Jonah Patel
Bills of attainder are laws that impose punishment on specific individuals or groups without a trial. They were used in England during the 18th century and were also applied to British colonies. However, the use of these bills fell out of favour due to their potential for abuse and violation of legal principles, including the right to due process. The last use of attainder in the UK was in 1798, and they were prohibited in the US Constitution in 1787. Despite this, bills of attainder have been invoked in recent times, including in challenges to federal laws by the Trump Administration and a Chinese telecom company, Huawei. In the context of New York, there have been discussions about the potential use of a bill of attainder in relation to the disclosure of President Trump's personal and business tax records. While the full implications of these cases are yet to be determined, they highlight the ongoing relevance of the concept of bills of attainder in legal and political debates.
| Characteristics | Values |
|---|---|
| Bills of Attainder | Forbidden |
| Use in New York | Used in 1779 to confiscate property of British loyalists |
| Used in 1784 to suspend Tory lawyers' right to practice their profession | |
| Used in 2020 by Trump Administration to target Chinese telecom company Huawei |
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What You'll Learn
Bills of Attainder and Ex Post Facto Laws
Bills of attainder are laws that impose punishment on specific individuals or groups without a trial. They were used in England throughout the 18th century and were also applied to British colonies. However, the use of these bills fell out of favour due to their potential for abuse and violation of legal principles, such as the right to due process and the separation of powers. As a result, bills of attainder are prohibited in the US Constitution, which only permits the judiciary to determine an individual's guilt or innocence.
The US Constitution's ban on bills of attainder extends to both the federal government and the states, as reflected in Article I, Section 9, Clause 3, which states, "No Bill of Attainder or ex post facto Law shall be passed". Ex post facto laws are those that retroactively create a crime where none existed before. The Constitution prohibits both Congress and state governments from enacting such laws.
The state of New York has previously used bills of attainder, such as in 1779 when it confiscated the property of British loyalists, and more recently, in measures targeting President Trump's tax records. However, these bills are now prohibited by the US Constitution, and any such laws would be considered a violation of the Constitution's structure and separation of powers.
The Supreme Court has played a significant role in interpreting and enforcing the ban on bills of attainder, with cases such as Ex parte Garland (1866) and Cummings v. Missouri (1867) striking down laws that required individuals to swear they had not supported the rebellion. The Court has also clarified that the ban on bills of attainder applies to legislative actions that impose guilt on individuals or groups based on their inherent characteristics or group involvement, reinforcing the idea that the government cannot punish someone without due process.
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The US Constitution and Bills of Attainder
Bills of attainder are forbidden by the US Constitution at both the federal and state levels, reflecting the importance that the Framers attached to this issue. The US Constitution forbids legislative bills of attainder in federal law under Article I, Section 9, Clause 3 ("No Bill of Attainder or ex post facto Law shall be passed"), and in state law under Article I, Section 10.
The US Constitution's prohibition on bills of attainder is rooted in British legal tradition. The use of these bills by the British Parliament eventually fell into disfavour due to their potential for abuse and the violation of several legal principles, including the right to due process and the separation of powers. Several of the US Constitution's Framers, having been the targets of parliamentary attainders themselves, were determined to prevent this retaliatory tool from taking root in the new Republic.
The modern understanding of the bill of attainder clause is that it prohibits laws that label "a person or group as a wrongdoer and takes their property, liberty, or both without due process." The US Constitution only permits the judiciary to determine whether someone is guilty or innocent, and the prohibition against bills of attainder reinforces the foundational idea in the American justice system that the government cannot punish someone unless they receive due process, typically in the form of a trial.
The US Supreme Court has invalidated laws under the Attainder Clause on several occasions. For example, in Ex parte Garland (1866), the Court struck down a federal law requiring attorneys practising in federal court to swear that they had not supported the rebellion. In Cummings v. Missouri (1867), the Missouri Constitution required anyone seeking a professional's license from the state to swear they had not supported the rebellion. The Supreme Court overturned the law and the constitutional provision, arguing that those who were admitted to practice were subject to penalty without a judicial trial.
More recently, the Supreme Court has considered cases involving President Trump's executive orders targeting specific law firms, with some arguing that these orders were essentially bills of attainder. The Trump administration's lawyers responded that the bill of attainder restriction is only on Article I and not Article II of the Constitution, and therefore does not apply to the president. However, this interpretation has been criticised as a dangerous formalism that ignores separation of powers principles and contradicts clear historical practice.
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State Bills of Attainder
The United States Constitution forbids legislative bills of attainder at both the federal and state levels. In federal law, this is enshrined in Article I, Section 9, Clause 3 ("No Bill of Attainder or ex post facto Law shall be passed"), and in state law under Article I, Section 10.
The Constitution's ban on bills of attainder reflects the Framers' concerns about the abuse of such laws in England and the early American states. The Framers had observed the use of bills of attainder by the British Parliament, particularly in cases of treason, and wanted to deny the national legislature this power. The last use of attainder in the UK was in 1798 against Lord Edward FitzGerald for leading the Irish Rebellion of 1798.
The state of New York used a 1779 bill of attainder to confiscate the property of British loyalists, and to suspend Tory lawyers' right to practice their profession.
The Supreme Court has invalidated laws under the Attainder Clause on five occasions. In Ex parte Garland (1866), the court struck down a federal law requiring attorneys practising in federal court to swear they had not supported the rebellion. In Cummings v. Missouri (1867), the Missouri Constitution required anyone seeking a professional's license from the state to swear they had not supported the rebellion. The Supreme Court overturned the law and the constitutional provision, arguing that those admitted to practice were subject to penalty without judicial trial.
In recent cases, the Tenth Circuit found that a state regulation imposing a $25 monthly supervision fee on parolees did not violate the Ex Post Facto and Bill of Attainder Clauses because it was not punitive in nature and had a legitimate legislative purpose. In another case, the Fourth Circuit found that requirements that prisoners must provide DNA samples and pay a $250 fee were not punitive enough to violate the Ex Post Facto Clause, but that the fee must be paid before allowing a prisoner to be paroled or released, did violate the Clause.
In the context of President Trump's executive orders, there has been discussion about whether these could be considered bills of attainder. Trump's lawyers have argued that the restriction on bills of attainder only applies to Article I of the Constitution and not Article II, which concerns the President's powers. However, critics argue that this interpretation ignores separation of powers principles and contradicts historical practice.
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Supreme Court and Bills of Attainder
Bills of attainder are forbidden to both the federal government and the states, reflecting the importance that the Framers attached to this issue. Every state constitution also expressly forbids bills of attainder. The U.S. Supreme Court has invalidated laws under the Attainder Clause on five occasions.
Two of the Supreme Court's first decisions on the meaning of the bill of attainder clause came after the American Civil War. In Ex parte Garland, 71 U.S. 333 (1866), the court struck down a federal law requiring attorneys practising in federal court to swear that they had not supported the rebellion. In Cummings v. Missouri, 71 U.S. 277 (1867), the Missouri Constitution required anyone seeking a professional's license from the state to swear they had not supported the rebellion. The Supreme Court overturned the law and the constitutional provision, arguing that the people already admitted to practice were subject to penalty without judicial trial.
The Supreme Court has also applied the Bill of Attainder Clause to prevent legislatures from circumventing the courts by punishing people without due process of law. In Cummings v. Missouri, for example, the Supreme Court held that an amendment to the Missouri Constitution requiring people in certain occupations to take an "Oath of Loyalty" was a bill of attainder. The court found that the amendment punished specific people by excluding them from working in specific professions without due process of law.
The Supreme Court has created three tests to determine "whether a law imposes punishment": the historical test, the functional test, and the motivational test. The historical test looks at the history of bills of attainder dating back to English common law, including Supreme Court precedent. The functional test examines whether the law furthers a legitimate legislative purpose, considering the type and severity of burdens imposed. The motivational test looks to legislative history to determine whether there was a congressional intent to punish.
The modern understanding of the bill of attainder clause is that it prohibits laws that label "a person or group as a wrongdoer and takes their property, liberty, or both without due process." This interpretation acts as a prohibition of arbitrary takings and helps to safeguard the separation of powers.
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The President and Bills of Attainder
Bills of attainder are forbidden to both the federal government and the states, reflecting the importance that the Framers attached to this issue. The U.S. Constitution forbids legislative bills of attainder: in federal law under Article I, Section 9, Clause 3 ("No Bill of Attainder or ex post facto Law shall be passed"), and in state law under Article I, Section 10. Every state constitution also expressly forbids bills of attainder.
The original constitutional meaning of the Bill of Attainder clauses shows that the president cannot issue bills of attainder. The unprecedented Trump orders targeting individuals and organizations, such as Huawei and Perkins Coie, plainly function as bills of attainder. On their face, they are prohibited by the Constitution and repugnant to its separation of powers. The Trump administration’s lawyer responded that, “as a pure constitutional matter, . . . the bill of attainder restriction is only on Article I and not on Article II [of the Constitution], and so it doesn’t apply to the president.”.
To be sure, Article I sets out the structures and powers of Congress, while Article II announces the powers of the president. But the government’s suggestion that the constitutional prohibition on attainder only applies to Article I represents a dangerous formalism that ignores separation of powers principles and contradicts clear historical practice. Even under the most tyrannical monarchs, the king never asserted unilateral authority to issue bills of attainder—a power the president now asserts for himself.
The bill of attainder first emerged in the early fourteenth century during the reign of Edward II (1307-1327). Initially, Parliament used such bills as counterweights to royal favoritism run amok. The first recognizable attainders were identified in 1308 and 1321, when Parliament intervened to exile royal favorites Piers Gaveston and later Hugh Despenser the Elder and Younger. Gaveston, whose rapid elevation and arrogance had enraged the nobility, was condemned by Parliament as “a traitor and robber of the people.”.
The use of these bills by Parliament eventually fell into disfavour due to the potential for abuse and the violation of several legal principles, most importantly the right to due process, the precept that a law should address a particular form of behaviour rather than a specific individual or group, and the separation of powers, since a bill of attainder is necessarily a judicial matter. The last use of attainder was in 1798 against Lord Edward FitzGerald for leading the Irish Rebellion of 1798.
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Frequently asked questions
A bill of attainder is a law that imposes a punishment on a specific person or group of people without a trial.
No, the US Constitution forbids the federal government and the states from issuing bills of attainder.
No, bills of attainder are illegal in New York, as they are in all US states.
Yes, in 2020, supporters of President Trump challenged a measure passed by the New York legislature that would authorise state officials to turn over the President's state tax returns to Congress.
