Classic examples of bills of attainder in American constitutional law come from three Supreme Court decisions: Cummings v. Missouri and Ex parte Garland (1867), which struck down post–Civil War loyalty oaths; United States v. Lovett (1946), which invalidated an appropriations rider cutting off the salaries of three named federal employees; and United States v. Brown (1965), which voided a federal ban on Communist Party members serving as labor union officers. A bill of attainder is a law that singles out a specific person or identifiable group, imposes punishment, and does so without a judicial trial. The Constitution forbids both Congress and the states from passing them.
What Makes a Law a Bill of Attainder
Article I, Section 9 bars Congress from passing bills of attainder, and Article I, Section 10 extends the same restriction to every state legislature.1Constitution Annotated. Article I, Section 9, Clause 32Constitution Annotated. Article I, Section 10, Clause 1 The Supreme Court held in 1867 that the prohibition reaches more than legislative death sentences, which was the English meaning of “attainder.” It also covers “bills of pains and penalties” — any legislative act that “inflicts punishment without a judicial trial,” no matter how mild.3Justia U.S. Supreme Court Center. Cummings v. Missouri, 71 U.S. 277 (1867)
Courts use three elements to identify an unconstitutional attainder:4Constitution Annotated. Bills of Attainder Doctrine
- Specificity. The law targets a named individual or an identifiable group, not the general public.
- Punishment. The burden the law imposes qualifies as punishment under constitutional standards.
- No judicial trial. The legislature imposes the burden directly, bypassing the courts.
Specificity alone is not fatal. A statute that bars anyone convicted of fraud from holding a banking license is not an attainder, because it depends on a judicial finding and applies to a class defined by conduct. A statute that bars a named person from banking, or that bars members of a named organization from holding a particular job, is a different matter. The hardest question in most cases is whether the burden counts as punishment — a question addressed later in this article, because the surviving-challenge cases turn on it.
Cummings v. Missouri and Ex parte Garland (1867)
After the Civil War, Missouri amended its constitution to require anyone holding public office, practicing law, teaching, or serving as clergy to swear they had never supported the Confederacy in any way. John Cummings, a Catholic priest, was convicted and fined for preaching without taking the oath. The Supreme Court struck the requirement down. The oath presumed guilt and inflicted punishment — exclusion from a livelihood — based on past political association, not on anything a court had found.3Justia U.S. Supreme Court Center. Cummings v. Missouri, 71 U.S. 277 (1867)
The companion case involved a federal oath required of all attorneys practicing before the federal courts. A.H. Garland, a lawyer who had served in the Confederate Congress, challenged the requirement even though he held a full presidential pardon. The Court called the oath “a legislative decree of perpetual exclusion” from the legal profession and held that cutting someone off from their livelihood for past conduct is punishment regardless of what Congress names it.5Justia U.S. Supreme Court Center. Ex parte Garland, 71 U.S. 333 (1866)
Both oaths shared a revealing feature. They required swearing to things former Confederates could not truthfully swear, which meant the “qualification” was functionally impossible. Conditioning a right to earn a living on an impossible condition, the Court reasoned, is the same as denying that right outright, and denying it for past acts is punishment.
United States v. Lovett (1946)
In 1943, Congress attached a rider to an appropriations bill naming three specific federal employees — Goodwin Watson, William Dodd Jr., and Robert Morss Lovett — and barring any government agency from paying them a salary unless the President reappointed them with Senate confirmation. Congress had concluded, without a trial, that the three were disloyal. The Supreme Court held the rider unconstitutional. It singled out named individuals and permanently excluded them from government service based on perceived political beliefs.6Justia U.S. Supreme Court Center. United States v. Lovett, 328 U.S. 303 (1946)
The government argued the law was just an exercise of the spending power — a funding decision, not punishment. The Court rejected the framing. Cutting off pay because Congress declared someone guilty of disloyalty is punishment regardless of which budget line delivers it. Congress cannot repackage an attainder as an appropriations choice.
United States v. Brown (1965)
A federal statute made it a crime for any member of the Communist Party to serve as an officer or employee of a labor union. The Supreme Court struck it down. The law singled out an identifiable group — Communist Party members — and imposed punishment in the form of exclusion from union leadership based on political association.7Justia U.S. Supreme Court Center. United States v. Brown, 381 U.S. 437 (1965)
Brown matters because the government offered a forward-looking rationale: the law was meant to prevent politically motivated strikes, not to punish past membership. The Court accepted that Congress had a legitimate interest in preventing disruption of interstate commerce, but held that categorically banning members of a named organization crossed from regulation into punishment. Congress could have required oaths focused on future conduct or built individual hearings into the process. Instead it declared an entire named membership unfit, and that shortcut is what the clause forbids.
Laws That Were Challenged as Bills of Attainder and Survived
Not every law targeting a specific person or entity is an attainder. The cases where challenges failed are useful examples too, because they mark the boundary between legislative punishment and legitimate regulation.
Nixon v. Administrator of General Services (1977)
After Richard Nixon resigned, he entered into an agreement with the General Services Administration that would eventually have given him control over his presidential recordings and papers, including the Watergate tapes. Congress responded with a law directing that the materials be preserved and made available for judicial proceedings and historical research. Nixon challenged it as a bill of attainder targeting him by name.
The Supreme Court rejected the challenge. The legislative record focused on the risk that the Nixon-Sampson agreement would lead to the destruction of historically significant materials, not on condemning Nixon personally. The law also provided for judicial review of Nixon’s constitutional rights, which is the opposite of what a true attainder does. The Court emphasized that naming a specific person in a statute does not, by itself, make the statute an attainder.8Library of Congress. Nixon v. Administrator of General Services, 433 U.S. 425 (1977)
Defunding ACORN (2010)
After undercover videos involving employees of the community organizing group ACORN, Congress passed appropriations riders cutting off all federal funding to the organization. A district court initially found the riders unconstitutional and enjoined them. The Second Circuit reversed. Withholding appropriations is not a traditional form of punishment, the funding restrictions served the nonpunitive goal of protecting public funds, and the legislative record did not show overwhelming intent to punish. Hostile remarks from a handful of legislators were not enough.9U.S. Department of Justice. ACORN v. United States, No. 10-1068
The Kaspersky Lab Ban (2018)
In 2017, Congress passed legislation prohibiting all federal agencies from using software made by Kaspersky Lab, a Russian cybersecurity company, citing concerns about potential Russian government influence. Kaspersky challenged the ban as targeted punishment of a named company. The D.C. Circuit ruled against it. The ban was “prophylactic, not punitive,” aimed at securing federal information systems. Congress had evidence that Kaspersky posed the most urgent threat among comparable risks, and the burden on the company fell “far short of the historical meaning of legislative punishment.”10Justia Law. Kaspersky Lab, Inc. v. United States Department of Homeland Security (2018)
Why Some Targeted Laws Are Punishment and Others Are Not
The surviving cases turn on the same question: whether the burden counts as punishment. The Supreme Court applies three inquiries, and a law can survive by clearing any of them convincingly.11Legal Information Institute. Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841 (1984)
- Historical test. Does the burden match punishments traditionally associated with attainders — imprisonment, banishment, confiscation of property, permanent exclusion from a profession? The loyalty oaths and the Lovett salary ban both fit this category. Appropriations cutoffs and procurement bans historically do not.
- Functional test. Can the burden reasonably serve a nonpunitive purpose? Protecting federal information systems, preserving historical records, and guarding public funds have all qualified. A categorical ban on a named group holding a job has not.
- Motivational test. Does the legislative record show overwhelmingly clear intent to punish? Scattered hostile remarks are not enough; the record as a whole must point that way.4Constitution Annotated. Bills of Attainder Doctrine
Running through all three is the question of retroactivity. The Court has held that the Bill of Attainder Clause does not reach legislation genuinely aimed at preventing future harm rather than punishing past conduct.4Constitution Annotated. Bills of Attainder Doctrine That distinction explains why the Kaspersky ban stood while the Communist Party union ban fell. Both named a target. Only one had a legislative record that pointed clearly toward preventing a specific future harm rather than condemning the target for what it was.
Bills of Attainder Are Not Ex Post Facto Laws
The Constitution bans bills of attainder and ex post facto laws in the same sentence, which is why they are often confused. They address different problems. An attainder bypasses the judicial process: the legislature declares someone guilty and punishes them without a trial. An ex post facto law goes through the courts but changes the rules retroactively — criminalizing conduct that was legal when performed, raising the penalty for a past offense, or easing the rules of evidence after the fact.
A single law can violate both. The Civil War loyalty oaths in Cummings and Garland were treated as attainders (punishment without trial) and as ex post facto laws (retroactive punishment for conduct that was not criminal when it occurred).3Justia U.S. Supreme Court Center. Cummings v. Missouri, 71 U.S. 277 (1867) But the clauses operate independently. A law naming a person and stripping their rights without a trial is an attainder even if the targeted conduct was already illegal. A law retroactively doubling a sentence is ex post facto even though it reaches the defendant through a court.