I have reproduced, at the end of this blog posting, a relatively short column from The Wall Street Journal. That column, it seems to me, provides an excellent opportunity for those reading this blog posting to become acquainted with provisions of the United States Constitution with which they may not be familiar.
Here is a quick quiz. What do YOU know about "Bills of Attainder"? I am posting what the Constitution says right here:
ARTICLE I, SECTION 9No Bill of Attainder or ex post facto Law shall be passed.ARTICLE 1, SECTION 10No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
To see how Mr. Trump and his Administration are ignoring the Constitution, read the column I have reprinted, below. For another reading that spotlights how our current president is ignoring the Constitution - a reading from which I lifted the phrase that I have made the title of today's blog posting -click this link. If you do that, you will be able to read what Heather Cox Richardson has to say about "the accumulation of all powers." This phrase also reflects the wisdom of James Madison, and those others who drafted our Constitution.
oooOOOooo
Trump Bills of Attainder Target Law Firms
His executive orders test a constitutional limit on government’s power of punishment.
By James Huffman
March 18, 2025
President Trump’s executive orders penalizing three law firms—Covington & Burling, Perkins Coie and Paul Weiss—threaten the constitutional structure that the Framers envisioned. Though the orders deal with the executive branch—including removing employees’ security clearances, barring access to government buildings, and imposing unique limits on federal contracts—they constitute a shocking expansion of White House power.
In a remarkable opinion rendered barely 24 hours after Perkins petitioned the court, Judge Beryl A. Howell granted a temporary restraining order against parts of the executive order. She found Perkins suffered irreparable harm from the president’s order and that the law firm would likely prevail on several of its claims. The most important objection was one Judge Howell astutely raised, although Perkins hadn’t: The order constitutes a bill of attainder, which is explicitly prohibited by the Constitution. All three orders likely do.
A bill of attainder is a law that imposes punishment without trial on specific people retroactively. The order cites no law that Perkins violated but instead critiques activity that the administration alleges took place, running back to the 2016 presidential campaign. Like a bill of attainder, the order appropriates from the judiciary the constitutional power to determine guilt and impose punishment.
The framers explicitly prohibited bills of attainder because they saw that such judicial powers, if in the hands of legislators or the executive, were frequently abused. As Theodore Plucknett explained in “A Concise History of the Common Law,” bills of attainder were common from Parliament or the British king for “reasons of state and political expediency” and “mere vindictiveness.”
Though Mr. Trump’s executive order against Perkins purports to protect national security, it looks like vindictiveness, plain and simple. Judge Howell observed that the order’s language “makes clear” that it “is a means of retaliating” against the firm. Mr. Trump “targeted” Perkins because it accepted “clients who are the president’s political opponents or who the president does not like.” The government’s unwavering defense of the order, Judge Howell said, “sends little chills down my spine.”
The Trump administration argues that because the Constitution’s prohibition against bills of attainder appears in Article I, which sets forth Congress’s powers, it applies only to lawmakers and not the president, whose powers come from Article II. Judge Howell disagreed. Pointing out that the framers didn’t anticipate Washington’s present-day reliance on executive orders which have the force of law, she could conceive of no reason that the prohibition would apply only to acts of Congress. If anything, the administration’s argument implies that it is swallowing up legislative as well as judicial powers.
Perkins Coie will likely prevail on due process or free-speech grounds, but what Mr. Trump has done is worse than limiting either of those constitutional rights. A presidential bill of attainder places the powers of all three governmental branches in the hands of one man. As James Madison wrote in Federalist No. 47: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands ... may justly be pronounced the very definition of tyranny” (emphasis added).
Mr. Huffman is a professor and dean emeritus at Lewis & Clark Law School.
Foundation of Freedom
No comments:
Post a Comment
Thanks for your comment!