The bill of attainder clauses: protections from the past in the modern administrative state.

• Author: Cavaliere, John J., III

Introduction

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

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

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

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

To accomplish this, Part I considers the Bill of Attainder Clause as a check on legislative power, particularly focusing on the Supreme Court's rationale expressed in the watershed precedent following the Civil War that regards substance over form. (21) Part II examines how courts have handled the preliminary question of whether the clause applies to administrative or executive agencies, beginning with the Supreme Court's rare discussion of the question and its "no-decisions." Part II then turns to the circuits' unpersuasive handling of the issue, which declines to hold that the clause applies as a preliminary matter before advancing to the merits.

Part III demonstrates how the circuits' approach is disingenuous, precisely because there is well-settled recognition that in the class of cases given "force of law" deference by the judiciary, administrative and executive agencies are, in substance, exercising legislative power. (22) Part III begins with an examination of the "non-delegation" doctrine and the "intelligible principle" test, and proceeds to consider the development of the Chevron-Mead doctrine in which the Court tacitly embraces the exercise of legislative power by entities that are, in form, not legislative-especially in the class of cases given Mead "force of law" deference. This is based on the Court's recognition that the exercise of regulatory power is, in substance, legislative in nature. Part III concludes that, as a preliminary matter, the Bill of Attainder Clause should apply to instances when an agency is regulating with the force of law and the federal judiciary recognizes its lawmaking function.

1. THE BILL OF ATTAINDER CLAUSES: CONSTITUTIONAL CHECKS ON LEGISLATIVE POWER

   Because this note is concerned with the preliminary question of whether bill of attainder protections apply to administrative agencies and the Executive Branch, success on the merits of a bill of attainder claim is beyond its scope. Instead, this note focuses on the preliminary question that has produced questionable holdings by courts confronted with challenges to administrative action advanced under the Bill of Attainder Clauses. The reason is simple: courts must move beyond the preliminary issue before advancing to the merits, (23) as Part II demonstrates below. Thus, this section looks at some of the broad rationale of the Court's bill of attainder doctrine in order to show that the Bill of Attainder Clause should apply to certain administrative and executive action.

   That the bill of attainder protections are fundamental checks on legislative power was apparent from the beginning of the Republic. In dicta in the Contract Clause case, Fletcher v. Peck, Chief Justice Marshall recognized this when he stated: "A bill of attainder may affect the life of an individual, or may confiscate his property, or may do both. In this form the power of the legislature over the lives and fortunes of individuals is expressly restrained." (24) This statement is significant because it would later be used to justify a broad construction of the Bill of Attainder Clauses. (25)

   In addition to individual protection from governmental misconduct, the Bill of Attainder Clause has been recognized as "an important ingredient of the doctrine of 'separation of powers.'" (26) In United States v. Brown, the Court cited James Madison: '"The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.'" (27) The Court explained further: "[the clauses] reflected the Framers' belief that the Legislative Branch is not so well suited as politically independent judges and juries to the task of ruling upon the blameworthiness of, and levying appropriate punishment upon, specific persons." (28) Accordingly, the Framers were seeking to avoid aggrandizement in Congress and state legislatures just as much as they were concerned with protecting individual liberty when drafting the Bill of Attainder Clauses.

   In American history, bill of attainder cases often occur during tumultuous times. Indeed, Chief Justice Marshall observed that the clauses were implemented with precisely such moments in mind, stating: "[I]t is not to be disguised that the framers of the Constitution viewed, with some apprehension, the violent acts which might grow out of the feelings of the moment." (29) Marshall continued: "[T]he people of the United States, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed." (30)

   No time in American history has been more volatile or violent than the Civil War, which produced the companion cases Cummings v. Missouri (31) and Ex parte Garland. (32) These cases, similar to a handful of Twentieth Century cases, (33) involved inquiries into an individual's loyalty to the United States. Because Cummings and Garland have proven to be watershed precedents in the Court's Bill of Attainder Clause cases, (34) this section examines them in closer detail.

   In Cummings, Missouri had proposed new amendments to its Constitution in April 1865 and ultimately ratified them in June 1865. (35) The nation was in utter chaos in April 1865. In that month alone, General Robert E. Lee surrendered (36) and President Abraham Lincoln was assassinated within a week. (37) Fueled by the Civil War and the initial post-war turmoil, the Missouri amendments were aimed at keeping former Confederates and their sympathizers out of public life. (38)

   But these new provisions did far more than bar participation in the political process. (39) They required an "Oath of Loyalty" denouncing the Confederacy and any sympathy toward it. (40) Anyone declining to take the oath suffered severe civil disabilities. (41) Among the farthest reaching provisions read: "No person shall ... be competent as a bishop, priest, deacon, minister, elder, or other clergyman of any religious persuasion, sect, or denomination, to teach, or preach, or solemnize marriages, unless such person shall have first taken, subscribed...