SBC Communications, Inc. v. Federal Communications Commission

Montana, Utility Amicus Curiae. Com’ns JOLLY, Before SMITH and Trotter, Clayton BARKSDALE, Judges. R. Justice Founda- Texas Circuit tion, Antonio, TX, Justice for Texas San JOLLY, Judge: E. GRADY Circuit

Foundation, Inc. Amicus Curiae. Lockhart, Brendel, & Kirkpatrick Neal R. constitutionality appeal challenges the This Environmental, PA, Pittsburgh, for Khodára significant part of the of a Telecommunica- Environmental, LP, Eagle Inc. FCC, on behalf of Act the United tions of 1996. States, Amicus Curiae. intervenors and numerous interested appeal the court’s determination district TX, Austin, Rogers, for Texas Thomas T. 271-75, Act, §§ 47 §§ 271-75 U.S.C. Ass’n, Ami- and Southwestern Cattle Raisers bill of attainder. are unconstitutional cus Curiae. nonpun- Finding provisions at issue to be Gold, & Bredhoff Kai- Laurence Michael not, character, they hold are itive we ser, DC, Washington, for Communication fact, term has of attainder as that bill America, Amicus Curiae. Workers Supreme Be- defined Court. been Goldstein, Goldstein, Goldstein Gerald H. provisions cause we further hold Antonio, TX, Hilley, & San for San Antonio re- also consistent with constitutional Chapter Liberties of the American Civil Un- equal separation powers, quirements of ion, Amicus Curiae. speech, reverse protection, and free we judgment court. of the district Barker, Newell, Gary Mark E. James H. Watkins, Washington,

M. Latham & Epstein, Ass’n, DC, Tel. Amicus Curiae. for U.S. I Austin, TX, Aguilar, for States of Javier every law learns these As antitrust student Arkansas, Texas, Mississippi, South Carolina days, Department of Justice 1974 the Dakota, Amicus Curiae. South massive, precedent-setting brought a Sher Varda, Stephen Public Serv. Michael against man Act1 suit AT&T. See United Wisconsin, Madison, WI, for Com’n of Public (D.D.C. AT&T, v. 461 1314 F.Supp. States Wisconsin, Amicus Curiae. Serv. Com’n of 1978). suit, many most years before the For equipment telephone telecommunications Columbus, OH, Luekey, Duane W. local and the United States — both service Ohio, Amicus Com’n of Curi- Public Utilities provided “long been distance’1 —had ae. affiliates, collectively corporate AT&T and its Gray, Ramsay, D. James Bradford Charles System. known as the Bell See United DC, Utility Washington, for Public Com’n of (D.D.C. AT&T, F.Supp. 222 v. States Serv., Oregon of Public Dept, and Vermont 1982). aspects of Although certain isolated Amicus Curiae. subject of System Bell had become the Justice, Won, Benny Dept, Oregon W. actions, de intermittent antitrust consent OR, Salem, Utility for Public Com’n Ore- crees, legislative intervention and federal gon, Curiae. Amicus dating generally see United back 135-38, AT&T, Katz, no F.Supp. Dept, of Sheldon M. Vermont Public States v. VT, had Dept, system on the itself broad-based attack Montpelier, for Vermont Serv. however, In Serv., been Amicus ever launched. Public Curiae. etseq. 1. 15 U.S.C. twenty-two local ex- alleged, itself of its changed all that. It divest

government way subsidiaries, AT&T used among things, other change which known became monop state-granted local service its various Companies or “BOCs.” Operating the Bell long monopolize the also markets olies to were then F.Supp. at 223.2 The BOCs telecommunications service distance “regional Operating Com- grouped into seven § 2 contravention of equipment was in 142 n. panies” F.Supp. or “RBOCs.” AT&T, States v. Act. See United Sherman addition, al- were In because the BOCs ultimately AT&T F.Supp. at 1317-18. local state-regulated lowed to retain for, assessment, after some conceded monopolies under terms service wrangling, eventually set procedural initial MFJ, subject restric- to various became government what became tled business. tions on their own lines of Consent Decree or Mod known as AT&T com- particular, the BOCs were barred (“MFJ”). Judgment Final See United ified distance,3 long in the markets peting AT&T, F.Supp. at States aff'd equipment, and informa- telecommunications States, Maryland v. United sub nom. (including publishing tion services electronic L.Ed.2d (1983). MFJ, 224.4 monitoring). F.Supp. at required AT&T and alarm Under the was heavy explained allegedly' the tele- Judge divesti- have lain 2.As District Greene which industry ture: communications will not recur. power F.Supp. key System's 552 at 223. The Bell to im- to the competition pede been its local has control of distance,” telephone telephone By net- "long The local we techni- service. 3. refer to what is gateway as the to individual cally -imple- work functions telephone as "interLATA" service. known It must be used MFJ, subscribers. menting the established the district court seeking long-distance to one carriers connect transport access areas or numerous local and only pur- another. Customers will caller to permitted the were “LATAs”within which BOCs readily equipment which can be con- chase telephone operate provide to service. See and through network the tele- nected to the local Co., F.Supp. United States v. Western Elec. 569 and phone in their homes offices. The outlets (D.D.C.1983). way long the The 993-94 wires, switches, cables, enormous cost of the out, played line-of-business distance restriction and other facilities which com- transmission to telecommuni- each BOC was allowed transmit completely prise it that network has insulated points within a information between cations single Thus, competition. access to AT&T'slo- LATA, is, basically, providing the what long cal network is crucial if distance carriers service, telephone though even traditional local equipment and be viable manufacturers to every encompassed as a BOC several LATA’s compétitors. person geographical in one matter. When a allegedly used its of this AT&Thas control another, person in the BOC serv- LATAcalled ing disadvantage competi- monopoly local to these required the caller's LATAwas to transmit First, ways. principal it has at- tors two carrier, interexchange the such as call to an competing long tempted prevent to distance MCI, which then carried the call on its AT&Tor equipment competing carriers and manufac- boundaries, own network across the LATA gaining access to the net- turers from work, local whereupon picked up by (possi- was the BOC it access, delay placing or thus to one) bly party’s the same that served the called position AT&T's them in vis-a-vis an inferior Co., United States v. Elec. LATA.See Western Second, supposedly own has used services. (D.C.Cir.1992). "long F.2d This is profits monopoly the local tele- earned from Local, "intraLATA” ser- distance” service. phone operations long its to subsidize distance vice, hand, making on the other the of calls equipment it was businesses which LATA, single though entirely such within even competing with others. subject per-minute calls tolls. great many years, are sometimes For a the Federal Commu- struggled, largely nications Commission success, type stop practices without of this Again, Judge explained: Greene through regulatory the tools its command. divestiture, Compa- Operating After the Department brought A lawsuit of Justice possess monopoly will over local tele- nies practices 1949 to ended an curb similar phone According Department service. ineffectual decree. Some other reme- consent Justice, Operating Companies must he dy plainly required; hence divestiture of entering competitive all markets barred from Companies Operating Bell local from the will their mo- ensure that not misuse System. will the rela- This divestiture sever impose nopoly power. re- The Court will not tionship monopoly local and the between this other, AT&T, simply of theoretical segments- strictions .for sake competitive and it consistency. certainly must be based on will Restrictions thus better than could ensure— any type practices other of the realistic of relief—that assessment circumstances n years many spent long and contentious was information services restriction on comprehensive drafting system telecom lifted, States subsequently see United sup (D.D.C.1991), replace Co., regulation F.Supp. munications Elec. Western (D.C.Cir.1993), plement See Communica MFJ. SBC 'd, but F.2d aff FCC, tions, 412-13 Inc. v. F.3d subject to detailed BOCs then became (D.C.Cir.1998). February Presi provision of On regulations governing the FCC legislative la these dent Clinton executed other “enhanced” services. information and Telecommunications Act III into law as the Computer Further bors generally In re See “Act”). (the Compa of 1996 Operating Provisions: Bell Remand Services, ny Provision Enhanced widely recognized, core As has been “ (1995). F.C.C.R. 8360 ‘provide pro- for a function of the Act is deregulatory policy national competitive, very of the numerous As the existence by opening telecommuni- framework ... all ponderous post-1982 decisions of ” clear, however, competition.’ SBC cations markets courts should make D.C. Communications, (quoting at 413 F.3d was far from final resolution MFJ (1996); Rep. No. dilemma. Its H.R. Conf. nation’s telecommunications 124). To light reprinted 1996 U.S.C.C.A.N. and alteration enforcement prohibits changing goal, Act states technological progress and market effectuate this sanctioning local required localities from service ultimately substan- circumstances “ ability monopolies ‘prohibiting monitoring part on the district tial court, provide ... telecommuni- judicial tinkering entity to intrastate extensive (quoting Id. many pundits dub cations service.’” U.S.C. prompted resulted 253(a)). country’s places It numerous and oner- “tele- also Judge Greene the District all local tele- Unsurprisingly, duties restrictions on czar.”5 ous communication’s (“Local Exchange phone providers skeptical of un- service became soon “LECs”)7 Carriers,” designed to ultimately that are of.judicial nobility,6 and usual title Restrictions, markets, Baby Fight including Operating to Wall the den as Bells Kill relevant Al, J., 22, 1994, Companies' ability engage anticompeti- July respectively); to in see also St. behavior, potential to tive their contribution Schrage, There Greene In Michael Is a Shade of AT&T, competitor Post, 17, Decision?, the market as added Wash. Feb. the Microsoft upon well the effects of the restrictions as as 1995, alternately ("Judge B3 Greene has been telephone This on the for local service. rates praised and excoriated as ‘telecommunications Operating Compa- requires that standard impact whose on telecommunications is czar’ prohibited providing long be dis- nies from than AT&TChairman still more forceful that of services, and tance services and information Allen Inc. boss Robert or Tele-Communications manufacturing equipment in the used Editorial, Malone.”); Review & Outlook: John industry. Participation telecommunications 1990, J., 2, Presidency, Feb. Wall St. State of it a substantial risk these fields carries with ("Judge made himself Telecom- at A14 Greene Companies Operating will use part breakup; as the AT&T munications Czar anticompetitive techniques used AT&T same running maybe to take over Leba- he’d now like growth of own in order to thwart the competitors. non."); Dwyer, Baby Ready, The Bells: Get Paula Set, (1986) (noting Diversify, Bus. 29 2962 Wk. F.Supp. 552 at 224. ruling was "the latest that a 1986 D.C. Circuit Cate, National 5.See Fred H. Greene, who, Judge Information czar of the break- blow Policymakers, Policymaking AT&T, up Infrastructure: influence on the is the ‘dominant that, (1994) (noting PoTy L. & Rev. Stan. Weiss, industry,’ according chair- L. William although "Judge Greene rendered his decision Ameritech,” re- man and chief executive Judgment approving Modified Final marking, presciently, that "Greene’s clout and 1982,” jurisdiction con he under the "retained already Capitol are under attack influence operations control of both sent decree to Hill, legislation pushing are where lawmakers of that “the breadth [RBOCs]” AT&T Baby supervision of the Bells to the return given discretion decree and the substantial FCC"). laws, interpret' ‘probably judges to antitrust single powerful most decision- makes him the I, ” Const., § Art. cl.8. 6. Cf. today,' policy communications maker U.S. “ ”) (quoting S. Na czar’ Mark veritable ‘telecom many del, are now hundreds of Of which there Policymaking: 7. Who & U.S. Communications (e.g., Corp., Sprint Where, examples independent GTE Hastings Comm. & Ent. L.J. Company, Eng- (1991) New Southern Battle Lines Har- Communications and Telcom Showdown: Communications, Even 138 F.3d at 413-14. uncompetitive prevent a recurrence then, however, may power question market that oc- the BOC in of local use service id.; System. provide curred under the Bell See service initially only long distance §§ 251-52. 'separate U.S.C. affiliate. 47 U.S.C. through a 272(f)(1). 271(d)(3)(B) §§ & The BOCs generally applicable these In addition to long permitted provide distance incidental however, competition provisions, local to custom- long distance service service and provisions a number Act also contains former regions ers of their located outside First, specifically at the BOCs. directed (“out-of-region long ser- monopoly distance 601(a)(1) provides § re that the uncodified vice”) prior significant limitation without imposed by the MFJ are lifted strictions (3). 271(b)(2) § & authorization. 47 U.S.C. replaced by of the Act. See the restrictions 601(a)(1), 104-104, § No. 110 Stat. Pub.L. Second, may § not under the BOCs (1996); States v. United Western cf. provide manufacture or telecommunications (D.D.C. Co., Apr.11, Elec. 1996 WL require- equipment they until have met 1996) (terminating the MFJ accordance non-incidental, long in-region ments dis- 601(a)(1)). Second, §§ § enti with and, 271(d), again, tance once service “Special Concerning Op tled Bell Provisions only through affiliate separate even then erating Companies,” impose renewed line-of- 272(f)(1) §§ period. for an interim U.S.C. restrictions on the activities of business 273(a). & 153(4) BOCs; § twenty the Act remaining §§ Finally, the BOCs under & quite that the additional restric makes clear publishing or twenty provide electronic only applicable tions are these monitoring February alarm services until specific, corporations. See U.S.C. named 153(4) “Spe they by way separate so §§ & It is these latter unless do 271-76. and, joint cial that are at heart of venture in the case of Provisions” affiliate or case, they accordingly examined engaged must if monitoring, alarm were in some detail.8 prior business November 275(a). 274(a), 274(g)(2), §§ & U.S.C. purpose, Special Inconvenient to that Provisions are rather soulless drafted Essentially, Provisions recreate sight too bureaucratese that is an all familiar original prohibi- most of the line-of-business legal landscape. on the American We have MFJ, tweaking. tions some statutory fog, attempted pierce howev- services, recre- the case of information er, Special and would Provi- summarize reimposition represents ation restric- of essentially effect as follows. sions’ already tions that had lifted under the been First, 271, § under each BOC must obtain regime in-region of the MFJ. the case of pro- prior from the FCC before authorization long service and distance telecommunications viding long to non-incidental distance service however, equipment, simply changes the Act the states which the customers within specifies and the rules administrator provide local service BOC was allowed to Judge long-running which Greene’s restric- prior (“in-region the Act enactment of tions can lifted. 271(a) service”). long § distance U.S.C. (b). grant & is to authorization FCC II complex after a criteria evi- number 11, 1997,plaintiff April On Communi- dencing competition particular free in the SBC cations, which is course one of local service market have been established. 271(d)(3); RBOCs,9 generally applied pursuant § to the 47 U.S.C. see SBC FCC Bell, Bell, etc.) Telephone parent Wis- Company, land to the become to Illinois Indiana addition Bell, Bell, Michigan upon BOCs. consin and Ohio Bell completion planned merger its with Ameri- 276, relating pay- § exception 8. With tech, provides RBOC. Bell another Southwestern service, challenged. phone has not been which Texas, Missouri, local to customers service Arkansas, Oklahoma, and Pacific Bell Kansas. currently parent SBC is BOCs Southwestern serves California. Bell, Bell, Bell, Pacific will and Nevada We consid- of the district court. the decision long line-of-busi- distance have turn, beginning er each contention its service local ness restriction lifted substantial com- primary and most SBC’s The FCC determined area Oklahoma. met, Special constitute a plaint Provisions statutory had not been criteria that the application on June attainder. denied the bill and therefore

26, appealed ruling 1997. SBC Circuit, on March where it was affirmed D.C. A Communications, 1998. See SBC

F.3d at 410. I, 9, cl. 3 United Article sec. of the. Bill waiting provides “[n]o of that for the outcome States Constitution

Without however, 2, 1997, post shall be July SBC and of Attainder or ex facto law appeal, Congress].”10 Supreme against passed [by filed the United As the its subsidiaries suit clarified, forbidding District the FCC in the Federal “[i]n States and Court has often Texas, attainder, Northern District of for the the draftsmen Con bills of Special alleging all of Provisions sought prohibit the ancient stitution facially the Bill England unconstitutional under practice were the Parliament Clauses, Equal Protection of Attainder ‘specifically designat punishing without trial Speech § 274 the Free and that violated Service persons groups.’” Selective ed long com- distance as well. Several Clause System Public Interest Re v. Minnesota including Telecommunications panies, MCI Group, 104 S.Ct. search Company, Corp., Sprint (1984) Communications (quoting United 82 L.Ed.2d 632 AT&T, parent, inter- the BOCs’ erstwhile Brown, States v. government’s in the dis- on the side (1965)). vened Consistent 14 L.Ed.2d 484 RBOCs, West pute, two other characterization, the Court has with this Corp., in- and Bell Atlantic Communications as “‘a generally a bill attainder defined Atlantic added a tervened on SBC’s. Bell guilt legislatively determines law that powers separation of slightly more nuanced upon an inflicts identified indi challenge com- other constitutional SBC’s protections provision of the vidual without ” plaints. judicial (quoting Nixon v. of a trial.’ Id. Services, 433 U.S. Administrator General 31, 1997, ruling on cross- On December 425, 468, L.Ed.2d summary judgment, District motions (1977)). Where, here, liability in. Provi- Judge held that Kendall clearly operation of question attaches unconstitutional bill of constituted an sions alone, the constitutional act were severable attainder following test be summarized granted rest the Act. He therefore First, legislature two-pronged has the test: challenged and declared the motion SBC’s Second, specificity? has it im acted with judgment From final void. sections posed punishment? States, FCC, and the defendant- United timely appeal. intervenors case, Special argues that the this SBC attainder be- constitute a bill of Provisions III impose restric- they line-of-business cause the constitutionali This court reviews por- As corporations. SBC tions on named ty a statute de novo. United federal Provisions, represent trays Special (5th 1222, Bailey, 1225 v. 115 F.3d States Congress’s legislative deter- unconstitutional Cir.1997). guilty spawn are the mination that BOCs AT&T, deprived to be of their who deserve IV distance, long ability to enter the current services, and telecommunications appellees information appeal, SBC and other On for equipment as arguments markets urge all offered below as of the past violations affirming or all of immutable antitrust potential for some bases 10, I, provision applicable parallel states. cl. 1 10. Art. contains 234 common, were even essentially Congress are still The district court parent. former days more so in the before establishment analysis. agreed im- that Court. Even laws Claims Notwithstanding beguiling arguments duty liability upon single indi- pose a holding, district court’s support that account or firm are not on that vidual bottom, simply cannot find a constitution we not have the invalid —or else we would assuming case. Even that al in this violation jurisprudence that do con- extensive we corpor applies to Bill of Attainder Clause Clause, in- cerning, Bill of Attainder ations,11 assuming Special that the and even say requires not cluding cases which that it specifici to meet the Provisions are sufficient merely “singling punishment, also out” but test,12 simply there cannot be ty prong of the says and a ease which that it the case attainder unless is also a bill of legislate legitimate of one.” “a class impose punish Special that Provisions 9, (citing 1447 Id. at 239 n. 115 S.Ct. United recently on the BOCs: As Justice Scalia ment Lovett, 303, 106 States v. 328 U.S. Inc., Farm, Spendthrift in Plant v.

reiterated 856, 1073, 1252 66 90 L.Ed. Ct.Cl. S.Ct. 211, 115 1447, 131 L.Ed.2d 328 514 U.S. S.Ct. Nixon, 472, 97 S.Ct. 433 U.S. (1995): 2777, propositions); the two final see also something there is premise Service, 851, 468 104 S.Ct. Selective U.S. particularized legislation wrong with is if (stating expressly “[e]ven 3348 legislatures questionable. While satisfied,” course specificity element were deemed general usually through appli- laws of necessarily act provision at issue “would only Clause,” cability, no means their implicate the Bill of Attainder be- legitimate proscription against Private bills in cause bills of at- “[t]he mode of action. attainder, because, Although presi- likely. the Court as the former 11. Which does seem directly, presi- yet question papers protected reach the it has dent whose were not has library, represented "legitimate suggested See Plaut v. as much in dictum. dential Nixon 211, 9, Farm, Inc., Spendthrift purposes legislation. n. 514 U.S. 239 class of one” for of such (1995) (indicat 1447, Id., 472, S.Ct. 131 328 115 L.Ed.2d U.S. at 97 S.Ct. 2777. unusual 433 That hand, ing punish applies "a inapposite partic- that the Clause to laws case to the one at seems added). single Furthermore, firm") (emphasis individual or ularly light in the that the rest of the fact that a num it has been established jurisprudence, subsequent Court’s attainder both rights very apply do ber of similar constitutional prior, consistently applied a broad inter- See, corporate setting. e.g., Virginia See, State pretation specificity. e.g., Selective Ser- Pharmacy Virginia vice, v. Consumer 847, Board Citizens (noting 104 S.Ct. 3348 " Council, Inc., 748, 1817, 425 U.S. 96 S.Ct. singling legisla- out of an '[t]he individual (freedom (1976) speech); L.Ed.2d 346 United tively imposed punishment constitutes an attain- Co., 564, Supply States v. Martin Linen der called whether the individual is name or 1349, (1977) (double which, 51 L.Ed.2d 642 97 S.Ct. described in of conduct terms Transportation jeopardy); conduct, Penn Central Co. v. past operates only designation as a 104, 2646, City, New 438 U.S. 98 S.Ct. ”) York particular persons’ (quoting Party Communist (1978) (takings); Board, 1, L.Ed.2d 631 low's, Inc., Marshall v. Bar v. SubversiveActivities Control 367 U.S. 307, 1816, 436 U.S. (1978) (searches (1961)); 81 S.Ct. United L.Ed.2d seizures); Brown, L.Ed.2d Hel States v. 381 U.S. 85 S.Ct. Hall, icopteros Nacionales de Colombia v. (1965) (finding applicable L.Ed.2d 484 law (1984) L.Ed.2d 404 Party specific members of the Communist Ward, (due process); Metropolitan Ins. Co. v. attainder); enough Cummings to constitute an Life 84 L.Ed.2d 751 Missouri, (4 Wall.) 277, 470 U.S. 18 L.Ed. 356 (1985) (equal protection). that, (1866) (noting although [of attainder] "bills generally against directed individuals name,” they "may against also be directed Again, probably assumption a safe in this class,” against case, ”[t]he whole bill the Earl of identify as the Provisions the bur- others, reign passed Henry Kildare and of entirety parties by In dened name. VIII," persons which "enacted that ’all such Supreme jurisprudence, Court's attainder comforters, which be or heretofore have been only to'suggest statute,naming case a indi- abettors, confederates, partakers, might satisfy specificity prong or adherents viduals of earl, There, parties, very unto the said' late and certain other the test was the unusual Nixon. named, requiring who were 'in his or their false and traito- Court indicated that a law Richard M. stand, by purposes, presidential rous acts and shall in likewise Nixon name to turn his over attainted, papers high adjudged, to the Administrator of General Services and be treason’") and convicted of VIII, (1536)). might specific enough (quoting not be a c. to>constitute bill 28 Hen. note society, the sets a of to human law pun- inflict statutes that tainder reaches him, infamy out it’s upon puts [sic] or him of specified individual on the' ishment farther care of protection, a and takes no punishment is neces- group”).13 Because He barely of him than to see him executed. sary an bill of unconstitutional element attinctus, stained, attaint, attainder, then or can find in is called and we longer any of is no credit Special punishment no blackened. He Provisions —as reputation; a he cannot be witness in the context of this or term must be defined court; capable per- of question any neither is he of that is dis- case—our resolution for, of another man: forming the functions positive of the attainder claim. he anticipation punishment, of is an his law_ already The conse- dead forfeiture, and matter, however, quences of attainder are we must As initial an corruption of blood. acknowledge just “pun- what constitutes purposes the Bill of Attainder ishment” for of Blackstone, *373-74 4 William Commentaries question a of historical and Clause is some 213).14 (citing Tough stuff. Never- Inst. complexity. particular, the dis- doctrinal theless, definition, this and consistent with pro- tinction between the and of were “such common law bills attainder phylaetically regulatory, which is of course legislature, special inflict[ed] acts of the as case, admittedly is one. of this fine root punishments upon persons supposed capital offences, guilty high of such as treason law, no the common there were Under felony, without conviction and very concept of “attain- such nuances: ordinary judicial proceedings.”15 3 course of clearly to criminal cases of der” was limited Joseph Story, Consti- Commentaries it: capital As described nature. Blackstone § at 209 tution the United States of death, the sentence of most terrible When 1833). (Boston A act that inflicted “a similar Eng- highest judgment in the laws of and than death” degree milder land, insepa- pronounced, the immediate pains penalties.” termed a “bill of was consequence by the common law rable at 209-10. Id. it is now clear be- attainder. For when Supreme Court’s Although no some of the yond dispute, all the criminal is earth, appeared recognize upon opinions but is to earliest longer fit five technically capital confined to as attainder was be exterminated a monster bane death; FCC, equivalent judgment Corp. v. as are 13. See also BellSouth F.3d crime, (D.C.Cir.1998) outlawry capital pro- (finding punishment judgment a nec on a 63-64 attainder, regardless absconding fleeing justice, essary a bill of or nounced condition.of specificity, rejecting guilt. 274 of tacitly an attack on And there- which confesses case); De upon outlawry, Provisions at issue in this judgment fore or either Peña, (7th death, 32 F.3d Cir. felony, hainaut a man shall be for treason (same 1994) regard provision imposing with said to be attainted. perpetual employment bar on the air traffic Id. Reagan); fired President Fresno controllers Club, Kamp, Inc. v. Van De James, Pistol example, Rifle 15.For the 1685 attainder (9th 1992) (same regard Cir. F.2d Duke of Monmouth: (and affecting to a law certain named firearms has duke Monmouth WHEREAS James BellSouth, manufacturers)); but thus see kingdom and is an hostile manner invaded J., (Sentelle, (noting dissenting) 144 F.3d rebellion, levying against open now in war that, specificity although "mere not make allegiance; king, contrary byBe duty of attainder,” the Court act a bill of in “most cases of the lords and with the advice and consent more"). required little spiritual temporal, in this and commons assembled, authority 14. Blackstone further clarified: parliament As same, judgment pronounced, That said James duke’of Monmouth is once both [W]hen high attainted of conspire prove stand and be convicted and treason, attainted [the law and fact person] completely guilty; death, pains and that he suffer and there is not the any thing incur as a'traitor convicted and possibility all forfeitures left of to be said remotest high Upon judgment attainted of treason. in his favour. therefore Nixon, II, death, before, quoted of a 1 Jac. c. and not the attainder crimi- n. upon such circumstances nal commences: considering guidance uni cases,16 subsequent jurisprudence has More is found its sweep development formly supported a broader for of the details Court’s See, e.g., prohibition. Cummings Fletcher In v. Mis punishment prong. constitutional Cranch) (6 138, Peck, 87, (4 Wall.) souri, 277, 3 L.Ed. v. U.S. 18 L.Ed. 356 U.S. J.) (“A (1810) (Marshall, case, bill of attainder (1866), Parte companion and its Ex individual, may or may (4 Wall.) affect the life of Garland, 18 L.Ed. 366 U.S. both.”); may do property, confiscate his laws Justice Field considered whether (“Within Cummings, at 323 71 U.S. requiring persons an oath under that swear Constitution, meaning bills of attainder of the any past sym penalty perjury disclaiming Lovett, penalties.”); pains include bills Confederacy engaging pathy for the before (“ ‘A at 66 S.Ct. 1073 bill of 328 U.S. professions punish in certain constituted legislative act inflicts attainder is a which purposes. Noting ment that for attainder ”) judicial (quot punishment trial.’ without deprivation any rights, politi civil or “[t]he 323); Brown, ing Cummings, 71 cal, previously enjoyed, may punishment, be (noting that “the U.S. at attending the causes the circumstances given not to be [i]s Bill of Attainder Clause fact,” deprivation determining this of the (which reading narrow would ex historical “[disqualification U.S. at and that pains penalties), [i]s clude but bills of ... pursuits of a avocation lawful light of the evil the instead to be read been, be], imposed and often has also[ sought legislative pun ... Framers to bar: (cit law, punishment” English under the id. ishment, severity, any specifi form or Blackstone, *44), ing 4 he Commentaries cally designated persons groups”); cf. requirements held that oath acted (“But Story, 1338 at 210 Commentaries exclude the lawful burdened individuals from constitution, seems, it sense of the conduct, employment past on the basis of pains bills of attainder include bills punishment pur were therefore for attainder Fletcher).17 penalties.”) (citing Apart from 325; poses. Cummings, 71 See U.S. at Gar punish making clear that the reaches Clause land, 71 at 380. severity the death ment of a lesser than however, penalty, Although might general Cummings these statements and Garland inqui provide present establishing any be viewed as little assistance to our exclusion ry. profession from a on the basis of con- See, Bull, (3 Dall.) e.g., 16. Calder v. 3 U.S. that “certain self-created societies” had been re- (1798) (noting 1 L.Ed. 648 that "the Parlia sponsible encouraging for the insurrection. 4 ment of Great claimed and exercised a (1794). out, Britain Cong. Annals As turned laws, power pass post under the [ex facto] certain members of were none too fond attainder, denomination of or bills of bills of these "Democratic Societies” or "Jacobin pains penalties; inflicting capital, the first either, Clubs" and when the House considered less, punishment”); Marbury and the other reply speech, its ceremonial to the President’s Madison, 137, 179, (1 Cranch) 2 L.Ed. 60 Rep. Pennsylvania Fitzsimons of moved to insert (Marshall, J.) ("The (1803) constitution declares paragraph expressing "reprobation” of the so- post ex law 'no bill of attainder or facto shall Cong. cieties. 4 Annals of 899. As Professor If, however, passed.' such bill should be it, Currie has described "the friends of France passed prosecuted person and a should be under exploded suggestion. gener- wrath" See it, to death vic must the court condemn those Currie, ally David P. The Constitution in Con- pre tims whom the constitution endeavours to gress: The Federalist Period 1789-1801 190-91 serve?”). 1997). (Chicago present point, More to the how- limited, ever, Although 17. is somewhat specific opinion our information James Madison was of the Note, Beyond Process: A Substantive Ra including paragraph would constitute a see Clause, tionale Bill 70 Va. attainder, Attainder bill of because “denunciation” was "[tjhere (1984) (stating L.Rev. is no purposes provision of that including record of debate about a ban on Cong. Constitution. 4 Annals of Constitution,” provi the bills and that the scarcely contemporary sion "is mentioned 18.Ministry provision post- under a of Missouri's commentators”), this broad construction Cummings, practice war constitution in and the appear Clause’s reach would to be consistent congressional of law in federal court under a contemporary with the views of the Framers. enactment in Garland. addressing Congress shortly Whiskey after the Washington opined Rebellion of President qualifications, whether prescribe for but purposes,19 duct attainder the power for has exercised as a means a subtle been reveals more a examination closer punishment, against prohibi- the cases, of infliction analysis. a four-vote dissent both Constitution.”). the of on tion premised Miller was Justice written question the the laws in were belief that applicational and of context This relevance the individu- punish not burdened enacted ex- of a proper “prophylactic” existence the prophylactic als a measure to but instead as was to the Bill of Attainder Clause20 ception protect public probable from future the their Virginia, in Dent developed further v. West Garland, bad at 393-96 acts. See 32 L.Ed. 129 U.S. (Miller, J., joined by Chase, CJ., Swayne and New People State and Hawker of of JJ., that, Davis, dissenting) (arguing & York, 189, 18 42 L.Ed. events, light historic oath re- of recent the (1898). First, Dent, in Field Justice merely “qualifi- quirement legitimate a was ma- major interpretation his a of own made cation, self-defence, all in of who exacted in Cummings in Garland jority opinions and administering government took the part challenge to of a bill of attainder the context passed ... purpose ... for the and was requiring educational certain state law merited, inflicting punishment, of however qualifications practice in order to medicine. offences”). obviously past Although for tak- held: He outcome, ing of view the ultimate different Cummings Mis The cases of v. State of appeared agree Field with Justice Justice souri, of Ex 18 L.Ed. and Wall. properly proposition core that a Miller’s Garland, 333, upon which parte id. at prophylactic survive crafted measure could not, placed, in our much reliance is do analysis, finding even where of attainder the support the judgment, of contention propensity for future conduct was based They only in error.... deter plaintiff acts, solely past and the result was a bar enjoyment is in of mine that one who Cummings, employment. from future See right preach and teach the Christian (noting at 319-20 is evident “[i]t church, and religion priest regular of a as pursuits profes- nature of the practice who has been admitted to one many ... of parties sions of law, deprived of be profession cannot acts, from the taint of which must of right to continue in the exercise themselves, purge possible have relation no by the respective professions exaction their profes- pursuits for those their fitness past of an oath to their from them requirement, sions” the oath there- conduct, and that respecting no matters which have exacted, fore, any “was not from notion that professions. Be with such connection designated unfit- several acts indicated for tween this doctrine which callings, but was anal ness for in error there is no plaintiff contends pun- that the several acts deserved thought ogy or resemblance. The constitution (“The Garland, ishment”); ques U.S. at and the act of Missouri legislature may undoubtedly prescribe quali- designed to de in those cases were tion office, right parties of their to continue prive [the for the to which bur- fications acts, past conform, may, professions past must as it individual] dened sympathies, jurisdiction, prescribe expressions desires and where it exclusive bearing upon their pursuit any many which had no qualifications for the professions. question, to continue in their ordinary avocations life. The fitness case, Virginia intended power Congress The law of West was is not as See, rights Cummings, conduct e.g., pension of these 19. 71 U.S. at 321-22: punishment, no and can otherwise theory political upon which our institu- The is, that all men have certain inalien- defined. tions rest life, liberty rights among these are able —that pursuit happiness; erroneously us instead of credits dissent honors, avocations, pursuit happiness all all "discovery” of and Field with the Justices Miller one, open every positions, are alike all only supplied exception. We have its monik- protection rights all are that in equal of these er. Any deprivation law. or sus- before the learning pro- in

secure such skill and medicine he because has been convicted of community of medicine felony, longer quali- fession a or because he is no might confidence receiving trust with those deprivation any rights, fied. “The civil authority a license under of the state. political, previously enjoyed, may or be punishment, attending the circumstances 125-28, (emphasis 129 9 S.Ct. 231 U.S. added). deprivation determining Hawker, and the causes In the Court took the Dent analysis step upheld one farther and a state fact.” practice by ban on medical convicted felons 324, (Frankfurter, 328 U.S. at 66 1073 S.Ct. constituting punishment pur- as also not J., Reed, J., joined by concurring [in poses of the Bill of Attainder or Ex Post Dent, judgment]) (citing Hawker and Relying expressly Facto Clauses. on the 320, quoting Cummings, respec- Dent, quoted language in above the Court added). tively) (emphasis Because he found held that the law was not unconstitutional no indication the text of the statute or the punish “seek[ ] did not to further passage circumstances of its criminal, protect ... but citizens from measure, punitive intended it as a Justice 196, physicians of bad character.” Id. at Frankfurter concluded that it was not a bill S.Ct. 231. of attainder. Id. at 324-27.21 development prophylactic Further Lovett, Following Justice Frankfurter’s exception emerged under Justice Frankfurt- on Bill views of Attainder com- Clause Lovett, tutelage. er’s States United v. majority manded a for a number of cases in 303, 856, 1073, Ct.Cl. S.Ct. rejected every which the Court attainder L.Ed. 1252 Court examined challenge that it considered. See American salary payments federal that cut law off Communications, Douds, Ass’n v. 339 U.S. employees, allegedly certain named federal 382, (1950) 413-14, 674, 70 S.Ct. 94 L.Ed. 925 Finding due to their activities. “subversive” CJ.) (Vinson, (rejecting challenge attainder “‘operate[d] the law as a conditioning to federal law recognition perpetual decree of exclusion’ from a chosen organization vocation,” filing labor on the “accomplishe[d] of affidavits punish- and thus by they its officers that judicial belong ment did not of named individuals without trial,” Party Communist Justice Black struck it down did not believe as an force); government overthrow of the unconstitutional of attainder. 328 bill U.S. at Gar- 316, Works, (quoting Cummings 716, ner v. Board Pub. S.Ct. 1073 341 U.S. Garland). 722-23, (1951) Frankfurter Justice took a 95 L.Ed. 1317 J.) (Clark, (same slightly view, Taking municipal different however. his as to ordinance cue from Hawker the historical requiring employees founda- to take oath that law, English advocated, tions of the Clause belonged he had not organiza- “punishment prerequi- reiterated that is a advocating, tion government overthrow attainder, site” for a bill of and that: force and preceding violence five Braisted, offense, years); presupposes Punishment De Veau v. 363 U.S. necessarily (1960) previously an act declared 80 S.Ct. 4 L.Ed.2d 1109 criminal, J.) (same (Frankfurter, but an act for which retribution is pro- as state law exacted. The fact that harm hibiting is inflicted felons from soliciting receiving governmental authority does not make it union); dues on behalf of waterfront punishment. Figuratively speaking Nestor, Flemming 603, 617, all dis- 363 U.S. comfiting may (1960) punish- J.) (Harlan, action deemed L.Ed.2d 1435 (same deprives ment because it of what otherwise as to federal providing law for the enjoyed. may would be But there be rea- Security termination of Social benefits of depriva- sons other than for such aliens deported who were on certain tion. A man practice grounds); be forbidden to Party Communist v. Subversive (see Dissent, majority's The dissent our theory” dismisses reference to Justice stone of the p. 249) Frankfurter's concurrence in Lovett because it ignores the influence of the Frankfurtian did majority not reflect the view in that case. many subsequent view in cases cited herein. alleged Such a back-of-the-hand to the "corner- previously con Board, individuals had been whether Activities Control (1961) (Frank- Flemming, felony”); victed of 6 L.Ed.2d 625 J.) (same furter, imposing (noting, respect to the as to federal law S.Ct. 1367 Court, on “Commu- registration and other burdens that “it cannot be before the statute Although organizations). said, some Cummings, nist-action” as was said of statute premised part of these decisions were disability imposed] bears no rational [the reading22 of strict historical the Clause23 legislation purposes connection to requiring specify offense and bill the more part, which it and must without of is guilt clearly declare the of the burdened Congres evidencing taken as therefore be unconstitutional,24 to be individual or class punish”) (citing Cummings, sional desire to they excep- prophylactic also maintained the Dent, at 129 U.S. and See, e.g., developed tion in Hawker and Dent. 231). Douds, 413-14, 70 S.Ct. 674 339 U.S. at however, phase, After this Frankfurtian Lovett, Garland, Cummings and dis- (finding pointedly the appeared the to reassess previous tinguishable “in the deci- Clause, scope the essential nature of and in fact sions the individuals involved were punishment requirement. of the United actions; past being punished for whereas Brown, States v. 381 U.S. subject possible of this case to loss surveying L.Ed.2d 484 after only position because there is substantial cases, Warren above described Chief Justice congressional judgment that ground for the the Bill of Attainder Clause as ex- viewed loyalties their and will be transformed beliefs pressive the most fundamental of some of conduct,” that, noting even into and future powers, to separation ideals of of addition history though [burdened “the of the individ- specific prohibition: its more past the foundation for the conduct was uals’] Bill of Attainder Clause not was [T]he future is judgment as to what the conduct implementation gen- intended as one be,” likely to that fact “does not alter principle power, of but eral fractionalized [the intended statute] conclusion that is Framers’ belief that the also reflected the punish prevent action rather than future Veau, Legislative Branch is not so well suited as action”); De 363 U.S. juries politically independent judges and (finding “sought not S.Ct. 1146 that the state ruling upon task ex-felons, blameworthi- what was punish but to devise of, punish- levying regula- appropriate ness and scheme of felt to be a much-needed waterfront, upon, specific persons. “Every one ment tion of the and the effectua- body, legislative that a from important became must concede tion of that scheme it Brown, superfluous. expressly tion was Judicial enforcement abandoned. See Since respect U.S. at 85 S.Ct. 1707. must these historic the Constitution prohibition of bills of attainder limits. The general model 23. Based on Justice Frankfurter's among very specific con- falls of course these adjudication: constitutional of bifurcated provisions. stitutional Broadly speaking types two of constitutional Lovett, (Frankfurt- S.Ct. 1073 before this Court. Most constitu- claims come er, J., Reed, J., concurring joined [in derive from the broad standards tional issues judgment]). (e.g. fairness written into Constitution laws,” process,” "equal protection of the “due Lovett, 24. See 66 S.Ct. 1073 pow- "just compensation”), division of J., Reed, J., (Frankfurter, joined concurring ques- and Nation. Such er as between States ("The distinguishing judgment]) [in the charac nature, tions, very relatively their allow teristic of a bill attainder is substitution legal play judgment. The wide for individual guilt legislative determination of gives scope. such For this sec- other class no judicial finding imposition punishment of constitutional issues derives ond class specify All bills attainder sentence.... provisions very specific of the Constitution. person was offense for which attainted grievances These had their source definite guilty punishment was against deemed and for which proscribe recur- and led the Fathers experience. specific imposed. always a These There was declaration rence of their against safeguards grievances guilt and the or the class to which either of individual by the Constitu- recurrence were not defined belonged. might pre-existing he be a offense by histoiy. They Their facto.”). defined tion. were post punishable act ex crime or an made by history meaning that defini- was so settled organization, and from the there- its numbers sess feared characteristics and very dependence of its intimate members fore cannot hold union office without incur- upon people, which renders them liable ring liability criminal —members peculiarly susceptible popular to be Party. Communist clamor, properly try constituted to Id. at 85 S.Ct. 1707. coolness, caution, impartiality charge, especially in criminal those cases holding in The broad Brown was not with- popular feeling strongly in which the caveats, however, out its and to these we excited, very class of cases most like- —the precise must turn order to assess the role ly prosecuted by By to be this mode.” distinguishing in the case. In attainder, banning bills of Framers Banking providing 32 of the Act of 1933— sought guard against the Constitution officers, directors, employees that the dangers by limiting legislatures such certain securities firms could not serve as rulemaking. peculiar task of “It is the officers, directors, employees or of member province legislature gen- of the to describe System banks in the Federal Reserve —from government society; eral rules for the of issue, at statute the Court noted that: application of those rules to individuals society duty would seem to be the law], § [The union unlike 32 of the Bank- departments.” other Act, ing deprivation upon inflicts its 445-46, 381 at (quoting U.S. 85 S.Ct. 1707 political group thought members of a to Cooley, Constitutional Limitations 536-37 present security. a threat to national As (8th Fletcher, ed.1927), 136, and U.S. above, groups we noted such were the respectively).25 Acting on this broad view of targets overwhelming majority of the the Clause’s role in the constitutional struc- English early American bills of attain- ture, Chief Justice Warren held that the law Second, § incorporates judg- der. no in question making it a past crime for a or — censuring any ment or condemning man or Party current member of the Communist to it, group enacting Congress of men. In positions potential hold certain union with a upon general knowledge relied its of hu- disrupt interstate un- commerce —was an psychology, man and concluded that constitutional bill of attainder: holding designated concurrent of the two generally The statute does not set forth a positions present would temptation applicable decreeing 'any rule person just man —not certain men or mem- possesses who ... certain characteristics political party. bers of a certain Thus office, ... shall not hold union and leave to incorporates insofar as a condemna- juries job courts and determining tion, it desig- condemns all men.... persons possess what ... specified Instead, nating designates characteristics. bank officers ... merely no persons pos- uncertain terms the expressed [general] who characteristics it Prod., Landgraf 44, (James 25. See also v. USI Film 511 U.S. and The Federalist No. at 301 Madi- 244, 20, son) (J. 267 n. ed.1961): 114 S.Ct 128 L.Ed.2d 229 Cooke (1994) Co., (quoting Richmond v. J.A. Croson attainder, laws, post Bills of ex facto and laws 469, 513-14, U.S. 109 S.Ct. 102 L.Ed.2d impairing obligation of contracts are con- (1989) (Stevens, J., concurring part traiy principles to the first of the social com- concurring judgment)): in the pact, every principle legisla- and to of sound Legislatures primarily policymaking bodies people tion .... The sober of America are promulgate govern rules to future con- weary fluctuating policy of the which has di- prohibitions against duct. The constitutional public They rected the councils. have seen post the enactment of ex facto laws and bills regret indignation, and with that sudden attainder reflect a concern valid about the use changes legislative interferences in cases political process punish of the character- or affecting personal rights, jobs become in the past private ize conduct of citizens. It enterprizing hands of specta- and influential judicial system, legislative pro- rather than the tors; and snares to the more industrious and cess, equipped identify past is best part community. less informed wrongdoers and to fashion remedies that will presumably create the conditions that would wrong have existed had no been committed. alternative, challenge, law under viewed terms in an trying reach was imposed, rea- type severity of burdens way. shorthand sonably nonpunitive can said to further 453-54, 1707. Id. at 85 S.Ct. id. at legislative purposes.” See 97 S.Ct. Thus, fairly with a although began Brown (citing Cummings, 71 Clause, and there- construction of broad Hawker, 193-194, 18 S.Ct. large portion with a its supplied SBC Dent, 231, among case, pur- argument it did not in the instant cases). protection Nix- Because the other prior development port fully to abandon papers unquestionably presidential on’s was dis- element. As the above legislative legitimate, nonpunitive purpose clear, key makes one reasons cussion imposed by the burdens the statute distinguishable § 32 found Court further, designed to the Court were well incorporate “judgment it did not was that nonpunitive un- concluded that the law was censuring condemning any group man approach. See at 476- der the functional id. Further, explicitly left of men.” the Court Next, looked open accomplishing non- possibility no legislative purpose. Because there was legislation by punitive, prophylactic economic history spe- of a indication designations. way “shorthand” punish cific intent cases —unlike picked up last This latter theme was one Lovett, Report House charac- like where the “ time in Nixon v. General Administrator the named individuals as ‘subversive terized Services, ... ... unfit ... to continue Govern- summa L.Ed.2d 867 where the Court concluded employment’” ment Court —the and rationalized its extensive attainder rized a in favor of that this test also came out developed the com jurisprudence and most 478-80, finding. at 97 nonpunitive See id. analysis punishment prong prehensive S.Ct, Lovett, of the (quoting 2777 328 U.S. at case, 1073). In that that has been offered date. Finally, the turned 66 S.Ct. Court noted, that, upheld a law as direct the Court statutory provisions. structure ed M. name to turn over Richard Nixon nonpunitive quality it a Because also evinced presidential papers his to the Administrator example, legislation, protecting, to the discussing why of After himself ability papers General Services. to access Nixon’s one,” legitimate regard a class of privilege Nixon “constituted and to raise claims of supra, proceedings, note the Court went on to the Court con- see them court that, nonpuni- specificity if the element test also indicated explain even cluded that this 481-82, satisfied, still at it would tive character. See id. 97 S.Ct. were deemed “ “impose ‘in not inquire 2777. Because statute did have whether punishment,” the penalties or other punishment’ criminal within the constitutional flict[ed] 472-73, of Court concluded that it was not a bill proscription.” 433 at 97 S.Ct. attainder, Lovett, its Id. at regardless specificity. of 66 (quoting 328 U.S. at omitted). 1073). (quotations examining After the historical S.Ct. noting underpinnings of and the Clause not of at issue did involve the statute examples “punishment” which traditional light years of case analysis implicate considered, attainder

had been held history we law and that we have death, past including imprisonment, stands, ultimately and believe that Nixon — banishment, punitive proper confiscation of following if concisely, proposition: for the (as ty, bars evidenced employment legislation legitimately nonpunitive and has function, structure, into Cummings) launched purpose, Court it doe's —the three-stage general punitive punishment purposes examination constitute Clause, it im id. at 97 S.Ct. 2777. Bill Attainder even where character. See punitive First, poses historically it has sanction noted that “often beyond experience barring engaging designated historical individuals looked mere statement is professions. exis certain This applied a functional test older, analyzing with the traditional punishment, whether the consistent tence of lines.of jurispru- congres- analysis in the Court’s attainder record “evinces dence, punish.” sional intent to including particularly prophylactic Garland, developed Cummings, exception (quoting Dent, Hawker, and Justice Frankfurter’s Nixon, 473, 475-76, & in Lovett. It is also not incon- concurrence 2777, respectively). Nothing in Selec- sweeping separation with the more sistent suggests pun- tive Service the historical theory espoused by powers Chief Justice own, or dispositive ishment test is ever on its in his somewhat aberrant Brown Warren refer- should be conducted without opinion, at least to the extent that that case history underlying to the ence actual open possibility using left “shorthand” issue, sanction at and we decline to read proper categorical designations otherwise such a ritualistic and unsensible formulation legislation. Although portions some of Nix- BellSouth, into the Clause. See also might suggest be read to that historical (stating F.3d at 65 measures “[e]ven punishments “inherently suspect,”26 we historically punishment— associated with suggestion inapposite particu- find this permanent occupa- an such as exclusion from employment lar area of bars. As Nixon regarded tion —have been otherwise when clear, type liability makes nonpunitive pro- apparently aims of an punishment “historical” to the extent phylactic sufficiently measure have seemed examples certain have been declared (internal convincing”) quotations clear and Cummings cases like and Lovett. (stat- omitted); Dehainaut, 32 F.3d at 1071 Nixon, See S.Ct. 2777. that, ing “[e]ven where a fixed identifiable building Because these blocks for the histori- group ... singled out burden tradi- cal characterization themselves contain the tionally associated with as—such very prophylactic exception, seeds permanent occupation exclusion from an —is because Nixon’s “functional test” is rooted imposed, may pass scrutiny the enactment very exception developed in that analysis under bill attainder if it seeks to Hawker, Dent, employment bar cases of legitimate nonpunitive achieve ends and Nixon, Cummings, see clearly product punitive was not the in- simply convincingly cannot be tent”). employment maintained that bars are inher- ently historically punitive without reference to Nixon’s other considerations. Adapting the Selective Service formulation light inquiries, this case in the of our however, importantly, More such question Special becomes whether the Provi- reading Supreme would contradict sions, type viewed in terms of the and severi- recapitulation Court’s own most recent ty imposed expressed of burdens and the Service, prong. punishment In Selective Congress, reasonably intent of can be said to Court stated that: nonpunitive further legislative purposes such issue, partic- the sanction at a bar from deciding In whether a statute inflicts for- businesses, ipation in certain is neither his- punishment, recognized bidden we have torically functionally nor motivationally nor (1) necessary inquiries: three whether the punitive. We can they conclude that challenged statute falls within the histori- can, and Special therefore find that the Pro- (2) meaning legislative punishment; cal constitutionally visions are sound. statute, whether the “viewed in terms of type severity foremost, imposed, and of burdens perhaps First and we think that reasonably nonpuni- can Special be said to further punitive Provisions are not be- (3) legislative purposes”; they tive impose perpetual and whether cause do not bar on id., (noting nonpunitive they See 97 S.Ct. 2777 unquestionably ends that have experience England I, that “the substantial proscription of both been held to fall within the of Art. parlia- and the United statutory States with such abuses of and that “[a] 9" enactment that im- mentary legislative power ready poses any offers a of those sanctions on named or identi- deprivations checklist of immediately disabilities so dis- fiable individuals would be constitu- proportionately inappropriate tionally suspect”). severe and so entry into and vulnerable nascent into avocations. tion entry of life’s the BOCs’ the_ Lovett, temporary, Con- Garland, market information services Cummings, the bur- imposed to an gress all tailored the burdens future has were barred from dened individuals competition. promoting end appropriate on professions in certain based employment Finally, argued fer- although has Special Pro- SBC immutable acts. Under the hand, vently contrary, the mere fact that the visions, other the BOCs will be on the application are limited Special areas as Provisions to enter each of the affected allowed (and not cover other statutory regarding to the BOCs thus do soon criteria com- power, substantial local market markets are LECs with petition them local service GTE) services, and, cast met, like does not substantial doubt in the case of information tailoring. fit of As the Circuit regardless. Supreme Court this D.C. As Service, expressly recognized, expressly “[b]ecause “[a] stated Selective dispersed open generally are less perpetually pos- BOCs’ facilities statute leaves GTE’s, they can exercise sibility specifically than bottleneck [qualifying for some [long ends of a distance] not fall the his- control over both benefit] denied does within higher fraction of pun- telephone call cases meaning torical of forbidden (or LECs, any of other than GTE” ishment.” 468 U.S. at 104 S.Ct. 3348.27 matter), subject thus and it is rational to Second, Special that the Pro- we conclude in order them additional burdens visions because goal competitive local achieve the overall nonpunitive purpose: attempting serve BellSouth, long distance service. competition fair markets for ensure F.3d at 67. distance, service, long telecommunica- local Third, Provi equipment, information services. we reason tions Indeed, MFJ, punitive because neither their even under the we do not sions are not legislative history demon terms nor their understand that line-of-business restric- gun” puni “smoking evidence of imposed on the BOCs were intended strates the tions Judge necessary to a bill of function. As Greene tive intent establish have stated, Supreme clarified in imposed As the the restrictions were attainder. “ Service, “[p]articipation in fields carries with it ‘unmistakable evidence these Selective required ... a Con Operating Compa- punitive intent before a substantial risk that the kind anticompetitive gressional tech- enactment nies will use the same Id., grounds. niques on attainder used AT&T in order to thwart struck down’” 15, 104 (quoting n. growth competitors.” own 468 U.S. at 856 S.Ct. 3348 of their United 1367); AT&T, F.Supp. Flemming, at 224. This States (for Lovett, 66 S.Ct. 1073 judgment much more like a rationale seems cf. evidence). sure, inherently example an of such To be “condemning all men” certain in con positions impermissible an there some isolated references conflicted than were System’s ques censuring condemning any gressional to the Bell “judgment or man debate MFJ, conduct, personal practices prior to the for tionable business group men” their Brown, gener which were offered as evidence see power. merely potential for market the extent that was al abuse local so to But, still, MFJ, pointed us engage it did SBC has towards no reimposing the not Furthermore, Special derivatively punitive. indication that Provisions were action punish Special the BOCs for the actual of the Provisions themselves enacted terms Instead, legis By legitimate ends. clear- antitrust violations. stay close their quite lifting really is clear that Con ly linking long distance and lative record gress certainly as a whole—considered the equipment restrictions telecommunications — just markets, they ap Special Provisions to be what competition in the local and BOCs’ prophylactic, compromise by making separation peared structural condi- to be: meeting impossible, recognize competition suspect will and we 27. We us that it be emerge easy BOCs be for the BOCs. are that the will able to not matter satisfied criteria Still, expe- economic nothing from the restrictions when it is statute SBC’s recent to meet the stiff criteria. with the FCC and the D.C. Circuit leads and business interest riences power history regional Bells regulation of the local market American when BOCs’ competition in all greater long-distance companies temporarily are ensure markets. nation’s telecommunications peace, speak.”); (daily ed. so to id. at S696 1996) (statement Kerrey) Feb. of Sen. fundamentally, Finally, perhaps most (noting very the Act was “a unusual Special Provisions are we conclude that it piece legislation in that the demand for they part were of a not range coming from ... the whole [wa]s larger quid pro quo. Combined with RBOC’s, corporations; long-distance, ... ca- 601(a)(1), represent § Special Provisions ble, broadcast; them”); all of id. at S699 compromise hard-fought on a massive issue 1996) (statement (daily ed. Feb. of Sen. which, end, public policy contained Lott) (“The telephone companies sup- are good both and bad elements for the BOCs.28 porting legislation. long-distance this example, although For the -information ser- companies supporting legislation— are restriction lifted under the MFJ was vices partially § both a little more reimposed under the BOCs of them would like to have freed, sections, immediately by operation they basically were in their but know this 601(a)(1) Provisions, ”). Special other good legislation.... may, it is Be that as existing from MFJ restrictions on their abili- legislative quid it rate clear that a ty out-of-region long to offer incidental and pro quo simply puni- on this level cannot be importantly, Spe- distance service. More purposes. tive for attainder gave cial Provisions a clear delin- BOCs reasons, foregoing For all of the we find they eation of to do to what needed achieve Special ultimately Provisions are lifting of all the MFJ restrictions in the old historical, functional, nonpunitive as an certainly step up, from the BOCs’ future — perspective, They motivational are matter. therefore being Judge under an unconstitutional and odious bill of attain- perpetual supervision. per- It Greene’s der as that term has been defined haps for this reason that the BOCs have Supreme Court. To the extent that the dis- apparently consistently represented, outside otherwise, trict court concluded was litigation, they pleased were error, point and its decision on that is accord- Indeed, release, public Act. in a news SBC’s ingly reversed. legis- Chairman lauded the Act as “landmark “immediately lation” that would allow SBC B provide long-distance

[to] service outside [its] ... region [its] and to cellular customers above, however, As noted and the SBC everywhere,” that created “clear and appellees urge other also three additional pathways” per- reasonable SBC obtain arguments constitutional as alternate bases provide in-region long mission- to distance affirming judgment of the district “pathways service in the [SBC future — Having court. found the Provisions happy was] with.” The other made BOCs attainder, not to constitute a bill of we must comments, they clearly similar were ef- obviously consider these alternate theories. persuading Congress sup- fective of them however, only briefly, We do so port Cong. for the Act. See 142 Rec. S393 far less substantial. 1996) (remarks (daily ed. Jan. of Sen. Pressler) (“We regional have the Bell now 1 companies supporting, the bill and have we long-distance companies supporting appellees the the The first make two interre unusual, arguments bill. That is an rare moment in lated that the Provisions Communications, service, providing 28. See SBC F.3d at 138 412: interLATA since it was long-distance question claimed that the goals market is al- [the of how best to achieve subject great ready competitive. might ... expected Act] thought was the of debate. be As for long-distance Some that the local and significance, an issue of this economic an ex- open competitors markets should be to all im- lobbying struggle tended ensued. The end mediately. Others believed that the BOCs product compromise awas between the com- competition should have actual to wait until peting factions. was introduced in their local markets before

245 point would seem sep question on this requirement of real the constitutional violate Wheeling the Court’s Special Pro be survives powers i.e., that the to whether of aration — legisla separation powers jurispru of represent arrogation an more recent visions functionally dence, in powers recently vested in Plaut. In that tive branch of recited as very judicial case, however, hardly firmament of the branch the could Justice Scalia Plaut, 514 generally “nothing the Constitution. See in more that our have been clear 218-25, 115 (noting, among 1447 ques into holding today [Wheeling ] calls things, Framers of our Con “[t]he other that Id., 115 S.Ct. 1447. tion.” 514 U.S. among system ruins of a of lived stitution survives, all Obviously, Wheeling as of judicial intermingled legislative powers” separation-of-pow- circuit to courts consider necessity sharp a of to and felt “sense a Litigation Re- challenges to Prison ers judicial” from the in separate the recently In concluded. form Act 1995 Despite designing system). their new statute, the courts dealt with a 18 those cases argu pedigree, strong neither institutional 3626(b)(2), § that mandated the ter- U.S.C. significant merit. ment existing certain consent decrees mination of First, Spe- appellees contend that the upon newly if not based a an- were separation powers cial Provisions violate findings. up- standard factual nounced partic- a they address themselves to separa- of a holding provision the face judicial consent MFJ —in ular decree —the attack, expressly tion-of-powers five courts way They rely to alter the result. such as Congress ongo- with held that could interfere accepted the well rule that it violates on decrees, ing consent because such decrees separation-of-powers principles for separation-of- judgments” “final were not reopen any adjudication represents Indeed, one powers purposes.29 even the department” judicial “final word 3626(b)(2) was forced court to strike down Plaut, a ease. 514 U.S. 115 See “Wheeling established the concede Pennsylvania v. 1447. Yet under law at time principle that state Co., Bridge Wheeling and Belmont judgment embodying permanent a final How.) (18 421, 15 435 it has L.Ed. injunction part is is of what is entered change Congress may long been clear judgment.” Taylor ‘final’ v. about Unit- relief, underlying equitable ongoing law Cir.1998) (9th States, ed F.3d itself, if, change Wheeling is even J.). (Ristani, applica- targeted at limited in specifically great weight authority, the Despite this bility particular injunction, to a and even if in- lifting appellees congressional change necessary counter that results suspect, injunction. this case more be- See id. 59 U.S. at 429. The terference legislation, judgments Singletary, through and final with Dougan 29. See v. F.3d curiam) ("As (11th Cir.1997) effects, (per prospective the Court ex- whose effects could consti- Farm, Inc., Spendthrift Branstad, plained revised.”); v. a true in Plaut tutionally so Gavin v. judgment’ appealable here not an (Bowman, ‘final means (8th Cir.1997) J.) F.3d judgment, represents one the 'last word but (“Plaut judgments does not that final are hold par- judicial department regard with congressional tinkering; invariably immune controversy.' Consent decrees ticular case or judi- protects 'the word of the what Plaut last judgments, final but not the ‘last word regard particular department case cial ”); judicial department.’ Inmates Suffolk case, controversy.’ continuing a consent In a Rouse, (1st County Cir.1997) F.3d Jail v. not the word of the courts in the decree is case, last ("Plaut J.) Bridge, (Selya, Wheeling after the decree itself has become final even together, equity requires, teach that and the read separation Moore, Plyler purposes appeal.”); v. legisla- permits, powers principle Cir.1996) J.) (4th (Wilkins, ("[A]s F.3d respond changes to direct that courts tures Plaut, attempt made clear the Court forward-looking by revisiting in- substantive law legal judgment legislatively violates the alter Jacobson, Benjamin junctions.’’); F.3d separation-of-powers judgment pro- doctrine. A Cir.1997) (Calabresi, J.) ("In (2d distin- relief, however, injunctive viding remains for Wheeling implic- guishing Bridge, the Plaut Court subject changes principles in the law. These itly drew between two kinds a similar distinction apply equally litigated decrees and consent pur- judgments separation powers final for (citations Wheeling judgments.”) and other poses judgments prospective without ef- —final omitted). fects, constitutionally cases which could be revised Yet, noted, nullifying prior, authori- Legislature’s the specific. so cause it is specific no Wheeling judicial was rife with action. It makes differ- in tative legislation by Congress was ity: change separation-of-powers effected whatever to that ence altering legal sta than specifically gross directed rather violation that it is bridge single, named in order to tus of a ... that it is not accom- particularized or particular injunction. change the result of a Bill by of the panied an “almost” violation id., also Specificity at 429. was See Clause, viola- or an “almost” of Attainder manifestly in the more recent related evident provision. constitutional tion of other Audubon case of Robertson v. Seattle Soci In the & n. 115 S.Ct. 1447. See id. 437-40, 429, 434-35, ety, 112 S.Ct. Plaut, viability to the light of there is thus no where Justice 118 L.Ed.2d 73 either, appel- “amorphous” theory Court, Thomas, writing a unanimous separation-of-powers challenge in this lees’ separation-of-powers problem no found fail. case must changed respect with statute that the law by pending lawsuits identified name and two caption light of all these number. appellees argue next that the separa precedents, simply we cannot see a Equal Protec Special Provisions violate the tion-of-powers problem Special based on by discriminating against tion Clause Provisions’ interference with the MFJ this City by name. Under New Orleans BOCs case. Dukes, 2513, 49 attack, That leaves the second line of (1976), however, specification L.Ed.2d 511 which, it, as we understand is a not-too-well- regulation is parties named in economic argument problematic that all of the defined clearly equal protection pur permissible for including aspects Special of the Provisions — long regulation rationally poses so as the particularly specificity, their interfer legitimate governmental related to a interest MFJ, near-punitive ence and the personal not trammel fundamental does liability they impose nature of the —when rights upon inherently suspect or draw dis separa together added somehow amount to a race, religion, alienage. tinctions such as tion-of-powers greater than violation that is 304-06, Id. at 96 S.Ct. 2513. As should Although argu parts. the sum of its history manifest from the entire of this area appealing support in ment finds rhetorical law, regulation of an conduct in LEC’s sweeping the more statements of some of the telephone the local service market neither eases, including particularly older Court’s rights fundamental individual nor restricts by admonition offered Justice Marshall government’s lacks rational relation to the Fletcher and seconded Chief War Justice legitimate ensuring greater interest com prov .in peculiar ren Brown that is the “[i]t petition in all telecommunications markets. legislature general ince describe Furthermore, specification of the BOCs government society; ap rules Special Provisions at issue here was plication in soci of those rules individuals race, like reli not based on invidious criteria ety duty would seem to be the of other such, Special gion, alienage. As Provi Brown, departments,” see 381 U.S. at Equal sions are not inconsistent with the specifically squarely it is Protection Clause. case, contradicted Plant. In that Justice Breyer very argument raised a similar in his id., one-vote concurrence. See 241-46, that, Finally, appellees urge 115 S.Ct. 1447 Justice Scalia’s six- . it, majority opinion soundly rejected

vote even if the other Provisions are al (in however, noting stand, addition to the above- go § imper lowed to 274 must as it nine) quoted statement from footnote that: missibly infringes right the BOCs’ to free rejected speech. recently infringement The D.C. Circuit The nub of consists not th[e] challenge an identical another Legislature’s acting particular- in a however, BellSouth, (hence RBOC, according ized concur- see F.3d at rence) fashion; disagree can reason to nonlegislative but rather of and we find no attaint, simply a bill to must clear that for analysis. Because its result and with ease, that has punitive. invoke In this way speeeh on differentiate does not Special Provi- content, restricting Although not occurred. speech its the basis (at most) judg- legislative constitute a subject only inter- sions well to provisions are currently have in- BOCs Turner ment that the scrutiny review under mediate FCC, potential natural restrain Inc. herent and Broadcasting System, v. local competition by virtue of their market L.Ed.2d 497 S.Ct. (Turner I). (1994) standard, does them mon- power, a the Act not declare Under that punish them on im- sters otherwise seek to upheld will “if it advances restriction conduct, thus does not governmental interests unrelated to basis portant the Bill Attainder Clause. speech and does not run afoul of suppression of free additional re- substantially speech than Because the Constitution’s more nec- burden equal quirements separation powers, essary those Turner to further interests.” laws, FCC, speech are protection of the and free Broadcasting System, Inc. Act, arguably infringed not L.Ed.2d also even (1997) (Turner II). is competi- judgment court accord- Obviously, the district ingly above are tion-enhancing'interests discussed

manifestly first sufficient meet the hurdle. REVERSED.30 Furthermore, merely imposes § 274 separation requirement on a structural SMITH, Judge, E. JERRY Circuit bar, activities, not an its speech absolute dissenting: minimis this practically de restrictions minting “regulatory excep- En a route to context, necessarily certainly corporate Clause, Bill of Attainder tion” speech substantially more do not burden majority punishment pun- is holds that accomplish legitimate necessary to its than “prophy- a ishment when it inflicted with reasons, goals. For these the contention majority The this lactic” intent. reaches right § 274 to free violates BOCs’ goal by stitching together patch- cherished entirely lacking in speech is merit. work of concurrences and dissents and brushing binding Supreme Court ma- aside V jority opinions as and “unsensi- “aberrant” end, prohibition In the the constitutional I respectfully dissent. ble.” specific against bills attainder is a rather general guaranty rights. Lo than Cf. I. (Frank vett, 321, 66 J., Reed, J., furter, joined concurring Act of 1996 sin- Telecommunications [in twenty Nothing ju gles corporations out for se- judgment]). in the Court’s named allow vere restrictions character- risprudence should be read to line-of-business ized, telling language, guaranty wholly escape impli the Act’s as the specific origins, “Special hinges Provisions.” This case of its and since the cations historical restrictions, before, which age it has been whether these economic of Blackstone requires single- punish- is that attainder an element of We are to see this case in unable dissenting expressed opin- employment minded terms and there are ment. There are bars faithfully, ability, character, our We have the best of ion. employment bars —some of the same journey of attain- recounted the sinuous of bills non-perpetual A others of a different character. days present day. der from the earliest bar, corpora- which forbids pie, these cases—as whole Like Christmas segment participating particular in a tion's individually provide a little some- and indeed — corporation general en- business in which the taste, thing every and are rich selective gaged bar when that is enact- is not quotes support a chosen conclusion. arriv- legislative pur- nonpunitive appropriate ed for conclusions, synthe- ing our we have tried to poses which that under conditions to business expressions applications of size these diverse Indeed, agreed. effectively we are not sure apply the bill of attainder clause in order it in given its ac- the dissent is otherwise convinced regulation first context business such —its knowledgment that is no real "victim” of there dissenting application. opin- we think the What Congress in this case. straightforward has not in its stride ion observed 248 425, 2777, 474, firms from lucrative telecom- 97 S.Ct. 53 L.Ed.2d 867

bar named (1977), markets, legislative amount bur- the Court canvassed various munications historically punitive, concluding “punishment” historically dens deemed as understood. country’s experience that own “[o]ur

A. bills of resulted the addition of attainder of impermissible another sanction to the list consistently Supreme The has held Court legislative punishments: legislative enact- employment punish constitute bars to designated ment or barring individuals ment of the Bill of Attainder purposes groups participation specified em- from In of the earliest bill of attain Clause. one ployments or vocations....” (4 Missouri, eases, Cummings der v. 71 U.S. Wall.) (1866), 277, 320, L.Ed. pronouncement,’ The Court’s latest in Selective “[disqualification Court from observed PIRG, Sys. Ser Minnesota v. v. pursuits of a lawful avocation ... 3348, 841, 104 S.Ct. L.Ed.2d 632 also, been, imposed punish as often (1984), country, “In our echoes Nixon: own down, ment.” Court struck as a bill of The forbiddpn punishments by the list of the Bill attainder, in the provision Missouri Consti expanded of Attainder Clause has to include sym tution prohibiting Confederates or their legislative participation bars individuals pathizers holding jobs. from certain The groups specific employments profes or or pursuit hap “in the recognized Court of 852, sions.” 468 S.Ct. 3348. avocations, honors, piness positions, all all all Indeed, employment bars “have constituted one, open every are alike and that common most sort statutes struck protection rights equal all of these before down as Court unconstitutional bills of Any deprivation suspension law. FCC, Corp. v. attainder.” BellSouth rights pun these conduct (D.C.Cir.1998) 58, (Sentelle, J., F.3d 72-73 ishment, and can be in no de otherwise Service, dissenting) (citing ” Selective 468 U.S. (emphasis Id. 71 U.S. 321-22 add fined. 852, 104 3348). ed). The majority’s ancillary argument changed. parte The law has not In Ex “the Provisions are not be- (4 Wall.) Garland, 333, 71 U.S. 18 L.Ed. 366 cause they impose perpetual do not bar” is (1866), applied Cummings’s rea- majority quotes meritless. Selective down, attainder, soning to as a bill strike Service, 104 S.Ct. barring federal statute Confederates which “[a]' states that statute that leaves practicing in federal re- courts. More' open perpetually possibility [qualifying Lovett, cently, in v. United States 328 U.S. specifically for some denied does not benefit] L.Ed. Ct.Cl. fall meaning within the historical of forbid- (1946), princi- the Court reaffirmed the (brackets den punishment” added ple that line-of-work restrictions are inher- Brown, by majority). inBut the Court had ently invalidating punitive, statute federal already rejected majori- considered and terminating the salaries three named fed- ty’s escapability argument, explaining: eral employees. And United States v. Brown, 381 U.S. prior We do [two not read cases] to have again L.Ed.2d 484 the Court once up inescapability set as an prereq- absolute proscribing entry held that a into a statute finding uisite to a of attainder. Such punishment, certain line of work constituted absolute rule would have flown in the face striking a federal statute that forbade down explicit precedent, Cummings v. Mis- Party members of the Communist from serv- souri, 277, 324, 4 Wall. 18 L.Ed. as ing as labor union officials. background well as the historical .of Any employment, fall prohibition. doubt bars A constitutional number of squarely conception the historical within ante-Constitution bills of attainder inflicted their deprivations upon, was érased the Court’s two named or de- most groups, recent of attainder persons bill cases. Nixon scribed but offered Servs., avoiding them option depriva- Administrator Gen. congressional punishment indi- authorizing tions, swearing allegiance to the e.g., by long can said to as the statute viduals existing government. prevent future harms. 32, This at 457 n. 85 S.Ct. 1707. 381 U.S. majority’s theory that Bill of Attainder Clause is

illustrates the The cornerstone of the Lovett, by inserting into simply concurrence in cannot be avoided Justice Frankfurter’s 318, escape. Although that 1073. statute a The fact at 66 S.Ct. the means 328 U.S. distinguished government key holds to the between the federal the Justice Frankfurter by government au Baby prison [that is] irrelevant. “harm inflicted Bells’ 324, “punishment,” 66 thority” and id. at B. (Frankfurter, J., concurring), the 1073 S.Ct. unhappy reality majority of the refused to embrace Faced with the of well Court century Tribe Florida v. Supreme over a Court cases hold- this view. Seminole Cf. Florida, 1114, 116 S.Ct. 134 ing employment punish- that bars constitute 517 U.S. (1996) ment, (holding minority discovery majority the announces the L.Ed.2d value, questionable precedential “of unrecognized exception opinion a heretofore largely majority of the ex “prophylactic Bill of the because a Court Attainder Clause: disagreed exception.” pressly awak- rationale Apparently creature plurality”). adopt than Justice cases such as this —when Con- Rather ens beneficent, reacting punishes, of the Bill of gress but acts with a Frankfurter’s narrow Clause, majority the Court held regulatory intent. Attainder law, challenged which terminated majority through The method which the employ named the salaries three federal ex- “prophylactic traces the evolution of the “ ees, ‘operates as a decree ception” suspect pedigree. The reveals its perpetual from a chosen vocation” exclusion’ exception’s origin is said lie Justice accomplishes pun “clearly therefore Garland, sug- Miller’s dissent in he where judi ishment of named individuals without employment bar was gested that at issue Lovett, at U.S. 66 S.Ct. cial trial.” punitive Congress intend not because did not (4 Wall.) Garland, at (quoting 71 U.S. Rather, argued, such. Miller it as Justice 377). majority quite plainly equated The properly be as a the statute should viewed employment punishment. bars with measure, prophylactic any Finally, merely sought protect public Brown and Nixon foreclose from subsequently suggestion that full misdeeds of the attainted individuals. future (4 Wall.) (Miller, J., minority view. adopted at Justice Frankfurter’s 71 U.S. 393-96 See Brown, majority dissenting). panel cryptically which the fully purport “did not abandon claims theory, rejected by ma- This the Garland element,” development prior jority, adopted dec- purportedly was some at employment restriction concluded Virginia, ades later Dent v. West U.S. barring members Communist issue— 9 S.Ct. 32 L.Ed. 623 jobs Party holding certain from —amounted York, People Hawker State Newof of 573, surveyed bill punishment. The Court its (1898). 42 L.Ed. 1002 U.S. S.Ct. and, relying on jurisprudence attainder majority most of authorities the Unlike Lovett, held that the statute Garland prophylactic excep- support relies on to be- “plainly constitutes a bill attainder” tion, majority opin- Dent and Hawker designates “it in no uncertain terms cause say But have little to about this ions. persons possess who the feared charac- case: The statute at issue Dent did cannot union of- teristics therefore hold punishment, single out but individuals ” 449, 450, 1707. fice.... li- generally applicable concerned a state’s There, requirements; similarly, is even direct. censing the burden Nixon more “legislative explained enact- imposed in Hawker was on a rather Court class event, barring designated no individuals or ment[s] than named individuals. interpreted specified subsequent groups participation Dent and em- case “impermissible” way majority ployments or vocations” are Hawker the does here —as against proscription fall within the have been held to held “unquestionably I, attainder, determine of Art. 9.” 433 must proscription bills of we within the can be challenged This stark rea- 97 S.Ct. whether the statute majority’s goals. room for language nonpunitive leaves little sonably said to further Impermissible is exception”: “prophylactic 853-54, (citing U.S. at court impermissible. Once a determines 2777). Nixon, imposed historically a burden Congress has majority’s these cases is reading of punitive, employment as the such deemed sadly and Selective In both Nixon ironic. here, that is the end of the at issue bar Service, expand pro- sought to the Court majority protests that such a analysis. The by the Bill of Attainder Clause tections of reading “ritualistic and unsensi- of Nixon is legislative purpose. The Court’s looking to ble,” prophylac- a squeeze to but it is difficult creativity congressional concern was exception out the Court’s statement tic dreaming up that fell outside new burdens imposes that statutory enactment “[a] that historically category of burdens deemed or employment identifi- bar] [an named intent, legislative punitive; by considering immediately con- individuals would be able safeguard an the Court erected additional stitutionally suspect.” Id. 97 S.Ct. types protect new of con- individuals from added). (emphasis gressionally-devised punishment. Moreover, to extent the Court consid- contrast, by majority’s interpretation, The congressional purpose passing the ered scope of The ma- contracts the the clause. law, it had it did so after determined protect jority legislative not to looks to intent challenged burden did not fit the that congressional overreaching, citizens from but punishment; con- definition of its historical Congress empowering pass as a means intent was means of sideration it could laws not enact— otherwise ensuring deprivations “new burdens by claiming “regulate” an simply intent legislatively that are in- fashioned [are not] punish. prophy- rather than Thanks guaran- of attainder consistent with the bill exception, Congress may single lactic now Id. at 2777. tee.” 97 S.Ct. were, punishments out for individuals began analysis asking by The Court its today, routinely until held unconstitutional. whether burden —the confiscation presidential category into the records —fell C.

“immediately suspect” punishments, such as employment. concluding a bar to After In deeming nonpunitive a burden that the Nixon claim to suf- President “cannot have “unquestion- Nixon Court characterized as deprivations fered forbidden these ably” punitive, 433 U.S. at 97 S.Ct. Congress,” the the hands of Court remarked majority punishment reasons that not is inquiry by that “our not ended the deter- really punishment preven- if it for is inflicted imposes pun- that the [statute] mination no purposes. majority tive concludes that *judged prohibited to be traditionally ishment “[although Special Provisions well Bill of Attainder Clause.” Id. at legislative judgment constitute a Only then did the Court turn currently BOCs have an inherent and natural legislative purpose inquiry that would —an potential competition to restrain virtue of necessary if have been President Nixon not power, market Act local does not depriva- “forbidden” had suffered one of the them monsters otherwise declare seek to tions. conduct, punish them on the basis of The Selective Service clarified thus run afoul Bill of does not Attain- point. explained: It majority distinguishes der Clause.” The be- (the inquiry imposition does not end with a determi- tween retribution of a burden

Our conduct) wrongful past prevention does inflict [the statute] nation that not (the imposition historical sense. To en- burden to reduce the its here, Legislature of future sure that not created likelihood antitrust harms — violations). previously impermissible penalty an not group upon that flatly person tions order This distinction is contradicted Brown, rejects cramped bringing about keep which such view it from the feared Here, majority’s punishment and undermines Id. 85 S.Ct. 1707. event.” interpretation In hold- of the clause. legislative judgment novel made pun- employment bar ing that constituted likely to cause trouble— the BOC’s were ishment, imposed prophylactic even likely when to commit antitrust viola- were explained: (severe purposes, the Court deprivations line- tions —and inflicted restrictions) keep in order to limit the definition It would archaic of-business “punishment” Baby bringing Punish- Bells from about the feared to “retribution.” retributive, purposes: Accordingly, straightforward ment serves under a several event. rehabilitative, Brown, preventive. “prophylactic deterrent —and ex- application society imprisons chimera, those ception” One reasons and the Provi- keep convicted crimes is them a bill of sions are attainder. harm,

inflicting but future that does imprisonment any punish- make the less D. ment. sum, Supreme In the line unbroken of Historical no means considerations compels precedent Court the conclusion that compel restriction of the bill of attainder Provisions, Special impose the because to instances of retribution. A number ban bar, employment pun- constitute historical English of bills of attainder enacted were by the Bill Attainder ishment forbidden of is, legis- preventive purposes the —that Clause. The Court has never held that Con- judgment, undoubtedly lature made a gress single can out named individuals largely past based on acts associations historically punitive simply burdens deemed likely given person ... that a or group was legislators a animated well- (usually, to cause the trouble overthrow meaning, pre- Yet regulatory spirit. that is government) depri- and therefore inflicted cisely majority today, the what holds side- upon person group vations that or in order statement, stepping the Nixon Court’s keep bringing it to from about the feared 473, 2777, type that U.S. at event. “immediately constitutionally suspect.” law is 85 S.Ct. 1707. a that to death Consider statute sentences II. he a named individual who announces that long Bill The of Attainder Clause has been yet has criminal tendencies —but to com- protecting unpopular regarded as individuals theory, majority’s mit a crime. the Under groups trial-by-legislature. from As not this law is a bill of attainder: It does not explained in South Carolina v. Katzen conduct,” Court punish “seek to on the basis of bach, 383 U.S. 86 S.Ct. legitimate prophylactic a func- and it serves protects L.Ed.2d the clause those hypothetical impos- tion. This illustrates nonjudicial peculiarly “who are vulnerable to sibility confining protections the clause’s to quick survey A guilt.” determinations of As ex- retributive measures. the Court view: the caselaw confirms this The clause plained, burden is rendered no less has been invoked to rescue Confederates future, by being past, based on rather than congressional Communists from wrath. wrongdoing. fact, majority’s “the

In concession that And that is what makes Bill of Attain- legislative judg- analysis well so in this Act constitute der unusual context: Bells, currently Baby represented by in- lawyers have an ment BOCs armies lobbyists, hardly anyone’s potential herent and natural restrain com- fit notion of a Moreover, squarely helpless falls victim. petition” within the Court’s there is evidence Bells, Baby description of attainder: “the in the record a bill when account, legislature judgment prevailed legislative pro- [makes] a ... own given person group likely apparent to cause [is] cess. While their consent depriva- ... Special estop trouble and therefore Provisions does not them from [inflicts] court, generally oth- through applicable legislation, it restrictions in this challenging the . overstepped claim victimhood. it constitutional certainly undercuts their erwise its notes, language directly applicable Provisions majority bounds. As quid pro ease, larger quo. explained that part were of a the instant the Court upon Congress specify people “cannot Attainder serves But the Bill of Clause prescribes whom the sanction only does indi- purpose: Not it rescue dual Constitution, Congress levied. Under our trial-by-legislature, pre- it also viduals authority, possesses full but the separation powers. The clause serves adjudication task of must be left other power legislate; Congress’s on a check tribunals.” Id. at 85 S.Ct. 1707. passing punitive Congress from it forbids may, Congress target individuals. laws Bill Brown stands for idea that course, pass conferring laws on benefits protects Attainder individual Clause not Farm, individuals, Spendthrift see Plaut liberty, gov- but also the other branches Inc., 211, 239 n. clause, words, helps ernment. The other (1995),but it wishes to 131 L.Ed.2d 328 when ensure does not encroach legislate gen- impose punishment, it must judiciary’s As the executive’s or turf. judicial eral terms allow the branch concluded, id. which individuals violated the decide have Bill “the of Attainder was intended Clause punished. laws must be (and narrow, as a technical therefore role in explained The Court clause’s outmoded) prohibition, soon to be but rather preserving separation powers most implementation separation as an opinion thoroughly panel Brown — an general safeguard legisla- powers, against majority The tars “somewhat aberrant.” as judicial tive exercise the function.” reviewing the began discussion Court its novel, hardly twentieth-century This is clause, history describing it as a barri interpretation. In one of the earliest bill-of- legislature “to that the would er ensure (6 cases, Peck, attainder v. Fletcher authority overstep per the of its bounds Cranch) 87, 136, 3 L.Ed. 162 Chief departments.” the functions of the other form explained Justice Marshall is the “[i]t (emphasis 85 S.Ct. 1707 province pre- peculiar legislature, omitted). precisely why It the then stated general government scribe rules for statute, imposed employment which bar society; application of those rules to Party, violat on members of the Communist society individuals in would seem to clause: ed the fact, duty departments.” of other In this [enacting Congress statute] In has ex- understanding predates the Marshall even authority granted ceeded the it Court: The statute does not set Constitution. Writings contemporary drafting with the generally applicable decreeing forth rule express great Constitution concern any person acts who commits certain (acts the legislature power lest assume the possesses certain characteristics implement policy government the total which, Congress’ and characteristics participation view, without of the other likely political make to initiate them branches, strikes) office, support the thesis shall not hold union bill of attainder clause viewed juries job should be as leave to of decid- courts and broad, legislatures fully a limitation on as ing persons what have committed necessary separa- and as to the effective specified possess specified acts or powers, Instead, tion as that which has been designates it characteristics. imposed upon courts article III. pos- persons no uncertain who terms the feared characteristics.... sess Note, Legislative Specifica The Bounds of 450, 85 Id. at 1707. Suggested Approach A Bill tion: Clause, The Court noted that was free Attainder 72 Yale L.J. (cited (1962) Brown, pass weeding approval laws subversives out of 1707). only labor so at 457 n. had to do In.this movement — “consent- sense, somehow if the BOC’s even GIBBS, Petitioner-Appellant, Special Provi- Earl imposing the David Congress’s

ed” to is a sions, irrelevant as is as that consent jur- subject-matter “consenting” to litigant’s Director, JOHNSON, Warden, Gary Texas power Congress simply lacks isdiction. Institu Department of Criminal Justice way. legislate Division, Respondent-Appellee. tional Provisions, Con- enacting the 97-20624. No. only specified the adjudicated. It not gress Appeals, specific corpo- United States but also identified sanction Fifth Circuit. was to be upon whom the sanction rations corpora- coincidentally, the same levied—not Sept. litigation. prior AT&T tions involved says when Clause The Bill of Attainder impose certain burdens

Congress wishes to so

historically punitive, it can do deemed applicability. The general

through laws specific application of these laws

actual branches of

parties must be left to the other Bill Congress runs afoul of the

government. when it enacts

of Attainder Clause entities —even targets certain

legislation

where, here, comes prophylactic eco- in the mantle of

cloaked regulation.

nomic

III. loophole in the majority today opens a Clause, allowing Congress

Bill of Attainder historically has been pass legislation so, doing ma-

held unconstitutional. understanding traditional

jority redefines our Congress cannot clause’s mandate: deprive him of

single an individual and out life, liberty, to work. Be- or freedom

his “Special Act’s

cause the Telecommunications attainder, I to a bill of

Provisions” amount

respectfully dissent.

Case Details

Case Name: SBC Communications, Inc. v. Federal Communications Commission

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Sep 23, 1998

Citation: 154 F.3d 226

Docket Number: 98-10140

Court Abbreviation: 5th Cir.