The Hidden Issue in Huawei’s Suit Against the United States

Huawei’s lawsuit against the United States is more than simply a publicity stunt or moral appeal. Although its claim that the United States violated the Constitution may be a longshot, the basic unfairness alleged by Huawei — that it has been singled out for negative treatment by legislative action — is one that courts should take seriously.

The 54-page complaint filed by telecommunications equipment manufacturer Huawei Technologies stems from section 889 of the 2019 National Defense Authorization Act, which prohibits federal agencies from entering into contracts with Huawei for telecommunications equipment. The complaint alleges that, while ignoring the pervasive threats facing U.S. cybersecurity, Congress has instead opted to target Huawei and a small number of other companies without justification. Huawei claims that the United States violated the Bill of Attainder Clause, the Due Process Clause, and the principle of Separation of Powers — all stemming from its core allegation that it has been unfairly targeted by Congress.

Huawei’s most concrete claim is that Congress violated the Bill of Attainder Clause, which, in essence, prohibits the legislature from targeting a named individual for punishment. Huawei’s challenge will be to show that section 889 punishes it within the meaning of the Clause. It does not allege, of course, that it has suffered any of the traditional types of punishment prohibited by the Clause, which include a sentence of death, banishment, or confiscation of property.

More promising for Huawei is the 1977 Nixon v. Administrator case. There, the Supreme Court expanded the Clause’s definition of punishment to include a “functional punishment” test (where the result of the legislation is punishment rather than policymaking) and a “motivation” test (where the legislative record displays a motivation to punish).

Huawei’s allegations provide some, albeit limited, support for these definitions of punishment. On one hand, the complaint alleges that a few members of Congress used punitive-sounding language when describing Huawei. Most pointedly, in paragraph 61, Sen. Tom Cotton (R-Ark.) called Huawei “untrustworthy,” and advocated the “punishment” of putting them “out of business in the United States,” which he figuratively referred to as the “death penalty.” On the other hand, Huawei undermines its claim of punishment by recounting in great detail Congress’s longstanding concerns about threats to cybersecurity. By acknowledging that there are risks to global cybersecurity, Huawei suggests that section 889 is more like policymaking (albeit perhaps over- and under-inclusive policymaking) than punishment.

Huawei’s other two claims are less distinct — we are still at the complaint stage, after all — but, they seem to be variations on the theme of unjustified targeting. That is, in legislating for a specific entity, Congress violated the Due Process Clause by failing to legislate generally. Similarly, in legislating for a specific entity, Congress exercised the executive or judicial power rather than the legislative power.

It is this point — that legislation is impermissible when it targets an individual, irrespective of punishment — that deserves serious attention. The legality of legislation targeted to reach a particular individual, often called “special legislation” is best understood in light of the experiences of the generation that framed the Constitution. In the decade after independence, the newly independent state legislatures enacted all types of special laws, including statutes that transferred title to land, statutes that granted exemptions from the standing laws for named individuals, statutes that confiscated property from individuals deemed disloyal, and, of course, bills of attainder punishing suspected Tories.

This flood of special laws created a great deal of social and economic disorder, leading the generation that framed the Constitution to reject special legislation whole-heartedly. On the eve of the drafting of the Constitution, in their writings, speeches, and debates, the revolutionary generation denounced their legislatures in no uncertain terms for extending their deliberations to the cases of individuals.

In light of this history, a number of the Constitution’s seemingly unrelated provisions can be recast as complementary clauses all designed to disfavor special legislation. The Bill of Attainder Clauses, which prohibit both the state legislatures and Congress from targeting individuals for punishment, are just the most obvious of these clauses. Others include the Due Process, Ex Post Facto, Equal Protection, Takings, and General Welfare clauses. One of the oldest applications of the Due Process Clause, for example, is the principle that the legislature cannot “take the property of A and give it to B.” In this same way, all of these clauses prohibit or disfavor some types of special legislation.

Finally, reading the Constitution to prohibit or disfavor special legislation, whether or not it punishes, would align the Court’s doctrine with the long legal tradition that regards special legislation as either outside the legislative power altogether or simply bad law. Locke, for example, wrote that the legislature must enact laws that are “common to every one of that society” and that these laws may not be varied “in particular cases.”

The Supreme Court invoked this tradition in Hurtado v. California when it noted that “not every act, legislative in form” can be considered “law.” Specifically, “a special rule for a particular person or a particular case,” including “acts of confiscation, acts reversing judgments, and acts directly transferring one man’s estate to another,” are simply excluded from its definition. Moreover, commentators assessing the normative implications of special legislation have concluded that it is associated with animus, corruption, and indefensible inequalities.

In light of these historical, textual, and jurisprudential considerations, a claim that the Constitution disfavors or prohibits certain types of special legislation is a serious one. Indeed, as I have argued herehere, and here, a value of legislative generality should be considered a principle of constitutional weight, although one whose contours still need to be worked out fully. For this reason, I would not dismiss Huawei’s Complaint as lightly as Professor Noah Feldman did in his recent Bloomberg piece. While Feldman is certainly correct that no company can claim a constitutional right to enter into contracts with federal agencies, Huawei’s complaint appears to be rooted in deeper constitutional terrain than a mere claim for a corporate privilege.

None of this is to say, of course, that Huawei should prevail in this case. Despite its length, Huawei’s complaint is light on factual allegations that it was targeted, either for punishment or otherwise. Moreover, contrary to its allegations, section 889 does not single Huawei out exactly: the same section permits the Secretary of Defense to prohibit other companies from providing telecommunications services if they are determined to be “connected to” China. In addition, the modern Supreme Court has been ambivalent about enforcing a value of legislative generality. In its recent Bank Markazi v. Peterson opinion, it expressed doubt that “there is something wrong with particularized legislative action.” And finally, because the case is still in its first stage, legal arguments, and possibly more facts, are still to come.

But, even with these caveats, Huawei’s complaint is one to watch. By squarely claiming that targeted legislation is impermissible, the complaint will give the government, and ultimately the federal courts, the rare opportunity to weigh in on this important issue.

Image: A man walks past a Huawei customer service center on March 12, 2019 in Berlin, Germany. The U.S. government has warned Germany not to consider Huawei for the construction of Germany’s new 5G mobile data network due to security fears. (Photo by Sean Gallup/Getty Images)

 

About the Author(s)

Evan Zoldan

Professor of Law at the University of Toledo College of Law, former Law Clerk to judges on the United States Court of Federal Claims and the District of Columbia Court of Appeals - Follow him on Twitter (@ECZoldan).