explaining that the “absence from the legislative history of any congressional sentiments” either of “moral blameworthiness or punishment” is “probative of nonpunitive intentions and largely undercuts a major concern that prompted the bill of attainder prohibition: the fear that the legislature, in seeking to pander to an inflamed popular constituency, will find it expedient to openly assume the mantle of judge or, worse still, lynch mob”
How later courts described this case
- explaining that the “absence from the legislative history of any congressional sentiments” either of “moral blameworthiness or punishment” is “probative of nonpunitive intentions and largely undercuts a major concern that prompted the bill of attainder prohibition: the fear that the legislature, in seeking to pander to an inflamed popular constituency, will find it expedient to openly assume the mantle of judge or, worse still, lynch mob”
- stating that “[i]t has been held permissible for Congress to deprive Communist deportees, as a group, of their social security benefits, but it would surely be a bill of attainder for Congress to deprive a single, named individual of the same benefit---- The very specificity would mark it as punishment, for there is rarely any valid reason for such narrow legislation[.]”
- stating "[o]ur treatment of the scope of the [Bill of Attainder] Clause has never precluded the possibility that new burdens and deprivations might be legislatively fashioned that are inconsistent with the bill of attainder guarantee. The Court, therefore, often has looked beyond mere historical experience and has applied a functional test. . . ."
- finding it significant that “[n]either President Ford nor President Carter support[ed] [former-President Nixon’s] claim” that the challenged statute’s “regulation of the disposition of Presidential materials . . . constitutes, without more, a violation of the principle of separation of powers”
Written by the judges who cited it.
Later courts went against this
Questioned by Warner v. Township of South Harrison, 885 F. Supp. 2d 725 (2012)
In analyzing this issue, the majority expressly declined to address the continued viability of the right to privacy recognized in Whalen, supra, and Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), and stated, “we will assume for present purposes that the Government’s challenged inquiries implicate a privacy interest of constitutional significance.
Distinguished
Distinguished by Neelley v. Walker, 322 F. Supp. 3d 1238 (2018)
But Nixon is distinguishable, most obviously because Ms. Neelley is not President Nixon.
The opinion
Mr. Justice Blackmun,
concurring in part and concurring in the judgment.
My posture in this case is essentially that of Mr. Justice Powell, post, p. 492. I refrain from joining his opinion, however, because I fall somewhat short of sharing his view, post, at 498 and 501-502, that the incumbent President's submission, made through the Solicitor General, that the Act serves rather than hinders the Chief Executive’s Art. II functions, is dispositive of the separation-of-powers issue. I would be willing to agree that it is significant and that it is entitled to serious consideration, but I am not convinced that it is dispositive. The fact that President Ford signed the Act does not mean that he necessarily approved of its every detail. Political realities often guide a President to a decision not to veto.
One must remind oneself that our Nation’s history reveals a number of instances where Presidential transition has not been particularly friendly or easy. On occasion it has been openly hostile. It is my hope and anticipation — as it obviously is of the others who have written in this case— that this Act, concerned as it is with what the Court describes, ante, at 472, as “a legitimate class of one,” will not become a model for the disposition of the papers of each President who leaves office at a time when his successor or the Congress is not of his political persuasion.
I agree fully with my Brother Powell when he observes, post, at 503, that the “difficult constitutional questions lie ahead” for resolution in the future. Reserving judgment on *492 those issues for a more appropriate time — certainly not now- — ■ I, too, join the judgment of the Court and agree with much of its opinion. I specifically join Part VII of the Court’s opinion.