Amicus Curiae Brief — TikTok Inc., et al., Petitioners v. Merrick B. Garland, Attorney General

Supreme Court briefDec 16, 2024

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No. 24A587

IN THE

SUPREME COURT OF THE UNITED STATES

TIKTOK, INC., et al.,

Applicants,

MERRICK GARLAND, in his official capacity as

Attorney General of the United States,

Respondent.

On Emergency Application

for Injunction Pending Review

BRIEF AMICUS CURIAE OF

PROFESSOR MATTHEW STEILEN

IN SUPPORT OF APPLICANTS

Aaron D. Van Oort

Counsel of Record

John L. Rockenbach

FAEGRE DRINKER

BIDDLE & REATH LLP

2200 Wells Fargo Center

90 South Seventh Street

Minneapolis, MN 55402

(612) 766-7000

aaron.vanoort@faegredrinker.com

john.rockenbach@faegredrinker.com

Kirstin L. Stoll-DeBell

FAEGRE DRINKER

BIDDLE & REATH LLP

Suite 3400

1144 Fifteenth Street

Denver, CO 80202

(303) 941-8888

kirstin.stolldebell@faegredrinker.com

December 16, 2024

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

Interest of Amicus Curiae ............................................................................................. 1

Summary of Argument .................................................................................................. 2

Argument ....................................................................................................................... 3

A law that inflicts punishment on a specifically named person

qualifies as a bill of attainder, and courts must look to history to

evaluate whether a law inflicts punishment. .......................................... 3

Examining the colonies’ experience with bills of attainder yields

several principles useful for deciding Attainder cases today. ................ 5

Applying those principles to this case confirms that the

Protecting Americans From Foreign Adversary Controlled

Applications Act is a bill of attainder. ................................................... 15

The Act applies with specificity. ................................................. 15

The Act imposes punishment. ..................................................... 16

The Act imposes on TikTok and ByteDance

consequences historically considered punitive. ............... 16

The Act lacks a non-punitive purpose. ............................. 19

The legislative history confirms that Congress

intended to punish TikTok and ByteDance. .................... 20

The decision below misapplied these principles. .................................. 22

Conclusion .................................................................................................................... 25

TABLE OF AUTHORITIES

Cases

Page(s)

BellSouth Corp. v. F.C.C.,

162 F.3d 678 (D.C. Cir. 1998) ................................................................................ 24

Consol. Edison Co. of New York v. Pataki,

292 F.3d 338 (2d Cir. 2002) .............................................................................. 10, 16

Cummings v. Missouri,

71 U.S. 277 (1866) .................................................................................................. 18

Gaines v. Buford,

31 Ky. 481 (1833) .................................................................................................... 14

Jackson ex dem. St. Croix v. Sands,

1801 WL 640 (N.Y. Sup. Ct. 1801) ......................................................................... 18

Kaspersky Lab, Inc. v. United States Dep’t of Homeland Sec.,

909 F.3d 446 (D.C. Cir. 2018) .................................................................... 16, 23, 25

Nixon v. Adm’r of Gen. Servs.,

433 U.S. 425 (1977) .......................................................................... 4, 16, 19, 20, 21

Selective Serv. Sys. v. MPIRG,

468 U.S. 841 (1984) ........................................................................................ 3, 4, 24

United States v. Brown,

381 U.S. 437 (1965) ...................................................................... 3, 4, 19, 21, 24, 25

United States v. Lovett,

328 U.S. 303 (1946) .......................................................................................... 16, 17

Statutes, Rules & Regulations

PL 118-50, April 24, 2024, 138 Stat. 895 .............................................................. 15, 16

Sup. Ct. R. 37.6 .............................................................................................................. 1

Other Authorities

118 Cong. Rec. H1162 .................................................................................................. 17

118 Cong. Rec. No. 47, E254........................................................................................ 16

Documentary History of the Ratification of the Constitution (1990) ........................ 10

Alexander Hamilton, A Letter from Phocion (Loudon 1784) .................................. 2, 11

Allen Boyer & Mark Nicholls, The Rise and Fall of Treason in English

History (2024) ........................................................................................................... 5

Daniel J. Hulsebosch, A Discrete and Cosmopolitan Minority: The

Loyalists, the Atlantic World, and the Origins of Judicial Review, 81

Chi.-Kent L. Rev. 825 (2006).................................................................................. 12

Dictionary of the English Language (1773) .................................................................. 5

Duane L. Ostler, Bills of Attainder and the Formation of the American

Takings Clause at the Founding of the Republic, 32 Campbell L.

Rev. 227 (2010) ....................................................................................................... 16

Francis D. Wormuth, Legislative Disqualifications as Bills of

Attainder, 4 Vanderbilt Law Review 603 (1951) ..................................................... 6

H.R. 7521, 118th Cong. (2024) .............................................................................. 16, 19

Harrison A. Newman, Corporations Under the Bill of Attainder Clause,

69 Duke L.J. 923 (2020) ......................................................................................... 16

James Westfall Thompson, Anti-Loyalist Legislation During the

American Revolution (Part II), 3 Ill. L. Rev. 147(1908) ...................................... 7, 8

John P. Collas, Introduction, 70 Selden Soc’y ix (1951) ............................................... 5

Joseph Story, Commentaries on the Constitution......................................................... 6

Laws of the State of New York (1886) .................................................................... 8, 13

Matthew J. Steilen, Bills of Attainder, 53 Hous. L. Rev. 767, 891–92

(2016) .............................................................................5, 7, 8, 10, 11, 12, 13, 14, 15

Matthew Steilen, The Josiah Philips Attainder and the Institutional

Structure of the American Revolution, 60 How. L.J. 413, 432–34,

452–53 (2017) ........................................................................................... 5, 9, 10, 14

Matthew Steilen, The Legislature at War: Bandits, Runaways and the

Emergence of a Virginia Doctrine of Separation of Powers l. & ................. 9, 10, 14

What Happened to TikTok’s Project Texas?, Lawfare, Mar. 20, 2024........................ 20

The Statutes at Large; Being a Collection of All the Laws of Virginia,

from the First Session of The Legislature in the Year 1619, at 463

(William Waller Hening ed., 1821) .......................................................................... 9

iii

Zephaniah Swift, A System of the Laws of the State of Connecticut 81–

82 (1795) ................................................................................................................... 5

INTEREST OF AMICUS CURIAE

Matthew Steilen submits this brief in support of Applicants TikTok Inc., and

ByteDance Ltd. 1 Steilen is a professor at the University at Buffalo School of Law,

State University of New York. He teaches and writes about constitutional law and

legal history, with a focus on legislative attainders. He has a strong interest in the

sound development of these fields and participated as amicus in the cases below.

Pursuant to Sup. Ct. R. 37.6, amicus curiae states that no counsel for a party authored this

brief in whole or in part, and no party or counsel for a party contributed money intended to fund the

preparation or submission of this brief. No person other than amicus curiae, its members, or its counsel

contributed money intended to fund the preparation or submission of this brief.

SUMMARY OF ARGUMENT

Nothing is more common than for a free people, in times of heat and

violence, to gratify momentary passions, by letting into the government,

principles and precedents which afterwards prove fatal to themselves.

Alexander Hamilton, A Letter from Phocion 5 (Loudon 1784) (condemning a bill

of attainder passed by New York).

This Court has instructed courts to look to history when determining whether

a challenged statute qualifies as an unconstitutional bill of attainder. This brief seeks

to assist the Court in that task.

To that end, the brief recounts the colonies’ experience with acknowledged bills

of attainder. It then distills the colonies’ experience into six principles useful to courts

in analyzing a claim under the Bill of Attainder Clauses today:

First, bills of attainder targeted individuals and groups that were deemed a

security threat.

Second, bills of attainder imposed a range of punishments, but commonly the

deprivation of property.

Third, bills of attainder imposed punishments without judicial process, such

as a hearing, the production of evidence, and confrontation of witnesses, which help

to determine the truth of an allegation.

Fourth, some bills of attainder involved both the legislature and executive.

Fifth, the framers of the federal Constitution were highly familiar with the

history and use of bills of attainder.

Sixth, even Americans who supported bills of attainder believed they should

be conditional, which meant that individuals ought to be offered an opportunity to

turn themselves in and claim a judicial proceeding.

Under those principles and this Court’s precedent, the Act now before the

Court is a bill of attainder. It specifically names TikTok and ByteDance and imposes

punishment upon them. It imposes burdens mirroring those imposed by historical

bills of attainder. It brands TikTok and ByteDance with a mark of disloyalty; it bars

them from pursuing their chosen vocation; and it forbids them from continuing to own

their property. The Act cannot reasonably be said to have a non-punitive purpose,

and the Congressional Record reveals that it was instead motivated by a punitive

one. Nothing prohibits Congress from addressing security risks associated with

foreign governments, but it cannot sidestep the Constitution’s procedures for doing

so. This Court should issue a writ of injunction.

ARGUMENT

A law that inflicts punishment on a specifically named person

qualifies as a bill of attainder, and courts must look to history to

evaluate whether a law inflicts punishment.

As a limitation on federal power, Article 1, Section 9, of the Constitution

establishes that “No Bill of Attainder or ex post facto Law shall be passed.” A twin

protection in Section 10 applies to the states.

A “Bill of Attainder,” this Court has explained, is a law that specifically

designates a person or group for punishment without trial. Selective Serv. Sys. v.

MPIRG, 468 U.S. 841, 846–47 (1984); United States v. Brown, 381 U.S. 437, 447

(1965). Because all agree that the law specifically names TikTok and ByteDance,

App.59a–60a, punishment is the most pressing element in this case. This Court has

established a three-step analysis for determining whether a statute inflicts it.

The “starting point in the inquiry” is an examination of history. Nixon v. Adm’r

of Gen. Servs., 433 U.S. 425, 473 (1977). If the burden imposed (its consequence for

the person named) “falls within the historical meaning of legislative punishment,”

Selective Serv. Sys., 468 U.S. at 852, then the statute qualifies as punitive, end of

discussion. Nixon, 433 U.S. at 473 (“A statutory enactment that imposes any of those

sanctions on named … individuals would be immediately constitutionally suspect.”).

If the nature of the burden would not historically have been considered

punitive, then the analysis moves to the second test, which considers the “function[]”

or “purpose” of the law. Id. at 475–76. This is an objective test: Courts ask whether

the law “viewed in terms of the type and severity of burdens imposed, reasonably can

be said to further nonpunitive legislative purposes.” Id. History plays a role in this

step as well. When deciding whether a statute’s purpose qualifies as “punitive,” this

Court has looked to historical justifications for bills of attainder. See, e.g., Brown, 381

U.S. at 458–59.

The final test considers “intent” or “motivation[.]” Nixon, 433 U.S. at 478. It

looks to the actual congressional record to determine whether the subjective intent of

Congress was to inflict punishment. Id.

As the Court has recognized, there are distinctive reasons to look to history in

interpreting the Bill of Attainder Clauses. See id. at 473. The framers of the federal

Constitution had extensive experience with bills of attainder during the American

Revolution. Early American lawyers studied their use in English history and debated

their propriety. Matthew Steilen, The Josiah Philips Attainder and the Institutional

Structure of the American Revolution, 60 How. L.J. 413, 432–34, 452–53 (2017). In

contrast, today bills of attainder are relatively rare. For this reason, history is an

important source of evidence about the meaning of the Bill of Attainder Clauses.

Examining the colonies’ experience with bills of attainder yields

several principles useful for deciding Attainder cases today.

In essence, a bill of attainder was a means of convicting someone by bill in the

legislature. “Bill” was a term with both legislative and judicial meanings. Samuel

Johnson, A Dictionary of the English Language (1773) (“4. An act of parliament .... 7.

A declaration in writing that expresseth either the grief and the wrong that the

[plaintiff] hath suffered ... or else some fault ....”). State legislatures passed “private

bills,” which addressed the “interests of one person ... or region.” Matthew J. Steilen,

Bills of Attainder, 53 Hous. L. Rev. 767, 891–92 (2016). These bills were also quasijudicial; before passing a private bill, the legislature typically gave notice to those

affected and held a hearing. E.g., Zephaniah Swift, A System of the Laws of the State

of Connecticut 81–82 (1795). The term “attainder” came from the French atteindre,

meaning “to reach” or “attain,” which in a legal context connoted conviction. John P.

Collas, Introduction, 70 Selden Soc’y ix, xxi–lx (1951). Legal treatises on which the

framers relied also drew a comparison between “attainder” and the Latin attinctus,

or “stained,” reflecting a view that bills of attainder were reserved for the most

infamous traitors. Allen Boyer & Mark Nicholls, The Rise and Fall of Treason in

English History 98-110 (2024).

Bills of attainder were used to impose a range of punishments. The English

bills of attainder that convicted someone of treason often imposed a death sentence.

Many of these bills were conditional or “suspensive,” which meant that the targets

were offered an opportunity to turn themselves in and claim a judicial proceeding.

Bills imposing a penalty less than death were sometimes distinguished as bills of

“pains and penalties.” See 3 Joseph Story, Commentaries on the Constitution § 1338.

In revolutionary America, however, the line between bills of attainder and bills

of pains and penalties was never clear. Id. States imposed a variety of punishments

in acts that went under a variety of names. In this respect, the term “Bill of Attainder”

lacked a “precise legal definition” at the time the Constitution was ratified. Francis

D. Wormuth, Legislative Disqualifications as Bills of Attainder, 4 Vanderbilt Law

Review 603, 605 (1951). According to Publius, it was to guarantee both “personal

security and private rights” that a ban on bills of attainder was included in the federal

Constitution, since “[o]ur own experience” had shown the protections in state

constitutions to be insufficient. The Federalist No. 44 (James Madison).

This brief thus traces that experience, highlighting bills of attainder passed in

three states. In all three cases, Americans used bills of attainder to summarily deal

with threats to their security when they believed the ordinary judicial process would

be unnecessary, ineffective, or dangerous.

Pennsylvania. Pennsylvania took a number of steps during the Revolution to

punish individuals for undermining security. The Pennsylvania Constitution of 1776

did not expressly separate legislative and executive power, and on several occasions

the state’s executive, the “Supreme Executive Council,” worked in conjunction with

the state legislature and the Continental Congress to address perceived threats.

Frame of Government, § 17; Declaration of Rights, art. IX, Pa. Const. of 1776; James

Westfall Thompson, Anti-Loyalist Legislation During the American Revolution (Part

II), 3 Ill. L. Rev. 147, 156 (1908). For example, upon receiving some forged papers

from General John Sullivan, the Continental Congress advised the Supreme

Executive Council to take action against the state’s Quakers, who had initially

resisted independence and were religious pacifists. The Council believed the Quakers

were disposed to communicate intelligence to the enemy. In late 1777, it made out a

list of leading Quakers “dangerous to the State,” put them under house arrest, and

later banished them to Virginia. Steilen, Bills of Attainder, at 876–78.

Around the same time, the state legislature passed “An act for the attainder of

divers traitors.” 9 The Statutes at Large of Pennsylvania from 1682 to 1801, at 201–

02 (James T. Mitchell & Henry Flanders eds., 1903); Steilen, Bills of Attainder, at

882.

The Pennsylvania act had four parts. First, it declared that several specifically

named persons would be “convicted and attainted of high treason” if they did not

surrender themselves for trial. 9 Pa. Statutes at Large, at 201–02. Second, it declared

forfeit the properties of those named, id. at 203–04, and created an elaborate system

for liquidating their possessions, id. at 204–215. Third, it empowered the Supreme

Executive Council to identify others who had aided the British army and to add their

names to the list in the act. Id. at 202–03. Fourth, it broadly attainted of high treason

all residents of the state who in the future served in the British army. Id. at 203.

The state was driven to employ a bill of attainder by practical and legal

limitations in its law of treason. Practically, traitors could not be subject to the usual

judicial process once they crossed enemy lines. At a time when Philadelphia, New

York, and parts of New Jersey were under British control, this created a major

roadblock to convicting traitors and seizing their forfeited property. Legally, it was

unclear whether those who had lived in Pennsylvania but continuously supported the

British government could really be called traitors. Legislative attainder offered a way

to address both concerns. Steilen, Bills of Attainder, at 880–82.

The Pennsylvania attainder affected many. Between those persons named in

the statute and those later identified by the executive, about 500 people were

attainted through Pennsylvania’s bill. Thompson, Anti-Loyalist Legislation, at 157.

Some cases were handled through subsequent legislation; the legislature passed a

law giving the house of Joseph Galloway, a well-known conservative, to the president

of the Supreme Executive Council. 9 Pa. Statutes at Large, at 323–24. Many others

were affected by similar provisions, including laws that prohibited individuals from

buying, selling, or transferring lands; serving in office; serving on a jury; suing to

collect a debt; travelling; or possessing firearms. App. B, C, Claude Halstead Van

Tyne, The Loyalists in the American Revolution 321–22, 334, 338 (1902).

Virginia. In 1778, Virginia passed a bill of attainder to deal with a gang of

militant loyalists, led by Josiah Philips, which had terrorized parts of the state and

murdered a militia captain. Matthew Steilen, The Legislature at War: Bandits,

Runaways and the Emergence of a Virginia Doctrine of Separation of Powers, 37 L. &

Hist. Rev. 493, 496–97 (2019). Thomas Jefferson drafted the bill. Steilen, Josiah

Philips Attainder, at 425–26.

The Virginia act was a conditional attainder. It gave Philips and his

“associates” one month to turn themselves in and claim a judicial trial. An act to

attaint Josiah Philips and others, unless they render themselves to justice within a

certain time, 9 The Statutes at Large; Being a Collection of All the Laws of Virginia,

from the First Session of The Legislature in the Year 1619, at 463 (William Waller

Hening ed., 1821). If they did not, they would be “convicted and attainted of high

treason,” “suffer ... death,” and “incur all forfeitures, penalties, and disabilities”

associated with treason. Id. at 464. Philips’ associates were unnamed in the act and

permitted to claim a trial on the question of whether they were part of his gang, but

the act also made it lawful for “any person” to kill them after the grace period had

passed. Id.

Jefferson justified the Virginia attainder on safety grounds. Following the

“usual forms and procedures of the courts of law,” the text of the bill explained, would

“leave the ... good people of [Virginia] for a long time exposed to murder and

devastation.” Id. at 463. The bill was passed through the legislature in only three

days. Steilen, Josiah Philips Attainder, at 428.

The Philips case became an infamous example of the abuse of bills of attainder.

During the state’s ratification convention, Edmund Randolph, who would soon serve

as the nation’s first attorney general, cited the case as evidence that civil liberties

were insecure under Virginia’s vaunted 1776 constitution. 9 Documentary History of

the Ratification of the Constitution 972 & n.5 (1990). Virginia lawmakers had been

wrong about the dangers of following the “usual forms and procedures.” Philips was

captured by ordinary methods before the bill of attainder was even published.

Jefferson’s judgment of the threat may have been clouded by the fact, often

mentioned, that Philips was a manual “laborer” and his gang included escaped slaves.

Steilen, Legislature at War, at 495–96, 512–14. The bill of attainder had also ignored

the legal problem with charging Philips with treason, since he claimed to hold a

British military commission and may not have owed the state allegiance. Notably,

upon capture Philips was indicted not for treason, but for “robbing the publick

wagons,” taking, among other things, twenty-eight men’s felt hats and a ball of twine.

Steilen, Josiah Philips Attainder, at 428–29, 438 (quoting Virginia Gazette, Oct. 30,

1778, p. 3, col. 2).

New York. The New York Constitution stated that “no acts of attainder shall

be passed by the Legislature of this State,” but made an exception for “crimes ...

committed before the termination of the present war.” 1 Journals of the Provincial

Congress, Provincial Convention, Committee of Safety and Council of Safety of the

State of New-York, 1775-1776-1777, at 898 (1842). New York thus permitted, and

enacted, many bills of attainder targeting British Loyalists. Like Pennsylvania, New

York prohibited loyalists from voting, suing, practicing law, and holding or

transferring property. Steilen, Bills of Attainder, at 845. It subjected them to

interrogation, arrest, and summary removal from the state. Van Tyne, Loyalists in

the American Revolution, at 320–22, 328, 330–32, 334, 337–38; Steilen, Bills of

Attainder, at 846.

Nothing drew the ire of the framers more than the Confiscation Act of 1779. 1

Laws of the State of New York 772, 173–81 (1886). The Confiscation Act defined a

new crime: holding property in New York while adhering to the King of Great Britain.

Id. at 173. To protect the “public justice and safety” of the State, the Act “convicted

and attainted” several high-profile British loyalists by name. Id. at 173–74. It

declared forfeit the “real and personal” property of those named. Id. at 174. It

“banished” the named persons from the State and declared that any named person

later found there “[is] hereby adjudged and declared guilty of felony and shall suffer

death.” Id. at 174. It then announced special procedures for indicting unnamed

persons of adhering to the British king. Id. at 174–81.

Alexander Hamilton condemned the Confiscation Act. He explained that “a

certain evil … attend[ed]” New York’s “intemperance”: a loss of reputation among

the other countries of the world. Letter from Phocion at 16. He urged the State to

follow “the regular and constitutional mode” for securing forfeitures: “legal process,

trial and conviction.” Id. at 10. This, he believed, would help the young country win

over the loyalists who remained in the colonies and the world at large. Id. at 18–22.

He was not alone in doing so. In a letter to John Jay, Robert Livingston wrote

that there had “[n]ever” been a “greater compound of folly, avarice, and injustice.”

Letter from Robert R. Livingston to John Jay (Apr. 21, 1779), in John Jay: The

Making of a Revolutionary: Unpublished Papers 1745-1780, at 583–84 (Richard B.

Morris ed., 1975). As for Jay, he wrote to the Governor:

If truly printed, New-York is disgraced by injustice too palpable to admit

even of palliation. I feel for the honour of my country, and therefore beg

the favour of you to send me a true copy of it; that if the other be false, I

may, by publishing yours, remove the prejudices against you.

Letter from John Jay to Governor George Clinton (May 6, 1780), in 1 William

Jay, The Life of John Jay 112 (reprt. 1972). Since Jay had proposed the final language

in the New York Constitution permitting bills of attainder, what upset him was not

the act as such, but likely the fact that it invented a criminal offense to target

individuals for their land.

New York’s act was extreme in this regard, but other states also made use of

bills of attainder to confiscate the property of loyalists. Daniel J. Hulsebosch, A

Discrete and Cosmopolitan Minority: The Loyalists, the Atlantic World, and the

Origins of Judicial Review, 81 Chi.-Kent L. Rev. 825, 835–38 (2006). Other

complaints against the Confiscation Act focused on its absolute, rather than

conditional form, which would have allowed individuals to assert their innocence in

a judicial proceeding. Steilen, Bills of Attainder, at 844, 849–51, 855–56.

***

From these examples, we can distill a few key principles regarding bills of

attainder.

First, bills of attainder targeted individuals and groups that were deemed a

security threat. The acts typically began by declaring that an individual or group had

been disloyal and was disposed to be disloyal in the future. For example, the

Pennsylvania “act for the attainder of divers traitors” declared that the named

individuals “have most traitorously and wickedly ... joined and adhered to and still

do adhere to and knowingly and willingly aid and assist the army of the King of Great

Britain.” 9 Pa. Statutes at Large, at 201. New York’s Confiscation Act made a similar

declaration. 1 Laws of New York, at 173. In this way, American bills of attainder

characteristically placed a brand of disloyalty on disfavored individuals or groups.

Second, bills of attainder imposed a range of punishments, but commonly the

deprivation of property. Acts confiscating property formed part of a larger body of

legislation imposing economic punishments, such as prohibitions on holding property,

transferring property, practicing a profession, or engaging in a trade. Van Tyne,

Loyalists in the American Revolution, at 337–38. “Loyal” individuals could purchase

confiscated estates, but they benefitted from other economic punishments as well.

Third, bills of attainder imposed punishments without judicial process, such

as a hearing, the production of evidence, and confrontation of witnesses, which help

to determine the truth of an allegation. In this sense, they were a “summary form of

legal process.” Steilen, Bills of Attainder, at 889. Sometimes this was justified by

claims that the crimes were “notorious,” or commonly known; that it was too

dangerous to follow ordinary procedures; or that courts would be unable to enforce

their process. Id. at 889–90. Often bills of attainder were rushed out of concerns about

security. Officials abandoned ongoing, ordinary forms of proceeding to take a quicker,

more certain route through an act of the legislature. Edmund Randolph thought the

result in Virginia was unjust, as did Alexander Hamilton in New York.

Fourth, some bills of attainder involved both the legislature and the executive.

In these cases, the legislature would name a certain number of persons who were to

be “attainted” and also authorize the executive to “add to the list.” Id. at 890.

Fifth, the framers of the federal Constitution were highly familiar with the

history and use of bills of attainder. Bills punishing individuals for disloyalty were

enacted in every state. Some American lawyers supported the use of bills of attainder

in certain circumstances. They had studied their use. Thomas Jefferson, who drafted

the Philips bill of attainder, possessed a significant library of English legal treatises,

including a collection of books on parliamentary procedures. He and Patrick Henry

had “rummaged over” English histories in search of “revolutionary precedents &

forms.” Steilen, Legislature at War, at 521–22.

Finally, even Americans who supported bills of attainder believed they should

be conditional, which meant that individuals ought to be offered an opportunity to

turn themselves in and claim a judicial proceeding. Criticisms of New York’s

Confiscation Act reflect a widely held assumption, present in English treatises, that

an individual ought to be able to avoid legislative condemnation and prove their

innocence in a judicial proceeding. Steilen, The Josiah Philips Attainder, at 419.

These were known as conditional or suspensive bills of attainder. Other times, the

bill would inflict an attaint only after the person took some subsequent action, such

as enlisting with the enemy or remaining within the State. See Gaines v. Buford, 31

Ky. 481, 510 (1833) (Op. of Nicholas, J.) (“A bill of attainder … might declare that if

certain individuals or a class of individuals, failed to do a given act by a named day,

they should be deemed to be, and treated, as convicted felons or traitors.”); see also

Bills of Attainder, The Heritage Guide to the Constitution (“[P]unishment may not

only be for past acts, but it also may be triggered whenever the person engages in any

future prohibited acts.”).

Applying those principles to this case confirms that the

Protecting Americans From Foreign Adversary Controlled

Applications Act is a bill of attainder.

This history in hand, we return to this Court’s framework for identifying bills

of attainder in an age when they no longer identify themselves. Applying the

principles derived, it becomes easier to see why the Protecting Americans From

Foreign Adversary Controlled Applications Act qualifies as a bill of attainder.

At the outset, it is worth noting that the structure of the Act resembles that of

some founding-era bills of attainder. Like the attainders in New York and

Pennsylvania, it specifically brands some companies with disloyalty, naming their

products a “foreign adversary controlled application,” PL 118-50, April 24, 2024, 138

Stat. 895, Div. H (“Act”), §2(g)(3)(A), then establishes procedures by which the

executive can “add to the list,” Steilen, Bills of Attainder, at 890; Act, §2(g)(3)(B). With

the label of “foreign adversary controlled application” comes legal consequences: the

companies must make available certain data, id. §2(b), and their foreign adversary

controlled applications cannot be offered on an app store or receive internet hosting

services, id. §2(a)(1), §2(c). Now we turn to the elements of the analysis.

The Act applies with specificity.

The element of specificity may be satisfied if the statute singles out a person

or class by name or applies to “easily ascertainable members of a group.” United

States v. Lovett, 328 U.S. 303, 315 (1946). To the extent this element is contested, the

Act easily satisfies it.

TikTok and ByteDance are specifically named in the statute. Act, §2(g)(3)(A).

They, and they alone, are “single[d] out,” 118 Cong. Rec. No. 47, E254 (Rep. Lofgren). 2

In fact, TikTok and ByteDance are called out in the very title of the House Bill that

became the Act. Just as Virginia had its “act to attaint Josiah Philips,” this Congress

has its “bill [t]o protect ... the United States ... from ... TikTok ... and ... ByteDance.”

H.R. 7521, 118th Cong. (2024).

The Act imposes punishment.

Under each part of the Supreme Court’s three-step analysis, the Act inflicts

punishment on TikTok and ByteDance.

The Act imposes on TikTok and ByteDance consequences

historically considered punitive.

First, the Act “brand[s]” TikTok and ByteDance “as disloyal.” Nixon, 433 U.S.

at 474. It states that any application controlled by TikTok or ByteDance qualifies as

a “foreign adversary controlled application,” thus labeling TikTok and ByteDance as

“foreign adversar[ies].” Act, §2(g)(3); see also C.A.App.40 3 (Rep. Rodgers) (“ByteDance

As the decision below assumed, the “Bill of Attainder Clause protects corporations” as well

as natural persons. App.60a (quoting Kaspersky Lab, Inc. v. United States Dep’t of Homeland Sec., 909

F.3d 446, 461 (D.C. Cir. 2018)); Consol. Edison Co. of New York v. Pataki, 292 F.3d 338, 349 (2d Cir.

2002) (holding as much). No court has held otherwise, and that result is consistent with both the

historical and modern conceptions of corporate personhood and corporate constitutional rights.

Harrison A. Newman, Corporations Under the Bill of Attainder Clause, 69 Duke L.J. 923, 950–58

(2020); Duane L. Ostler, Bills of Attainder and the Formation of the American Takings Clause at the

Founding of the Republic, 32 Campbell L. Rev. 227, 264 (2010) (describing Madison’s position that a

legislative statement against certain societies would be bill of attainder).

3 Citations to “C.A.App.” refer to the public appendix filed in the D.C. Circuit on June 20, 2024

(ECF # 2060757).

... is beholden to the CCP[.]”); 118 Cong. Rec. H1162 (“ByteDance[] is owned by the

Chinese Communist Party, meaning TikTok is essentially operating as Communist

Chinese malware.”). Under the view of at least one Framer, this feature alone would

qualify the statute as a bill of attainder. James Madison took the position that a

legislative statement condemning specific “classes or individuals” would amount to

“severe punishment” and a “vote of attainder.” House Address to President, Nov. 27,

1794, 15 Papers of James Madison, Congressional Series 391 (1985).

Second, the Act “‘operates as a legislative decree of perpetual exclusion’ from

a chosen vocation” and as a ban on holding property. Lovett, 328 U.S. at 316. The

practical effect of the Act is to ban TikTok and ByteDance from owning or operating

any website or application. C.A.App.126 (Sen. Ricketts) (“The bill incentivizes China

to divest from TikTok or TikTok will face a ban.”); C.A.App.134 (Sen. Scott) (“I would

vote to ban TikTok, unless we see a total divestment from it by entities controlled by

communist China.”); C.A.App.124 (Sen. Rubio) (“I believe I was the first Member of

Congress to call for a ... banning of ByteDance.”). An app that cannot be distributed,

updated, maintained, or serviced cannot continue long to exist. The effect is the same

as the early American bills of attainder that prohibited individuals from practicing

law or owning property.

That TikTok (the app) could theoretically escape the ban by finding a new

owner does not make the Act any less of a bill of attainder. As we have seen, historical

bills of attainder frequently operated conditionally. See Cummings v. Missouri, 71

U.S. 277, 324 (1866) (“These bills may inflict punishment absolutely, or may inflict it

conditionally.”). More to the point, for TikTok Inc. and ByteDance Ltd., the qualifieddivestiture provision is itself a punishment mirroring those historically imposed:

even if they could get a fair price for the TikTok platform, the forced sale would still

bar them from owning particular property or engaging in a particular trade. See Act,

§2(g)(1)(A), (g)(3)(A); C.A.App.126 (Sen. Rubio). And because the Act offers TikTok

Inc. and ByteDance Ltd. no way to avoid the ban, the Act resembles New York’s

absolute attainder. Just as the Confiscation Act prevented those accused of adhering

to the British King from holding property in the State, so too the Act prevents TikTok

and ByteDance, accused of being controlled by a foreign adversary, from owning a

website or app in the United States.

Third, the Act in reality will amount to a forfeiture of property, the classic

penalty associated with a bill of attainder. Jackson ex dem. St. Croix v. Sands, 1801

WL 640 (N.Y. Sup. Ct. 1801) (pointing to forfeiture as a reason to identify an act as a

bill of attainder). As we have seen, bills of attainder in the early states deprived those

attainted of specified property interests. The Act will do the same. “[G]iven the forced

sale conditions,” it would be impossible for TikTok Inc. and ByteDance Ltd. to get a

fair price for the Tiktok platform. TikTok Pet. 63. 4 They would have to accept an

“enormous discount.” Id. More likely: The divestiture would never even occur, as it

is not economically or technologically feasible for TikTok Inc. and ByteDance to sell

the TikTok platform required by the Act. C.A. TikTok Br. 21–24. 5 Either way, the Act

TikTok Inc. and ByteDance Ltd.’s Petition for Review, filed in the D.C. Circuit on May 7,

2024 (ECF # 2053212).

5 Citations to “C.A. TikTok Br.” refer to the brief of TikTok Inc. and ByteDance Ltd., filed in

the D.C. Circuit on June 20, 2024 (ECF # 2060743).

will deprive TikTok Inc. and ByteDance of their economically beneficial interest in

the TikTok platform, id. 69, a burden that matches the burden of the traditional

punishments of forfeiture or confiscation.

The Act lacks a non-punitive purpose.

The history detailed above confirms what this Court has said about punitive

purpose: “It would be archaic to limit the definition of ‘punishment’ to ‘retribution.’

Punishment serves several purposes; retributive, rehabilitative, deterrent—and

preventive.” Brown, 381 U.S. at 458. Thus, the government must do more than

identify a merely non-retributive purpose. It must identify a legitimate non-punitive

purpose and show that the burdens the legislature imposed are sufficiently tailored

to achieve that end. Nixon, 433 U.S. at 475–76; 482–83.

The House Bill identified “national security” as its purpose, H.R. 7521, but this

alone cannot mean it is not a bill of attainder. As we have seen, bills of attainder in

the colonies were nearly always used in response to concerns about security. The Bill

of Attainder Clauses, therefore, necessarily reflect a judgment that even when there

are concerns about national security, governments must still follow certain

procedures and respect certain boundaries between the branches of government. To

hold that the mere assertion of national security interests justified legislative

punishments of specific persons would be to exclude from constitutional prohibition

every one of the historical examples considered above.

The “existence of less burdensome alternatives” for protecting national

security shows that Congress’s purpose was punitive. Nixon, 433 U.S. at 482. As

TikTok and ByteDance explain, Congress abandoned ongoing efforts to craft an

effective system for protecting national security, in the form of the “Project Texas”

data protections. Congress also declined to employ the executive process to which all

other applications are entitled. C.A. TikTok Br. 46, 59–66. Instead, lawmakers

decided “in favor of creating a new governing authority that presumes the

impossibility of any remedy aside from ban or divestment.” What Happened to

TikTok’s

Project

Texas?,

Lawfare,

Mar.

20,

2024

(emphasis

added)

https://www.lawfaremedia.org/article/what-happened-to-tiktok-s-project-texas.

Here the historical examples considered above are particularly instructive. In

those cases, lawmakers also responded to complex legal and administrative problems

by simply declaring a person or group a security threat. This gave effect to fear, bias,

and partisan politics but left actual security threats unaddressed. In this case, as

well, Congress has arbitrarily allowed potentially dangerous entities to escape

regulation by, for example, operating a travel information website. Act, §2(g)(2)(B).

The legislative history confirms that Congress intended

to punish TikTok and ByteDance.

The only purpose identified in the Congressional Record is a punitive one.

Supporters of the Bill explained that “Congress [acted] to prevent foreign adversaries

from conducting espionage, surveillance, and malign operations harming vulnerable

Americans, our servicemen and women, and our U.S. Government personnel.”

Prevention is a punitive motive. “One of the reasons society imprisons those convicted

of crimes is to keep them from inflicting future harm, but that does not make

imprisonment any the less punishment.” Brown, 381 U.S. at 458–59. The Virginia

attainder, for example, was justified as necessary to incapacitate a threatening actor.

That is especially true when the desire to prevent stems from the target’s

alleged bad conduct, as is the case here. A legislature acts with punitive purpose when

it makes “a judgment[,] based largely on past acts and associations ... that a given

person or group [is] likely to cause trouble ... and therefore inflict[s] deprivations upon

that person or group in order to keep it from bringing about the feared event.” Id. The

Congressional Record is replete with (unsubstantiated) references to TikTok and

ByteDance’s “alleged past wrongdoings,” Nixon, 433 U.S. at 478. That is a telltale

sign that Congress acted with punitive intent:

•

“TikTok has allowed employees to covertly amplify content.”

C.A.App.118 (Sen. Warner).

•

“TikTok, under CCP ownership, promotes or demotes content

based on whether it aligns with the CCP’s interests and its

agenda.” C.A.App.126 (Sen. Ricketts).

•

“During the Hong Kong election, TikTok TikToked into

Taiwan that ... the Uyghurs like [the ongoing] genocide, and

they told them that the people of Hong Kong liked the

destruction of their democracy.” C.A.App.42 (Rep. Pelosi).

Other evidence shows that Congress acted out of retribution. In particular, the

passage of the Act was motivated in part by TikTok’s alleged misconduct during

Congressional proceedings around the Act and other Congressional investigations:

•

“[W]hen TikTok has appeared before Congress … it has not

been candid.” C.A.App.41 (Rep. Krishnamoorthi).

•

“On the morning of [committee] vote, TikTok delivered a…

popup to thousands of [children] across the country …. [to]

force them to call congressional offices in order to continue

using the app. … This influence campaign illustrates the need

for this bill.” Id.

•

“[TikTok] lied to their users saying Congress was going to ban

TikTok, using young kids as political pawns. TikTok’s gross

stunt proved our point.” C.A.App.44 (Rep. Hinson).

•

“After being deluged with phone calls in my office, that very

day, I wrote to TikTok[,] asking them to provide [documents

relating to the] advocacy campaign … Four days later, TikTok

... responded, with piratical defiance, claiming that

congressional interest in this issue was ‘offensive’ and

‘patently false.’ Really? You don’t think that this is an issue

that is in the national interest? We shall see about that.”

C.A.App.46 (Rep. Smith).

The decision below misapplied these principles.

In upholding the Act, the decision below adopted an interpretation of the Bill

of Attainder Clause that cannot be squared with the original understanding.

First, in applying the historical test, the court took a narrower view of the

range of economic punishments imposed by bills of attainder than is justified by the

historical record. It identified confiscation as one of legislative burdens typical of bills

of attainder and thus agreed that if the Act imposed a burden analogous to

confiscation, it would be an impermissible bill of attainder. App.61a. But it reasoned

that the forced-sale requirement of the Act is not analogous to confiscation,

presumably because confiscation involves the government’s taking possession of

property and a forced-sale provision does not. As established above, however, bills of

attainder imposed a range of economic punishments that went beyond confiscation,

including bans on owning or holding property. See supra 13. And a provision requiring

a person to sell certain property is no different from a provision preventing a person

from owning certain property. Moreover, the court did not deny that forcing a sale of

the TikTok platform by a rapidly approaching date would prevent its owners from

obtaining fair market value, a burden that mirrors those imposed by confiscation

laws, see supra 19. A legislature could not confiscate the property of named persons

simply by allowing them to sell their possessions under impossible conditions instead.

Second, the court created corporate exceptions to the Clause’s protections

without a historical basis for doing so. The court appears to have agreed that the Act

operates like a ban from a profession or trade, App.61a, but it upheld the law on the

grounds that “human beings and corporate entities are so dissimilar,” id. (quoting

Kaspersky Lab, Inc., 909 F.3d at 462). The implication is that had the Act named John

Smith instead of ByteDance it would have been unconstitutional. That approach

mirrors the one taken in an earlier case, where the D.C. Circuit reasoned that a

“brand of infamy or disloyalty” could be a punishment for “flesh-and-blood humans”

without being a punishment for corporations. Kaspersky Lab, Inc., 909 F.3d at 461–

62. The circuit court has offered no historical evidence to support such a distinction.

The available historical evidence suggests that in Madison’s view the Bill of Attainder

Clauses protected both natural persons and associations from legislative censure,

reflecting the simple fact that censure can injure both. See supra 16 n.2. A broad rule

permitting the legislature to by name ban a company from a line of business, App.61a,

is inconsistent with the historical record. The upshot of the Clauses is that where

there are security risks attaching to particular lines of business, they must be

addressed by means of general legislation and due process in an administrative or

judicial setting. The “legislature can provide that persons possessing certain

characteristics must abstain from certain activities, but must leave to other tribunals

the task of deciding who possesses those characteristics.” Brown, 381 U.S. at 455 n.29.

Third, the court failed to recognize that the historical bills of attainder often

operated conditionally. The court upheld the act, in part, because it believed that the

qualified divestiture exemption “‘leaves open perpetually’ the possibility of

overcoming the prohibitions in the Act: TikTok can execute a divestiture and return

to the U.S. market at any time without running afoul of the law.” App.62a (quoting

BellSouth Corp. v. F.C.C., 162 F.3d 678, 685 (D.C. Cir. 1998)). As an initial matter,

that reasoning confuses TikTok the app with TikTok Inc. and ByteDance Ltd., which

have no way to escape the Act’s ban on owning certain property. See supra 18.

Regardless, the historical bills of attainder frequently included ways for their targets

to escape punishment, and a sentence from this Court’s decision in Selective Service

System, which addressed the eligibility for government aid rather than the imposition

of punishment, should not be read to suggest otherwise. 468 U.S. at 853 (“A statute

that leaves open perpetually the possibility of qualifying for aid does not fall within

the historical meaning of forbidden legislative punishment.”).

Fourth, in applying the functional test, the court below failed to identify a nonpunitive purpose for the Act. It held that the Act’s objective was “limiting the PRC’s

ability to threaten U.S. national security through data collection and covert

manipulation of information” and that the Act’s “solution to those threats ‘has the

earmarks of a rather conventional response to a security risk: remove the risk.’”

App.62a (quoting Kaspersky Lab, Inc., 909 F.3d at 455). As shown above, however,

incapacitating or removing a security risk is a punitive purpose, one shared by most

historical bills of attainder but especially Virginia’s. See supra 9. Along the same

lines, the court believed that the Act could not be a bill of attainder because it “reflects

a forward-looking prophylactic, not a backward-looking punitive, purpose.” App.62a.

But, as this Court made clear in Brown, imposing forward-looking, prophylactic

restrictions on a specific person as a consequence of alleged past conduct reflects a

punitive purpose. 381 U.S. at 458–59. Historical bills of attainder included such

forward-looking security measures, including the Pennsylvania bill, which attainted

residents of the state who in the future served in the British army, just as the Act

would attaint future actions by TikTok and ByteDance. See supra 8.

Congress can, of course, pass laws to address security risks, including foreign

data collection and manipulation. Here, for example, Congress could have passed a

generally applicable law that subjected TikTok “to the same standards, and the same

process, that Congress deemed adequate for every other speaker allegedly ‘controlled

by a foreign adversary.’” C.A. TikTok Br. 46. The Bill of Attainder Clause merely

forecloses certain means for achieving that permissible end: Congress cannot single

out through legislation particular persons to be incapacitated in the name of security.

CONCLUSION

The Court should grant the application because the Act under review is an

unconstitutional bill of attainder.

Dated: December 16, 2024

Respectfully submitted,