Capitol Unrest, Legislative Response, and the Bill of Attainder Clause
Legal Sidebari
Capitol Unrest, Legislative Response, and the
Bill of Attainder Clause
January 22, 2021
On January 6, 2021, a crowd gathered on the U.S. Capitol grounds, breached police barriers, entered and
occupied portions of the Capitol building, and clashed with law enforcement. The incident resulted in at
least five deaths, dozens of injuries, and damage to federal property. Members of Congress and the Vice
President, who were counting electoral votes for the 2020 presidential election, were forced to evacuate in
response to the unrest. Following the incident, some Members of Congress and other commentators have
cal ed for accountability for the individuals directly involved in the incident, as wel as for others,
potential y including elected officials, who may have incited or supported the unrest.
Many of those cal s for accountability raise complex legal issues. As a recent CRS Legal Sidebar
explains, the incident may implicate numerous provisions of existing criminal law. In addition, on January
13, 2021, the House of Representatives impeached President Donald Trump for incitement of insurrection
based on the events of January 6. Lawmakers and commentators have also explored imposing liability
under other legal authorities, including by passing new legislation or seeking to bar certain individuals
from holding office under Section 3 of the Fourteenth Amendment.
This Legal Sidebar addresses one of the more novel issues that these proposals may raise. The Bil of
Attainder Clause prohibits Congress from enacting legislation that inflicts punishment on an individual
basis without a judicial trial. This Sidebar provides an overview of the Bil of Attainder Clause and
presents certain related legal considerations for Congress as the legislature responds to the Capitol unrest.
The Bill of Attainder Clause
Article I, Section 9, of the Constitution provides that Congress shal pass “No Bil of Attainder or ex post
facto Law.” Article I, Section 10, likewise prohibits the states from enacting bil s of attainder. (Thus,
there are two Bil of Attainder Clauses; this Sidebar uses the singular “Bil of Attainder Clause” to refer to
the clause that binds Congress.) The Supreme Court has described a bil of attainder as “a law that
legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of
the protections of a judicial trial.” Bil s of attainder were common in England before the Founding,
primarily targeting individuals accused of disloyalty to the government. Bil s of attainder were also used
in the American colonies. However, the Framers of the U.S. Constitution chose to depart from that
historical practice. The Supreme Court has explained that the constitutional prohibitions on bil s of
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attainder “reflect[] the Framers’ belief that the Legislative Branch is not so wel suited as political y
independent judges and juries to the task of ruling upon the blameworthiness of, and levying appropriate
punishment upon, specific persons.”
Individuals who believe they are subject to a bil of attainder may chal enge the relevant legislation in
court. If a court finds that the legislation is a bil of attainder, it can declare the law unconstitutional.
Judicial decisions invalidating laws as bil s of attainder are relatively rare, but key cases dating back to
the Reconstruction Era provide a framework for evaluating bil of attainder claims. The Supreme Court
outlined the current test for bil of attainder claims in the 1977 case Nixon v. Administrator of General
Services. In that case, the Court held that legislation constitutes a bil of attainder if it both (1) applies
with specificity and (2) imposes punishment without trial. The following sections discuss each of those
elements in turn.
Specificity
A law that singles out one or more individuals by name satisfies the specificity requirement. For instance,
in United States v. Lovett, the Supreme Court struck down as a bil of attainder “an Act specifical y
cutting off the pay of certain named individuals [federal employees] found guilty of disloyalty.” Likewise,
a provision of the legislation at issue in Nixon applied only to former President Richard M. Nixon. Known
as the Presidential Recordings and Materials Preservation Act, that statute directed the Administrator of
General Services to take custody of Nixon’s presidential papers and tape recordings and promulgate
regulations to govern the processing and preservation of those materials. The Supreme Court
acknowledged “the Act’s specificity—the fact that it refer[red] to [Nixon] by name.”
Legislation that does not identify a targeted individual by name may satisfy the specificity requirement as
wel . In Foretich v. United States, the U.S. Court of Appeals for the D.C. Circuit considered a federal
statute that responded to a high-profile child custody dispute by limiting the visitation rights of a father
accused of sexual y abusing his daughter. The D.C. Circuit ruled that the legislation applied with
specificity because, “[a]lthough Congress stopped short of including the names” of the parents or child
“in the text of the statute, the applicability of the Act depend[ed] on such a narrow set of circumstances
that it applie[d] to no known cases other than” the custody dispute that prompted the legislation.
A law may also apply with specificity if it targets members of an identifiable group. For example, in the
Reconstruction-era case Cummings v. Missouri, the Supreme Court struck down as a bil of attainder a
provision of the Missouri state constitution that effectively barred former Confederate sympathizers from
engaging in certain vocations. Likewise, in the 1965 case United States v. Brown, the Court held that a
statute making it a crime for any member of the Communist Party to serve as an officer of a labor union
was a bil of attainder.
Legislation that targets a specific corporation may also satisfy the specificity requirement. While the
Supreme Court has not decided whether the Bil of Attainder Clause protects entities such as corporations,
several lower federal courts have either held or assumed that it does.
Punishment
Specificity standing alone is never sufficient to support a finding that a law is a bil of attainder. The
Nixon Court rejected the proposition that an individual or defined group is subject to a bil of attainder
“whenever he or it is compel ed to bear burdens which the individual or group dislikes.” Congress is not
limited to “the choice of legislating for the universe, or legislating only benefits, or not legislating at al .”
Instead, the Nixon Court explained, Congress may in some circumstances create “a legitimate class of
one.” Thus, if a law applies with specificity but does not impose punishment, it wil not be struck down as
a bil of attainder.
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The test for whether a law imposes punishment is complex and fact-based. In Nixon, the Supreme Court
laid out three tests for assessing whether a law imposes punishment: (1) historical, (2) functional, and
(3) motivational. Federal appeals courts have stated that none of the three tests is decisive, and not al
three tests need to be satisfied for a law to be punitive.
The Historical Test
The first authority courts consult in considering whether a law imposes punishment is “[t]he infamous
history of bil s of attainder.” This historical test for punishment deems a statute to be punitive if it is one
of a limited set of legislative actions that were found to be bil s of attainder from before the Founding
through the mid-20th century. At English common law, a bil of attainder was legislation imposing the
death penalty without a judicial trial. That definition later expanded to include “bil s of pains and
penalties” that imposed other forms of criminal punishment such as banishment, imprisonment, or
confiscation of property without trial. American courts further expanded the historical definition of
punishment to include employment bans that prevent specific individuals or members of discrete classes
from holding certain types of jobs. The vocational restrictions for Confederate sympathizers at issue in
Cummings, the criminal prohibition of Communists serving as union officers in Brown, and the legislation
that prevented named individuals accused of being “subversives” from drawing a federal salary in Lovett
are al examples of employment bans that are considered “punishment” under the historical test.
However, courts have general y declined to extend historic jurisprudence related to employment bans to
include restrictions on corporations. As an example, in Kaspersky Lab, Inc. v. Department of Homeland
Security, Russia-based cybersecurity company Kaspersky Lab brought a bil of attainder chal enge to a
provision of the National Defense Authorization Act for Fiscal Year 2017 that barred the U.S. government
from using any Kaspersky Lab products or services. The D.C. Circuit rejected the chal enge, holding that
none of the three tests for punishment was satisfied. With respect to the historical test, the court rejected
the company’s argument that the ban on federal contracting with Kaspersky Lab was analogous to prior
cases involving individual employment bans. The court explained that “although we assume that the Bil
of Attainder Clause protects corporations as wel as natural persons, we have no basis for likewise
assuming that corporate entities feel burdens in the same way as living, breathing human beings.” In
ACORN v. United States, the Second Circuit similarly held that withholding federal appropriations from a
named company “does not constitute a traditional form of punishment,” noting, “There may wel be
actions that would be considered punitive if taken against an individual, but not if taken against a
corporation.”
The Functional Test
The functional test is general y the most important of the three tests for punishment. This test considers
“whether the law under chal enge, viewed in terms of the type and severity of burdens imposed,
reasonably can be said to further nonpunitive legislative purposes.” The functional test serves to prevent
formalistic evasion of the Bil of Attainder Clause, recognizing that there may be measures that were not
historical y recognized as punishments that are nonetheless impermissibly punitive. But at the same time,
the U.S. Court of Appeals for the Fifth Circuit has stated that even some laws imposing penalties that
were historical y considered punishments may not violate the Bil of Attainder Clause if the “legislation
has a legitimately nonpunitive function, purpose, and structure.”
The functional test is fact-specific. It first considers whether the statute has a non-punitive purpose.
Courts apply a level of scrutiny somewhat more stringent than the most deferential rational basis review,
requiring what the D.C. Circuit has cal ed “not some conceivable nonpunitive purpose, but rather an
actual nonpunitive purpose.” If such a purpose exists and the chal enged law reasonably serves that
purpose, courts general y find that the law is not punitive. For instance, in Nixon, the Supreme Court held
that the Presidential Recordings and Materials Preservation Act did not function as punishment because it
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served the nonpunitive purposes of retaining materials relevant to the prosecution of the Watergate break-
in and preserving records with historical significance. In Kaspersky, the D.C. Circuit held that a statute
prohibiting the U.S. government from using products or services from Kaspersky Lab served a
nonpunitive interest in promoting “the security of the federal government’s information systems.” In SBC
Communications, Inc. v. Federal Communications Commission, the Fifth Circuit held that a statute
barring specific telecommunications companies from engaging in certain business activities served the
nonpunitive purpose of “attempting to ensure fair competition in the [telecommunications] markets.”
If a nonpunitive purpose is evident, the court considers whether the chal enged legislation is over- or
underinclusive in view of its aims and whether less burdensome alternatives could have accomplished the
same goals. “A grave imbalance or disproportion between the burden and the purported nonpunitive
purpose suggests punitiveness, even where the statute bears some minimal relation to nonpunitive ends.”
Thus, in Foretich, the D.C. Circuit held that a statute altering the visitation rights of a father accused of
sexual y abusing his child constituted a bil of attainder, in part because of the imbalance between the
burden the statute imposed and the statute’s “implausible nonpunitive purposes.” And in Consolidated
Edison Co. v. Pataki, the Second Circuit concluded that legislation barring a company from recovering
certain costs from customers, on the stated basis that the company had “failed to exercise reasonable care”
in its business, functioned as punishment because the court could “discern no wholly non-punitive
purpose to justify” the law.
The Motivational Test
The third and final test for punishment considers whether the legislature that enacted a chal enged law
was motivated by an intent to punish the targeted person(s). Courts applying this test examine the bil ’s
text and legislative history to determine whether lawmakers expressed punitive intent.
The motivational test is not usual y dispositive. The Nixon Court opined that a law may qualify as a bil of
attainder even without a “formal legislative announcement of moral blameworthiness or punishment.”
Moreover, if the historical and functional tests are not satisfied, the motivational test standing alone does
not compel a finding that a law is punitive unless the reviewing court finds “unmistakable evidence of
punitive intent.” However, a significant amount of punitive language in congressional documents or
legislative debate may support a finding that a law imposes punishment. For instance, committee reports
on the legislation at issue in Lovett characterized the affected individuals as “guilty of having engaged in
‘subversive activity’” and “unfit” for government service. In Foretich, the D.C. Circuit cited statements of
multiple legislators characterizing the child at the center of the custody dispute as a “victim” and the
legislation as “deal[ing] with the inadequacies of the court system” and “bringing justice” to her family.
By contrast, isolated statements by a few lawmakers general y do not suffice to show a legislative intent
to punish. In Kaspersky, the D.C. Circuit considered one Senator’s statements that the “case against
Kaspersky Lab [wa]s overwhelming” and that “strong ties between Kaspersky Lab and the Kremlin
[we]re alarming and wel -documented.” The court concluded that “even if [the Senator’s] statements did
reveal a personal desire to punish Kaspersky, the company cite[d] no corroborating evidence indicating
that other members of Congress shared her supposedly punitive motivations.” In ACORN, an organization
that had been excluded from receiving federal funding cited statements of “nearly ten members of the
House of Representatives” labeling the organization as corrupt and accusing it of specific offenses. The
Second Circuit concluded, “Despite the evidence of punitive intent on the part of some members of
Congress, unlike in Lovett, there is no congressional finding of guilt in this case.” The court thus held that
the statements were “insufficient to establish—by themselves—the clearest proof of punitive intent
necessary for a bil of attainder.”
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Considerations for Congress
Some proposed legislative responses to the January 6, 2021, unrest at the Capitol may raise questions
under the Bil of Attainder Clause (among other legal authorities that may apply when Congress enacts
legislation imposing new legal consequences for past events). The principles and case law discussed
above suggest some ways that Congress could avoid bil of attainder issues in addressing those events.
The Bil of Attainder Clause applies only to punishments imposed without a judicial trial, so prosecuting
individuals involved in the unrest at the Capitol under existing laws would not raise bil of attainder
concerns. (However, amending criminal laws to criminalize past conduct or increase criminal penalties
for existing offenses might implicate the related constitutional prohibition on ex post facto laws. Thus,
while the incident at the Capitol has prompted some cal s for new domestic terrorism laws, any new penal
laws could apply only on a prospective basis.)
By contrast, if Congress enacted legislation specifical y identifying one or more individuals or groups
al egedly involved in the unrest at the Capitol and imposing legal consequences on them, those people
might chal enge such laws as bil s of attainder. Congress could seek to mitigate any bil of attainder
concerns by ensuring that proposed legislation does not fit within the historical categories of punishment
subject to the Bil of Attainder Clause, that it reasonably serves a nonpunitive purpose, and that the
statutory text and legislative history do not reflect an intent to punish. As with any bil of attainder
litigation, however, the outcome of such a chal enge would depend on the specific facts of the case.
Congress might also address the unrest at the Capitol through enforcement of Section 3 of the Fourteenth
Amendment against current or potential government officeholders. Section 3 applies to any person who
having previously taken an oath, as a member of Congress, or as an officer of the United States, or
as a member of any State legislature, or as an executive or judicial officer of any State, to support
the Constitution of the United States, shall have engaged in insurrection or rebellion against the
same, or given aid or comfort to the enemies thereof.
The Fourteenth Amendment bars such persons from holding certain government offices unless two-thirds
of each chamber of Congress votes to remove the bar. Congress might seek to enforce the bar through
legislation, or a house of Congress might refuse to seat or expel certain Members based on the provision.
Section 3 has not been used in over a century, and invoking the provision could raise numerous novel
legal questions. One such question is whether legislation enforcing Section 3 could violate the Bil of
Attainder Clause. As the amendment was ratified following the Civil War to prevent former Confederate
sympathizers from holding government office, some argue that Section 3 carves out an implicit exception
to the Bil of Attainder Clause. Others counter that the Fourteenth Amendment “seek[s] to confirm and
improve, rather than to weaken and impair the general spirit of the [C]onstitution,” and thus congressional
enforcement of Section 3 “should respect the Constitution’s existing procedural guarantees against
targeted legislative punishment.” To avoid bil of attainder concerns in enforcing Section 3, Congress
might provide a judicial trial for al eged violations of the provision. That approach would be consistent
with the Reconstruction-era Enforcement Act of 1870 and a current (but seldom used) criminal statute,
Title 18, Section 2383, of the United States Code.
In addition, Congress has addressed the events at the Capitol through the impeachment process. The
House of Representatives impeached President Trump on January 13, 2021, for incitement of
insurrection, al eging that he provoked the incident at the Capitol by making false claims about the 2020
presidential election. The Senate did not conduct a trial on the impeachment before the end of President
Trump’s term. One scholar has specifical y suggested that impeaching or removing a president who has
left office could raise bil of attainder issues. A recent Legal Sidebar discusses issues related to the timing
of impeachment in more detail.
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Author Information
Joanna R. Lampe
Legislative Attorney
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