The latest legislative attempt to counter TikTok and the Chinese Communist Party is picking up steam. After easily passing the House a few weeks ago, the Protecting Americans From Foreign Adversary Controlled Applications Act is on to the Senate. Amidst the growing momentum, constitutional concerns related to the bill are growing as well, most of all regarding whether the legislation is an unconstitutional “bill of attainder.” But this objection by TikTok’s defenders is a faulty one and should not get in the way of support for this important legislation.

A bill of attainder is any legislation that seeks to punish an individual for past crimes without a trial. Like many of our Constitution’s provisions, the prohibition on a bill of attainder aimed to protect Americans from an autocratic executive and prevent our government from depriving us of our due process. As a result, the framers included a provision prohibiting federal and state bills of attainder, preventing the passage of any law punishing a specific individual and depriving that person of due process rights.

Historically, the Supreme Court has been consistent in its assessment of what constitutes a bill of attainder, focusing on two primary elements: specificity and punishment. Regarding specificity, the law must identify a specific person or group of people to be a bill of attainder. The Supreme Court has not held that the prohibition has extended to companies, but some lower federal courts have generally assumed that it does.

In determining whether the punishment applied renders the law a bill of attainder, courts have considered whether there is a non-punitive legislative component, and whether the law’s enforcement is retrospective (unconstitutional) or prospective (permissible). In general, courts have held that, so long as the law is not seeking some retribution or reimbursement for past offenses, it is almost always outside the scope of the Constitution’s prohibition of bills of attainder.

Here are two examples of how courts assess whether a law is a bill of attainder. In ​​United States v. Lovett, Congress prohibited paying the salaries for some federal employees due to their past affiliation with the Communist Party and pre-existing law outlawing such affiliation. The Supreme Court decided that this was a bill of attainder because Congress’ law punished the employees based on its own legal conclusion. Another relevant case is Consolidated Edison Co. of N.Y. v. Pataki, which dealt with a law passed to require a public electric utility to reimburse consumers after the utility purchased additional energy at inflated costs. The Second Circuit ruled that this constituted a bill of attainder because it singled out an entity, imposed a monetary injury without traditional judicial protections, and was retrospective.

The proposed TikTok legislation does not have the features that have long been used to identify bills of attainder. Although it is true that it does list ByteDance, TikTok’s parent company, and TikTok, the law is generally applicable to any platform owned and controlled by a foreign adversary government—specifically, the governments of Iran, China, Russia, and North Korea. So the specificity element alone may be a significant challenge for TikTok or ByteDance to overcome. Further, the bill’s divestment requirement would not go into effect until six months after the law’s enactment, and the penalties the bill imposes would be assessed only after that six-month window; it will be difficult to make the case that such penalties are retrospective. To make matters worse for TikTok and ByteDance’s case, a covered entity has the right to appeal any action taken under the law—and to challenge the bill itself—in the D.C. Circuit. This negates any potential due process concerns such as would be present with a true bill of attainder.

Further, two recent cases—Huawei v. United States and Kaspersky Lab, Inc. v. DHS—weigh against the notion that the bill violates the bill of attainder clause. Both cases focused on whether preventing certain foreign companies from procuring future contracts with the federal government constituted a bill of attainder. Courts ruled against both firms, finding that the “punishment” furthered a non-punitive legislative component: safeguarding American infrastructure and individuals from foreign adversaries. Unlike the situation in Lovett, both cases highlighted how preventing companies from receiving federal contracts was intended to address future threats, not settle past scores.

In short, if the TikTok legislation is passed and signed but challenged as a bill of attainder, such challenge would likely fail. The text of the bill reflects aspects of jurisprudence that cut against qualifying as a bill of attainder. More broadly, such a ruling would create a roadmap for crafting future legislation to address national security vulnerabilities presented by certain companies located within foreign adversary countries while avoiding a thorny constitutional issue.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].