Today's lesson in crusty legal terms you never thought you needed to care about is brought to you by Donald Trump, who seems likely to sponsor many more future episodes in the coming days. Today's civics vocabulary term is attainder which the Merriam-Webster dictionary defines as:
attainder (noun): The termination of the civil rights of a person upon a sentence of death or outlawry for treason or a felony.The term attainder might ring a distant bell with Americans who have watched a lot of legal dramas or were paying attention in a social studies covering American history. That's probably because the concept is referenced in the United States Constitution, specifically in language within Article I, Section 9, Clause 3 which reads:
No Bill of Attainder or ex post facto Law shall be passed.The simplest interpretation of this language is that it prevents both state and federal governments from enacting laws which explicitly target individuals for punishment. A state can pass a law making it illegal to drive faster than 70 mph on any road but a state cannot pass a law that explicitly makes it illegal to drive faster than 70 mph for Joe Schmoe while allowing it for others. The federal government can enact a law removing tax breaks for any corporation selling its products to a particular foreign country but it cannot enact a law removing tax breaks solely for Mango Microprocessors if it sells chips to Monaco. This ban against bills of attainder in the Constitution was added to explicitly address and prevent specific abuses seen during colonial rule and prior centuries of English history. In some cases in that history, attainders were interpreted to not only affect the named party of the law but to blood relatives as well, extending the abuse to descendants. So obvious were the dangers of bills of attainders that the attainder language added to the Constitution was adopted unanimously by those drafting the Constitution and generated zero debate.
That was then. This is now. And now, the Trump Administration, with 6-3 conservative control of the US Supreme Court, a 53-47 majority in the US Senate and a 220-212 majority in the US House (with 3 vacant seats) seems unable to enact ANY legislation to match its goals using actual legislative processes. Instead, it is issuing executive orders and threats that, if implemented via actual legislation, would represent clearly unconstitutional bills of attainder. The two most recent examples in two days are:
- The order from the Department of Homeland Security explicitly banning Harvard University from enrolling foreign students OR hiring foreign faculty or administrators.
- A threat from Donald Trump stating that 25% tariffs will be applied to Apple if it does not begin making its products in the US.
If these are merely administrative orders or verbal threats from the President, are they technically bills of attainders? In a world where the US Supreme Court has ruled that a President has a cloak of immunity around "official actions" even after his defense counsel argued such protections would apply to assassinating political enemies, it is sadly no longer clear how court cases addressing these conflicts will be eventually adjudicated. Historically speaking, however, there is ZERO doubt these actions and policies are completely unconstitutional, even if they are being imposed short of an actual law being enacted.
In the foreign student / staff restriction, the mandate only applies to Harvard, there is no specific civil or criminal violation being cited by the federal government that triggered the decision, and there is punishment (loss of enrollment, loss of staff, chaos that could further reduce enrollments of other students not interested in attending a university being crippled by limits on its students and faculty) being inflicted on a single entity.
In the Apple case, the firm has broken no law by manufacturing products in a foreign country, the threatened tariffs would be assigned solely to Apple's products and would obviously uniquely impair Apple's profits versus competitors.
The last time America was subjected to the rule of someone who had gone this King George while in power, well… We called it for what it was, wrote a firm but mostly polite eff you note and spent the next five years fighting and dying to shed the yoke of a tyrant and establish more just (not perfectly just, of course) control of our own affairs.
Two hundred and forty nine years later, Americans are in EXACTLY the same predicament as 1776. We somehow elected a President who has chosen to rule by fiat – DESPITE having majority control of every lever of the federal government – and in words and actions violates multiple constitutional protections on a DAILY basis. And the party in majority control refuses to use any of the powers available to it in the Legislative Branch to remove the threat posed by the President.
The actions being taken by Trump don't involve complex, esoteric gray areas in Constitutional law reflecting competing goals favoring the individual that occasionally come into conflict. These issues involve core constitutional limits protecting ALL individuals from gross abuses of power by a single person. Even in a hair-triggered, nuclear-tipped ICBM world, no President requires or deserves the level of power Trump is attempting to claim for himself. And whether he gets it or not, NOTHING GOOD has ever resulted from any individual attempting to concentrate this much power over the rest of us.
WTH
