Academic journal article Duke Law Journal

Corporations under the Bill of Attainder Clause

Academic journal article Duke Law Journal

Corporations under the Bill of Attainder Clause

Article excerpt


The Constitution's Bill of Attainder Clauses, found in Article 1, Section 9 and Article I, Section 10, prohibit both Congress and state legislatures from passing targeted statutes imposing punishment on specified actors without trial. The Supreme Court has never decided whether the Clauses apply to corporations.

The Second Circuit is the only federal circuit to address the issue explicitly, holding in Consolidated Edison Co. of New York v. Pataki that Article I, Section 10's Bill of Attainder Clause applies to corporations. Other circuits either have not faced the issue or have assumed, for the purposes of the specific cases before them and without officially deciding, that the Clauses apply to corporations. The Second Circuit's reasoning fails as a foundation upon which courts can rely in administering future corporate attainder challenges--drawing dubious inferences from inapplicable Supreme Court precedent and performing a partial merits analysis under the guise of deciding this threshold issue.

This Note offers the first extended argument that the Bill of Attainder Clauses apply to corporations. While the Clauses' text is silent on the issue, this Note considers the history und precedent of the Bill of Attainder Clauses before exploring the Court's approach to corporate constitutional rights more generally. Assessing the theories of corporate personhood undergirding the Court's corporate constitutional rights cases and the purposes for which the attainder prohibition was adopted, this Note concludes that the Bill of Attainder Clauses, properly understood, apply to corporations.


On December 1, 2018, Canadian authorities detained Huawei CFO Meng Wanzhou--the daughter of company founder Ren Zhengfei--in cooperation with an extradition request by the United States. (1) The U.S. Attorney's Office for the Eastern District of New York charged both Huawei--the world's largest telecommunications equipment maker and second-largest smartphone vender (2)--and Meng with various crimes in what the Department of Justice characterized as "a long-running scheme by Huawei, its CFO, and other employees to deceive numerous global financial institutions and the U.S. government regarding Huawei's business activities in Iran." (3)

Meng's detention and subsequent prosecution inflamed the already strained relationship between Huawei and the United States. Hostility between the two parties had grown in the preceding months, as federal prosecutors circled Huawei for potential violations of export and sanctions laws (4) and a trade war between China and the United States grew increasingly hostile. (5) On August 13, 2018, Congress stepped in and passed the John S. McCain National Defense Authorization Act for Fiscal Year 2019 ("NDAA"), which, among other things, banned executive agencies, federal government contractors, and federal loan and grant recipients from using any "telecommunications equipment or services" made by Huawei and four additional Chinese tech companies. (6) Congress enacted the "Huawei ban" amid longstanding suspicions that the company was spying on Americans at the behest of the Chinese government. (7) Huawei has repeatedly denied these allegations, asserting its independence from Beijing. (8) A few months after Meng's detention, Huawei filed suit against the United States in the U.S. District Court for the Eastern District of Texas, (9) challenging the NDAA's ban as an unconstitutional bill of attainder."' That court has yet to rule on Huawei's challenge.

The Constitution contains two Bill of Attainder Clauses, which together proscribe bills of attainder at the federal and state levels. (11) Because the Supreme Court has treated its precedents for each of the Clauses as controlling its analysis of the other, this Note refers to them together as "the Bill of Attainder Clause" or "the Clause." (12) The Bill of Attainder Clause prohibits both Congress and state legislatures from singling out specified actors for punishment. …

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