The Rule of Law:   Are Trump’s Executive Orders the New Bills of Attainder?

You may have noticed the term ‘Bill of Attainder’ recently in newspaper articles or streaming news services.  

A federal district Judge this week imposed a temporary restraining order on Trump’s Executive Order punishing a law firm that represents Democratic Party clients in general, and former special counsel Jack Smith in particular.  The Executive Order barred the firm, Perkins Cole, from federal contracts, stripped security clearances, and prohibited federal employees from retaining the firm for legal services.  The judge compared the Executive Order to a Bill of Attainder, writing that the Order ‘sent chills down her spine.’  Two things.  First, thank God someone has a spine in Washington DC, and two, it should send chills down everyone’s spines.

So, what is a Bill of Attainder?  Like many things in American Constitutional law, it has its roots in England.  William Blackstone’s mid-18^th century “Commentaries on the Laws of England” provides the go to legal description of a Bill of Attainder.  Basically, Parliament could sentence a person to death, without a trial, through legislative fiat. Normally, for treasonous acts.  Execution for treason was a ritual in England and other monarchies.  After burning at the stake was banned in late 18^th century, hanging, disembowelment while still alive, beheading  and quartering, became standard in England. Parliament could also seize property or banish a person from England simply through legislative acts, sometimes called Bills of Pain or Penalties.  America’s founders thought this a bad idea.  

The Constitution specifically prohibits Bills of Attainder.  At the Constitutional Convention, on Aug 22, delegates Elbridge Gerry of Massachusetts and James McHenry or Maryland introduced the clause “The Legislature shall pass no Bill of Attainder nor any ex post facto law.”  There was practically no debate, with most of the discussion on whether the latter part of the clause was necessary.  Which suggests they thought it not controversial to ban Bills of Attainder.  Nonetheless, coming very late in the convention, and before air conditioning, I imagine the urge to debate was wanning.  That said, many of the delegates were very familiar with Blackstone’s commentaries and some even had a copy in their personal library and thought the ban necessary.

In Article 1, which enumerates the powers of Congress, section 9, the Constitution states, “No Bill of Attainder or ex post facto Law shall be passed.  In section 10, States were prohibited from enacting Bills of Attainder as well. While the proscriptions apply to Congress and State legislative bodies, it seems that the intent of the ban – and the spirit of the law — would also apply to Executive Orders.  An Executive Order, according the Chief Information Officers Council ( CIO.gov),  has, and I quote, “the force of law.”

I am not a lawyer or Constitutional scholar, but it seems to me that President Trump has weaponized Executive Orders to punish and impose pain on his political and culture war enemies.  Trump’s Bills of Pain and Punishment.

For instance, the creation of DOGE, an extra-legal government agency, to target and eliminate congressionally mandated and funded government programs.  Basically, hanging, gutting, and quartering the career civil service along with executive department and independent agencies without meaningful congressional oversight, public comment, or legal restraint. 

Another example, is the order to ban birthright citizenship through executive order: “Protecting the Meaning and Value of American Citizenship.”  An Order that blatantly lied about the Supreme Court’s century old interpretation of the 14^th Amendment and birthright citizenship.  More on that in a forthcoming Blog on birthright citizenship. That order is motivated, it appears, by racial animus and is meant to punish the current wave of immigrants to America — which are overwhelmingly brown or black from, as Trump would say, “Shit Hole countries” — by making their children born in America stateless.

And finally, the Executive Order to “Protect the US from Foreign Terrorist and Other National Security or Public Safety Threats,” was used recently as a pre textual basis to detain a permanent legal resident and Palestinian activist and Columbia graduate Mahmoud Khalil as a national security risk. After his arrest he was sent to an immigration detention facility hundreds of miles away in Louisiana, even barring him from access to lawyers.  A judge stayed his deportation temporarily. That should scare the crap out of everyone.

Thankfully the courts have countered some of these executive orders, but will the Supreme Court sustain these lower court rulings.  That remains uncertain, even birthright citizenship is in jeopardy, I believe, given the present makeup of the Supreme Court.  If the Supreme Court decides to take up the Birthright case, and not let lower court rulings stand, that should send shivers of fear down every American’s spine.