Sanctions Legislation and the Bill of Attainder Clause
October 21, 2022
Sanctions Legislation and the Bill of Attainder Clause
Article I, Section 9, of the Constitution prohibits Congress
specific entities appears more susceptible to challenge on
from enacting bills of attainder. The Supreme Court has
both bill of attainder and separation of powers grounds.
described a bill of attainder as “a law that legislatively
determines guilt and inflicts punishment upon an
Scope of Protection
identifiable individual without provision of the protections
Second, it is possible that a court would find that the Bill of
of a judicial trial.” Nixon v. Administrator of General
Attainder Clause does not protect the entities subject to
Services, 433 U.S. 425, 468 (1977).
sanctions legislation, or provides only limited protection.
How might this constitutional provision relate to sanctions
Sanctions legislation sometimes targets corporations rather
legislation? In such legislation, Congress may identify
than (or in addition to) individuals. The Supreme Court has
specific individuals, entities, or discrete groups who would
not decided whether the Bill of Attainder Clause applies to
be subject to sanctions—particularly foreign nationals—and
corporations. The appeals courts that have considered the
may authorize the executive branch to take action with
issue have either held that the Clause applies to
respect to those entities or their assets. Sanctions may
corporations, e.g., Consolidated Edison Co. of N.Y., Inc. v.
include restrictions on exports or imports, investments,
Pataki, 292 F. 3d 338, 349 (2d Cir. 2002), or assumed that
foreign assistance, travel, diplomatic relations, or access to
it does, e.g., Kaspersky Lab, Inc. v. U.S. Dept. of Homeland
assets held in the United States or to the U.S. financial
Sec., 909 F.3d 446, 543-54 (D.C. Cir. 2018). However,
system. Bill of attainder analysis depends heavily on the
some decisions have suggested that the Clause may apply
facts in each case, and there is limited legal authority
with less force to protect corporations as compared to
specific to bill of attainder review of sanctions. However,
individuals, e.g., Kaspersky Lab, 909 F.3d at 461-62.
there are several reasons why courts may be unlikely to
strike down sanctions legislation as a bill of attainder.
More fundamentally, as the Fifth Circuit has noted, it is
“not clear whether ... a foreign national residing outside the
Covered Government Actions
U.S.” can bring a Bill of Attainder claim. Paradissiotis, 171
First, it is not clear that the Bill of Attainder Clause applies
F.3d at 988. The Supreme Court has not considered that
to the imposition of sanctions by the President or an
question. In other contexts, however, the Court has held that
executive agency, or to legislation authorizing the executive
“certain constitutional protections available to persons
branch to impose sanctions.
inside the United States are unavailable to aliens outside of
our geographic borders.” Zadvydas v. Davis, 533 U.S. 678,
The Supreme Court has not considered whether the Bill of
693 (2001).
Attainder Clause applies to sanctions. However, multiple
federal appeals courts have held that the Clause does not
Bill of Attainder Analysis
apply to executive agency action. In one case, the U.S.
Third, assuming the Bill of Attainder Clause generally
Court of Appeals for the Fifth Circuit rejected a bill of
applies and protects the entities subject to sanctions, a court
attainder challenge to the Office of Foreign Assets
considering a constitutional challenge to sanctions
Control’s decision to place an individual on a list of
legislation would still need to determine whether the
Specially Designated Nationals pursuant to the Libyan
specific law at issue was a bill of attainder. The Supreme
Sanctions Regulations. The Fifth Circuit denied the
Court has held that legislation constitutes a bill of attainder
challenge in part because “[n]o circuit court has yet held
if it both (1) applies with specificity and (2) imposes
that the bill of attainder clause ... applies to regulations
punishment without trial. Nixon, 433 U.S. at 468-69. A bill
promulgated by an executive agency.” Paradissiotis v.
imposing sanctions on a named individual, group, or
Rubin, 171 F.3d 983, 988 (5th Cir. 1999).
corporation would likely satisfy the specificity requirement.
However, specificity standing alone is never sufficient to
To the extent sanctions legislation allows for discretionary
support a finding that a law is a bill of attainder. If a law
implementation by the executive branch, courts may hold
applies with specificity but does not impose punishment,
that the Bill of Attainder Clause does not apply because the
courts will not strike it down as a bill of attainder.
Executive, not Congress, makes the final determination.
Some sanctions legislation instead seeks to require the
The determination whether a law imposes punishment is
President to impose sanctions. Some Presidents have raised
complex and fact-based. In Nixon, the Supreme Court laid
separation of powers concerns about those measures and
out three tests for assessing whether a law imposes
asserted discretion to implement sanctions legislation, even
punishment: (1) historical, (2) functional, and (3)
when such legislation purported to require them to act.
motivational. Federal appeals courts have stated that none
Legislation that seeks to compel the Executive to sanction
of the three tests is decisive, and not all three tests need to
be satisfied for a law to be punitive.
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Sanctions Legislation and the Bill of Attainder Clause
Historical Test
in promoting “the security of the federal government’s
The historical test deems a statute to be punitive if it is one
information systems.” Kaspersky Lab, 909 F.3d at 457.
of a limited set of legislative actions that were held to be
bills of attainder from before the Founding through the mid-
Judicial examination of whether a bill reasonably furthers a
20th century. At English common law, a bill of attainder
particular purpose is necessarily fact-based and could
was legislation imposing the death penalty without a
include consideration of both a bill’s text and its legislative
judicial trial. That definition later expanded to include “bills
history. Sanctions legislation may either seek to respond to
of pains and penalties” that imposed other forms of criminal
past conduct deemed harmful to U.S. foreign policy or
punishment without trial, including banishment,
national security interests, to halt ongoing conduct, or to
imprisonment, or confiscation of property. In the 19th and
prevent it in the future. To the extent sanctions legislation
20th centuries, American courts further expanded the
serves only to punish past actions, courts are more likely to
category to include employment bans that prevented
find it to be punitive. To the extent a law reasonably serves
specific individuals or members of discrete groups from
a forward-looking purpose, such as limiting resources that
holding certain jobs. E.g., Cummings v. Missouri, 71 U.S.
may be used to support future unlawful activity, deterring
277 (1866); United States v. Lovett, 328 U.S. 303 (1946).
traffic in illegal drugs or other contraband, or otherwise
protecting national security, courts may be more likely to
Recent decisions of the federal appeals courts have applied
deem it nonpunitive.
the historical test narrowly. For example, in one case, a
Russia-based cybersecurity company brought a bill of
Motivational Test
attainder challenge to a statute that barred the U.S.
The third and final test for punishment considers whether
government from using any of the company’s products or
the legislature that enacted a challenged law was motivated
services. The D.C. Circuit rejected the challenge, holding
by an intent to punish the targeted entities. Courts applying
that the ban on federal contracting with the company was
this test examine the bill’s text and legislative history to
not analogous to prior cases involving individual
determine whether lawmakers expressed punitive intent. If
employment bans. Kaspersky Lab, 909 F.3d at 460-63.
the historical and functional tests are not satisfied, the
motivational test standing alone does not compel a finding
Perhaps the best-known form of sanctions is freezing the
that a law is punitive unless the reviewing court finds
assets of designated entities. A targeted person might argue
“unmistakable evidence of punitive intent.” Selective
that this is similar to historical property confiscation.
Service System v. Minnesota Public Interest Research
However, asset freezing is a temporary measure, and
Group, 468 U.S. 841, 855 n.15 (1984). Moreover, isolated
targeted persons may have some use of frozen assets. It thus
statements by a few lawmakers generally do not suffice to
appears likely that courts would distinguish asset freezing
show a general legislative intent to punish.
from historical bills of attainder, which permanently
confiscated the property of targeted persons and often
Application of the motivational test is necessarily fact-
prevented property from passing to their heirs.
specific. However, lawmakers can mitigate possible
concerns in this area by avoiding statements of punitive
Challengers might also argue some sanctions are similar to
intent in legislation or during legislative debate.
banishment or employment bans. However, courts would
likely distinguish measures preventing a foreign national
Conclusion
from traveling to the United States from historical actions
As a general matter, review of whether legislation is
expelling targeted persons from their home country.
punitive for purposes of the Bill of Attainder Clause is
Likewise, under Kaspersky Lab and similar precedents, it
deferential, and federal courts rarely strike down laws as
appears unlikely that federal courts would deem sanctions
bills of attainder.
legislation equivalent to historical employment bans.
It is also possible that courts would be particularly hesitant
Functional Test
to invoke the Clause in the context of sanctions.
The functional test is generally the most important of the
Historically, the Supreme Court has held that the conduct of
three tests for punishment. This test considers “whether the
foreign relations is a political question that the Constitution
law under challenge, viewed in terms of the type and
entrusts to Congress and the Executive, “and the propriety
severity of burdens imposed, reasonably can be said to
of what may be done in the exercise of this political power
further nonpunitive legislative purposes.” Nixon, 433 U.S.
is not subject to judicial inquiry or decision.” Oetjen v.
at 475-76. The functional test serves to prevent formalistic
Cent. Leather Co., 246 U.S. 297, 302 (1918). In more
evasion of the Bill of Attainder Clause, recognizing that
recent cases, the Court has shown greater willingness to
there may be measures that were not historically recognized
consider issues related to foreign relations, e.g., Zivotofsky
as punishments that are nonetheless impermissibly punitive.
v. Clinton, 566 U.S. 189 (2012). Still, in this context, a
reviewing court might afford particular deference to the
If a legitimate, nonpunitive legislative purpose exists and a
political branches’ decisions.
challenged law reasonably serves that purpose, courts
generally find that the law is not punitive. For instance, the
Ultimately, bill of attainder analysis is highly fact-
D.C. Circuit held that a statute prohibiting the U.S.
dependent. Moreover, sanctions legislation may raise other
government from using products or services from a Russia-
legal issues on a case-by-case basis. Congressional clients
based cybersecurity company served a nonpunitive interest
considering specific legislative proposals are encouraged to
contact CRS for additional information.
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Sanctions Legislation and the Bill of Attainder Clause
IF12237
Joanna R. Lampe, Legislative Attorney
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