10 F.4th 905

United States Court of Appeals, Ninth Circuit.

APARTMENT ASSOCIATION OF LOS ANGELES COUNTY, INC., dba Apartment Association of Greater Los Angeles, Plaintiff-Appellant,

v.

CITY OF LOS ANGELES; Eric Garcetti, in his official capacity as Mayor of Los Angeles; City Council of the City of Los Angeles, in its official capacity; Does, 1 through 25, inclusive, Defendants-Appellees,

and

Alliance of Californians for Community Empowerment Action; Strategic Actions for a Just Economy, Intervenor-Defendants-Appellees.

No. 20-56251

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Argued and Submitted May 12, 2021 Pasadena, California

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Filed August 25, 2021

OPINION

BRESS, Circuit Judge:

Following the outbreak of COVID-19 in early 2020, the City of Los Angeles imposed an eviction moratorium with the stated purposes of ensuring housing security and promoting public health during the pandemic. The moratorium operates during a “Local Emergency Period” to bar certain evictions. Related provisions delay applicable tenants’ rent payment obligations and prohibit landlords from charging late fees and interest. Plaintiff, a trade association of Los Angeles landlords, sued the City, arguing that the moratorium and its related provisions violate the Constitution's Contracts Clause. U.S. Const. art. I, § 10, cl. 1. The district court denied plaintiff's request for preliminary injunctive relief, and plaintiff now appeals that ruling.

Other courts, including the Supreme Court, have recently considered a variety of constitutional and statutory challenges to COVID-19 eviction moratoria. The appeal before us, however, is limited only to the Contracts Clause. We hold that under modern Contracts Clause doctrine, the district court did not err in determining that the moratorium's provisions were likely “reasonable” and “appropriate” given the circumstances of the COVID-19 pandemic. Whatever force plaintiff's challenge may have had in a much earlier era of Contracts Clause jurisprudence, more contemporary Supreme Court case law has severely limited the Contracts Clause's potency. And whatever other constitutional challenges plaintiff may seek to bring against the Los Angeles eviction moratorium, there is no apparent basis under modern cases to find the challenged provisions unconstitutional under the Contracts Clause—the only issue before us.

The district court thus did not abuse its discretion in concluding that plaintiff had not shown the required likelihood of success on the merits. We therefore affirm.

I

A

Following the spread of COVID-19 to the United States, the Secretary of Health and Human Services on January 31, 2020 declared a nationwide public health emergency. California's Governor likewise proclaimed a state of emergency some weeks later. Soon after that, and as relevant here, the City of Los Angeles enacted an ordinance imposing a series of restrictions on residential landlords. We will refer to these ordinances, which subsequently were codified at sections 49.99 through 49.99.9 of the Los Angeles Municipal Code, as the “eviction moratorium.”

The eviction moratorium made plain its motivations and purpose. It described the City Council's finding that “[t]he COVID-19 pandemic threatens to undermine housing security and generate unnecessary displacement of City residents and instability of City businesses.” L.A., Cal., Municipal Code § 49.99. It also referenced public health measures that called for many individuals to stay at home, as well as the loss of income and increased expenses anticipated as a result of governmental directives to “self-isolate” and shut down nonessential businesses. Id. Noting the relationship between housing and physical health during the pandemic, the City Council found it necessary to “take measures to protect public health, life, and property” by enacting the eviction moratorium.

To achieve these goals, the eviction moratorium curtails the rights of residential landlords in various ways. Most significantly, it substantially alters the grounds that landlords may invoke against tenants in eviction actions (known in California as “unlawful detainer” actions). Specifically, landlords are barred from “endeavor[ing] to evict or evict[ing] a residential tenant for” any of three reasons. L.A., Cal., Municipal Code § 49.99.2(A)–(C).

First, “[d]uring the Local Emergency Period and for 12 months after its expiration,” tenants cannot be evicted “for non-payment of rent ... if the tenant is unable to pay rent due to circumstances related to the COVID-19 pandemic.” Id. § 49.99.2(A). “[C]ircumstances related to the COVID-19 pandemic” include:

loss of income due to a COVID-19 related workplace closure, child care expenditures due to school closures, health-care expenses related to being ill with COVID-19 or caring for a member of the tenant's household or family who is ill with COVID-19, or reasonable expenditures that stem from government-ordered emergency measures.

Id. Although these tenants’ payment obligations were deferred (an issue we discuss further below), the moratorium did not relieve tenants of their ultimate obligations to pay rent. Id.

Second, during the Local Emergency Period, tenants cannot be evicted for a  “no-fault reason.” Id. § 49.99.2(B). Those reasons include an owner or owner's family intending to occupy the property; withdrawal of the property from the rental market; the owner's compliance with laws or governmental orders requiring vacating of the property; and intent to demolish or remodel the property. Id. § 49.99.1(D); see also Cal. Civ. Code § 1946.2(b)(2). Finally, tenants during the Local Emergency Period cannot be evicted “based on the presence of unauthorized occupants or pets, or for nuisance related to COVID-19.” Id. § 49.99.2(C).

The “Local Emergency Period” was defined as “the period of time from March 4, 2020, to the end of the local emergency as declared by the Mayor.” Id. §§ 49.99.1(C). The Local Emergency Period remains ongoing as of the time of this opinion. The eviction moratorium does not require tenants to provide any evidence, such as a written attestation, that any claimed inability to pay rent, presence of “unauthorized occupants or pets,” or “nuisance” existed or was COVID-19-related.

Additionally, the eviction moratorium alters tenants’ payment obligations by providing them “up to 12 months following the expiration of the Local Emergency Period to repay any rent deferred during the Local Emergency Period.” Id. § 49.99.2(A). By its terms, however, it does not “eliminate[ ] any obligation to pay lawfully charged rent.” Id. For covered tenants, the moratorium also prohibits landlords from “charg[ing] interest or a late fee on rent not paid.” Id. § 49.99.2(D).

Landlords may continue to seek to evict tenants based on their good-faith belief that the tenants are not protected under the eviction moratorium. But the eviction moratorium's protections create an affirmative defense for tenants in an unlawful detainer action.¹ Id. § 49.99.6.

The eviction moratorium also creates a private right of action for residential tenants who believe their landlords have aggrieved them. Id. § 49.99.7. If the landlord was given an opportunity to cure and did not do so, a prevailing tenant is potentially entitled to “injunctive relief, direct money damages,” “reasonable attorney's fees and costs,” and “an award of a civil penalty up to $10,000 per violation depending on the severity of the violation” (and up to an additional $5,000 per violation for elderly or disabled tenants). Id. However, an “[o]wner who prevails in any such action and obtains a Court determination that the tenant's action was frivolous” also may recover “reasonable attorney's fees and costs.” Id.²

*911 B

Plaintiff Apartment Association of Los Angeles County, Inc., dba Apartment Association of Greater Los Angeles (“AAGLA”), is a trade association “comprised of thousands of owners and managers of rental housing units, including over 55,000 properties within the City of Los Angeles.” On June 11, 2020, AAGLA, on behalf of its members, challenged the eviction moratorium in a lawsuit against the City, its Mayor, and the City Council. We will refer to these parties collectively as the “City.”

AAGLA alleged that the eviction moratorium violated the Contracts Clause, the Takings Clause, and the Tenth and Fourteenth Amendments. Later, AAGLA moved for a preliminary injunction. As relevant here, AAGLA sought to enjoin key provisions of the eviction moratorium as violating the Contracts Clause.³ In support of its motion, AAGLA submitted declarations from four of its members who own or manage properties in Los Angeles, detailing the harms the eviction moratorium was allegedly causing them. These harms include loss of rental income, inability to perform background checks on unauthorized occupants, and being forced to use retirement savings to cover expenses on the properties.

The district court denied AAGLA's request for preliminary injunctive relief.

AAGLA timely appealed the district court's order denying preliminary injunctive relief. On appeal, AAGLA pursues its Contracts Clause challenge only with respect to the provisions of the eviction moratorium governing restrictions on the grounds for evictions, rent deferment, and the elimination of late fees and interest.

II

A preliminary injunction is “an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion. To obtain injunctive relief, a plaintiff “must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” City & County of San Francisco v. USCIS, 944 F.3d 773, 788–89 (9th Cir. 2019) (quoting Winter, 555 U.S. at 20, 129 S.Ct. 365) (alterations in original). “Likelihood of success on the merits is the most important factor.” California v. Azar, 911 F.3d 558, 575 (9th Cir. 2018) (quotations omitted).

III

A

The Contracts Clause provides that “No State shall ... pass any ... Law impairing the Obligation of Contracts.” U.S. Const. art. I, § 10, cl. 1. As a historical matter, the “primary focus” of the Contracts Clause “was upon legislation that was designed to repudiate or adjust preexisting debtor-creditor relationships that obligors were unable to satisfy.” Yet “the text is not so limited, and historical context suggests that the Clause was aimed at all retrospective, redistributive schemes in violation of vested contractual rights.” For the first 150 years of American legal history, the Contracts Clause imposed consequential limitations that federal courts routinely deployed to invalidate state and local legislation.

All of that changed with Home Building & Loan Ass'n v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413 (1934), the “watershed decision ... on which the modern interpretation of the [Contracts Clause] rests.” There, the Court “upheld Minnesota's statutory moratorium against home foreclosures, in part, because the legislation was addressed to the ‘legitimate end’ of protecting ‘a basic interest of society.’ ”

Blaisdell marked the beginning of the Supreme Court significantly curtailing the Contracts Clause's prohibitive force. As a result, the relevant cases today primarily consist of Blaisdell and its progeny, which set forth a very different conception of the Contracts Clause than in earlier cases. Perhaps most prominently, in Energy Reserves Group v. Kansas Power & Light Co., 459 U.S. 400, 103 S.Ct. 697, 74 L.Ed.2d 569 (1983), the Court clarified the modern approach to the Contracts Clause post-Blaisdell, articulating the flexible considerations courts must consider in a Contracts Clause case. Id. at 410–13, 103 S.Ct. 697.

Recently, in Sveen v. Melin, ––– U.S. ––––, 138 S. Ct. 1815, 201 L.Ed.2d 180 (2018), the Supreme Court restated the inquiry as a “two-step test.” Under Sveen’s formulation, “[t]he threshold issue is whether the state law has ‘operated as a substantial impairment of a contractual relationship.’ Factors relevant to that consideration include “the extent to which the law undermines the contractual bargain, interferes with a party's reasonable expectations, and prevents the party from safeguarding or reinstating his rights.” Id. at 1822.

If the law is a substantial impairment, then “the inquiry turns to the means and ends of the legislation.” At that point, a court must determine whether the law is drawn in an “ ‘appropriate’ and ‘reasonable’ way to advance ‘a significant and legitimate public purpose.’” A heightened level of judicial scrutiny is appropriate when the government is a contracting partyBut when the government is not party to the contract being impaired, “courts properly defer to legislative judgment as to the necessity and reasonableness of a particular measure.

Thus, the eviction moratorium must be upheld, even if it is a substantial impairment of contractual relations, if its “adjustment of the rights and responsibilities of contracting parties is based upon reasonable conditions and is of a character appropriate to the public purpose justifying the legislation's adoption.” And because the government is not “the party asserting the benefit of the statute,” AAGLA bears the burden of showing that the ordinances are unreasonable.

B

We need not decide whether the eviction moratorium is a substantial impairment of contractual relations because even assuming it is, given the challenges that COVID-19 presents, the moratorium's provisions constitute an “appropriate and reasonable way to advance a significant and legitimate public purpose

Case law supports this conclusion: repeatedly in modern times, both the Supreme Court and this court have upheld as reasonable various laws that nonetheless may have affected private contracts. For instance, despite finding that the law challenged in Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987), was a substantial impairment, the Court upheld it, “refus[ing] to second-guess” the legislature's identification of “the most appropriate ways of dealing with the problem.” Id. at 506, 107 S.Ct. 1232.

Given such precedents, AAGLA is unlikely to show that the challenged provisions of the eviction moratorium are constitutionally impermissible under the Contracts Clause. The City fairly ties the moratorium to its stated goal of preventing displacement from homes, which the City reasonably explains can exacerbate the public health-related problems stemming from the COVID-19 pandemic. See L.A., Cal., Municipal Code § 49.99 (“The COVID-19 pandemic threatens to undermine housing security and generate unnecessary displacement of City residents and instability of City businesses. Therefore, the City of Los Angeles has taken and must continue to take measures to protect public health, life, and property.”); L.A., Cal., Ordinance No. 186,585 pmbl. (“[I]n the interest of protecting public health and preventing transmission of COVID-19, it is essential to avoid unnecessary housing displacement to protect the City's affordable housing stock and to prevent housed individuals from falling into homelessness[.]”). As mentioned, AAGLA does not dispute that this purpose is a legitimate one.

In turn, each of the provisions of the eviction moratorium that AAGLA challenges may be viewed as reasonable attempts to address that valid public purpose. See Energy Reserves, 459 U.S. at 418–19, 103 S.Ct. 697. As the City explains in its briefing, the eviction protections are “necessary to avoid displacing residential tenants amidst a pandemic”; late fees and interest “could compound COVID-19 affected tenants’ dilemmas, causing them to self-evict or be evicted”; and “economic hardship may cause consolidation of households and an increase in the number of inhabitants in some units, which could include additional inhabitants’ pets” (citations and quotations omitted).

C

… AAGLA relies on a line of cases, beginning in the antebellum period and culminating in Blaisdell, that considered various laws imposing moratoria on evictions and foreclosures. Citing those earlier cases, AAGLA avers that “the Supreme Court has established a standard for reasonableness in the context of moratoria delaying a property owner's right to possession: ensuring fair rental compensation contemporaneous with the extended occupation during the pendency of a moratorium.”

AAGLA correctly observes that the Court in those Contracts Clause cases often appears to have referenced in its discussion whether the law provided for some sort of reasonable rental value to be paid to the property owner during the moratoria's interim. In Blaisdell, for example, the Court upheld a moratorium on foreclosures, at least in part because it “secure[d] to the mortgagee the rental value of the property” during the emergency period. 290 U.S. at 432, 54 S.Ct. 231. The other cases AAGLA discusses appear to have viewed reasonable rent as a relevant consideration as well.⁴

But AAGLA's assertion that, as a matter of constitutional law, eviction moratoria require fair rental compensation in the interim fails for two main reasons. First, even in the more Contracts Clause-friendly era in which some of these cases were decided, the authorities AAGLA cites do not clearly impose AAGLA's preferred inflexible rent payment rule. While these cases treated reasonable rent as a relevant criterion in the analysis, they do not purport to impose such a requirement as a categorical matter.

In other words, there is no apparent ironclad constitutional rule that eviction moratoria pass Contracts Clause scrutiny only if rent is paid during the period of the moratoria. Instead, each of the cases AAGLA cites turned on its own facts and circumstances. That reasonable rent may have been a relevant consideration in some cases thus does not make it a constitutional floor in all cases. And it does not thereby create a Contracts Clause constitutional baseline in a case involving a public health situation like COVID-19. See Matsuda v. City & County of Honolulu, 512 F.3d 1148, 1152 (9th Cir. 2008) (“[T]he Supreme Court has construed [the Contracts Clause] prohibition narrowly in order to ensure that local governments retain the flexibility to exercise their police powers effectively.”).

In claiming that any eviction moratorium is constitutional only if rent is contemporaneously paid, AAGLA relies most heavily on Blaisdell. But Blaisdell shows why AAGLA's attempt to divine a bright-line “reasonable rent” rule is unpersuasive. Blaisdell identified several factors that supported the state law's constitutionality. As the Court later explained, these included that the law contained a declaration of emergency, “protect[ed] a basic societal interest,” was “appropriately tailored,” and imposed “reasonable” conditions “limited to the duration of the emergency.” Allied Structural, 438 U.S. at 242, 98 S.Ct. 2716; *916 see also Blaisdell, 290 U.S. at 444–47, 54 S.Ct. 231. Nothing in Blaisdell suggests that a “reasonable rent” requirement was dispositive. Indeed, Blaisdell specifically rejected the notion that Contracts Clause analysis should proceed with a “literal exactness like a mathematical formula.” 290 U.S. at 428, 54 S.Ct. 231. Instead, “[e]very case must be determined upon its own circumstances.” Id. at 430, 54 S.Ct. 231 (quotations omitted).

Second, the outmoded approach in the pre-Blaisdell cases AAGLA cites does not resemble the Supreme Court's modern Contracts Clause doctrine. See U.S. Trust, 431 U.S. at 22 n.19, 97 S.Ct. 1505 (explaining that to the extent prior cases had imposed strict limitations, “[l]ater decisions abandoned these limitations as absolute requirements”). Indeed, the Supreme Court has clarified, even “the existence of an emergency and the limited duration of a relief measure ... cannot be regarded as essential in every case.” Id. at 23 n.19, 97 S.Ct. 1505.

As discussed above, Energy Reserves provided for considerable deference to state and local legislatures in assessing the reasonableness of legislation. Even twenty-five years ago, we “specifically recognized the shift in the law created by Energy Reserves,” when the Supreme Court “retreated from its prior case law” and “indicated a renewed willingness to defer to the decisions of state legislatures regarding the impairment of private contracts.” Seltzer, 104 F.3d at 236 (quotations omitted and alterations accepted). Under current precedent, this court therefore does not engage in an analysis as demanding as that of the pre-Blaisdell cases that AAGLA invokes.

Further weakening AAGLA's challenge is the fact that the eviction moratorium is but one aspect of a broader remedial framework applicable to landlords during the pandemic. In response to AAGLA's concerns, appellees fairly argue that the City's creation of an Emergency Rental Assistance Program supports the eviction moratorium's reasonableness. That Program initially made available about $103 million (of which $100 million was funded by the federal government) to provide up to $2,000 in rent payments per eligible household, though only tenants were able (but were not required) to apply for such assistance. Subsequently, federal and state funds allowed the City to expand that program by an additional $235.5 million.

Moreover, the City more recently has indicated that it expects to receive an additional $193 million “for rental assistance directly from the federal government,” along with a portion of the $1.2 billion in federal funds allocated to California from the most recent legislation. The City points to recent state legislation directing the funds to be “used to pay all of the rental debt accumulated on or after April 1, 2020 by a household making up to 80% of the area median income.” See Cal. Health & Safety Code § 50897.1(b), (d)(1).

And finally, the City notes that other government agencies, including within the City, have given landlords flexibility in meeting their obligations, such as payment plans for utilities and penalty waivers for property taxes. Although the interaction between these various programs is a matter of some complexity, the availability of such relief, while not dispositive, remains relevant in assessing the overall reasonableness of the City's actions.

Lastly, we note that although we appear to be the first court of appeals to have addressed a challenge to the constitutionality of a COVID-19-related eviction moratorium under the Contracts Clause, our result today is consistent with those of the district courts that have confronted—and uniformly rejected—these challenges. [citations omitted]

* * *

We are tasked only with evaluating the constitutionality of the eviction moratorium under the forgiving standard of modern Contracts Clause analysis. A faithful application of that standard requires us to conclude that the district court did not err in denying AAGLA's request for preliminary injunctive relief.

AFFIRMED.

97 S.Ct. 2777

Supreme Court of the United States

Richard M. NIXON, Appellant,

v.

ADMINISTRATOR OF GENERAL SERVICES et al.

No. 75-1605.

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Argued April 20, 1977.

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Decided June 28, 1977.

Opinion

Mr. Justice BRENNAN delivered the opinion of the Court.

Title I of Pub.L. 93-526, 88 Stat. 1695, note following 44 U.S.C. s 2107 (1970 ed., Supp. V), the Presidential Recordings and Materials Preservation Act (hereafter Act), directs the Administrator of General Services, official of the Executive Branch, to take custody of the Presidential papers and tape recordings of appellant, former President Richard M. Nixon, and promulgate regulations that (1) provide for the orderly processing and screening by Executive Branch archivists of such materials for the purpose of returning to appellant those that are personal and private in nature, and (2) determine the terms and conditions upon which public access may eventually be had to those materials that are retained. The question for decision is whether Title I is unconstitutional on its face as a violation of (1) the separation of powers; (2) Presidential privilege doctrines; (3) appellant's privacy interests; (4) appellant's First Amendment associational rights; or (5) the Bill of Attainder Clause.

On December 19, 1974, four months after appellant resigned as President of the United States, his successor, President Gerald R. Ford, signed Pub.L. 93-526 into law. The next day, December 20, 1974, appellant filed this action in the District Court for the District of Columbia, which under s 105(a) of the Act has exclusive jurisdiction to entertain complaints challenging the Act's legal or constitutional validity, or that of any regulation promulgated by the Administrator. Appellant's complaint challenged the Act's constitutionality on a number of grounds and sought declaratory and injunctive relief against its enforcement.

I

The Background

The materials at issue consist of some 42 million pages of documents and some 880 tape recordings of conversations. Upon his resignation, appellant directed Government archivists to pack and ship the materials to him in California. This shipment was delayed when the Watergate Special Prosecutor advised President Ford of his continuing need for the materials. At the same time, President Ford requested that the Attorney General give his opinion respecting ownership of the materials. The Attorney General advised that the historical practice of former Presidents and the absence of any governing statute to the contrary supported ownership in the appellant, with a possible limited exception.².

On September 8, 1974, after issuance of the Attorney General's opinion, the Administrator of General Services, Arthur F. Sampson, announced that he had signed a depository agreement with appellant under the authority of 44 U.S.C. s 2107. 10 Weekly Comp. of Pres.Doc. 1104 (1974). We shall also refer to the agreement as the Nixon-Sampson agreement. The agreement recited that appellant retained ‘all legal and equitable title to the Materials, including all literary property rights,’ and that the materials accordingly were to be ‘deposited temporarily’ near appellant's California home in an ‘existing facility belonging to the United States. [details regarding the terms of the agreement are omitted]

Public announcement of the agreement was followed 10 day later, September 18, by the introduction of S. 4016 by 13 Senators in the United States Senate. The bill, which became Pub.L. 93-526 and was designed, inter alia, to abrogate the Nixon-Sampson agreement, passed the Senate on October 4, 1974. It was awaiting action in the House of Representatives when on October 17, 1974, appellant filed suit in the District Court seeking specific enforcement of the Nixon-Sampson agreement. That action was consolidated with other suits seeking access to Presidential materials pursuant *433 to the Freedom of Information Act, 5 U.S.C. s 552 (1970 ed. and Supp. V), and also seeking injunctive relief against enforcement of the agreement. Nixon v. Sampson, supra.³ The House passed its version of the Senate bill on December 3, 1974. The final version of S. 4016 was passed on December 9, 1974, and President Ford signed it into law on December 19.

II

The Act

Public Law 93-526 has two Titles. Title I, the challenged Presidential Recordings and Materials Preservation Act, consists of ss 101 through 106. Title II, the Public Documents Act, amends Chapter 33 of Title 44, United States Code, to add ss 3315 through 3324 thereto, and establish the National Study Commission on Records and Documents of Federal Officials.

Section 101(a) of Title I directs that the Administrator of General Services, notwithstanding any other law or agreement or understanding (e. g., the Nixon-Sampson agreement), ‘shall receive, obtain, or retain, complete possession and control of all original tape recordings of conversations which were recorded or caused to be recorded by any officer or employee of the Federal Government and which

'(1) involve former President Richard M. Nixon or other individuals who, at the time of the conversation, were employed by the Federal Government;

'(2) were recorded in the White House or in the office of the President in the Executive Office Buildings located in Washington, District of Columbia; Camp David, Maryland; Key Biscayne, Florida; or San Clemente, California; and

'(3) were recorded during the period beginning January 20, 1969, and ending August 9, 1974.'

Section 101(b) provides that notwithstanding any such agreement or understanding, the Administrator also ‘shall receive, retain, or make reasonable efforts to obtain, complete possession and control of all papers, documents, memorandums, transcripts, and other objects and materials which constitute the Presidential historical materials (as defined by 44 U.S.C. s 210) of Richard M. Nixon, covering the period beginning January 20, 1969, and ending August 9, 1974.’

[various other provisions of the Act are omitted as inessential to the Bill of Attainder claim] 

Section 105(a) vests the District Court for the District of Columbia with exclusive jurisdiction not only to hear constitutional challenges to the Act, but also to hear challenges to the validity of any regulation, and to decide actions involving questions of title, ownership, custody, possession, or control of any tape or materials, or involving payment of any award of just compensation required by s 105(c) when a decision of that court holds that any individual has been deprived by the Act of private property without just compensation. … [many pages of the opinion are omitted]

Bill of Attainder Clause

A

Finally, we address appellant's argument that the Act constitutes a bill of attainder proscribed by Art. I, s 9, of the Constitution.³⁰ His argument is that Congress acted on the premise that he had engaged in “misconduct,” was an “unreliable custodian” of his own documents, and generally was deserving of a ‘legislative judgment of blameworthiness,’ Thus, he argues, the Act is pervaded with the key features of a bill of attainder: a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial. See United States v. Brown, 381 U.S. 437, 445, 447, 85 S.Ct. 1707, 1713, 1714, 14 L.Ed.2d 484 (1965); United States v. Lovett, 328 U.S. 303, 315-316, 66 S.Ct. 1073, 1078-1079, 90 L.Ed. 1252 (1946); Ex parte Garland, 4 Wall. 333, 377, 18 L.Ed. 366 (1867); Cummings v. Missouri, 4 Wall. 277, 323, 18 L.Ed. 356 (1867).

Appellant's argument relies almost entirely upon United States v. Brown, supra, the Court's most recent decision addressing the scope of the Bill of Attainder Clause. It is instructive, therefore, to sketch the broad outline of that case. Brown invalidated s 504 of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. s 504, that made it a crime for a Communist Party member to serve as an officer of a labor union. After detailing the infamous history of bills of attainder, the Court found that the Bill of Attainder Clause was an important ingredient of the doctrine of ‘separation of powers,’ one of the organizing principles of our system of government. Just as Art. III confines the Judiciary to the task of adjudicating concrete ‘cases or controversies,’ so too the Bill of Attainder Clause was found to ‘reflect . . . the Framers' belief that the Legislative Branch is not so well suited as politically independent judges and juries to the task of ruling upon the blameworthiness of, and levying appropriate punishment upon, specific persons. Brown thus held that s 504 worked a bill of attainder by focusing upon easily identifiable members of a class members of the Communist Party and imposing on them the sanction of mandatory forfeiture of a job or office, long deemed to be punishment with the contemplation of the Bill of Attainder Clause.

Brown, Lovett, and earlier cases unquestionably gave broad and generous meaning to the constitutional protection against bills of attainder. But appellant's proposed reading is far broader still. In essence, he argues that Brown establishes that the Constitution is offended whenever a law imposes undesired consequences on an individual or on a class that is not defined at a proper level of generality. The Act in question therefore is faulted for singling out appellant, as opposed to all other Presidents or members of the Government, for disfavored treatment.

 Appellant's characterization of the meaning of a bill of attainder obviously proves far too much. By arguing that an individual or defined group is attainted whenever he or it is compelled to bear burdens which the individual or group dislikes, appellant removes the anchor that ties the bill of attainder guarantee to realistic conceptions of classification and punishment. His view would cripple the very process of legislating, for any individual or group that is made the subject of adverse legislation can complain that the lawmakers could and should have defined the relevant affected class at a greater level of generality.³¹ Furthermore, every person or group made subject to legislation which he or it finds burdensome may subjectively feel, and can complain, that he or it is being subjected to unwarranted punishmentHowever expansive the prohibition against bills of attainder, it surely was not intended to serve as a variant of the equal protection doctrine,³³ invalidating every Act of Congress or the States that legislatively burdens some persons or groups but not all other plausible individuals.³⁴ In short, while the Bill of Attainder Clause serves as an important ‘bulwark against tyranny.’ United States v. Brown, 381 U.S., at 443, 85 S.Ct., at 1712, it does not do so by limiting Congress to the choice of legislating for the universe, or legislating only benefits, or not legislating at all.

 Thus, in the present case, the Act's specificity—the fact that it refers to appellant by name—does not automatically offend the Bill of Attainder Clause. Indeed, viewed in context, the focus of the enactment can be fairly and rationally understood. It is true that Title I deals exclusively with appellant's papers. But Title II casts a wider net by establishing a special commission to study and recommend appropriate legislation regarding the preservation of the records of future Presidents and all other federal officials. In this light, Congress' action to preserve only appellant's records is easily explained by the fact that at the time of the Act's passage, only his materials demanded immediate attention. The Presidential papers of all former Presidents from Hoover to Johnson were already housed in functioning Presidential libraries. Congress had reason for concern solely with the preservation of appellant's materials, for he alone had entered into a depository agreement, the Nixon-Sampson agreement, which by its terms called for the destruction of certain of the materials. Indeed, as the federal appellees argue, ‘appellant's depository agreement . . . created an imminent danger that the tape recordings would be destroyed if appellant, who had contracted phlebitis, were to die.’ In short, appellant constituted a legitimate class of one, and this provides a basis for Congress' decision to proceed with dispatch with respect to his materials while accepting the status of his predecessors' papers and ordering the further consideration of generalized standards to govern his successors.

 Moreover, even if the specificity element were deemed to be satisfied here, the Bill of Attainder Clause would not automatically be implicated. Forbidden legislative punishment is not involved merely because the Act imposes burdensome consequences. Rather, we must inquire further whether Congress, by lodging appellant's materials in the custody of the General Services Administration pending their screening by Government archivists and the promulgation of further regulations, ‘inflict(ed) punishment’ within the constitutional *473 proscription against bills of attainder. United States v. Lovett, 328 U.S., at 315, 66 S.Ct., at 1078; see also United States v. Brown, supra, 381 U.S., at 456-460, 85 S.Ct., at 1718-1721; Cummings v. Missouri, 4 Wall., at 320.

B

1

The infamous history of bills of attainder is a useful starting point in the inquiry whether the Act fairly can be characterized as a form of punishment leveled against appellant. For the substantial experience of both England and the United States with such abuses of parliamentary and legislative power offers a ready checklist of deprivations and disabilities so disproportionately severe and so inappropriate to nonpunitive ends that they unquestionably have been held to fall within the proscription of Art. I, s 9. A statutory enactment that imposes any of those sanctions on named or identifiable individuals would be immediately constitutionally suspect.

In England a bill of attainder originally connoted a parliamentary Act sentencing a named individual or identifiable members of a group to death.³⁵ Article I, s 9, however, proscribes enactments originally characterized as bills of pains and penalties, that is, legislative Acts inflicting punishment other than execution. United States v. Lovett, supra, 328 U.S., at 323-324, 66 S.Ct., at 1082-1083 (Frankfurter, J., concurring); Cummings v. Missouri, supra, 4 Wall. at 323; Z. Chafee, Jr., Three Human Rights in the Constitution of 1787, p. 97 (1956). Generally addressed to persons considered disloyal to the Crown or State, ‘pains and penalties' historically consisted of a wide array of punishments: commonly included were imprisonment,³⁶ banishment,³⁷ and the punitive confiscation of property by the sovereign.³⁸ Our country's own experience with bills of attainder resulted in the addition of another sanction to the list of impermissible legislative punishments: a legislative enactment barring designated individuals or groups from participation in specified employments or vocations, a mode of punishment commonly employed against those legislatively branded as disloyal.

Needless to say, appellant cannot claim to have suffered any of these forbidden deprivations at the hands of the Congress. While it is true that Congress ordered the General Services Administration to retain control over records that appellant claims as his property,³⁹ s 105 of the Act makes provision for an award by the District Court of ‘just compensation.’ This undercuts even a colorable contention that the Government has punitively confiscated appellant's property, for the ‘owner (thereby) is to be put in the same position monetarily as he would have occupied if his property has not been taken. Thus, no feature of the challenged Act falls within the historical meaning of legislative punishment.

2

But our inquiry is not ended by the determination that the Act imposes no punishment traditionally judged to be prohibited by the Bill of Attainder Clause. Our treatment of the scope of the Clause has never precluded the possibility that new burdens and deprivations might be legislatively fashioned that are inconsistent with the bill of attainder guarantee. The Court, therefore, often has looked beyond mere historical experience and has applied a functional test of the existence of punishment, analyzing 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.⁴⁰ Where such legitimate legislative purposes do not appear, it is reasonable to conclude that punishment of individuals disadvantaged by the enactment was the purpose of the decisionmakers.

 Application of the functional approach to this case leads to rejection of appellant's argument that the Act rests upon a congressional determination of his blameworthiness and a desire to punish him. For, as noted previously, see supra, at 2794-2796, legitimate justifications for passage of the Act are readily apparent. First, in the face of the Nixon-Sampson agreement which expressly contemplated the destruction of some of appellant's materials, Congress stressed the need to preserve ‘(i)nformation included in the materials of former President Nixon (that) is needed to complete the prosecutions *477 of Watergate-related crimes.’ H.R.Rep. No. 93-1507, p. 2 (1974). Second, again referring to the Nixon-Sampson agreement, Congress expressed its desire to safeguard the ‘public interest in gaining appropriate access to materials of the Nixon Presidency which are of general historical significance. The information in these materials will be of great value to the political health and vitality of the United States.’ Ibid.⁴¹ Indeed, these same objectives are stated in the text of the Act itself, s 104(a), note following 44 U.S.C. s 2107 (1970 ed., Supp. V), where Congress instructs the General Services Administration to promulgate regulations that further these ends and at the same time protect the constitutional and legal rights of any individual adversely affected by the Administrator's retention of appellant's materials.

Evaluated in terms of these asserted purposes, the law plainly must be held to be an act of nonpunitive legislative policymaking. Legislation designed to guarantee the availability of evidence for use at criminal trials is a fair exercise of Congress' responsibility to the ‘due process of law in the fair administration of criminal justice,’ United States v. Nixon, 418 U.S., at 713, 94 S.Ct., at 3110, and to the functioning of our adversary legal system which depends upon the availability of relevant evidence in carrying out its commitments both to fair play and to the discovery of truth within the bounds set by law.

A third recognized test of punishment is strictly a motivational one: inquiring whether the legislative record evinces a congressional intent to punish. The District Court unequivocally found: ‘There is no evidence presented to us, nor is there any to be found in the legislative record, to indicate that Congress' design was to impose a penalty upon Mr. Nixon . . . as punishment for alleged past wrongdoings. . . . The legislative history leads to only one conclusion, namely, that the Act before us is regulatory and not punitive in character.’ 408 F.Supp., at 373 (emphasis omitted). We find no cogent reason for disagreeing with this conclusion.

First, both Senate and House Committee Reports, in formally explaining their reasons for urging passage of the Act, expressed no interest in punishing or penalizing appellant. Rather, the Reports justified the Act by reference to objectives that fairly and properly lie within Congress' legislative competence: preserving the availability of judicial evidence and  of historically relevant materials. More specifically, it seems clear that the actions of both Houses of Congress were predominantly precipitated by a resolve to undo the recently negotiated Nixon-Sampson agreement, the terms of which departed from the practice of former Presidents in that they expressly contemplated the destruction of certain Presidential materials.⁴³.

Nor do the floor debates on the measure suggest that Congress was intent on encroaching on the judicial function of punishing an individual for blameworthy offenses. When one of the opponents of the legislation, mischaracterizing the safeguards embodied in the bill,⁴⁴ stated that it is ‘one which partakes of the characteristics of a bill of attainder . . .,’ *480 120 Cong.Rec. 33872 (1974) (Sen.Hruska), a key sponsor of the measure responded by expressly denying any intention of determining appellant's blameworthiness or imposing punitive sanctions:

‘This bill does not contain a word to the effect that Mr. Nixon is guilty of any violation of the law. It does not inflict any punishment on him. So it has no more relation to a bill of attainder . . . than my style of pulchritude is to be compared to that of the Queen of Sheba.’ Id., at 33959-33960 (Sen. Ervin).

In this respect, the Act stands in marked contrast to that invalidated in United States v. Lovett, 328 U.S., at 312, 66 S.Ct., at 1077, where a House Report expressly characterized individuals as ‘subversive . . . and . . . unfit . . . to continue in Government employment. We, of course, do not suggest that such a formal legislative announcement of moral blameworthiness or punishment is necessary to an unlawful bill of attainder But the decided absence from the legislative history of any congressional sentiments expressive of this purpose is probative of nonpunitive intentions and largely undercuts a major concern that prompted the bill of attainder prohibition: the fear that the legislature, in seeking to pander to an inflamed popular constituency, will find it expedient openly to assume the mantle of judge or, worse still, lynch mob. Cf. Z. Chafee, supra, at 161.⁴⁵ No such legislative overeaching is involved here.

Other features of the Act further belie any punitive interpretation. In promulgating regulations under the Act, the General Services Administration is expressly directed by Congress to protect appellant's or ‘any party's opportunity to assert any legally or constitutionally based right or privilege . . ..’ s 104(a)(5). More importantly, the Act preserves for appellant all of the protections that inhere in a judicial proceeding, for s 105(a) not only assures district *482 court jurisdiction and judicial review over all his legal claims, but commands that any such challenge asserted by appellant ‘shall have priority on the docket of such court over other cases.’ A leading sponsor of the bill emphasized that this expedited treatment is expressly designed ‘to protect Mr. Nixon's property or other legal rights . . ..’ 120 Cong.Rec. 33854 (1974) (Sen. Ervin). Finally, the Congress has ordered the General Services Administration to establish regulations that recognize ‘the need to give to Richard M. Nixon, or his heirs, for his sole custody and use, tape recordings and other materials which are not likely to be related to’ the articulated objectives of the Act, s 104(a)(7). While appellant obviously is not set at ease by these precautions and safeguards, they confirm the soundness of the opinion given the Senate by the law division of the Congressional Research Service: ‘(B)ecause the proposed bill does not impose criminal penalties or other punishment, it would not appear to violate the Bill of Attainder Clause.’ 120 Cong.Rec. 33853 (1974).⁴⁷

One final consideration should be mentioned in light of the unique posture of this controversy. In determining whether a legislature sought to inflict punishment on an individual, it is often useful to inquire into the existence of less burdensome alternatives by which that legislature (here Congress) could have achieved its legitimate nonpunitive objectives. Today, in framing his challenge to the Act, appellant contends that such an alternative was readily available:

'If Congress had provided that the Attorney General or the Administrator of General Services could institute a civil suit in an appropriate federal court to enjoin disposition. . . of presidential historical materials . . . by any person who could be shown to be an ‘unreliable custodian’ or who had ‘engaged in misconduct’ or who ‘would violate a criminal prohibition,’ the statute would have left to judicial determination, after a fair proceeding, the factual allegations regarding Mr. Nixon's blameworthiness.'

… Congress doubtless was well aware that just three months earlier, appellant had resisted efforts to subject himself and his records to the scrutiny of the Judicial Branch, United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), a position apparently maintained to this day.⁴⁸ A rational and fairminded Congress, therefore, might well have decided that the carefully tailored law that it enacted would be less objectionable to appellant than the alternative that he today appears to endorse. To be sure, if the record were unambiguously to demonstrate that the Act represents the infliction of legislative punishment, the fact that the judicial alternative poses its own difficulties would be of no constitutional significance. But the record suggests the contrary, and the unique choice that Congress faced buttresses our conclusion that the Act cannot fairly be read to inflict legislative punishment as forbidden by the Constitution.

 We, of course, are not blind to appellant's plea that we recognize the social and political realities of 1974. It was a period of political turbulence unprecedented in our history. But this Court is not free to invalidate Acts of Congress based upon inferences that we may be asked to draw from our personalized reading of the contemporary scene or recent history. In judging the constitutionality of the Act, we may only look to its terms, to the intent expressed by Members of Congress who voted its passage, and to the existence or nonexistence of legitimate explanations for its apparent effect. We are persuaded that none of these factors is suggestive that the Act is a punitive bill of attainder, or otherwise facially unconstitutional. The judgment of the District Court is

Affirmed.

Mr. Justice WHITE, concurring in part and concurring in the judgment.

I concur in the judgment and, except for Part VII, in the Court's opinion. With respect to the bill of attainder issue, I concur in the result reached in Part VII; the statute does not impose ‘punishment’ and is not, therefore, a bill of attainder.

.

Mr. Justice STEVENS, concurring.

The statute before the Court does not apply to all Presidents or former Presidents. It singles out one, by name, for special treatment. Unlike all other former Presidents in our history, he is denied custody of his own Presidential papers; he is subjected to the burden of prolonged litigation over the administration of the statute; and his most private papers and conversations are to be scrutinized by Government archivists. The statute implicitly condemns him as an unreliable custodian of his papers. Legislation which subjects a named individual to this humiliating treatment must raise serious questions under the Bill of Attainder Clause.

Bills of attainder were typically directed at once powerful leaders of government. By special legislative Acts, Parliament deprived one statesman after another of his reputation, his property, and his potential for future leadership. The motivation for such bills was as much political as it was punitive and often the victims were those who had been the most relentless in attacking their political enemies at the height of *485 their own power.¹ In light of this history, legislation like that before us must be scrutinized with great care.

Our cases ‘stand for the proposition that legislative acts, no matter what their form, 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 are bills of attainder prohibited by the Constitution.’ United States v. Lovett, 328 U.S. 303, 315-316, 66 S.Ct. 1073, 1079, 90 L.Ed. 1252. The concept of punishment involves not only the character of the deprivation, but also the manner in which that deprivation is imposed. It has been held permissible for Congress to deprive Communist deportees, as a group, of their social security benefits, **2814 Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435, but it would surely be a bill of attainder for Congress to deprive a single, named individual of the same benefit. The very specificity of the statute would mark it as punishment, for there is rarely any valid reason for such narrow legislation; and normally the Constitution requires Congress to proceed by general rulemaking rather than by deciding individual cases

Like the Court, however, I am persuaded that ‘appellant constituted a legitimate class of one . . ..’ Ante, at 2805. The opinion of the Court leaves unmentioned the two facts which I consider decisive in this regard. Appellant resigned his office under unique circumstances and accepted a pardon² for any offenses committed while in office. By so doing, he placed himself in a different class from all other Presidents. Even though unmentioned, it would be unrealistic to assume that historic facts of this consequence did not affect the legislative decision.³

Since these facts provide a legitimate justification for the specificity of the statute, they also avoid the conclusion that this otherwise nonpunitive statute is made punitive by its specificity. If I did not consider it appropriate to take judicial notice of those facts, I would be unwilling to uphold the power of Congress to enact special legislation directed only at one former President at a time when his popularity was at its nadir. For even when it deals with Presidents or former Presidents, the legislative focus should be upon ‘the calling’ rather than ‘the person.’ In short, in my view, this case will not be a precedent for future legislation which relates, not to the Office of President, but just to one of its occupants.

Without imputing a similar reservation to the Court, I join its opinion with the qualification that these unmentioned facts have had a critical influence on my vote to affirm.

*491 Mr. Justice BLACKMUN, concurring in part and concurring in the judgment.

[omitted]

Mr. Justice POWELL, concurring in part and concurring in the judgment.

[omitted]

Mr. Chief Justice BURGER, dissenting.

In my view, the Court's holding is a grave repudiation of nearly 200 years of judicial precedent and historical practice. That repudiation arises out of an Act of Congress passed in the aftermath of a great national crisis which culminated in the resignation of a President. The Act (Title I of Pub.L. 93-526) violates firmly established constitutional principles in several respects.

I find it very disturbing that fundamental principles of constitutional law are subordinated to what seem the needs of a particular situation. That moments of great national distress give rise to passions reminds us why the three branches of Government were created as separate and coequal, each intended as a check, in turn, on possible excesses by one or both of the others. The Court, however, has now joined a Congress, in haste to ‘do something,’ and has invaded historic, fundamental principles of the separate powers of coequal branches of Government. To ‘punish’ one person, Congress and now the Court tears into the fabric of our constitutional framework.

Any case in this Court calling upon principles of separation of powers, rights of privacy, and the prohibitions against bills of attainder, whether urged by a former President or any citizen is inevitably a major constitutional holding. Mr. Justice Holmes, speaking of the tendency of ‘great cases like hard cases (to make) bad law,’ went on to observe the dangers inherent when

'some accident of immediate overwhelming interest . . . appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.' Northern Securities Co. v. United States, 193 U.S. 197, at 400-401, 24 S.Ct. 436, at 468, 48 L.Ed. 679 (1904) (dissenting opinion).

Well-settled principles of law are bent today by the Court under that kind of ‘hydraulic pressure.’

[many pages omitted]

III

Bill of Attainder

A

Under Art. I, s 9, cl. 3, as construed and applied by this Court since the time of Mr. Chief Justice Marshall, Title I violates the Bill of Attainder Clause. In contrast to Title II of Pub.L. 93-526, the Public Documents Act, which establishes a National Study Commission to study questions concerning the preservation of records of all federal officials, Title I commands the Administrator to seize all tape recordings ‘involv(ing) former President Richard M. Nixon’ and all ‘Presidential historical materials of Richard M. Nixon. . . .’

*537 ss 101(a)(1), (b)(1). By contrast with Title II, which is general legislation, Title I is special legislation singling out one individual as the target.

Although the prohibition against bills of attainder has been addressed only infrequently by this Court, it is now settled beyond dispute that a bill of attainder, within the meaning of Art. I, is by no means the same as a bill of attainder at common law. The definition departed from the common-law concept very early in our history, in a most fundamental way. At common law, the bill was a death sentence imposed by legislative Act. Anything less than death was not a bill of attainder, but was, rather, ‘a bill of pains and penalties.’ This restrictive definition was recognized tangentially in Marbury v. Madison, 1 Cranch 137, 179, 2 L.Ed. 60 (1803),²⁹ but the Court soon thereafter rejected conclusively any notion that only a legislative death sentence or even incarceration imposed on named individuals fell within the prohibition. Mr. Chief Justice Marshall firmly settled the matter in 1810, holding that legislative punishment in the form of a deprivation of property was prohibited by the Bill of Attainder Clause:

‘A bill of attainder may affect the life of an individual, or may confiscate his property, or may do both.’ Fletcher v. Peck, 6 Cranch 87, 138, 3 L.Ed. 162. (Emphasis supplied.)

The same point was made 17 years later in Ogden v. Saunders, 12 Wheat. 213, 286, 6 L.Ed. 606, where the Court stated:

‘By classing bills of attainder, ex post facto laws, and laws impairing the obligation of contracts together, the *538 general intent becomes very apparent; it is a general provision against arbitrary and tyrannical legislation over existing rights, whether of person or property.’ (Emphasis supplied.)

More than 100 years ago this Court struck down statutes which had the effect of preventing defined categories of persons from practicing their professions. Cummings v. Missouri, 4 Wall. 277, 18 L.Ed. 356 (1867) (a priest); Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366 (1867) (a lawyer). Those two cases established more broadly that ‘punishment’ for purposes of bills of attainder is not limited to criminal sanctions; rather, ‘(t)he deprivation of any rights, civil or political, previously enjoyed, may be punishment . . ..’ Cummings, supra, at 320.

Mr. Chief Justice Warren pointed out that the Constitution, in prohibiting bills of attainder, did not envision ‘a narrow, technical (and therefore soon to be outmoded) prohibition . . ..’ United States v. Brown, 381 U.S. 437, 442, 85 S.Ct. 1707, 1711, 14 L.Ed.2d 484 (1965). To the contrary, the evil was a legislatively imposed deprivation of existing rights, including property rights, directed at named individuals. Mr. Justice Black, in United States v. Lovett, 328 U.S. 303, 315-316, 66 S.Ct. 1073, 1079, 90 L.Ed. 1252 (1946), stated:

'(The cases) stand for the proposition that legislative acts, no matter what their form, 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 are bills of attainder prohibited by the Constitution.' (Emphasis supplied.)

The only ‘punishment’ in Lovett, in fact, was the deprivation of Lovett's salary as a Government employee an indirect punishment for his ‘bad’ associations.

Under our cases, therefore, bills of attainder require two elements: first, a specific designation of persons or groups as subjects of the legislation, and, second, a Garland-Cummings-Lovett-Brown-type arbitrary deprivation, including deprivation *539 of property rights, without notice, trial, or other hearing.³⁰ No one disputes that Title I suffers from the first infirmity, since it applies only to one former President. The issue that remains is whether there has been a legislatively mandated deprivation of an existing right.

B

Since George Washington's Presidency, our constitutional tradition, without a single exception, has treated Presidential papers as the President's personal property. This view has been congressionally and judicially ratified, both as to the ownership of Presidential papers, Folsom v. Marsh, 9 Fed.Cas. 342 (Mo. 4, 901) (CC Mass.1841) (Story, J., sitting as Circuit Justice), and, by the practice of Justices as to ownership of their judicial papers. [paragraphs of evidence omitted]

I see no escape, therefore, from the conclusion that, on the basis of more than 180 years' history, the appellant has been deprived of a property right enjoyed by all other Presidents after leaving office, namely, the control of his Presidential papers.

Even more starkly, Title I deprives only one former President of the right vested by statute in other former Presidents by the 1955 Act the right to have a Presidential library at a facility of his own choosing for the deposit of such Presidential papers as he unilaterally selects. Title I did not purport to repeal the Presidential Libraries Act; that statute remains in effect, available to present and future Presidents, and has already been availed of by former President Ford. The operative effect of Title I, therefore, is to exclude, by name, one former President and deprive him of what his predecessors and his successor have already been allowed. This invokes what Mr. Justice Black sain in Lovett, supra could not be constitutionally done:

‘Those who wrote our Constitution well knew the danger inherent in special legislative acts which take away the life, liberty, or property of particular named persons because the legislature thinks them guilty of conduct which deserves punishment. They intended to safeguard the people of this country from punishment without trial by duly constituted courts.’ 328 U.S., at 317, 66 S.Ct., at 1079-1080. (Emphasis supplied.)

But apart from Presidential papers generally, Title I on its face contemplates that even the former President's purely family and personal papers and tape recordings are likewise to be taken into custody for whatever period of time is required for review. Some items, such as the originals of tape recordings of the former President's conversations, will never be returned to him under the Act.

I need not, and do not, inquire into the motives of Congress in imposing this deprivation on only one named person. Our cases plainly hold that retribution and vindictiveness are not requisite elements of a bill of attainder. The Court appears to overlook that Mr. Chief Justice Warren in United States v. Brown, supra, concluded that retributive motives on the part of Congress were irrelevant to bill-of-attainder analysis. To the contrary, he said flatly: ‘It would be archaic to limit the definition of punishment to ‘retribution.“ Indeed, he expressly noted that bills of attainder had historically been enacted for regulatory or preventive purposes:

‘Historical considerations by no means compel restriction of the bill of attainder ban to instances of retribution. A number of English bills of attainder were enacted for preventive purposes that is, the legislature made a judgment, undoubtedly based largely on past acts and associations . . . that a given person or group was likely to cause trouble . . . and therefore inflicted deprivations upon that person or group in order to keep it from bringing about the feared event.’ 381 U.S., at 458-459, 85 S.Ct., at 1720.

…

Nothing in our cases supports the analysis or Mr. Justice STEVENS, ibid., Under his view, appellant's resignation and subsequent acceptance of a pardon set him apart as a “legitimate class of one.” The two events upon which he relies, however, are beside the point. Correct analysis under the Bill of Attainder Clause focuses solely upon the nature of the measure adopted by Congress, not upon the actions of the target of the legislation. Even if this approach were analytically sound, the two events singled out are relevant only to two possible theories: first, that appellant is culpably deserving of punishment by virtue of his resignation and pardon; or second, that appellant's actions were so unique as to justify legislation confiscating his Presidential materials but not those of any other President. The first point can be disposed of quickly, since the Bill of Attainder Clause was, of course, intended to prevent legislatively imposed deprivations of rights upon persons whom the Legislature thought to be culpably deserving of punishment.

The remaining question, then, is whether appellant's ‘uniqueness' permits individualized legislation of the sort passed here. It does not. The point is not that Congress is powerless to act as to exigencies arising during or in the immediate aftermath of a particular administration; rather, the point is that Congress cannot punish a particular individual on account of his ‘uniqueness.’ If Congress had declared forfeited appellant's retirement pay to which he otherwise would be entitled, instead of confiscating his Presidential materials, it would not avoid the bill-of-attainder prohibition to say that appellant was guilty of unprecedented actions *544 setting him apart from his predecessors in office. In short, appellant's uniqueness does not justify serious deprivations of existing rights, including the statutory right abrogated by Title I to establish a Presidential library.

The novel arguments advanced in the several concurring opinions serve to emphasize how clearly Title I violates the Bill of Attainder Clause; Mr. Justice STEVENS although finding no violation of the Clause, admirably states the case which, for me, demonstrates the unconstitutionality of Title I:

‘The statute before the Court does not apply to all Presidents or former Presidents. It singles out one, by name, for special treatment. Unlike all former Presidents in our history, he is denied custody of his own Presidential papers; he is subjected to the burden of prolonged litigation over the administration of the statute; and his most private papers and conversations are to be scrutinized by Government archivists. The statute implicitly condemns him as an unreliable custodian of his papers. Legislation which subjects a named individual to this humiliating treatment must raise serious questions under the Bill of Attainder Clause.’.

IV

The immediate consequences of the Court's holding may be discounted by some on the ground it is justified by the uniqueness of the circumstances in short, that the end justifies the means and that, after all, the Court's holding is really not to be regarded as precedent. Yet the reported decisions of this Court reflect other instances in which unique situations confronted the Judicial Branch for example, the alleged treason of one of Founding Fathers. United States v. Burr, 25 F.Cas. 187 (No. 14,694) (CC Va.1807). Burr may or may not have been blameless; Father Cummings and Lawyer Garland, in common with hundreds of thousands of others, may have been technically guilty of ‘carrying on *545 rebellion’ against the United States. But this Court did not weigh the culpability of Cummings, Garland, or of Lovett or Brown in according to each of them the full measure of the protection guaranteed by the literal language of the Constitution. For nearly 200 years this Court has not viewed either a ‘class' or a ‘class of one’ as ‘legitimate’ under the Bill of Attainder Clause.

It may be, as three Justices intimate in their concurring opinions, that today's holding will be confined to this particular ‘class of one’; if so, it may not do great harm to our constitutional jurisprudence but neither will it enhance the Court's credit in terms of adherence to stare decisis. Only with future analysis, in perspective, and free from the ‘hydraulic pressure’ Holmes spoke of, will we be able to render judgment on whether the Court has today enforced the Constitution or eroded it.

Mr. Justice REHNQUIST, dissenting.

Appellant resigned the Office of the Presidency nearly three years ago, and if the issue here were limited to the right of Congress to dispose of his particular Presidential papers, this case would not be of major constitutional significance. Unfortunately, however, today's decision countenances the power of any future Congress to seize the official papers of an outgoing President as he leaves the inaugural stand. In so doing, it poses a real threat to the ability of future Presidents to receive candid advice and to give candid instructions. This result, so at odds with our previous case law on the separation of powers, will daily stand as a veritable sword of Damocles over every succeeding President and his advisers. Believing as I do that the Act is a clear violation of the constitutional principle of separation of powers, I need not address the other issues considered by the Court.¹

440 F.Supp.3d 607

United States District Court, E.D. Texas, Sherman Division.

HUAWEI TECHNOLOGIES USA, INC. and Huawei Technologies Co., Ltd.

v.

UNITED STATES of America, et al.

Civil Action No. 4:19-CV-159

|

Signed February 18, 2020

Synopsis

Background: Privately-owned Chinese global telecommunications company and its Texas corporate subsidiary filed suit against United States and individual heads of federal agencies, seeking to invalidate, as unconstitutional under Bill of Attainder Clause, Due Process Clause, and Vesting Clauses, provision of John S. McCain National Defense Authorization Act for Fiscal Year 2019 (2019 NDAA), prohibiting federal agencies from procuring, extending, or renewing contract to procure any telecommunications and video surveillance equipment, system, or service if products of Chinese company or subsidiary constituted substantial or essential component, or critical technology, of any system, prohibiting federal agencies from entering into, extending, or renewing contract with entity that used any such equipment, system, or service, and prohibiting heads of executive agencies from obligating or expending loan or grant funds to procure, obtain, or renew contract for any such equipment, system, or service. Plaintiffs moved for summary judgment, and government moved to dismiss for failure to state claim or, alternatively, for summary judgment.

MEMORANDUM OPINION AND ORDER

AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE

Pending before the Court are Plaintiffs' Motion for Summary Judgment  and Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment . Having considered the motions and the relevant pleadings, the Court finds that Plaintiffs' motion should be denied and Defendants' motion should be granted.

BACKGROUND

The dispute in this case surrounds Section 889 (“Section 889”) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019, Public Law 115-232, (“2019 NDAA”). However, the history of the case starts far earlier than the enactment of Section 889.

Plaintiff Huawei Technologies Co., Ltd. (“Huawei Technologies”) is a limited liability company organized in Shenzhen, Guangdong Province in the People's Republic of China. Huawei Technologies is a global telecommunications company that provides both products and services within the field of telecommunications. Its subsidiary and/or affiliate, Plaintiff Huawei Technologies USA, Inc., (“Huawei USA”) (collectively “Huawei” or “the Huawei Entities”) is a corporation organized under Texas law. Huawei USA provides telecommunications equipment and services to eighty-five active United States wireline and wireless carriers and numerous enterprise customers, which include corporations, schools, and other institutions. The Huawei Entities are “wholly-owned subsidiaries of Huawei Investment & Holding Co. Ltd. (“Huawei Investment”).” Huawei Investment is a private company wholly owned by its 97,000 employees and Huawei's founder.

While Huawei is a privately owned company based on its registrations, in 2011, the U.S.-China Economic and Security Review Commission identified Huawei as a privately owned company subject to Chinese influence based on favorable government policies, which aim to support Huawei's development and pose obstacles to foreign competition. Around the same time, the U.S.-China Economic and Security Review Commission reported that “[n]ational security concerns have accompanied the dramatic growth of China's telecom sector” with “large Chinese companies—particularly those ‘national champions’ prominent in China's ‘going out’ strategy of overseas expansion” posing a threat as they “are directly subject to direction by the Chinese Communist Party.”

These concerns resulted in a year-long investigation into “the counterintelligence and security threat posed by Chinese telecommunications companies doing business in the United States.” The investigation was led by the House Permanent Select Committee on Intelligence (“HPSCI”) in November 2011, which published its findings in a report dated October 8, 2012 (“HPSCI Report”).  After the investigation, the HPSCI determined that “Huawei and ZTE cannot be trusted to be free of foreign state influence and thus pose a security threat to the United States and to our systems”; although, there was no explicit finding of wrongdoing. The HPSCI made recommendations for excluding Huawei and ZTE's products and services from sensitive United States systems, including government systems and government contractors. The HPSCI further encouraged private-sector entities and United States network providers and system developers to seek telecommunications businesses other than Huawei and ZTE. Similar concerns were echoed by various government committees, officials, and agencies from 2012 through 2018.

In December 2017, Congress enacted the National Defense Authorization Act for Fiscal Year 2018 (“2018 NDAA”). Section 1656 of the 2018 NDAA reads as follows:

SEC. 1656. SECURITY OF NUCLEAR COMMAND, CONTROL, AND COMMUNICATIONS SYSTEM FROM COMMERCIAL DEPENDENCIES

(a) CERTIFICATION.—Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall certify to the congressional defense committees whether the Secretary uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system, to carry out—

(1) the nuclear deterrence mission of the Department of Defense, including with respect to nuclear command, control, and communications, integrated tactical warning and attack assessment, and continuity of government; or

(2) the homeland defense mission of the Department, including with respect to ballistic missile defense.

(b) PROHIBITION AND MITIGATION.—

(1) PROHIBITION.—Except as provided by paragraph (2), beginning on the date that is one year after the date of the enactment of this Act, the Secretary of Defense may not procure or obtain, or extend or renew a contract to procure or obtain, any equipment, system, or service to carry out the missions described in paragraphs (1) and (2) of subsection (a) that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system.

…

(c) DEFINITIONS.—In this section:

...

(2) The term “covered foreign country” means any of the following:

(A) The People's Republic of China.

(B) The Russian Federation.

(3) The term “covered telecommunications equipment or services” means any of the following:

(A) Telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities).

(B) Telecommunications services provided by such entities or using such equipment.

(C) Telecommunications equipment or services produced or provided by an entity that the Secretary of Defense reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.

Early in 2018, bills entitled “Defending U.S. Government Communications Act” were introduced into both the House of Representatives (“House”) and the United States Senate (“Senate”). Those bills were identified as: H.R. 4747 and S. 2391. The bills provided that:

The head of an agency may not procure or obtain, may not extend or renew a contract to procure or obtain, and may not enter into a contract (or extend or renew a contract) with an entity that uses any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system.

.....

The term “covered telecommunications equipment or services” means any of the following:

(A) Telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities).

 .....

. Both bills contain substantially similar findings: [findings addressing the security threat posed by Huawei omitted]

Subsequently, H.R. 5515, was introduced in the House. During an initial markup, a provision similar to the Defending U.S. Government Communications Act was added to the bill, including findings substantially similar to those included in the previous House and Senate bills. H.R. 5515, however, added three additional findings: [[[the findings restate testimony from the Director of the FBI, the Director of National Intelligence and the Commanding General of United States Army Cyber Command that they would recommend against use of Huawei products]]]

Through markups and amendments in the House and Senate, H.R. 5515 became Section 889 of the 2019 NDAA, which was enacted on August 13, 2018. Section 889, as it was enacted, does not contain any of the findings of H.R. 5515, but retains the general structure of the bill.

Essentially, Section 889 contains three main prohibitions. First, Section 889(a)(1)(A) prohibits federal agencies from procuring, extending, or renewing a contract to procure “any equipment, system, or service” if Huawei products constitute “a substantial or essential component,” or “critical technology,” of any system.  Second, Section 889(a)(1)(B) prohibits federal agencies from entering into, extending, or renewing a contract with an entity that uses any such “equipment, system, or service” comprised of Huawei products. Third, Section 889(b) prohibits heads of executive agencies from obligating or expending loan or grant funds to procure, obtain, or renew a contract from any “equipment, system, or service” if Huawei products constitute “a substantial or essential component,” or “critical technology,” of any system.

ANALYSIS

1. Bill of Attainder

Huawei argues that Section 889 violated the Bill of Attainder Clause. The Constitution prohibits Congress from passing a bill of attainder: “No Bill of Attainder or ex post facto Law shall be passed.” U.S. Const. art. I, § 9, cl. 3. Bills of attainder are a form of “legislative punishment, of any form or severity, of specifically designated persons or groups.” United States v. Brown, 381 U.S. 437, 447, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965) (citations omitted). In other words, a bill of attainder is “a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.” Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 468, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977) (citations omitted). “[E]ach bill of attainder case ‘has turned on its own highly particularized context.’ ” Kaspersky Lab, Inc. v. U.S. Dep't of Homeland Sec., 909 F.3d 446, 454 (D.C. Cir. 2018) (quoting Flemming v. Nestor, 363 U.S. 603, 616, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960)).

“Where, as here, the liability in question clearly attaches by operation of the legislative act alone, the constitutional test may be summarized in the following two-pronged test: First, has the legislature acted with specificity? Second, has it imposed punishment?” SBC Commc'ns, Inc. v. FCC, 154 F.3d 226, 233 (5th Cir. 1998). Assuming without deciding that the Bill of Attainder Clause applies to corporations, the Court will address each prong.

1. Specificity

“The element of specificity may be satisfied if the statute singles out a person or class by name or applies to ‘easily ascertainable members of a group.’ ” Foretich v. United States, 351 F.3d 1198, 1217 (D.C. Cir. 2003) (quoting United States v. Lovett, 328 U.S. 303, 315, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946)). “In this case, there can be no serious dispute that [Section 889] satisfies the specificity prong of our analysis.” See id. The Government “do[es] not dispute that the specificity element is satisfied here[.]” 

1. Punishment

Courts have explained that “specificity alone does not render a statute an unconstitutional bill of attainder. Rather, a law may be so specific as to create a ‘legitimate class of one’ without amounting to a bill of attainder unless it also satisfies the ‘punishment’ element of the analysis.” Foretich, 351 F.3d at 1217 (quoting Nixon, 433 U.S. at 469–73, 97 S.Ct. 2777). “A ‘punishment’ is something more than a burden. The task, then, is to distinguish permissible burdens from impermissible punishments.” Kaspersky Lab, 909 F.3d at 455 (citing Selective Serv. Sys. v. Minn. Pub. Interest Research Grp., 468 U.S. 841, 851, 104 S.Ct. 3348, 82 L.Ed.2d 632 (1984)).

To ascertain whether a statute imposes punishment, the Supreme Court has instructed that a court should pursue a three-part inquiry: (1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute “viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes”; and (3) whether the legislative record “evinces a congressional intent to punish.”

This three part-inquiry has been commonly referred to as the “historical test,” the “functional test,” and the “motivational test.” The Court engages in the three-part inquiry below.

1. Historical Test

The concept of a bill of attainder has its roots in the English common law. “In England[,] a bill of attainder originally connoted a parliamentary Act sentencing a named individual or identifiable members of a group to death.” Nixon, 433 U.S. at 473, 97 S.Ct. 2777 (footnote omitted). The United States Constitution also “proscribes enactments originally characterized as bills of pains and penalties, that is, legislative Acts inflicting punishment other than execution.” The bills of pains and penalties “historically consisted of a wide array of punishments: commonly included were imprisonment, banishment, and the punitive confiscation of property by the sovereign.” Additionally, “[o]ur country's own experience with bills of attainder resulted in the addition of another sanction to the list of impermissible legislative punishments: a legislative enactment barring designated individuals or groups from participation in specified employments or vocations, a mode of punishment commonly employed against those legislatively branded as disloyal.” 

Huawei argues that Section 889 is an improper bill of attainder under three historical “punishments”: (1) brand of disloyalty and infamy; (2) employment bar; and (3) banishment.

1. Disloyalty and Infamy

Huawei asserts that Section 889 has removed it from positions of trust and that the statute casts it as a tool of the Chinese Communist Party. Huawei argues that this branded Huawei and its employees disloyal and infamous like the restrictive bills of attainder in Cummings and Foretich did. The Government responds that the brand of infamy and disloyalty does not apply to  corporations. The Government additionally contends that Huawei's employees are not plaintiffs in this case and any alleged “punishment” of the employees does not factor into the analysis for Huawei.

Bills of attainder do in fact “focus on legislative enactments that ‘set[ ] a note of infamy’ on the persons to whom the statute applies.” Foretich, 351 F.3d at 1220 (quoting Brown, 381 U.S. at 453–54, 85 S.Ct. 1707) (emphasis added). Thus, the Court must focus on the person who is the subject of the statute. In Section 889, that is Huawei.⁴ Huawei's employees are not named in the statute, and the statute does not apply to Huawei's employees. Therefore, the Court does not consider any brand of disloyalty or infamy on Huawei's employees in its analysis.

Having determined that the Court will not consider Huawei's employees, the Court turns to the alleged brand of disloyalty and infamy cast on Huawei. The impermissible, legislative brand of infamy and disloyalty can be demonstrated by Foretich. In Foretich—after a man's ex-wife had made allegations in a custody battle that he had sexually abused his daughter—Congress passed an act that prevented the father from seeing his daughter without obtaining consent of his ex-wife. Id. at 1203–1204. The D.C. Circuit noted that the “deprivation of parental rights and the opprobrium of being branded a criminal child abuser” casts a brand of infamy and disloyalty of “even greater magnitude than many of those at issue in the historical cases.” Id. at 1220. Dr. Forteich, based on the act passed, no longer had any “credit or reputation.” Id. It affects the individual personally. This is the reason the D.C. Circuit noted that “the stain of a ‘brand of infamy or disloyalty’ matters most to flesh-and-blood humans.” See Kaspersky Lab, 909 F.3d at 461. Kaspersky goes on to explain that, individuals are the ones who have: “but one country of citizenship—a country which they exercise civic privileges available exclusively to living individuals, such as voting, running for office, or serving in the armed forces”; “neighbors and colleagues and communities in whose good graces they hope to remain”; and “families and friends whose own reputations and happiness are tied, at least in part, to their own” Id.

Corporations are very different. To be sure, corporations may derive substantial value from their brands' reputations. But that is precisely the point: reputation is an asset that companies cultivate, manage, and monetize. It is not a quality integral to a company's emotional well-being, and its diminution exacts no psychological cost.

Id. Section 889 is a financial difficulty posed on a business, as opposed to a destruction of a person in his own community. Thus, this historical punishment applies to corporations in a different sense than it does to individuals.

The Court finds that Section 889 is not a statute that rises to the level of punishment based on infamy and disloyalty.

After analyzing the similarities and differences, the Court finds Section 889—like section 1634—is a statute that “represents no more than a customer's decision to take its business elsewhere.” See Kaspersky Lab, 909 F.3d at 463. The federal government made the decision not to use or spend its money on Huawei's covered equipment. To accomplish that decision, Section 889 prohibited the heads of federal agencies from using, contracting with entities that use Huawei products, or obligating or expending federal grant and loan funds from procuring Huawei's covered equipment. While this decision may be “costly to [Huawei], such a decision falls short of ‘the historical meaning of legislative punishment.’ ” Id. (quoting Selective Serv. Sys., 468 U.S. at 852, 104 S.Ct. 3348)).

1. Employment Bar

Huawei additionally asserts that Section 889 acts as an employment bar because it prevents Huawei from participating in its chosen advocation in life and is a permanent proscription from any opportunity to serve the Government.⁵ The Government contends that Section 889 does not preclude Huawei from engaging in its chosen profession.

The Court agrees with the Government. As previously acknowledged, “[o]ur country's own experience with bills of attainder resulted in the addition of another sanction to the list of impermissible legislative punishments: a legislative enactment barring designated individuals or groups from participation in specified employments or vocations, a mode of punishment commonly employed against those legislatively branded as disloyal.” Nixon, 433 U.S. at 474, 97 S.Ct. 2777 (citations omitted).

Huawei is not barred from participation in its chosen profession. Huawei itself claims that it is a “global leader in information and communications technology products and services.” . Aside from federal agencies, “all other individuals and companies in the universe of potential clients remain free to buy and use [Huawei] products.” See Kaspersky Lab, 909 F.3d at 457. It may be true that entities wishing to contract with the federal government may be dissuaded from purchasing Huawei products and that other purchases may be chilled, but the employment bars in our jurisprudence do not consider such an indirect effect.⁶ See generally Brown, 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484 (analyzing a direct bar to  members of the Communist Party from serving as an officer or employee of labor unions); Lovett, 328 U.S. 303, 66 S.Ct. 1073 (analyzing direct bar to named individuals from being paid for Government employment based on a legislative determination that they were engaged in “subversive activity”); Cummings v. Missouri, 4 Wall. 277, 18 L.Ed. 356 (1866) (analyzing the direct bar of clergymen from their chosen profession for not subscribing to a loyalty oath); Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366 (1866) (analyzing the direct bar of lawyers from their chosen profession for not subscribing to a loyalty oath).

Moreover, even if the employment-bar jurisprudence did consider such an indirect result, the Court remains unpersuaded that Section 889 prevents Huawei from engaging in its chosen profession. Huawei can still conduct business with every other company and individual in America as well as the remaining 169 countries and regions it currently does business with throughout the world. Section 889 is markedly different from an individual who is prohibited from being a lawyer like in Garland or a federal employee as in Lovett, the cases Plaintiff uses as support for its argument.

In Garland, Congress passed a law requiring lawyers to take an oath regarding past actions, thereby prohibiting certain individuals from being lawyers. 4 Wall. at 374–76. Here, Huawei is still permitted to engage as a global telecommunications technology product and service supplier, in America and other countries. While it may not be permitted to engage with the federal government, that is a far cry from being permanently barred from its chosen profession.

In Lovett, Congress passed a statute that prevented payment of salaries to government employees who were determined to be “subversives” by the House Appropriations Committee. 328 U.S. at 305–13, 66 S.Ct. 1073. Although Section 889 and Lovett both concern working or doing business with the federal government, the statutes are vastly different. As an initial matter, an individual choosing a profession in the federal government does not equate to a company attempting to do business with the federal government. For the individual, this fits squarely into the employment bar that is prohibited, because the individual is no longer permitted to engage in his or her chosen profession. On the other hand, a corporation is still permitted to engage in its chosen profession— even if it loses a potential client.

1. Banishment

Huawei additionally argues that Congress is seeking to drive Huawei out of the United States for past misdeeds. Such argument falls within the historical category of banishment.⁸ The Government counters  that Huawei is not prevented from being in the United States.

The Court agrees with the Government. “Banishment has traditionally been associated with deprivation of citizenship and ‘does more than merely restrict one's freedom to go or remain where others have the right to be: it often works a destruction of one's social, cultural, and political existence.’

2. Functional Test

“But our inquiry is not ended by the determination that the Act imposes no punishment traditionally judged to be prohibited by the Bill of Attainder Clause.”⁹ Nixon, 433 U.S. at 475, 97 S.Ct. 2777. “Such a rule would render the [Bill of Attainder Clause] unable to respond to attempts by contemporary legislatures to punish individuals in new and heretofore unforeseen ways.” Consol. Edison Co. of N.Y., Inc. v. Pataki, 292 F.3d 338, 351 (2d Cir. 2002) (citing Nixon, 433 U.S. at 475, 97 S.Ct. 2777). Courts, “therefore, often ha[ve] looked beyond mere historical experience and ha[ve] applied a functional test of the existence of punishment, analyzing 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.” Nixon, 433 U.S. at 475–76, 97 S.Ct. 2777.

“Our cases have noted, however, that the second factor—the so-called ‘functional test’— ‘invariably appears to be the most important of the three.’ ” Under this second factor, courts analyze whether the challenged law, “viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes.” Nixon, 433 U.S. at 475–76, 97 S.Ct. 2777 (citations omitted). Thus, “[i]n short: identify the purpose, ascertain the burden, and assess the balance between the two.” Kaspersky Lab, 909 F.3d at 455. As such, the Court will first identify the purpose and then evaluate the balance between both the burden and purpose to determine if the statute is reasonably tailored.

1. Purpose of Section 889

Huawei asserts that the purpose of Section 889 is punitive, which is demonstrated by the lack of tailoring to the most apparent purposes. The Government contends that Section 889 is prophylactic. The nonpunitive nature of the statute is readily apparent according to the Government.  The parties present several arguments related to the purpose. The Court subsequently addresses each argument.

1. Retrospective Focus

As an initial matter, the Government asserts that the prophylactic nature is clear from the fact that Section 889 has a prospective focus as opposed to serving as a punishment for past conduct. Huawei responds that punishment can govern future misconduct and is not limited to past conductMoreover, Huawei asserts that the prohibitions in Section 889 are based on past misdeeds and association.

A statute is punitive in nature when it has a “retrospective focus” and “it defines past conduct as wrongdoing and then imposes punishment on that past conduct. Such a bill attributes guilt to the party or parties singled out in legislation.” See Consol. Edison Co., 292 F.3d at 349 (citations omitted). A bill of attainder “legislatively determines guilt” without “the protections of a judicial trial.” Nixon, 433 U.S. at 468, 97 S.Ct. 2777 (citations omitted). As argued by Huawei, Nixon states that “punishment is not restricted purely to retribution for past events, but may include inflicting deprivations on some blameworthy or tainted individual in order to prevent his future misconduct.” Nixon, 433 U.S. at 476 n.40, 97 S.Ct. 2777 (citing Brown, 381 U.S. at 458–59, 85 S.Ct. 1707). In other words, the bill of attainder inquiry does not end once the Court identified a statute as prospective—a prospective statute can still be impermissibly punitive. In order for a prospective statute to be impermissibly punitive, however, it must actually “constitute[ ] punishment” as opposed, to being a “legitimate regulation of conduct.” Id. An act constitutes punishment, when as evidenced in Brown, individuals are legislatively determined guilty. See id. Absent that determination, the statute is a legitimate regulation of conduct. See id.

The facts in Consolidated provide the quintessential example of a punitive statute demonstrated through an impressible legislative determination of guilt based on a past event. In Consolidated, the New York legislature passed a bill (“Chapter 190”) in response to a power outage caused by a defective generator that was known to be defective and not replaced. Consol. Edison Co., 292 F.3d at 343–44. The company that failed to replace the generator then “increased its rates to incorporate the cost of purchasing replacement electricity and the other costs associated with the outage.” Id. at 344. Chapter 190 found that “continuing to operate steam generators known to be defective, and thereby increasing the risk of a radioactive release and/or an expansive plant outage, the Consolidated Edison Company failed to exercise reasonable care on behalf of the health, safety and economic interests of its customers.” Id. Based on the failure to exercise reasonable care, Chapter 190 explained that “it would not be in the public interest for the company to recover from ratepayers any costs resulting from” the power outage. Id. Chapter 190 consequently prohibited “the Consolidated Edison Company from recovering from its ratepayers any costs associated with replacing the power from such facility.” Id.

The Second Circuit found that Chapter 190 “focus[ed] on Con[solidated] Ed[ison]'s conduct related to a single, past incident, [the outage], as the basis for the sanction it impose[d]”; that the statute made “explicit findings about the outage,” and that the statute was limited in scope to the outage. Id. at 349. Based on these findings, the Second Circuit held that Chapter 190 had a “retrospective focus” and “impose[d] liability ‘determined by no previous law or  fixed rule.’ ” See id. (quoting Lovett, 328 U.S. at 317, 66 S.Ct. 1073).

Another example of a trial-like adjudication made by the legislature is found in Lovett. In Lovett, Congress sought to determine whether a list of thirty-nine individuals who worked for the federal government, identified by Congressman Martin Dies, were engaging in “subversive” activity. Lovett, 328 U.S. at 309–10, 66 S.Ct. 1073. Congressman Dies's recommendation became known as the indictment of the thirty-nine individuals. Id. The Appropriations Committee was then permitted to investigate, giving the employees “a chance to prove themselves ‘innocent’ of communism or disloyalty [ ] so that each ‘man would have his day in court[.]’ ” Id. During the hearings that followed, the accused could appear to testify but were not permitted to have lawyers. Id. at 310– 11, 66 S.Ct. 1073. Moreover, the accused were only permitted to be present during his or her testimony, not while any other witness was testifying. See id. at 311, 66 S.Ct. 1073. The Committee was permitted to summon witnesses and papers and then make a recommendation to the House on whether the individual was engaging in “subversive activity” and on appropriate remedial measures. Id. at 310, 66 S.Ct. 1073. Because “subversive activity” had not yet been defined by Congress, the Committee formulated its own definition, and then used that definition to find the plaintiffs in Lovett guilty. Id. at 311, 66 S.Ct. 1073. Subsequently, those who were determined to be guilty of “subversive activity” were prevented from getting paid for working in the federal government in the future.

This is not the situation before the Court. Section 889 does not reference any one, single, past incident. Nor does Section 889 make explicit findings about a specific past incident or limit the scope of its application to a past incident. Section 889 did not determine Huawei's guilt. In fact, the HPSCI could not conclusively determine any wrongdoing by Huawei. The legislature did not have trial-like hearings by calling witnesses or requesting evidence. The legislature did not put Huawei on trial or prevent it from having representation during a trial. Finally, the legislature did not make a determination of guilt. Congress did, in fact, hold hearings regarding the bill and there were findings included in the initial House and Senate bills. But hearings and findings are a permissible way for Congress to regulate conduct.

1. Purpose Stated Within the Statute

Huawei argues that Section 889 must be punitive because the statute itself is silent as to its purpose. Section 889's silence combined with its selectivity is sufficient to label a statute punitive according to Huawei. Huawei cites Nixon, Foretich, and Kaspersky as support for this contention. The Government contends that there is not a rule requiring a statute to state its purpose and that, in fact, cases in this context have suggested the opposite is true.

In Nixon, the Supreme Court stated that, under the functional test, a law must “reasonably...further nonpunitive legislative purposes” when “viewed in terms of the type and severity of the burden imposed.” 433 U.S. at 475–76, 97 S.Ct. 2777. The Supreme Court continued: “[w]here such legitimate legislative purposes do not appear, it is reasonable to conclude that punishment of individuals disadvantaged by the enactment was the purpose of the decisionmakers.” Id. at 476, 97 S.Ct. 2777. The Supreme Court did not, however, state that these nonpunitive purposes needed to explicitly appear in the statute. Similarly, while the Foretich court maintained that the nonpunitive purposes needed to be sufficiently clear and convincing, and the Kaspersky court stated that the nonpunitive purpose needed to be actual rather than conceivable, the D.C. Circuit did not require that the legitimate purposes be explicitly stated in the statute. In fact, no court—as far as this Court is aware—has ever required such a statement. Thus, the Court here does not create such a bright-line rule. See Kaspersky Lab, 909 F.3d at 456; Foretich, 351 F.3d at 1221.

1. Purported Nonpunitive Purpose

The Government contends that, even though not explicit in the statute, the primary purpose of Section 889 is: “[t]o further national and informational security by protecting the networks of federal agencies, contractors, and grantees from the threat of cyber-attacks and -espionage by the Chinese government via companies   in a position to exploit those networks.” . Moreover, the Government asserts that there is “an ancillary purpose of ensuring that federal tax dollars were not spent to procure, or otherwise further propagate on U.S. networks, products that pose the aforementioned Chinese cyber-threat.” . The purposes offered by the Government are “legitimate and eminently reasonable” nonpunitive functions. See Kaspersky Lab, Inc. v. U.S. Dep't of Homeland Sec., 311 F. Supp. 3d 187, 211 (D.D.C. 2018).

Turning to Huawei's argument that the Court should use the most obvious nonpunitive purposes, rather than the ones offered by the Government, the D.C. Circuit explained that the statute must further an “actual” purpose. Kaspersky Lab, 909 F.3d at 456. Not merely “some conceivable nonpunitive purpose, but rather an actual nonpunitive purpose.” Id. (citation omitted). There is no requirement that there needs to be several purposes or that every conceivable purpose needs to be furthered by the statute.¹¹ Thus, if the Government's purported purposes are actual nonpunitive purposes, the Court can move to the next inquiry.

Again, the purported nonpunitive purpose of Section 889 is “[t]o further national and informational security by protecting the networks of federal agencies, contractors, and grantees from the threat of cyber-attacks and -espionage by the Chinese government via companies in a position to exploit those networks.” . The ancillary purpose is “ensuring that federal tax dollars were not spent to procure, or otherwise further propagate on U.S. networks, products that pose the aforementioned Chinese cyber-threat.” [[[The Court then finds that each purpose is an actual non-punitive purpose]]]

1. Balance

Although the Government has stated actual nonpunitive purposes, the Court's inquiry is not over. The Court must now turn to whether there is proper tailoring between the burdens imposed and the nonpunitive purposes.¹²

“It is not the severity of a statutory burden in absolute terms that demonstrates punitiveness as much as the magnitude of the burden relative to the purported nonpunitive purposes of the statute.” Foretich, 351 F.3d at 1222. “[W]here there exists a significant imbalance between the magnitude of the burden imposed and a purported nonpunitive purpose, the statute cannot reasonably be said to further nonpunitive purposes.” Id. at 1221 (citing Consol. Edison Co., 292 F.3d at 354).

Although a serious imbalance may support an inference that the legislature's purported nonpunitive objective serves as a smokescreen for some undisclosed punitive purpose, an imperfect fit between purpose and burden does not necessarily prove punitive intent. The difference is nuanced but critical: the question is not whether a burden is proportionate to the objective, but rather whether the burden is so disproportionate that it belies any purported nonpunitive goals.

Kaspersky Lab, 909 F.3d at 455 (internal quotations omitted) (citations omitted). When considering whether a statute is properly tailored, “courts have considered a wide variety of factors in conducting this functional inquiry. Generally speaking, these factors fall into two categories.” Id. “First, a statute performs poorly on the functional test when its effect is significantly overbroad.” Id. (citations omitted). “Second, a statute flounders on the functional test when its reach is underinclusive.” Id. at 456 (citations omitted).

The strength of the connection remains a relatively unsettled area of the law. There are two competing ideas: (1) that there must simply be a rational connection between the burdens imposed and the nonpunitive purposes; and (2) there must be clear and convincing nonpunitive  purposes supported by the burdens imposed. As explained in Kaspersky,

[o]n the one hand, the Bill of Attainder Clause does not require narrow tailoring. Congress enjoys leeway to select among more or less burdensome options, and it “may read the evidence before it in a different way than might this court or any other, so long as it remains clear that Congress was pursuing a legitimate nonpunitive purpose.” BellSouth II, 162 F.3d at 689. On the other hand, the functional test is “more exacting” than rational basis review. BellSouth I, 144 F.3d at 67. The functional inquiry demands not some conceivable nonpunitive purpose, but rather an actual nonpunitive purpose. See Foretich, 351 F.3d at 1223 (“[A] statute ... does not escape unconstitutionality merely because the Government can assert purposes that superficially appear to be nonpunitive.”).

So somewhere between the two poles of narrow tailoring and rational basis lies the functional test's tipping point. We have at times described the test as requiring a “coherent and reasonable nexus” or a “rational connection” between the burden imposed and nonpunitive purpose furthered. Id. at 1219, 1221. At other times, we have used somewhat more stringent language, demanding that courts “ensure that ‘the nonpunitive aims of an apparently prophylactic measure [are] sufficiently clear and convincing.’ ” BellSouth II, 162 F.3d at 686 (alteration in original) (quoting BellSouth I, 144 F.3d at 65).

Id. Here, as in Kaspersky, the Court need not “choose between the rational-and-coherent or clear-and-convincing formulations, because [Section 889] easily clears the latter, higher bar.” See id. at 457. The Court turns to the arguments concerning under inclusivity and overbreadth in turn.

1. Underinclusive

Huawei asserts that the statute is underinclusive in the sense that the selectivity of the statute makes it underinclusive and that the statute does not prohibit enough action to support the Government's alleged nonpunitive purposes. The Government disagrees. The Court addresses each argument.

1. Selectivity

Huawei argues that while there are several other Chinese technology companies that may pose a threat, Huawei and ZTE are the only companies singled out by Section 889. The Government contends that the statute's focus on a small number of specific companies does not undermine the prophylactic nature of the statute.

As the Supreme Court explained in Nixon, it is possible to have a “legitimate class of one.” Nixon, 433 U.S. at 472, 97 S.Ct. 2777. “To be sure, selectivity alone does not a bill of attainder make. ‘[T]he Court has clearly stated that satisfaction of the specificity prong alone is not sufficient to find that a particular law implicates the [B]ill of [A]ttainder [C]lause, let alone violates it.’ ” Kaspersky Lab, 909 F.3d at 456 (quoting BellSouth II, 162 F.3d at 684). “Nevertheless, narrow application of a statute to a specific person or class of persons raises suspicion, because the Bill of Attainder Clause is principally concerned with ‘[t]he singling out of an individual for legislatively prescribed punishment.’ ” Foretich, 351 F.3d at 1224 (quoting Selective Serv. Sys., 468 U.S. at 847, 104 S.Ct. 3348) (alteration in original). As such, if the statute “seemingly burdens one among equals,” specificity raises concerns under the functional test. Kaspersky Lab, 909 F.3d at 456. If the “[a]ct's specificity ... renders the asserted nonpunitive purposes suspect[,]” then it creates “a vilified class of one” as opposed to a “legitimate  class of one.” See Foretich, 351 F.3d at 1224 (citations omitted).

Foretich demonstrates a vilified class of one. There, one father was singled out from every other parent in the midst of a contested custody battle. Id. at 1223–24. This singling out was not supported by the purported nonpunitive purposes offered by the government in that case. Id. In fact, the purported “purposes of promoting the best interest of the child, reuniting a family, and facilitating the return of U.S. citizens to this country” were undermined by the fact that the law only applied to one family and only cast one father as a child abuser. Id. at 1223. Thus, the D.C. Circuit determined that the statute at issue was a punishment under the functional inquiry because the burdens imposed were not supported by the nonpunitive purposes asserted. Id. at 1224.

The inappropriate selectivity of Foretich is different from the case before the Court. Here, the HPSCI identified that Huawei and ZTE are the “two largest Chinese-founded, Chinese-owned telecommunications companies seeking to market critical network equipment to the United States.” . The HPSCI made the conscious decision to “focus first on the largest perceived vulnerabilities, with an expectation that the conclusion of this investigation would inform how to view the potential threat to the supply chain from other companies or manufacturers operating in China and other countries.” . “Congress had ample evidence that [Huawei and ZTE] posed the most urgent potential threat, and [the Court] must give Congress ‘sufficient latitude to choose among competing policy alternatives,’ lest ‘our bill of attainer analysis ... cripple the very process of legislating.’ ” See Kaspersky Lab, 909 F.3d at 459 (quoting Foretich, 351 F.3d at 1222–23). Notably, Section 889 leaves open the possibility of designating additional companies to be subject to the prohibitions identified in the statute based on the recommendation of the DNI or the Director of the FBI. Congress's determination of the legitimate class of individual companies that posed the greatest threat and the ability to subsequently add companies that are determined to pose a threat supports the nonpunitive purposes asserted in this case. Thus, the Court finds that Congress considered Huawei and ZTE a “legitimate class of” two. See Nixon, 433 U.S. at 472, 97 S.Ct. 2777.

1. Burdens Imposed

Huawei also argues that Section 889 does not contain enough prohibitions to further its purposes.¹³ The Government contends that this is not the appropriate inquiry for underinclusivity, and even if it was, the burdens imposed are not so underinclusive that they cannot be said to further the nonpunitive purposes.

Here, the Court finds that Huawei has conflated the inquiry courts take under the underinclusive analysis. When analyzing the underinclusivity of a statute, courts generally focus on the selective nature of the statute as opposed to deciding whether the legislature went far enough to further its purposes. See Kaspersky Lab, 909 F.3d at 456. Indeed, the inquiry of the functional test is whether  “Congress has tailored the burdens imposed to an appropriate end,” not whether Congress could have done more. SBC Commc'ns, 154 F.3d at 243. Courts do not seek to determine whether every burden Congress could impose is being imposed, lest the law implicate the bill of attainder analysis.

Even if the Court indulges this argument, the Court is unpersuaded. In balancing the burdens, the Court is not to determine whether there is a perfect fit between the burdens imposed and the nonpunitive purposes asserted. See Kaspersky Lab, 909 F.3d at 455. The Court is to analyze whether or not the burdens are so disproportionate, in this case so underinclusive, that it would render any purported nonpunitive purpose a “smokescreen” for a punitive purpose. See id. The Court finds that it is not.

To start, the burdens imposed are not underinclusive in protecting national and informational security through the networks of federal agencies, contractors, and grantees. The HPSCI identified that a lack of diversity in the telecommunications market is a concern for cyber-security. At the very least, Section 889 can be read to promote market diversity. It diversifies the companies used in the federal government and by companies that the federal government contracts with, not completely removing Huawei, but using companies other than Huawei for the equipment covered by Section 889. Section 889 additionally promotes diversity by prohibiting grant and loan funds from being obligated or expended on Huawei's covered equipment, but not placing any restrictions on grant and loan recipients themselves. While there may be other ways to further Section 889's purposes, promoting market diversity is one possible way of doing so. Section 889 is not underinclusive in promoting diversity in the telecommunications market.

Additionally, the burdens imposed on Huawei very clearly support and are tailored to the “ancillary purpose of ensuring that federal tax dollars were not spent to procure, or otherwise further propagate on U.S. networks, products that pose” the identified Chinese cyber-threat. . Huawei has not argued that there are more federal funds that the Government could restrict. Thus, as to the ancillary purpose, Section 889 is not underinclusive at all.

If there were any additional burdens that could have been added to Section 889, the additional burdens do not create such an imbalance between the burdens imposed and the nonpunitive purpose that the nonpunitive purposes in this case become mere “smokescreens” for hidden punitive purposes.

1. Overbroad

Huawei argues that Section 889 is overbroad and ignores less burdensome alternatives. The Government asserts that Section 889 is appropriately tailored to the nonpunitive purposes and that less burdensome alternatives are unworkable.

The Court finds that Section 889 is appropriately tailored to the burdens imposed.

Additionally, contrary to Huawei's argument, the prohibition on Huawei products is not permanent. In the event that security threats posed by Huawei subside, the DNI may waive the prohibition.  (stating “The Director of National Intelligence may provide a  waiver on a date later than the effective dates described in subsection (c) if the Director determines the waiver is in the national security interests of the United States.”). Thus, the Court finds that Section 889 was tailored to the purposes it sought to achieve.

3. Motivational Test

“A third recognized test of punishment is strictly a motivational one: inquiring whether the legislative record evinces a congressional intent to punish.” Nixon, 433 U.S. at 478, 97 S.Ct. 2777 (citations omitted). “Under this prong, a court must inspect legislation for a congressional purpose to ‘encroach[ ] on the judicial function of punishing an individual for blameworthy offenses.’ ” Foretich, 351 F.3d at 1225 (alteration in original) (quoting Nixon, 433 U.S. at 479, 97 S.Ct. 2777). In order to analyze this factor, courts look to “legislative history, the context or timing of the legislation, or specific aspects of the text or structure of the disputed legislation.” Id.

Nevertheless, “[g]iven the obvious constraints on usefulness of legislative history as an indicator of Congress's collective purpose, this prong by itself is not determinative in the absence of ‘unmistakable evidence of punitive intent.’ ” Id. (quoting Selective Serv. Sys., 468 U.S. at 856 n.15, 104 S.Ct. 3348). Because Section 889 does not demonstrate a historical punishment or punishment under the functional inquiry, Huawei needs to demonstrate “ ‘smoking gun’ evidence of punitive intent” under this factor. See SBC Commc'ns, Inc., 154 F.3d at 243 (quoting Selective Serv. Sys., 468 U.S. at 856 n.15, 104 S.Ct. 3348).

 “Statements by a smattering of legislators ‘do not constitute [the required] unmistakable evidence of punitive intent.’ ” ACORN, 618 F.3d at 141 (alteration in original) (quoting Selective Serv. Sys., 468 U.S. at 856 n.15, 104 S.Ct. 3348).

The Court acknowledges that a few senators made concerning comments regarding Huawei. For example, senators are quoted stating: “I think the only fitting punishment would be to give [Huawei] the death penalty; that is, to put them out of business in the United States” ; “[b]oth parties in Congress must come together to bring the hammer down on [Huawei and ZTE]” ; and “Huawei...shouldn't be allowed to operate in the United States, and we should put them out of business....” . However, these statements do not represent the collective view of Congress. While the senators are claiming that Huawei should not be allowed to operate in the United States, Section 889 does not implement a nation-wide ban on Huawei products. Section 889 does not even place a ban on every Huawei product in the federal government—it only covers the designated “covered equipment,” which is tailored to the products and services that pose the greatest threat. Moreover, beginning in 2010, there have been several legislative reports discussing the cyber- and security-threats posed by Huawei. See generally infra II.B.2. Reading these statements in the context of the entire legislative record, the legislators' concerning comments do not represent Congress's intent as a whole.

Additionally, the legislative findings that Huawei complains of are not contained in Section 889. The findings contained in the House and Senate bills were not what was eventually made law and thus, cannot represent Congress's intent as a whole. The findings do not reflect the otherwise troubling sentiments of the senators identified above.

Because Section 889 passes muster on the historical test, the functional test, and the motivational test, the Court finds that Huawei has failed to meet its burden to show that Section 889 is an unconstitutional bill of attainder.

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