TikTok U.S. Lawsuit: Understanding the Prohibition of Bills of Attainder in Constitutional Law

Ground 2: Unconstitutional Bill of Attainder

95. The Act is an unconstitutional bill of attainder.

96. Article I of the U.S. Constitution prohibits Congress from passing any bill of attainder. U.S. Const. art. I § 9, cl. 3 (“No Bill of Attainder or ex post facto Law shall be passed.”). A bill of attainder is “legislative punishment, of any form or severity, of specifically designated persons or groups.” United States v. Brown, 381 U.S. 437, 447 (1965). The protection against bills of attainder is “an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, or more simply — trial by legislature.” Id. at 442.

97. By singling out Petitioners for legislative punishment, the Act is an unconstitutional bill of attainder.

98. The Act inflicts “pains and penalties” that historically have been associated with bills of attainder. See Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 474 (1977). Historically, common “pains and penalties” included “punitive confiscation of property by the sovereign” and “a legislative enactment barring designated individuals or groups from participation in specified employments or vocations,” among others. Id. As described above, the Act confiscates Petitioners’ U.S. businesses by forcing ByteDance to shutter them within 270 days or sell on terms that are not commercially, technologically, or legally feasible. See supra ¶¶ 26‒29. For the same reason, the Act bars Petitioners from operating in their chosen line of business.

99. “[V]iewed in terms of the type and severity of burdens imposed” on Petitioners, the Act’s treatment of Petitioners cannot “reasonably . . . be said to further nonpunitive legislative purposes.” Nixon, 433 U.S. at 475–76. The Act transforms Petitioners into a “vilified class” by explicitly prohibiting their current and future operations in the United States, without qualification or limitation, but does not extend the same treatment to other similarly situated companies. Foretich v. United States, 351 F.3d 1198, 1224 (D.C. Cir. 2003).

100. Moreover, in light of the less restrictive alternatives discussed above, there is no justification for automatically barring Petitioners’ current and future operations in the United States (or those of its subsidiaries or successors) in perpetuity without providing them a meaningful opportunity to take corrective action. See Kaspersky Lab, Inc. v. U.S. Dep’t of Homeland Sec., 909 F.3d 446, 456 (D.C. Cir. 2018). Indeed, the Act imposes this punishment uniquely on Petitioners without the process, and presidential determination of a significant national security threat, that Congress has afforded to everyone else. Expressly singling out Petitioners for these punitive burdens while at the same time adopting a statutory standard and decision-making process applicable to every other entity makes clear that Petitioners are subjected to a prohibited legislatively imposed punishment.

101. Moreover, while Petitioners can avoid the Act’s prohibitions only via a wholesale divestment, all other companies — even those with Chinese ownership and determined by the President to present a “significant threat” to U.S. national security — can avoid prohibition simply by operating a website or an application “whose primary purpose is to allow users to post product reviews, business reviews, or travel information and reviews.” Sec. 2(g)(2)(b).

102. Indeed, any other “adversary-controlled” company that operates an application exactly like TikTok, but also operates a website the primary purpose of which is to post product reviews, is left untouched, leaving a ready path for any company but those affiliated with Petitioners to circumvent the Act’s prohibitions altogether. For all practical purposes, then, the Act applies to just one corporate group — it is a “TikTok bill,” as congressional leaders have described it.[30]

103. For all of these reasons, the Act constitutes an unconstitutional bill of attainder.

[30] Rachel Dobkin, Mike Johnson’s Letter Sparks New Flood of Republican Backlash, Newsweek (Apr. 17, 2024), https://perma.cc/Z5HD-7UVU (quoting letter from Speaker Johnson referencing the “TikTok bill”); Senator Chuck Schumer, Majority Leader, to Colleagues (Apr. 5, 2024), https://perma.cc/J7Q4-9PGJ (referencing “TikTok legislation”).