the witnesses against him. As a historical matter, denying process was often the point. Bills of attainder were used when a court could not proceed because of the procedural rights it was required to extend to defendants—principally the right to appear and offer a defense. The defendant might be in hiding or dead and thus unable to appear.

In several respects, the Supreme Court’s bill of attainder doctrine is actually broader than what is known as procedural due process. For example, Lovett implied that a legislature must provide “a judicial trial” before inflicting a punishment.²⁹ By contrast, the Due Process Clauses guarantee no such right. The Sixth and Seventh Amendments do provide a limited right to a jury trial, but a survey of the case law concluded that the Lovett mandate was rarely honored because administrative proceedings short of a full trial were routinely upheld.³⁰

Open Questions

• Can an action taken by the executive branch in the absence of a federal statute be considered a bill of attainder?
• What is sufficient evidence of an intent to punish under Nixon v. Administrator of General Services?
• Does a legislatively directed sale of property count as punishment for purposes of the Bill of Attainder Clauses?³¹

1. United States v. Lovett, 328 U.S. 303, 315–16 (1946). ↩︎
2. Robert M. Lovett, Educator, Is Dead, N.Y. Times, Feb. 9, 1956, at 31. ↩︎
3. Id. at 308–09 (quoting 89 Cong. Rec. 474, 479, 486). ↩︎
4. Id. at 310–11. ↩︎
5. Id. at 315, 317–18. ↩︎
6. Michael P. Lehmann, The Bill of Attainder Doctrine: A Survey of the Decisional Law, 5 Hastings L.Q. 767, 767 n.1 (1978). ↩︎
7. United States v. Brown, 381 U.S. 437, 446 (1965). ↩︎
8. Barron v. City of Balt., 32 U.S. (7 Pet.) 243, 248 (1833). ↩︎
9. Samuel Johnson, A Dictionary of the English Language (1st ed. 1755) (bill, noun, definition 3). ↩︎
10. Zephaniah Swift, 1 A System of Laws of the State of Connecticut 81–82 (1795). ↩︎
11. Maggie Blackhawk, Petitioning and the Making of the Administrative State, 127 Yale L.J. 1538, 1555–66 (2018). ↩︎
12. Mary Patterson Clarke, Parliamentary Privilege in the American Colonies 54 (1943). ↩︎
13. 341 U.S. 123, 124–25 (1951). ↩︎
14. Id. at 143–44. ↩︎
15. Al-Aulaqi v. Panetta, 35 F. Supp. 3d 56, 81–82 (D.D.C. 2014); Amiri v. Kelly, No. 17-cv- 12188, 2018 WL 623652 (E.D. Mich., Jan. 30, 2018). ↩︎
16. United States v. Brown, 381 U.S. 437, 461 (1965). ↩︎
17. Ex Parte Garland, 71 U.S. 333, 376–77 (1866). ↩︎
18. Nixon v. Admin’r Gen. Servs., 433 U.S. 425, 571–72 (1977). ↩︎
19. Bank Markazi v. Peterson, 578 U.S. 212, 232–234 (2016). ↩︎
20. Brown, 381 U.S. at 455, 461. ↩︎
21. Akhil Reed Amar, Attainder and Amendment 2: Romer’s Rightness, 95 Mich. L. Rev. 203, 203–04, 210–11 (1996). ↩︎
22. Fleming v. Nestor, 363 U.S. 603, 613 (1960). ↩︎
23. Brown, 381 U.S. at 456–58. ↩︎
24. Nixon, 433 U.S. at 473–84. ↩︎
25. TikTok Inc. v. Garland, 122 F.4th 930, 967–69 (D.C. Cir. Dec. 6, 2024). ↩︎
26. Raoul Berger, Bills of Attainder: A Study of Amendment by the Court, 63 Cornell L. Rev. 355 (1978). ↩︎
27. Anthony Dick, Note, The Substance of Punishment Under the Bill of Attainder Clause, 63 Stan. L. Rev. 1177, 1182–90 (2011). ↩︎
28. Lovett, 328 U.S. at 317–18. ↩︎
29. Id. at 315. ↩︎
30. Lehmann, supra at 901, 911, 916–19. ↩︎
31. TikTok, Inc., 122 F.4th at 967–69. ↩︎