About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

1 1 (August 15, 2019)

handle is hein.crs/govbauc0001 and id is 1 raw text is: I Congressional Research Service ~Info rming he Vegislative debate since 1914 0 August 15, 2019 Retroactive Legislation: A Primer for Congress Black's Law Dictionary defines a retroactive law as a law that looks backward or contemplates the past, affecting acts or facts that existed before the act came into effect. While Congress often considers legislation that would apply retroactively, the Constitution imposes some limited constraints on such laws. This In Focus outlines those legal constraints on Congress's power and key considerations for Congress related to retroactive legislation. (Related Constitutional provisions that apply only to state legislation, such as the Contracts Clause, are not discussed here.) Retroactive Punishment Laws that retroactively impose punishment raise unique questions under the Constitution, particularly with respect to the Ex Post Facto and Bill of Attainder Clauses. Those provisions (and analogous provisions that apply to the states) prohibit enactment of certain laws that are penal in nature, regardless whether they are styled as criminal laws. Ex Post Facto Clause The Ex Post Facto Clause, contained in Article 1, Section 9, Clause 3 of the Constitution, provides: No ... ex post facto Law shall be passed. The phrase ex post facto, Latin for after the fact, refers to laws that apply retroactively. While the Ex Post Facto Clause on its face might appear to bar all retroactive legislation, courts have applied the Clause only to penal laws. In Calder v. Bull, 3 U.S. 386 (1798), Justice Samuel Chase stated that the Clause applies to any law that renders criminal an action that was legal when it was taken, aggravates the severity of a crime, increases the resulting punishment, or alters the applicable rules of evidence after the crime was committed. In Johannessen v. United States, 225 U.S. 227 (1912), the Supreme Court declared that the Ex Post Facto Clause's prohibition is confined to laws respecting criminal punishments, and has no relation to retrospective legislation of any other description. Whether a law is penal in nature depends on its substance, not its form. In Burgess v. Salmon, 97 U.S. 381 (1878), the Supreme Court explained that the ex post facto effect of a law cannot be evaded by giving a civil form to that which is essentially criminal. In that case, the Court held that a tax increase enforceable by fines and imprisonment could not be applied to a sale of goods that took place before the act was signed into law. On the other hand, courts have upheld statutes that create retroactive civil penalties against Ex Post Facto challenges, even when the penalties at issue exceeded the amount of actual damages. See, e.g., United States ex rel Miller v. Bill Harbert Int'l Constr., Inc., 608 F.3d 871 (D.C. Cir. 2010). The Supreme Court has also upheld statutes that decrease the frequency of parole eligibility hearings, see California Dep 't of Corr. v. Morales, 514 U.S. 499 (1995), and statutes that retroactively impose new collateral consequences for past criminal convictions, such as mandatory sex offender registration, see Smith v. Doe, 538 U.S. 84 (2002). Bills of Attainder Article I, Section 9, Clause 3 of the Constitution also bans bills of attainder-statutes that directly impose punishment by legislation rather than through court proceedings. A law constitutes a bill of attainder if it (1) applies with specificity to an identified individual or group and (2) imposes punishment. Not all bills of attainder are retroactive, but many are because they tend to impose sanctions based on past conduct. For example, in Cummings v. Missouri, 71 U.S. 277 (1867), the Supreme Court struck down as a bill of attainder postbellum legislation that effectively barred former Confederate sympathizers from holding certain jobs. The Supreme Court outlined the framework for analyzing bill of attainder claims in Nixon v. Administrator of General Services, 433 U.S. 425 (1977). Nixon's multipronged test for determining whether a law imposes punishment considers the historical application of the Bill of Attainder Clause, whether the challenged law in fact functions as punishment, and the motivations of Congress in passing the law. The inquiry is highly fact-based. But, in general, courts rarely strike down a law as a bill of attainder if it serves a valid legislative purpose, even if the law targets a specific individual. As the Court in Nixon noted, a nonpunitive statute may properly create a legitimate class of one. For example, in Kaspersky Lab, Inc. v. Department of Homeland Security, 909 F.3d 446 (D.C. Cir. 2018), the D.C. Circuit upheld a statute that barred federal agencies from using products or services from the cybersecurity company Kaspersky Lab. Although the statute applied specifically to a single company, the court held that the law did not constitute punishment and was motivated by the legitimate goal of protecting federal computers from cyber threats. By contrast, in Foretich v. United States, 351 F.3d 1198 (D.C. Cir. 2003), another panel of the same court held that a statute altering the visitation rights of a father who had been accused of sexually abusing his child constituted an unconstitutional bill of attainder, in part because of the imbalance between the burden the statute imposed and the statute's implausible nonpunitive purposes. Retroactive Civil Legislation Congress has much greater leeway to enact retroactive legislation in the civil sphere than in the criminal sphere. However, certain constitutional limits apply, and courts interpreting ambiguous statutes apply a general presumption against retroactivity. ht tps:!crsrepor.cong --ssqg

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Already a HeinOnline Subscriber?

Log In

profiles profiles most