Academic journal article Ave Maria Law Review

The Bill of Attainder Clauses: Protections from the Past in the Modern Administrative State

Academic journal article Ave Maria Law Review

The Bill of Attainder Clauses: Protections from the Past in the Modern Administrative State

Article excerpt


To the Framers, enshrining prohibitions against bills of attainder in the Constitution (1) was essential to prevent tyranny. These provisions serve the twin aims of protecting individuals from an improper use of legislative power and reinforcing the doctrine of separation of powers. (2) The Constitution of the United States contains two clauses proscribing the issuing of bills of attainder--one applying to the federal government, (3) and the other to the states. (4) At first blush, this may seem like either a stylistic embellishment or an over-scrupulous redundancy. But this repetition was far from superfluous. Article I treated the legislative power of both the federal and state governments. Thus, the Framers were compelled to provide a separate clause restricting the states because this protection was so important. (5) Not even the Bill of Rights initially enjoyed such constitutional stature. (6) This note advocates for the Bill of Attainder Clause's application to administrative agencies when they act pursuant to delegated authority and their action is treated as having the "force of law" by the federal judiciary--precisely because the Bill of Attainder Clause is such a vitally important check on the abuse of legislative power. (7)

While recent scholarship has examined the Bill of Attainder Clause in the modern context, (8) the issue of its direct application to administrative or executive agencies has been largely undeveloped. (9) This oversight is significant given the Supreme Court's frank recognition that administrative agencies, in a very real sense, actually determine the substantive impact of legislation in the many cases where legislation provides minimal guidance. (10) Further, the lower courts' reluctance to apply the clause to administrative and executive entities simply because an agency, not Congress, promulgates a rule, contravenes the principle that the Bill of Attainder Clause values substance over form and is "leveled at the thing and not the name." (11)

The Supreme Court's retreat from any meaningful non-delegation analysis in the modern era threatens to undermine the integrity of the Bill of Attainder Clause, which is a vitally important provision for the reasons given above. While the Constitution expressly states that the Bill of Attainder Clauses apply to Congress and the states, (12) the provisions' application to executive and administrative agencies is not clear. (13) In fact, the Supreme Court has not decided the issue. (14) Apart from the Ninth Circuit back in 1966, (15) lower courts have avoided ruling on the issue by deciding cases on other grounds, (16) or by applying a high standard of review for case-specific reasons. (17) Indeed, only the Seventh Circuit has indicated a willingness to engage the merits of the bill of attainder analysis to regulations and executive orders; however, the court assumed that the clause applied to agencies without deciding the issue, and ultimately concluded that since the underlying claim would have failed on the merits, it did not need to rule on whether the clause applied in the first place. (18)

Despite the Seventh Circuit's indulgence of the argument in dicta, no circuit has concluded that the Bill of Attainder Clause, a vitally important check on legislative power, applies to an administrative or executive body when promulgating rules with the force of law pursuant to congressional delegation. (19) Following the principle that Congress cannot delegate power that it does not possess itself, (20) this note argues that such results are wrong precisely because these entities exercise legislative power, at least in certain instances, and therefore should be subject to the same constraints on legislative power as Congress.

To accomplish this, Part I considers the Bill of Attainder Clause as a check on legislative power, particularly focusing on the Supreme Court's rationale expressed in the watershed precedent following the Civil War that regards substance over form. …

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