“Sentence first, verdict afterwards,” the Queen in Alice in Wonderland insisted at the trial of the Knave of Hearts for stealing the Queen’s tarts. Such an upside-down process obviously leaves quite a bit to be desired, but compared to the process provided by President Donald Trump’s executive orders announcing and inflicting debilitating penalties on particular law firms, it’s not all that bad. After all, the Knave of Hearts, unlike the targeted firms, at least got some sort of trial before punishment was announced.
Also, it’s one thing to be punished for stealing the Queen’s tarts—something that any law-abiding citizen of the kingdom would surely know violates the law. It’s quite another thing to be punished for the kind of activities that the executive orders describe as “harmful” or “dishonest” or “partisan” and cite as justification for targeting the firms.
Some firms were targeted for having represented one or more clients in legal challenges that the President dislikes, such as challenges to restrictive voter identification requirements or limitations on transgender rights. Others incurred the President’s wrath by having had some involvement, however tangential, in one of the various prosecutions against then-ex-President Trump. One firm was singled out, for example, for hiring an attorney who previously, as a prosecutor in one such prosecution, had conducted himself in a way that the President, according to the order, deems “unethical.”
Anyone with the legal knowledge to pass the bar knows that, in the United States, individuals are no more or less entitled to representation because the public in general or the President in particular likes or dislikes them or the rights they seek to vindicate. In addition, our adversarial legal system would obviously break down if the lawyer for one side could be punished simply because the party on the other side disapproves of that lawyer’s representation. None of the law firms targeted by the President’s orders could ever have imagined that, by engaging in the activities cited in the orders as warranting punishment, they were doing anything the least bit unlawful.
As damning as this comparison to the Knave of Hearts’ predicament may be, however, the executive orders targeting law firms are even more legally and morally bankrupt than it suggests. The Constitution alerts us to an historical precedent for those orders that puts those orders in a deservedly even more damning light. The two clauses in Article I, Sections 9 and 10 prohibiting federal and state “bills of attainder” take aim at a practice, widely used in the decade before the framing of the Constitution, that bears a striking and frightful resemblance to the orders.
The targeted firms that have challenged the orders in court have attacked them on a host of constitutional grounds—free speech, right to counsel, due process, equal protection, and more—but not as bills of attainder. The grounds the firms have cited make a formidable case for unconstitutionality, as Federal District Judge Beryl A. Howell very recently recognized in holding unconstitutional on several grounds the executive order targeting Perkins Coie LLP. A great deal may be lost, however, if the orders aren’t challenged as bills of attainder as well.
A bill-of-attainder challenge uniquely captures what is so monstrous—so fundamentally and blatantly unconstitutional—about those orders and how very grave a danger they pose to the welfare of the people of the United States. When the constitutionality of the executive orders targeting law firms comes before the Supreme Court, as it surely will, the result may well turn on whether the challengers’ grounds of attack include one based on the Article I, Section 9 prohibition on federal bills of attainder.
Today’s executive orders targeting law firms are direct descendants of the many bills of attainder that states enacted in the decade after declaring independence in 1776. Those bills singled out for punishment individuals actually aligned, or believed to be aligned, with the British during the Revolutionary War. The specified punishments ranged from disenfranchisement to confiscation of real or personal property to banishment.
The bills, which themselves descended from centuries of bills of attainder jointly handed down by the British monarch and Parliament, enjoyed broad support during the War as a means of helping achieve victory in the War. Even after the War ended in 1783, the bills were widely seen as necessary to ensure that loyalists still living in the states didn’t undo that victory by fomenting internal strife. In 1787, however, bills of attainder were dealt a devastating blow: At the Constitutional Convention a motion to prohibit both state and federal government from enacting bills of attender passed without a single dissent and with essentially no debate.
Despite the absence of any illumination from recorded debate, it’s clear that the framers very strongly believed that bills of attainder must be placed unequivocally out of bounds. Not only did they unanimously adopt an exceptionless ban applicable to federal and state lawmakers alike, but they did so while rejecting proposals to include the kind of individual liberties protections that the adoption of the first ten amendments—the Bill of Rights—ultimately provided several years after the Constitution’s ratification. By far the principal focus of the Constitution that emerged from the Convention was the structure and powers of each of the three branches of the new federal government. Affirmative limitations on the exercise of those powers and on states’ exercise of their authority were very few. Under the circumstances, for the framers to include in the Constitution two clauses protecting people from bills of attainder, whether state or federal, says quite a bit about the strength of their conviction that bills of attainder must go.
Although the lack of debate at the Convention about bills of attainder makes it impossible to say with certainty exactly what made the framers feel so strongly about banning them for posterity, I don’t think it’s hard to guess. I for one can’t even hypothesize a form of lawmaking that comes close to bills of attainder in the number of ways in which they violate the fundamental norms of a free society: punishment without clear notice of punishable behavior in advance; declarations of guilt without opportunity to defend against the charges; no requirement that the magnitude of the prescribed punishment bear any relationship whatsoever to the gravity of the alleged wrongful behavior; guilt by association; and more.
Although the framers deferred any attempt to reach consensus on the specifics of a Bill of Rights, they were intimately familiar with—and in some instances were actually responsible for drafting—the individual rights protections included in their state constitutions. The fact that they hadn’t yet agreed on a Bill of Rights is hardly a reason to think that they didn’t share all or almost all of the basic values that found expression in the Bill of Rights that only a few years later was adopted as the first ten amendments. The incompatibility between bills of attainder and so many of those basic values is nothing less than extreme.
In addition, the framers undoubtedly recognized the fundamental inconsistency between bills of attainder and the tripartite system of government that was the centerpiece of the Constitution they were drafting. Bills of attainder are in a class of their own in the flagrancy of their violation of the basic principles of separation of powers that the framers sought to put in place. They are brazen usurpations by one of the political branches of the judiciary’s quintessential role of applying the law to the facts and adjudicating individual guilt.
In the relative calm of the Constitutional Convention, the framers could clearly see that, whatever short-term benefits bills of attainder may have provided during and after the Revolutionary War and might provide in the years to come, those benefits would pale alongside the costs to our nation’s long-term best interests if bills of attainder were given the latitude to resurface. Reasonable people could, and did, disagree as to whether a Bill of Rights could wait, but as to whether protection from bills of attainder—a form of lawmaking so deeply troubling in so many respects—could wait, it shouldn’t be surprising that the framers unanimously said “no.”
Of course, President Trump’s orders targeting law firms prescribe punishments very different in form from those prescribed by the bills of attainder familiar to the framers. Stripping lawyers at a targeted firm of any security clearances they may have, limiting the access of the firm’s lawyers to federal government buildings, and terminating federal government contracts with the firm surely look a lot different from confiscating targeted citizens’ land or banishing them. Underlying those differences in form, however, are similarities in practical effect. The President’s orders target the firms for punishments devastating to their capacity to do, and remain in, business.
A final question never addressed by the Supreme Court remains: Does the Bill of Attainder Clause apply only to laws enacted by Congress or to acts of the Executive as well? The bills of attainder so familiar to the framers were all state legislative enactments. Moreover, the Clause is contained in the Constitution’s legislative Article—Article I—and, as part of the section of Article I immediately after the one enumerating Congress’s powers, it’s obviously intended as a limit on Congress. Even though there is nothing in the Constitution explicitly precluding applying the Clause’s prohibition to executive acts, do the historic form of bills of attainder or the constitutional text pose an insuperable obstacle to such an application? For a few reasons, I believe they plainly do not.
First and foremost, interpreting the Constitution to find such an insuperable obstacle would elevate form over substance to a degree that I’d be very slow to attribute to the framers of an instrument designed to endure through the ages and apply to circumstances not foreseeable at the time. For purposes of constitutional interpretation, the functional equivalence of the President’s orders and the historic bills of attainder deserves a great deal of weight.
Second, the Supreme Court’s longstanding interpretation of one of the most litigated clauses in the Constitution—the First Amendment’s Free Speech Clause, “Congress shall make no law abridging the freedom of speech”—offers very good authority for interpreting the federal Bill of Attainder Clause as a limitation on more than Congress. The Court has long treated the Free Speech Clause’s express reference to laws enacted by Congress as simply a reference to the speech-affecting acts primarily and most obviously in the framers’ contemplation, and it has regularly found the Free Speech Clause applicable to speech-affecting acts of the courts and the Executive as well.
Lastly, a statement about the Bill of Attainder Clause by Justice Hugo Black—a Justice legendary for insisting on interpreting the Constitution in a highly literal way—strongly suggests the reasonableness of interpreting the Clause to encompass executive acts. Writing in a concurring opinion in 1951, he maintained, “I cannot believe that the authors of the Constitution, who outlawed the bill of attainder, inadvertently endowed the executive with power to engage in the same tyrannical practices that had made the bill such an odious institution.” If a strict textualist like Black could see his way clear to interpreting the Clause in a functional and non-literal way, it’s not too much to expect today’s Justices to do the same.
In short, the President’s orders targeting law firms should be struck down under the Bill of Attainder Clause as very much the kind of “tyrannical practices” that the framers of our Constitution were so eager to prevent.
