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![handle is hein.crs/goveizu0001 and id is 1 raw text is: Congressional Research Servic
Informing the Iegishative debate since 1914
October 21, 2022
Sanctions Legislation and the Bill of Attainder Clause
Article I, Section 9, of the Constitution prohibits Congress
from enacting bills of attainder. The Supreme Court has
described a bill 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. Nixon v. Administrator of General
Services, 433 U.S. 425, 468 (1977).
How might this constitutional provision relate to sanctions
legislation? In such legislation, Congress may identify
specific individuals, entities, or discrete groups who would
be subject to sanctions-particularly foreign nationals-and
may authorize the executive branch to take action with
respect to those entities or their assets. Sanctions may
include restrictions on exports or imports, investments,
foreign assistance, travel, diplomatic relations, or access to
assets held in the United States or to the U.S. financial
system. Bill of attainder analysis depends heavily on the
facts in each case, and there is limited legal authority
specific to bill of attainder review of sanctions. However,
there are several reasons why courts may be unlikely to
strike down sanctions legislation as a bill of attainder.
Covered Government Actions
First, it is not clear that the Bill of Attainder Clause applies
to the imposition of sanctions by the President or an
executive agency, or to legislation authorizing the executive
branch to impose sanctions.
The Supreme Court has not considered whether the Bill of
Attainder Clause applies to sanctions. However, multiple
federal appeals courts have held that the Clause does not
apply to executive agency action. In one case, the U.S.
Court of Appeals for the Fifth Circuit rejected a bill of
attainder challenge to the Office of Foreign Assets
Control's decision to place an individual on a list of
Specially Designated Nationals pursuant to the Libyan
Sanctions Regulations. The Fifth Circuit denied the
challenge in part because [n]o circuit court has yet held
that the bill of attainder clause ... applies to regulations
promulgated by an executive agency. Paradissiotis v.
Rubin, 171 F.3d 983, 988 (5th Cir. 1999).
To the extent sanctions legislation allows for discretionary
implementation by the executive branch, courts may hold
that the Bill of Attainder Clause does not apply because the
Executive, not Congress, makes the final determination.
Some sanctions legislation instead seeks to require the
President to impose sanctions. Some Presidents have raised
separation of powers concerns about those measures and
asserted discretion to implement sanctions legislation, even
when such legislation purported to require them to act.
Legislation that seeks to compel the Executive to sanction
specific entities appears more susceptible to challenge on
both bill of attainder and separation of powers grounds.
Scope of Protection
Second, it is possible that a court would find that the Bill of
Attainder Clause does not protect the entities subject to
sanctions legislation, or provides only limited protection.
Sanctions legislation sometimes targets corporations rather
than (or in addition to) individuals. The Supreme Court has
not decided whether the Bill of Attainder Clause applies to
corporations. The appeals courts that have considered the
issue have either held that the Clause applies to
corporations, e.g., Consolidated Edison Co. of N.Y., Inc. v.
Pataki, 292 F. 3d 338, 349 (2d Cir. 2002), or assumed that
it does, e.g., Kaspersky Lab, Inc. v. U.S. Dept. of Homeland
Sec., 909 F.3d 446, 543-54 (D.C. Cir. 2018). However,
some decisions have suggested that the Clause may apply
with less force to protect corporations as compared to
individuals, e.g., Kaspersky Lab, 909 F.3d at 461-62.
More fundamentally, as the Fifth Circuit has noted, it is
not clear whether ... a foreign national residing outside the
U.S. can bring a Bill of Attainder claim. Paradissiotis, 171
F.3d at 988. The Supreme Court has not considered that
question. In other contexts, however, the Court has held that
certain constitutional protections available to persons
inside the United States are unavailable to aliens outside of
our geographic borders. Zadvydas v. Davis, 533 U.S. 678,
693 (2001).
Bill of Attainder Analysis
Third, assuming the Bill of Attainder Clause generally
applies and protects the entities subject to sanctions, a court
considering a constitutional challenge to sanctions
legislation would still need to determine whether the
specific law at issue was a bill of attainder. The Supreme
Court has held that legislation constitutes a bill of attainder
if it both (1) applies with specificity and (2) imposes
punishment without trial. Nixon, 433 U.S. at 468-69. A bill
imposing sanctions on a named individual, group, or
corporation would likely satisfy the specificity requirement.
However, specificity standing alone is never sufficient to
support a finding that a law is a bill of attainder. If a law
applies with specificity but does not impose punishment,
courts will not strike it down as a bill of attainder.
The determination 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 all three tests need to
be satisfied for a law to be punitive.](ViewImageLocal?handle=hein.crs/goveizu0001&div=1&collection=&method=preview&ext=.png&size=3)