The White House and a bipartisan group of congressional members have called for measures that would effectively ban the TikTok app from the United States because of national security concerns. Montana has already passed a law banning the app commercially.
Article I, Section 9, Clause 3 of the Constitution states, “No Bill of Attainder or ex post facto Law shall be passed.” Constitutional scholars and courts commonly refer to this as the Constitution’s Bill of Attainder Clause. According to the Supreme Court, a bill of attainder is “a legislative act which inflicts punishment without a judicial trial.” To determine whether a law is an unconstitutional bill of attainder, a court looks at whether it 1) targets specific named or identifiable individuals or groups 2) to inflict punishment without judicial protections they otherwise would have had.
Typically, successful challenges under a bill of attainder theory have to do with legislation directed at individuals with specificity. For example, in United States v. Lovett, the Supreme Court invalidated a law as a bill of attainder because it “specifically cut off the pay of certain named [federal employees] found guilty of disloyalty.” In Nixon v. Administrator of General Services, the Supreme Court found that the Presidential Recordings and Materials Act met the specificity test because it not only named former President Richard Nixon in the law but also would only apply to his records and recordings following the Watergate scandal.
The Supreme Court has not decided whether the Bill of Attainder Clause protects entities such as corporations. However, several lower federal courts have either held or assumed that it does. Huawei, a Chinese telecommunications company, sued the United States in the Eastern District of Texas when Congress passed the 2019 National Defense Authorization Act with language prohibiting the government from buying equipment from it and other Chinese-owned telecoms with ties to the Chinese government. Huawei argued the prohibition was unconstitutional under the Bill of Attainder Clause. The District Court agreed that the provision met the specificity requirement for constituting a bill of attainder even though the specifically named party was a corporation.
The Constitution requires more than specificity for a law to be a bill of attainder; it also requires a punishment. The punishment, however, needs to be more than a burden. The Supreme Court in Selective Serv. Sys. v. Minn. Pub. Interest Research Grp. provided a three-inquiry test to determine whether a punishment is more than a mere burden. These three inquiries are commonly described as the “historical test,” the “functional test,” and the “motivational test.” The historical test asks “whether the challenged statute falls within the historical meaning of legislative punishment.” The functional test asks “whether the statute, ‘viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes.’” The motivational test asks “whether the legislative record ‘evinces a congressional intent to punish.’” For a bill of attainder claim to be successful, the court must find that the legislation meets all three tests.
Going back to the Huawei case, Huawei argued that the 2019 NDAA’s prohibition on government agencies purchasing its telecom equipment amounted to such an unconstitutional punishment. The District Court disagreed. The District Court’s analysis for the functional test is most relevant to the case of TikTok. The District Court held that Congress’s actions burdening Huawei were lawful because it was not denying Huawei a trial for past offenses. Instead, the NDAA applied to transactions that had not yet occurred and thus was not imposing punishment that would render it a bill of attainder.
This is where TikTok will have the highest hurdle to clear. All current legislative measures proposing to ban the company’s product pertain to future transactions, not transactions that have already occurred. Compare this to the facts in Lovett, where Congress prohibited paying the salaries for a few dozen federal employees via the Urgent Deficiency Appropriation Act of 1943 because Congress thought their affiliation with the Communist Party violated federal law. In that case, the Supreme Court held that Congress was unconstitutionally playing the role of a court by trying to punish the employees without a trial. Congress’s TikTok proposals only have to do with prospective actions, not retrospective. Thus, it is unlikely that a TikTok lawsuit under this theory would survive a motion to dismiss.
Although TikTok may have a credible case for overcoming the specificity test, it is unlikely that legislation seeking to ban the app imposes the type of punishment the Bill of Attainder Clause intends to protect against.
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