The Volokh Conspiracy
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No Bill of Attainder Problem with the Tiktok Divestiture Law
Besides challenging the law on First Amendment grounds, TikTok also claimed that it violated the Bill of Attainder Clause, because it singles out TikTok. The D.C. Circuit panel unanimously rejected that argument:
A law is a bill of attainder if it "(1) applies with specificity, and (2) imposes punishment." Because the Act applies with specificity, this claim turns on whether the Act can fairly be deemed a punishment. We conclude the Act is not a punishment under any of the three tests used to distinguish a permissible burden from an impermissible punishment….
[W]e have assumed without deciding that the clause applies to corporations but emphasized that differences between commercial entities and persons need to be considered. See, e.g., Kaspersky Lab, Inc. v. DHS (D.C. Cir. 2018) (assuming the Bill of Attainder Clause protects corporations but emphasizing the differences between corporations and "living, breathing human beings"); BellSouth Corp. v. FCC (D.C. Cir. 1998) (assuming the clause protects corporations but recognizing the importance of understanding "its effect on flesh-and-blood people"). We take the same approach here.
To determine whether a law constitutes a punishment, we analyze:
- whether the challenged statute falls within the historical meaning of legislative punishment [the historical test];
- whether the statute, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes [the functional test]; and
- whether the legislative record evinces a congressional intent to punish [the motivational test].
The Act clearly is not a bill of attainder judged by any of these tests.
TikTok contends the Act satisfies the historical test because it bars TikTok from its chosen business. TikTok reasons the prohibitions of the Act are close analogs to two categories of legislative action historically regarded as bills of attainder: confiscation of property and legislative bars to participation in a specific employment or profession. According to TikTok, the Act effectively requires TikTok to relinquish its property or see it rendered useless, and it precludes TikTok from continuing to participate in a legitimate business enterprise.
As already explained, however, the Act requires a divestiture — that is, a sale, not a confiscation — as a condition of continuing to operate in the United States. See BellSouth (explaining that although "structural separation is hardly costless, neither does it remotely approach the disabilities that have traditionally marked forbidden attainders"); see also Kaspersky Lab, Inc. (comparing a law requiring the Government to remove from its systems a Russia-based company's software to the business regulations in the BellSouth cases). Nor is the divestiture requirement analogous to a legislative bar on someone's participation in a specific employment or profession. See Kaspersky Lab, Inc. (rejecting a similar analogy in part "because human beings and corporate entities are so dissimilar").
The closer historical analog to the Act is a line-of-business restriction, which does not come within the historical meaning of a legislative punishment…. [A] "statute that leaves open perpetually the possibility of [overcoming a legislative restriction] does not fall within the historical meaning of forbidden legislative punishment." The qualified divestiture exemption does just that …: TikTok can execute a divestiture and return to the U.S. market at any time without running afoul of the law.
The Act also passes muster under the functional test. For purposes of this analysis, the "question is not whether a burden is proportionate to the objective, but rather whether the burden is so disproportionate that it belies any purported nonpunitive goals." Considering our conclusion that the Act passes heightened scrutiny for purposes of the First Amendment, it obviously satisfies the functional inquiry here: The Act furthers the Government's nonpunitive objective of limiting the PRC's ability to threaten U.S. national security through data collection and covert manipulation of information. The Government's solution to those threats "has the earmarks of a rather conventional response to a security risk: remove the risk."
In other words, the Government's attempt to address the risks posed by TikTok reflects a forward-looking prophylactic, not a backward-looking punitive, purpose. That
is sufficient to satisfy the functional analysis….The so-called motivational test, for its part, hardly merits discussion. "Given the obvious restraints on the usefulness of legislative history," congressional intent to punish is difficult to establish. Indeed, the motivational test is not "determinative in the absence of unmistakable evidence of punitive intent." TikTok does not come close to satisfying that requirement. We therefore conclude the Act does not violate the Bill of Attainder Clause under any of the relevant tests.
