Revised September 23, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-10140

_____________________

SBC COMMUNICATIONS, INC.; SOUTHWESTERN

BELL TELEPHONE COMPANY; SOUTHWESTERN

BELL COMMUNICATIONS SERVICES, INC.;

SOUTHWESTERN BELL COMMUNICATIONS

SERVICES-TEXAS, INC.; SOUTHWESTERN

BELL INTERNET SERVICES, INC.; PACIFIC

BELL; PACIFIC BELL COMMUNICATIONS;

NEVADA BELL,

Plaintiffs-Appellees,

US WEST COMMUNICATIONS, INC.; BELL

ATLANTIC CORPORATION,

Intervenor Plaintiffs-Appellees,

versus

FEDERAL COMMUNICATIONS COMMISSION;

UNITED STATES OF AMERICA,

Defendants - Appellees - Appellants,

MCI TELECOMMUNICATIONS CORPORATION;

AMERICAN TELEPHONE & TELEGRAPH

CORPORATION; ASSOCIATION FOR LOCAL

TELECOMMUNICATIONS SERVICES;

COMPETITIVE TELECOMMUNICATIONS

ASSOCIATION; NATIONAL CABLE TELEVISION

ASSOCIATION; SPRINT COMMUNICATIONS

COMPANY L P; TELECOMMUNICATIONS

RESELLERS ASSOCIATION,

Intervenor Defendants - Appellees - Appellants,

versus

KEITH MAYDAK,
2

Movant-Appellant.
115 U.S.C. § 1 et seq.

3

_________________________________________________________________

Appeals from the United States District Court for the

Northern District of Texas

_________________________________________________________________

September 4, 1998

Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This appeal challenges the constitutionality of a significant

part of the Telecommunications Act of 1996. The FCC, the United

States, and numerous interested intervenors appeal the district

court’s determination that §§ 271-75 of the Act, 47 U.S.C.

§§ 271-75, are an unconstitutional bill of attainder. Finding the

provisions at issue to be nonpunitive in character, we hold that

they are not, in fact, a bill of attainder as that term has been

defined by the Supreme Court. Because we further hold that the

provisions are also consistent with the constitutional requirements

of separation of powers, equal protection, and free speech, we

reverse the judgment of the district court.

I

As every antitrust law student learns these days, in 1974 the

Department of Justice brought a massive, precedent-setting Sherman

Act1 suit against AT&T. See United States v. AT&T, 461 F.Supp.

1314 (D.D.C. 1978). For many years before the suit, most
4

telecommunications equipment and telephone service in the United

States--both local and “long distance”--had been provided by AT&T

and its corporate affiliates, collectively known as the Bell

System. See United States v. AT&T, 552 F.Supp. 131, 222 (D.D.C.

1982). Although certain isolated aspects of the Bell System had

become the subject of intermittent antitrust actions, consent

decrees, and federal legislative intervention dating back to 1949,

see generally United States v. AT&T, 552 F.Supp. at 135-38, no

broad-based attack on the system itself had ever been launched. In

1974, however, the government changed all that. It alleged, among

other things, that the way AT&T used its various state-granted

local service monopolies to also monopolize the markets in long

distance service and telecommunications equipment was in

contravention of § 2 of the Sherman Act. See United States v.

AT&T, 461 F.Supp. at 1317-18. AT&T ultimately conceded this

assessment, for, after some initial procedural wrangling, it

eventually settled with the government in what became known as the

AT&T Consent Decree or Modified Final Judgment (“MFJ”). See United

States v. AT&T, 552 F.Supp. at 222-234, aff’d sub nom. Maryland v.

United States, 460 U.S. 1001 (1983). Under the MFJ, AT&T was

required to divest itself of its twenty-two local exchange

subsidiaries, which became known as the Bell Operating Companies or
2As District Judge Greene explained the divestiture:

The key to the Bell System’s power to impede

competition has been its control of local telephone

service. The local telephone network functions as the

gateway to individual telephone subscribers. It must be

used by long-distance carriers seeking to connect one

caller to another. Customers will only purchase

equipment which can readily be connected to the local

network through the telephone outlets in their homes and

offices. The enormous cost of the wires, cables,

switches, and other transmission facilities which

comprise that network has completely insulated it from

competition. Thus, access to AT&T’s local network is

crucial if long distance carriers and equipment

manufacturers are to be viable competitors.

AT&T has allegedly used its control of this local

monopoly to disadvantage these competitors in two

principal ways. First, it has attempted to prevent

competing long distance carriers and competing equipment

manufacturers from gaining access to the local network,

or to delay that access, thus placing them in an inferior

position vis-a-vis AT&T’s own services. Second, it has

supposedly used profits earned from the monopoly local

telephone operations to subsidize its long distance and

equipment businesses in which it was competing with

others.

For a great many years, the Federal Communications

Commission has struggled, largely without success, to

stop practices of this type through the regulatory tools

at its command. A lawsuit the Department of Justice

brought in 1949 to curb similar practices ended in an

ineffectual consent decree. Some other remedy is plainly

required; hence the divestiture of the local Operating

Companies from the Bell System. This divestiture will

sever the relationship between this local monopoly and

the other, competitive segments of AT&T, and it will thus

ensure--certainly better than could any other type of

relief--that the practices which allegedly have lain

heavy on the telecommunications industry will not recur.

552 F.Supp. at 223.

5

“BOCs.” 552 F.Supp. at 223.2 The BOCs were then grouped into
3By “long distance,” we refer to what is technically known as

“interLATA” service. In implementing the MFJ, the district court

established numerous local access and transport areas or “LATAs”

within which the BOCs were permitted to operate and provide

telephone service. See United States v. West. Elec. Co., 569

F.Supp. 990, 993-94 (D.D.C. 1983). The way the long distance lineof-business restriction played out, each BOC was allowed to

transmit telecommunications information only between points within

a single LATA, providing what is, basically, the traditional local

telephone service, even though every BOC encompassed several LATA’s

as a geographical matter. When a person in one LATA called a

person in another, the BOC serving the caller’s LATA was required

to transmit the call to an interexchange carrier, such as AT&T or

MCI, which then carried the call on its own network across the LATA

boundaries, whereupon it was picked up by the BOC (possibly the

same one) that served the called party’s LATA. See United States

v. West. Elec. Co., 969 F.2d 1231, 1233 (D.C. Cir. 1992). This is

“long distance” service. Local, or “intraLATA” service, on the

other hand, is the making of calls entirely within a single LATA,

even though such calls are sometimes subject to per-minute tolls.

4Again, as Judge Greene explained:

After the divestiture, the Operating Companies will

possess a monopoly over local telephone service.

According to the Department of Justice, the Operating

Companies must be barred from entering all competitive

markets to ensure that they will not misuse their

monopoly power. The Court will not impose restrictions

6

seven “regional Operating Companies” or “RBOCs.” 552 F.Supp. at

142 n.41. In addition, because the BOCs were allowed to retain

their state-regulated local service monopolies under the terms of

the MFJ, they became subject to various restrictions on their own

lines of business. In particular, the BOCs were barred from

competing in the markets for long distance,3 telecommunications

equipment, and information services (including electronic

publishing and alarm monitoring). 552 F.Supp. at 224.4 The
simply for the sake of theoretical consistency.

Restrictions must be based on an assessment of the

realistic circumstances of the relevant markets,

including the Operating Companies’ ability to engage in

anticompetitive behavior, their potential contribution to

the market as an added competitor for AT&T, as well as

upon the effects of the restrictions on the rates for

local telephone service. This standard requires that the

Operating Companies be prohibited from providing long

distance services and information services, and from

manufacturing equipment used in the telecommunications

industry. Participation in these fields carries with it

a substantial risk that the Operating Companies will use

the same anticompetitive techniques used by AT&T in order

to thwart the growth of their own competitors.

552 F.Supp. at 224.

7

restriction on information services was subsequently lifted, see

United States v. West. Elec. Co., 767 F.Supp. 308 (D.D.C. 1991),

aff’d, 993 F.2d 1572 (D.C. Cir. 1993), but the BOCs then became

subject to detailed FCC regulations governing the provision of

information and other “enhanced” services. See generally In re

Computer III Further Remand Provisions: Bell Operating Company

Provision of Enhanced Services, 10 F.C.C.R. 8360 (1995).

As the very existence of the numerous and ponderous post-1982

decisions of the D.C. courts should make clear, however, the MFJ was

far from a final resolution of the nation’s telecommunications

dilemma. Its enforcement and alteration in the light of

technological progress and changing market circumstances ultimately

required substantial monitoring on the part of the district court,

and the extensive judicial tinkering that resulted prompted many
5See Fred H. Cate, The National Information Infrastructure:

Policymaking and Policymakers, 6 Stan. L. & Pol’y Rev. 43, 50

(1994) (noting that, although “Judge Greene rendered his decision

approving the Modified Final Judgment in 1982,” he “retained

jurisdiction under the consent decree to control the operations of

both AT&T and the [RBOCs]” and “the breadth of that decree and the

substantial discretion given judges to interpret antitrust laws,

‘probably makes him the single most powerful decisionmaker in U.S.

communications policy today,’” a veritable “‘telecom czar’”)

(quoting Mark S. Nadel, U.S. Communications Policymaking: Who &

Where, 13 Hastings Comm. & Ent. L. J. 273, 289 (1991) and Telcom

Showdown: Battle Lines Harden as Baby Bells Fight to Kill

Restrictions, Wall St. J., July 22, 1994, at A1, respectively); see

also Michael Schrage, Is There a Shade of Greene In the Microsoft

Decision?, Wash. Post, Feb. 17, 1995, at B3 (“Judge Greene has been

alternately praised and excoriated as a ‘telecommunications czar’

whose impact on telecommunications is still more forceful than that

of AT&T Chairman Robert Allen or Tele-Communications Inc. boss John

Malone.”); Editorial, Review & Outlook: State of the Presidency,

Wall St. J., Feb. 2, 1990, at A14 (“Judge Greene made himself

Telecommunications Czar as part of the AT&T breakup; maybe he’d now

like to take over running Lebanon.”); Paula Dwyer, The Baby Bells:

Ready, Get Set, Diversify, 2962 Bus. Wk. 29 (1986) (noting that a

1986 D.C. Circuit ruling was “the latest blow to Judge Greene, who,

as czar of the breakup of AT&T, is the ‘dominant influence on the

industry,’ according to William L. Weiss, chairman and chief

executive of Ameritech,” and remarking, presciently, that “Greene’s

clout and influence are already under attack on Capitol Hill, where

lawmakers are pushing legislation to return supervision of the Baby

Bells to the FCC”).

6Cf. U.S. Const., Art. I, sec 9, cl.8.

8

pundits to dub District Judge Greene the country’s

“telecommunication’s czar.”5 Unsurprisingly, Congress soon became

skeptical of this unusual title of judicial nobility,6 and

ultimately spent many long and contentious years in drafting a

system of comprehensive telecommunications regulation to replace and

supplement the MFJ. See SBC Communications, Inc. v. FCC, 138 F.3d
7Of which there are now many hundreds of independent examples

(e.g., GTE Corp., Sprint Communications Company, Southern New

England Telephone Company, etc.) in addition to the BOCs.

9

410, 412-13 (D.C. Cir. 1998). On February 8, 1996, President

Clinton executed these legislative labors into law as the

Telecommunications Act of 1996 (the “Act”).

As has been widely recognized, the core function of the Act is

to “‘provide for a pro-competitive, deregulatory national policy

framework . . . by opening all telecommunications markets to

competition.’” SBC Communications, 138 F.3d at 413 (quoting H.R.

Conf. Rep. No. 104-458, at 1 (1996), reprinted in 1996 U.S.C.C.A.N.

at 124). To effectuate this goal, the Act prohibits states and

localities from sanctioning local service monopolies or

“‘prohibiting the ability of any entity to provide . . . intrastate

telecommunications service.’” Id. (quoting 47 U.S.C. § 253(a)).

It also places numerous and onerous duties and restrictions on all

local telephone service providers (“Local Exchange Carriers,” or

“LECs”)7 that are designed to prevent a recurrence of the

uncompetitive use of local service market power that occurred under

the Bell System. See id.; 47 U.S.C. §§ 251-52.

In addition to these generally applicable local competition

provisions, however, the Act also contains a number of provisions

directed specifically at the BOCs. First, the uncodified

§ 601(a)(1) provides that the restrictions imposed by the MFJ are
8With the exception of § 276, relating to payphone service,

which has not been challenged.

10

lifted and replaced by the restrictions of the Act. See Pub. L. No.

104-104, § 601(a)(1), 110 Stat. 143 (1996); cf. United States v.

West. Elec. Co., 1996 WL 255904 (D.D.C. Apr. 11, 1996) (terminating

the MFJ in accordance with § 601(a)(1)). Second, §§ 271-76,

entitled “Special Provisions Concerning Bell Operating Companies,”

impose renewed line-of-business restrictions on the activities of

the twenty remaining BOCs; § 153(4) of the Act makes quite clear

that the additional restrictions are only applicable to these twenty

specific, named corporations. See 47 U.S.C. §§ 153(4) & 271-76.

It is these latter “Special Provisions” that are at the heart of

this case, and they must accordingly be examined in some detail.8

Inconvenient to that purpose, the Special Provisions are

drafted in that rather soulless bureaucratese that is an all too

familiar sight on the American legal landscape. We have attempted

to pierce the statutory fog, however, and would summarize the

Special Provisions’ effect essentially as follows.

First, under § 271, each BOC must obtain prior authorization

from the FCC before providing non-incidental long distance service

to customers within the states in which the BOC was allowed to

provide local service prior to the enactment of the Act (“in-region

long distance service”). 47 U.S.C. § 271(a) & (b). The FCC is to
11

grant authorization only after a number of complex criteria

evidencing free competition in the particular local service market

have been established. 47 U.S.C. § 271(d)(3); see generally SBC

Communications, 138 F.3d at 413-14. Even then, however, the BOC in

question may initially only provide long distance service through

a separate affiliate. 47 U.S.C. §§ 271(d)(3)(B) & 272(f)(1). The

BOCs are permitted to provide incidental long distance service and

long distance service to customers located outside of their regions

of former monopoly (“out-of-region long distance service”) without

significant limitation or prior authorization. 47 U.S.C.

§ 271(b)(2) & (3).

Second, under § 273, the BOCs may not manufacture or provide

telecommunications equipment until they have met the requirements

for non-incidental, in-region long distance service in § 271(d),

and, once again, even then only through a separate affiliate for an

interim period. 47 U.S.C. §§ 272(f)(1) & 273(a).

Finally, under §§ 274 & 275, the BOCs may not provide

electronic publishing or alarm monitoring services until February 8,

2001, unless they do so by way of a separate affiliate or joint

venture and, in the case of alarm monitoring, only if they were

engaged in the business prior to November 30, 1995. 47 U.S.C. §§

274(a), 274(g)(2), & 275(a).
9SBC is currently parent to BOCs Southwestern Bell, Pacific

Bell, and Nevada Bell, and will become parent to Illinois Bell,

Indiana Bell, Wisconsin Bell, Michigan Bell, and Ohio Bell upon

completion of its planned merger with Ameritech, another RBOC.

Southwestern Bell provides local service to customers in Texas,

Missouri, Oklahoma, Arkansas, and Kansas. Pacific Bell serves

California.

12

Essentially, the Special Provisions recreate most of the

original line-of-business prohibitions of the MFJ, with some

tweaking. In the case of information services, the recreation

represents a reimposition of restrictions that had already been

lifted under the regime of the MFJ. In the case of in-region long

distance service and telecommunications equipment, however, the Act

simply changes the administrator and specifies the rules by which

Judge Greene’s long-running restrictions can be lifted.

II

On April 11, 1997, plaintiff SBC Communications, which is of

course one of the RBOCs,9 applied to the FCC pursuant to § 271 to

have the long distance line-of-business restriction lifted for its

local service area of Oklahoma. The FCC determined that the

statutory criteria had not been met, and therefore denied the

application on June 26, 1997. SBC appealed that ruling to the D.C.

Circuit, where it was affirmed on March 20, 1998. See SBC

Communications, 138 F.3d at 410.

Without waiting for the outcome of that appeal, however, on

July 2, 1997, SBC and its subsidiaries filed suit against the United
13

States and the FCC in the Federal District Court for the Northern

District of Texas, alleging that all of the Special Provisions were

facially unconstitutional under the Bill of Attainder and Equal

Protection Clauses, and that § 274 violated the Free Speech Clause

as well. Several long distance companies, including MCI

Telecommunications Corp., Sprint Communications Company, and AT&T,

the BOCs’ erstwhile parent, intervened on the government’s side in

the dispute, and two other RBOCs, US West Communications and Bell

Atlantic Corp., intervened on SBC’s. Bell Atlantic added a slightly

more nuanced separation of powers challenge to SBC’s other

constitutional complaints.

On December 31, 1997, ruling on cross-motions for summary

judgment, District Judge Kendall held that the Special Provisions

constituted an unconstitutional bill of attainder and that they were

severable from the rest of the Act. He therefore granted SBC’s

motion and declared the challenged sections void. From this final

judgment the United States, the FCC, and the defendant-intervenors

timely appeal.

III

This court reviews the constitutionality of a federal statute

de novo. United States v. Bailey, 115 F.3d 1222, 1225 (5th Cir.

1997).
10Art. I, sec. 10, cl. 1 contains a parallel provision

applicable to the states.

14

IV

On appeal, SBC and the other appellees urge all of the

arguments offered below as potential bases for affirming some or all

of the decision of the district court. We consider each contention

in turn, beginning with SBC’s primary and most substantial complaint

that the Special Provisions constitute a bill of attainder.

A

Article I, sec. 9, cl. 3 of the United States Constitution

provides that “[n]o Bill of Attainder or ex post facto law shall be

passed [by Congress].”10 As the Supreme Court has often clarified,

“[i]n forbidding bills of attainder, the draftsmen of the

Constitution sought to prohibit the ancient practice of the

Parliament in England of punishing without trial ‘specifically

designated persons or groups.’” Selective Service System v.

Minnesota Public Interest Research Group, 468 U.S. 841, 847 (1984)

(quoting United States v. Brown, 381 U.S. 437, 447 (1965)).

Consistent with this characterization, the Court has generally

defined a bill of attainder as “‘a law that legislatively determines

guilt and inflicts punishment upon an identified individual without

provision of the protections of a judicial trial.’” Id. (quoting

Nixon v. Administrator of General Services, 433 U.S. 425, 468
11Which does seem likely. Although the Court has yet to reach

the question directly, it has suggested as much in dictum. See

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 239 n.9 (1995)

(indicating that the Clause applies to laws that punish “a single

individual or firm”) (emphasis added). Furthermore, it has been

established that a number of very similar constitutional rights do

apply in the corporate setting. See, e.g., Virginia Pharmacy Bd.

15

(1977)). Where, as here, the liability in question clearly attaches

by operation of the legislative act alone, the constitutional test

may be summarized in the following two-pronged test: First, has the

legislature acted with specificity? Second, has it imposed

punishment?

In this case, SBC argues that the Special Provisions constitute

a bill of attainder because they impose line-of-business

restrictions on named corporations. As SBC portrays the Special

Provisions, they represent Congress’s unconstitutional legislative

determination that the BOCs are the guilty spawn of AT&T, who

deserve to be deprived of their current ability to enter the long

distance, information services, and telecommunications equipment

markets as punishment for the immutable past antitrust violations

of their former parent. The district court essentially agreed with

this analysis.

Notwithstanding beguiling arguments that support the district

court’s holding, at bottom, we simply cannot find a constitutional

violation in this case. Even assuming that the Bill of Attainder

Clause applies to corporations,11 and even assuming that the Special
v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976)

(freedom of speech); United States v. Martin Linen Supply Co., 430

U.S. 564 (1977) (double jeopardy); Penn Central Transportation Co.

v. New York City, 438 U.S. 104 (1978) (takings); Marshall v.

Barlow’s, Inc., 436 U.S. 307 (1978) (searches and seizures);

Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408 (1984)

(due process); Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869

(1985) (equal protection).

12Again, probably a safe assumption in this case, as the

Special Provisions identify the burdened parties by name. In the

entirety of the Supreme Court’s attainder jurisprudence, the only

case to suggest that a statute naming individuals might not satisfy

the specificity prong of the test was the very unusual Nixon.

There, the Court indicated that a law requiring Richard M. Nixon by

name to turn over his presidential papers to the Administrator of

General Services might not be specific enough to constitute a bill

of attainder, because, as the only former president whose papers

were not protected in a presidential library, Nixon represented a

“legitimate class of one” for purposes of such legislation. Id.,

433 U.S. at 472. That unusual case seems inapposite to the one at

hand, particularly in the light of the fact that the rest of the

Court’s attainder jurisprudence, both subsequent and prior, has

consistently applied a broad interpretation of specificity. See,

e.g., Selected Service, 468 U.S. at 847 (noting that “‘[t]he

singling out of an individual for legislatively imposed punishment

constitutes an attainder whether the individual is called by name

or described in terms of conduct which, because it is past conduct,

operates only as a designation of particular persons’”) (quoting

Communist Party v. Subversive Activities Control Board, 367 U.S. 1,

86 (1961)); United States v. Brown, 381 U.S. 437 (1965) (finding

law applicable to past members of the Communist Party specific

enough to constitute an attainder); Cummings v. Missouri, 71 U.S.

(4 Wall.) 277 (1866) (noting that, although “bills [of attainder]

are generally directed against individuals by name,” they “may also

be directed against a whole class,” as “[t]he bill against the Earl

of Kildare and others, passed in the reign of Henry VIII,” which

“enacted that ‘all such persons which be or heretofore have been

comforters, abettors, partakers, confederates, or adherents unto

the said’ late earl, and certain other parties, who were named, ‘in

his or their false and traitorous acts and purposes, shall in

16

Provisions are sufficient to meet the specificity prong of the

test,12 there simply cannot be a bill of attainder unless it is also
likewise stand, and be attainted, adjudged, and convicted of high

treason’”) (quoting 28 Hen. VIII, c. 3 (1536)).

13See also BellSouth Corp. v. FCC, 144 F.3d 58, 63-64 (D.C.

Cir. 1998) (finding punishment a necessary condition of a bill of

attainder, regardless of specificity, in rejecting an attack on

§ 274 of the Special Provisions at issue in this case); Dehainaut

v. Peña, 32 F.3d 1066, 1071 (7th Cir. 1994) (same with regard to a

17

the case that the Special Provisions impose punishment on the BOCs.

As Justice Scalia recently reiterated in Plaut v. Spendthrift Farm,

Inc., 514 U.S. 211 (1995):

The premise that there is something wrong with

particularized legislation is of course questionable.

While legislatures usually act through laws of general

applicability, that is by no means their only legitimate

mode of action. Private bills in Congress are still

common, and were even more so in the days before

establishment of the Claims Court. Even laws that impose

a duty or liability upon a single individual or firm are

not on that account invalid--or else we would not have

the extensive jurisprudence that we do concerning the

Bill of Attainder Clause, including cases which say that

it requires not merely “singling out” but also

punishment, and a case which says that Congress may

legislate “a legitimate class of one.”

Id. at 239 n.9 (citing United States v. Lovett, 328 U.S. 303, 315-18

(1946), and Nixon, 433 U.S. at 472, for the two final propositions);

see also Selective Service, 468 U.S. at 851 (stating expressly that

“[e]ven if the specificity element were deemed satisfied,” the

provision at issue “would not necessarily implicate the Bill of

Attainder Clause,” because “[t]he proscription against bills of

attainder reaches only statutes that inflict punishment on the

specified individual or group”).13 Because punishment is a
provision imposing a perpetual employment bar on the air traffic

controllers fired by President Reagan); Fresno Rifle and Pistol

Club, Inc. v. Van de Kamp, 965 F.2d 723, 727 (9th Cir. 1992) (same

with regard to a law affecting certain named firearms (and thus

their manufacturers)); but see BellSouth, 144 F.3d at 72 (Sentelle,

J., dissenting) (noting that, although “mere specificity may not

make an act a bill of attainder,” in “most cases the Court has

required little more”).

18

necessary element of an unconstitutional bill of attainder, and

because we can find in the Special Provisions no punishment--as that

term must be defined in the context of this case--our resolution of

that question is dispositive of the attainder claim.

1

As an initial matter, however, we must acknowledge that just

what constitutes “punishment” for purposes of the Bill of Attainder

Clause is a question of some historical and doctrinal complexity.

In particular, the distinction between the punitive and the

prophylactically regulatory, which is of course at the root of this

case, is admittedly a fine one.

Under the common law, there were no such nuances: the very

concept of “attainder” was clearly limited to criminal cases of a

capital nature. As Blackstone described it:

When sentence of death, the most terrible and highest

judgment in the laws of England, is pronounced, the

immediate inseparable consequence by the common law is

attainder. For when it is now clear beyond all dispute,

that the criminal is no longer fit to live upon the

earth, but is to be exterminated as a monster and a bane

to human society, the law sets a note of infamy upon him,

puts him out of it’s [sic] protection, and takes no
14As Blackstone further clarified:

[W]hen judgment is once pronounced, both law and fact

conspire to prove [the attainted person] completely

guilty; and there is not the remotest possibility left of

any thing to be said in his favour. Upon judgment

therefore of death, and not before, the attainder of a

criminal commences: or upon such circumstances as are

equivalent to judgment of death; as judgment of outlawry

on a capital crime, pronounced for absconding or fleeing

from justice, which tacitly confesses the guilt. And

therefore either upon judgment of outlawry, or of death,

for treason or felony, a man shall be said to be

attainted.

Id.

15For example, the 1685 attainder of James, Duke of Monmouth:

WHEREAS James duke of Monmouth has in an hostile manner

invaded this kingdom and is now in open rebellion,

levying war against the king, contrary to the duty of

19

farther care of him than barely to see him executed. He

is then called attaint, attinctus, stained, or blackened.

He is no longer of any credit or reputation; he cannot be

a witness in any court; neither is he capable of

performing the functions of another man: for, by an

anticipation of his punishment, he is already dead in

law. . . . The consequences of attainder are

forfeiture, and corruption of blood.

4 William Blackstone, Commentaries *373-74 (citing 3 Inst. 213).14

Tough stuff. Nevertheless, and consistent with this definition,

common law bills of attainder were “such special acts of the

legislature, as inflict[ed] capital punishments upon persons

supposed to be guilty of high offences, such as treason and felony,

without any conviction in the ordinary course of judicial

proceedings.”15 3 Joseph Story, Commentaries on the Constitution of
allegiance; Be by and with the advice and consent of the

lords spiritual and temporal, and commons in this

parliament assembled, and by the authority of same, That

the said James duke of Monmouth stand and be convicted

and attainted of high treason, and that he suffer pains

of death, and incur all forfeitures as a traitor

convicted and attainted of high treason.

1 Jac. II, c. 2 (1685), quoted in Nixon, 433 U.S. at 473 n.35.

16See, e.g., Calder v. Bull, 3 U.S. (3 Dall.) 386, 389 (1798)

(noting that “the Parliament of Great Britain claimed and exercised

a power to pass [ex post facto] laws, under the denomination of

bills of attainder, or bills of pains and penalties; the first

inflicting capital, and the other less, punishment”); Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 179 (1803) (Marshall, J.) (“The

constitution declares that ‘no bill of attainder or ex post facto

law shall be passed.’ If, however, such a bill should be passed

and a person should be prosecuted under it, must the court condemn

to death those victims whom the constitution endeavours to

preserve?”).

20

the United States § 1338 at 209 (Boston 1833). A similar act that

inflicted “a milder degree of punishment than death” was termed a

“bill of pains and penalties.” Id. at 209-10.

Although some of the Supreme Court’s earliest opinions appeared

to recognize that attainder was technically confined to capital

cases,16 its subsequent jurisprudence has uniformly supported a

broader sweep for the constitutional prohibition. See, e.g.,

Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 138 (1810) (Marshall, J.)

(“A bill of attainder may affect the life of an individual, or may

confiscate his property, or may do both.”); Cummings, 71 U.S. at 323

(“Within the meaning of the Constitution, bills of attainder include
17Although our information is somewhat limited, see Note,

Beyond Process: A Substantive Rationale for the Bill of Attainder

Clause, 70 Va. L. Rev. 475, 477 (1984) (stating that “[t]here is no

record of any debate about including a ban on the bills in the

Constitution,” and that the provision “is scarcely mentioned by

contemporary commentators”), this broad construction of the

Clause’s reach would appear to be consistent with the contemporary

views of the Framers. In addressing Congress shortly after the

Whiskey Rebellion of 1794, President Washington opined that

“certain self-created societies” had been responsible for

encouraging the insurrection. 4 Annals of Cong. 788 (1794). As it

turned out, certain members of Congress were none too fond of these

“Democratic Societies” or “Jacobin Clubs” either, and when the

House considered its ceremonial reply to the President’s speech,

Rep. Fitzsimons of Pennsylvania moved to insert a paragraph

expressing “reprobation” of the societies. 4 Annals of Cong. 899.

As Professor Currie has described it, “the friends of France

exploded in wrath” at the suggestion. See generally David P.

Currie, The Constitution in Congress: The Federalist Period 1789-

1801 190-91 (Chicago 1997). More to the present point, however,

James Madison was of the specific opinion that including the

paragraph would constitute a bill of attainder, because

“denunciation” was punishment for purposes of that provision of the

21

bills of pains and penalties.”); Lovett, 328 U.S. at 314 (“‘A bill

of attainder is a legislative act which inflicts punishment without

a judicial trial.’”) (quoting Cummings, 71 U.S. at 323); Brown, 381

U.S. at 447 (noting that “the Bill of Attainder Clause [i]s not to

be given a narrow historical reading (which would exclude bills of

pains and penalties), but [i]s instead to be read in light of the

evil the Framers . . . sought to bar: legislative punishment, of any

form or severity, of specifically designated persons or groups”);

cf. 3 Story, Commentaries § 1338 at 210 (“But in the sense of the

constitution, it seems, that bills of attainder include bills of

pains and penalties.”) (citing Fletcher).17 Apart from making clear
Constitution. 4 Annals of Cong. 934.

18Ministry under a provision of Missouri’s post-war

constitution in Cummings, and the practice of law in federal court

under a congressional enactment in Garland.

22

that the Clause reaches punishment of a lesser severity than the

death penalty, however, these general statements provide little

assistance to our present inquiry.

More guidance is found by considering the details of the

Court’s development of the punishment prong. In Cummings v.

Missouri, 71 U.S. (4 Wall.) 277 (1866), and its companion case, Ex

Parte Garland, 71 U.S. (4 Wall.) 333 (1866), Justice Field

considered whether laws requiring that persons swear an oath under

penalty of perjury disclaiming any past sympathy for the Confederacy

before engaging in certain professions18 constituted punishment for

attainder purposes. Noting that “[t]he deprivation of any rights,

civil or political, previously enjoyed, may be punishment, the

circumstances attending and the causes of the deprivation

determining this fact,” 71 U.S. at 320, and that “[d]isqualification

from the pursuits of a lawful avocation . . . may also[ be], and

often has been, imposed as punishment” under the English law, id.

(citing 4 Blackstone, Commentaries at *44), he held that the oath

requirements acted to exclude the burdened individuals from lawful

employment on the basis of past conduct, and were therefore
19See, e.g., Cummings, 71 U.S. at 321-22:

The theory upon which our political institutions rest is,

that all men have certain inalienable rights--that among

these are life, liberty and the pursuit of happiness; and

that in the pursuit of happiness all avocations, all

honors, all positions, are alike open to every one, and

that in the protection of these rights all are equal

before the law. Any deprivation or suspension of any of

these rights for past conduct is punishment, and can be

in no otherwise defined.

23

punishment for attainder purposes. See Cummings, 71 U.S. at 325;

Garland, 71 U.S. at 380.

Although Cummings and Garland might be viewed as establishing

that any exclusion from a profession on the basis of past conduct

is punishment for attainder purposes,19 a closer examination reveals

a more subtle analysis. In both cases, a four-vote dissent written

by Justice Miller was premised on the belief that the laws in

question were enacted not to punish the burdened individuals but

instead as a prophylactic measure to protect the public from their

probable future bad acts. See Garland, 71 U.S. at 393-96 (Miller,

J., joined by Chase, CJ., and Swayne & Davis, JJ., dissenting)

(arguing that, in the light of recent historic events, the oath

requirement was merely a legitimate “qualification, exacted in selfdefence, of all who took part in administering the government . . .

and . . . was not passed for the purpose of inflicting punishment,

however merited, for past offences”). Although obviously taking a

different view of the ultimate outcome, Justice Field appeared to
24

agree with Justice Miller’s core proposition that a properly crafted

prophylactic measure could survive attainder analysis, even where

the finding of a propensity for future conduct was based solely on

past acts, and the result was a bar from future employment. See

Cummings, 71 U.S. at 319-20 (noting that “[i]t is evident from the

nature of the pursuits and professions of the parties . . . that

many of the acts, from the taint of which they must purge

themselves, have no possible relation to their fitness for those

pursuits and professions” and that the oath requirement, therefore,

“was exacted, not from any notion that the several acts designated

indicated unfitness for the callings, but because it was thought

that the several acts deserved punishment”); Garland, 71 U.S. at 379

(“The legislature may undoubtedly prescribe qualifications for the

office, to which [the burdened individual] must conform, as it may,

where it has exclusive jurisdiction, prescribe qualifications for

the pursuit of any of the ordinary avocations of life. The

question, in the case, is not as to the power of Congress to

prescribe qualifications, but whether that power has been exercised

as a means for the infliction of punishment, against the prohibition

of the Constitution.”).

This relevance of applicational context and the proper

existence of a “prophylactic” exception to the Bill of Attainder
20The dissent erroneously credits us instead of Justices Miller

and Field with the “discovery” of this exception. We have only

supplied its moniker.

25

Clause20 was developed further in Dent v. West Virginia, 129 U.S.

114 (1889), and Hawker v. New York, 170 U.S. 189 (1898). First, in

Dent, Justice Field made a major interpretation of his own majority

opinions in Cummings and Garland in the context of a bill of

attainder challenge to a state law requiring certain educational

qualifications in order to practice medicine. He held:

The cases of Cummings v. State of Missouri, 4 Wall. 277,

and of Ex parte Garland, id. 333, upon which much

reliance is placed, do not, in our judgment, support the

contention of the plaintiff in error. . . . They only

determine that one who is in the enjoyment of a right to

preach and teach the Christian religion as a priest of a

regular church, and one who has been admitted to practice

the profession of the law, cannot be deprived of the

right to continue in the exercise of their respective

professions by the exaction from them of an oath as to

their past conduct, respecting matters which have no

connection with such professions. Between this doctrine

and that for which the plaintiff in error contends there

is no analogy or resemblance. The constitution of

Missouri and the act of Congress in question in those

cases were designed to deprive parties of their right to

continue in their professions for past acts, or past

expressions of desires and sympathies, many of which had

no bearing upon their fitness to continue in their

professions. The law of West Virginia was intended to

secure such skill and learning in the profession of

medicine that the community might trust with confidence

those receiving a license under authority of the state.

129 U.S. at 125-28 (emphasis added). In Hawker, the Court took the

Dent analysis one step farther and upheld a state ban on medical
26

practice by convicted felons as also not constituting punishment for

purposes of the Bill of Attainder or Ex Post Facto Clauses. Relying

expressly on the above quoted language in Dent, the Court held that

the law was not unconstitutional because it did not “seek[] to

further punish a criminal, but only to protect . . . citizens from

physicians of bad character.” Id. at 196.

Further development of the prophylactic exception emerged under

Justice Frankfurter’s tutelage. In United States v. Lovett, 328

U.S. 303 (1946), the Court examined a federal law that cut off

salary payments to certain named federal employees, allegedly due

to their “subversive” activities. Finding that the law “‘operate[d]

as a legislative decree of perpetual exclusion’ from a chosen

vocation,” and thus “accomplishe[d] punishment of named individuals

without judicial trial,” Justice Black struck it down as an

unconstitutional bill of attainder. 328 U.S. at 316 (quoting

Cummings and Garland). Justice Frankfurter took a slightly

different view, however. Taking his cue from Hawker and the

historical foundations of the Clause in the English law, he

reiterated that “punishment is a prerequisite” for a bill of

attainder, and that:

Punishment presupposes an offense, not necessarily an act

previously declared criminal, but an act for which

retribution is exacted. The fact that harm is inflicted

by governmental authority does not make it punishment.

Figuratively speaking all discomfiting action may be

deemed punishment because it deprives of what otherwise
21The dissent dismisses our reference to Justice Frankfurter’s

concurrence in Lovett because it did not reflect the majority view

in that case. Such a back-of-the-hand to the alleged “cornerstone

of the majority’s theory” (see Dissent, p. __) ignores the

influence of the Frankfurtian view in many subsequent cases cited

herein.

27

would be enjoyed. But there may be reasons other than

punitive for such deprivation. A man may be forbidden to

practice medicine because he has been convicted of a

felony, or because he is no longer qualified. “The

deprivation of any rights, civil or political, previously

enjoyed, may be punishment, the circumstances attending

and the causes of deprivation determining this fact.”

328 U.S. at 324 (Frankfurter, J., joined by Reed, J., concurring [in

the judgment]) (citing Hawker and Dent, and quoting Cummings, 71

U.S. at 320, respectively) (emphasis added). Because he found no

indication in the text of the statute or the circumstances of its

passage that Congress intended it as a punitive measure, Justice

Frankfurter concluded that it was not a bill of attainder. Id. at

324-27.21

Following Lovett, Justice Frankfurter’s views on the Bill of

Attainder Clause commanded a majority for a number of cases in which

the Court rejected every attainder challenge that it considered.

See American Communications Ass’n v. Douds, 339 U.S. 382, 413-14

(1950) (Vinson, CJ.) (rejecting attainder challenge to federal law

conditioning recognition of a labor organization on the filing of

affidavits by its officers that they did not belong to the Communist

Party and did not believe in overthrow of the government by force);
22Since expressly abandoned. See Brown, 381 U.S. at 447.

23Based on Justice Frankfurter’s general model of bifurcated

constitutional adjudication:

Broadly speaking two types of constitutional claims come

before this Court. Most constitutional issues derive

from the broad standards of fairness written into the

Constitution (e.g. “due process,” “equal protection of

the laws,” “just compensation”), and the division of

power as between States and Nation. Such questions, by

their very nature, allow a relatively wide play for

individual legal judgment. The other class gives no such

scope. For this second class of constitutional issues

derives from very specific provisions of the

28

Garner v. Board of Pub. Works, 341 U.S. 716, 722-23 (1951) (Clark,

J.) (same as to municipal ordinance requiring employees to take oath

that they had not advocated, or belonged to organization advocating,

overthrow of government by force and violence in the preceding five

years); DeVeau v. Braisted, 363 U.S. 144, 160 (1960) (Frankfurter,

J.) (same as to state law prohibiting felons from soliciting or

receiving dues on behalf of any waterfront union); Flemming v.

Nestor, 363 U.S. 603, 617 (1960) (Harlan, J.) (same as to federal

law providing for the termination of Social Security benefits of

aliens who were deported on certain grounds); Communist Party v.

Subversive Activities Control Board, 367 U.S. 1, 86-88 (1961)

(Frankfurter, J.) (same as to federal law imposing registration and

other burdens on “Communist-action” organizations). Although some

of these decisions were premised in part on a strict historical

reading22 of the Clause23 as requiring that a bill specify the
Constitution. These had their source in definite

grievances and led the Fathers to proscribe against

recurrence of their experience. These specific

grievances and the safeguards against their recurrence

were not defined by the Constitution. They were defined

by history. Their meaning was so settled by history that

definition was superfluous. Judicial enforcement of the

Constitution must respect these historic limits. The

prohibition of bills of attainder falls of course among

these very specific constitutional provisions.

Lovett, 328 U.S. at 321 (Frankfurter, J., joined by Reed, J.,

concurring [in the judgment]).

24See Lovett, 328 U.S. at 321-23 (Frankfurter, J., joined by

Reed, J., concurring [in the judgment]) (“The distinguishing

characteristic of a bill of attainder is the substitution of

legislative determination of guilt and legislative imposition of

punishment for judicial finding and sentence. . . . All bills of

attainder specify the offense for which the attainted person was

deemed guilty and for which the punishment was imposed. There was

always a declaration of guilt either of the individual or the class

to which he belonged. The offense might be a pre-existing crime or

an act made punishable ex post facto.”).

29

offense and clearly declare the guilt of the burdened individual or

class to be unconstitutional,24 they also maintained the

prophylactic exception developed in Hawker and Dent. See, e.g.,

Douds, 339 U.S. at 413-14 (finding Lovett, Garland, and Cummings

distinguishable because “in the previous decisions the individuals

involved were in fact being punished for past actions; whereas in

this case they are subject to possible loss of position only because

there is substantial ground for the congressional judgment that

their beliefs and loyalties will be transformed into future

conduct,” and noting that, even though “the history of the [burdened
30

individuals’] past conduct was the foundation for the judgment as

to what the future conduct is likely to be,” that fact “does not

alter the conclusion that [the statute] is intended to prevent

future action rather than to punish past action”); DeVeau, 363 U.S.

at 160 (finding that the state “sought not to punish ex-felons, but

to devise what was felt to be a much-needed scheme of regulation of

the waterfront, and for the effectuation of that scheme it became

important whether individuals had previously been convicted of a

felony”); Flemming, 363 U.S. at 617 (noting, with respect to the

statute before the Court, that “it cannot be said, as was said of

the statute in Cummings, that [the disability imposed] bears no

rational connection to the purposes of the legislation of which it

is a part, and must without more therefore be taken as evidencing

a Congressional desire to punish”) (citing Cummings, 71 U.S. at 319,

and Dent, 129 U.S. at 126).

After this Frankfurtian phase, however, the Court appeared to

pointedly reassess the essential nature of the Clause, and the scope

of the punishment requirement. In United States v. Brown, 381 U.S.

437 (1965), after surveying the above described cases, Chief Justice

Warren viewed the Bill of Attainder Clause as expressive of some of

the most fundamental ideals of separation of powers, in addition to

its more specific prohibition:

[T]he Bill of Attainder Clause not only was intended as

one implementation of the general principle of
25See also Landgraf v. USI Film Prod., 511 U.S. 244, 267 n.20

(1994) (quoting Richmond v. J.A. Croson Co., 488 U.S. 469, 513-14

(1989) (Stevens, J., concurring in part and concurring in the

judgment)):

Legislatures are primarily policymaking bodies that

promulgate rules to govern future conduct. The

constitutional prohibitions against the enactment of ex

post facto laws and bills of attainder reflect a valid

concern about the use of the political process to punish

or characterize past conduct of private citizens. It is

the judicial system, rather than the legislative process,

that is best equipped to identify past wrongdoers and to

fashion remedies that will create the conditions that

presumably would have existed had no wrong been

committed.

31

fractionalized power, but also reflected the Framers’

belief that the Legislative Branch is not so well suited

as politically independent judges and juries to the task

of ruling upon the blameworthiness of, and levying

appropriate punishment upon, specific persons. “Every

one must concede that a legislative body, from its

numbers and organization, and from the very intimate

dependence of its members upon the people, which renders

them liable to be peculiarly susceptible to popular

clamor, is not properly constituted to try with coolness,

caution, and impartiality a criminal charge, especially

in those cases in which the popular feeling is strongly

excited,--the very class of cases most likely to be

prosecuted by this mode.” By banning bills of attainder,

the Framers of the Constitution sought to guard against

such dangers by limiting legislatures to the task of

rulemaking. “It is the peculiar province of the

legislature to describe general rules for the government

of society; the application of those rules to individuals

in society would seem to be the duty of other

departments.”

381 U.S. at 445-46 (quoting 1 Cooley, Constitutional Limitations

536-37 (8th ed. 1927), and Fletcher, 10 U.S. at 136,

respectively).25 Acting on this broad view of the Clause’s role in
and The Federalist No. 44, at 301 (James Madison) (J. Cooke ed.

1961):

Bills of attainder, ex post facto laws, and laws

impairing the obligation of contracts are contrary to the

first principles of the social compact, and to every

principle of sound legislation. . . . The sober people

of America are weary of the fluctuating policy which has

directed the public councils. They have seen with regret

and with indignation, that sudden changes and legislative

interferences in cases affecting personal rights, become

jobs in the hands of enterprizing and influential

spectators; and snares to the more industrious and less

informed part of the community.

32

the constitutional structure, Chief Justice Warren held that the law

in question--making it a crime for a past or current member of the

Communist Party to hold certain union positions with a potential to

disrupt interstate commerce--was an unconstitutional bill of

attainder:

The statute does not set forth a generally applicable

rule decreeing that any person who . . . possesses

certain characteristics . . . shall not hold union

office, and leave to courts and juries the job of

determining what persons . . . possess the specified

characteristics. Instead, it designates in no uncertain

terms the persons who possess the feared characteristics

and therefore cannot hold union office without incurring

criminal liability--members of the Communist Party.

Id. at 450.

The broad holding in Brown was not without its caveats,

however, and to these we must turn in order to assess the precise

role of punishment in the case. In distinguishing § 32 of the

Banking Act of 1933--providing that the officers, directors, and
33

employees of certain securities firms could not serve as officers,

directors, or employees of member banks in the Federal Reserve

System--from the statute at issue, the Court noted that:

[The union law], unlike § 32 of the Banking Act, inflicts

its deprivation upon the members of a political group

thought to present a threat to national security. As we

noted above, such groups were the targets of the

overwhelming majority of English and early American bills

of attainder. Second, § 32 incorporates no judgment

censuring or condemning any man or group of men. In

enacting it, Congress relied upon its general knowledge

of human psychology, and concluded that the concurrent

holding of the two designated positions would present a

temptation to any man--not just certain men or members of

a certain political party. Thus insofar as § 32

incorporates a condemnation, it condemns all men. . . .

In designating bank officers . . . Congress merely

expressed the [general] characteristics it was trying to

reach in an alternative, shorthand way.

Id. at 453-54.

Thus, although Brown began with a fairly broad construction of

the Clause, and thereby supplied SBC with a large portion of its

argument in the instant case, it did not purport fully to abandon

the prior development of the punitive element. As the above

discussion makes clear, one of the key reasons that the Court found

§ 32 distinguishable was that it did not incorporate a “judgment

censuring or condemning any man or group of men.” Further, the

Court explicitly left open the possibility of accomplishing nonpunitive, prophylactic economic legislation by way of “shorthand”

designations.
34

This latter theme was picked up one last time in Nixon v.

Administrator of General Services, 433 U.S. 425 (1977), where the

Court summarized and rationalized its extensive attainder

jurisprudence and developed the most comprehensive analysis of the

punishment prong that has been offered to date. In that case, the

Court upheld a law that, as noted, directed Richard M. Nixon by name

to turn over his presidential papers to the Administrator of General

Services. After discussing why Nixon “constituted a legitimate

class of one,” see supra, note 12, the Court went on to explain

that, even if the specificity element were deemed to be satisfied,

it would still have to inquire whether Congress “‘inflict[ed]

punishment’ within the constitutional proscription.” 433 U.S. at

472-73 (quoting Lovett, 328 U.S. at 315). After examining the

historical underpinnings of the Clause and noting that the statute

at issue did not involve any of the traditional examples of

“punishment” which had been held to implicate attainder analysis in

the past--including death, imprisonment, banishment, punitive

confiscation of property, and employment bars (as evidenced by

Cummings)--the Court launched into a three-stage examination of

general punitive character. See id. at 473-75. First, the Court

noted that it “often has looked beyond mere historical experience

and has applied a functional test of the existence of punishment,

analyzing whether the law under challenge, viewed in terms of the
35

type and severity of burdens imposed, reasonably can be said to

further nonpunitive legislative purposes.” See id. at 475 (citing

Cummings, 71 U.S. at 319-320, Hawker, 170 U.S. at 193-194, and Dent,

129 U.S. at 128, among other cases). Because the protection of

Nixon’s presidential papers was unquestionably a legitimate,

nonpunitive legislative purpose that the burdens imposed by the

statute were well designed to further, the Court concluded that the

law was nonpunitive under the functional approach. See id. at 476-

78. Next, the Court looked to legislative purpose. Because there

was no indication in the legislative history of a specific intent

to punish--unlike in past cases like Lovett, where the House Report

characterized the named individuals as “‘subversive . . . and . . .

unfit . . . to continue in Government employment’”--the Court

concluded that this test also came out in favor of a nonpunitive

finding. See id. at 478-80 (quoting Lovett, 328 U.S. at 312).

Finally, the Court turned to the structure of the statutory

provisions. Because it also evinced a nonpunitive quality to the

legislation, by protecting, for example, Nixon’s ability to access

the papers himself and to raise claims of privilege with regard to

them in court proceedings, the Court concluded that this test also

indicated a nonpunitive character. See id. at 481-82. Because the

statute did not “impose criminal penalties or other punishment,” the
26See id., 433 U.S. at 473 (noting that “the substantial

experience of both England and the United States with such abuses

of parliamentary and legislative power offers a ready checklist of

36

Court concluded that it was not a bill of attainder, regardless of

its specificity. Id. at 482 (quotations omitted).

2

In the light of the 400 years of case law and history that we

have considered, we believe that Nixon stands, ultimately and

concisely, for the following proposition: if legislation has a

legitimately nonpunitive function, purpose, and structure, it does

not constitute punishment for purposes of the Bill of Attainder

Clause, even where it imposes the historically punitive sanction of

barring designated individuals from engaging in certain professions.

This statement is consistent with the older, traditional lines of

analysis in the Court’s attainder jurisprudence, including

particularly the prophylactic exception developed in Cummings,

Garland, Dent, Hawker, and Justice Frankfurter’s concurrence in

Lovett. It is also not inconsistent with the more sweeping

separation of powers theory espoused by Chief Justice Warren in his

somewhat aberrant Brown opinion, at least to the extent that that

case left open the possibility of using “shorthand” designations in

otherwise proper categorical legislation. Although some portions

of Nixon might be read to suggest that historical punishments are

“inherently suspect,”26 we find this suggestion inapposite to the
deprivations and disabilities so disproportionately severe and so

inappropriate to nonpunitive ends that they unquestionably have

been held to fall within the proscription of Art. I, § 9” and that

“[a] statutory enactment that imposes any of those sanctions on

named or identifiable individuals would be immediately

constitutionally suspect”).

37

particular area of employment bars. As Nixon makes clear, this type

of liability is only an “historical” punishment to the extent that

certain examples have been declared punitive in past cases like

Cummings and Lovett. See Nixon, 433 U.S. at 474. Because these

building blocks for the historical characterization themselves

contain the very seeds of the prophylactic exception, and because

Nixon’s “functional test” is rooted in that very exception as

developed in the employment bar cases of Hawker, Dent, and Cummings,

see Nixon, 433 U.S. at 475, it simply cannot be convincingly

maintained that employment bars are inherently historically punitive

without reference to Nixon’s other considerations.

More importantly, however, such a reading would contradict the

Supreme Court’s own most recent recapitulation of the punishment

prong. In Selective Service, the Court stated that:

In deciding whether a statute inflicts forbidden

punishment, we have recognized three necessary inquiries:

(1) whether the challenged statute falls within the

historical meaning of legislative punishment; (2) whether

the statute, “viewed in terms of the type and severity of

burdens imposed, reasonably can be said to further

nonpunitive legislative purposes”; and (3) whether the

legislative record “evinces a congressional intent to

punish.”
38

468 U.S. at 852 (quoting Nixon, 433 U.S. at 473, 475-76, & 478,

respectively). Nothing in Selective Service suggests that the

historical punishment test is ever dispositive on its own, or that

it should be conducted without reference to the actual history

underlying the sanction at issue, and we decline to read such a

ritualistic and unsensible formulation into the Clause. See also

BellSouth, 144 F.3d at 65 (stating that “[e]ven measures

historically associated with punishment--such as permanent exclusion

from an occupation--have been otherwise regarded when the

nonpunitive aims of an apparently prophylactic measure have seemed

sufficiently clear and convincing”) (internal quotations omitted);

Dehainaut, 32 F.3d at 1071 (stating that, “[e]ven where a fixed

identifiable group . . . is singled out and a burden traditionally

associated with punishment--such as permanent exclusion from an

occupation--is imposed, the enactment may pass scrutiny under bill

of attainder analysis if it seeks to achieve legitimate and

nonpunitive ends and was not clearly the product of punitive

intent”).

3

Adapting the Selective Service formulation to this case in the

light of our inquiries, the question becomes whether the Special

Provisions, viewed in terms of the type and severity of burdens

imposed and the expressed intent of Congress, reasonably can be said
27We recognize that meeting the competition criteria may not

be an easy matter for the BOCs. Still, nothing in the statute or

SBC’s recent experiences with the FCC and the D.C. Circuit leads us

to suspect that it will be impossible, and we are satisfied that

the BOCs will be able to emerge from the restrictions when it is in

their economic and business interest to meet the stiff criteria.

39

to further nonpunitive legislative purposes such that the sanction

at issue, a bar from participation in certain businesses, is neither

historically nor functionally nor motivationally punitive. We can

only conclude that they can, and therefore find that the Special

Provisions are constitutionally sound.

First and perhaps foremost, we think that the Special

Provisions are not punitive because they do not impose a perpetual

bar on the BOCs’ entry into any of life’s avocations. In Cummings,

Garland, and Lovett, the burdened individuals were barred from all

future employment in certain professions based on immutable past

acts. Under the Special Provisions, on the other hand, the BOCs

will be allowed to enter each of the affected areas as soon as the

statutory criteria regarding competition in their local service

markets are met, and, in the case of information services, in 2001

regardless. As the Supreme Court expressly stated in Selective

Service, “[a] statute that leaves open perpetually the possibility

of [qualifying for some specifically denied benefit] does not fall

within the historical meaning of forbidden legislative punishment.”

468 U.S. at 853.27
40

Second, we conclude that the Special Provisions are not

punishment because they serve a nonpunitive purpose: attempting to

ensure fair competition in the markets for local service, long

distance, telecommunications equipment, and information services.

Indeed, even under the MFJ, we do not understand that the line-ofbusiness restrictions imposed on the BOCs were intended to have a

punitive function. As Judge Greene stated, the restrictions were

imposed because “[p]articipation in these fields carries with it a

substantial risk that the Operating Companies will use the same

anticompetitive techniques used by AT&T in order to thwart the

growth of their own competitors.” United States v. AT&T, 552

F.Supp. at 224. This rationale seems much more like a judgment

“condemning all men” in certain inherently conflicted positions than

an impermissible “judgment censuring or condemning any man or group

of men” for their personal conduct, see Brown, 381 U.S. at 453-54,

so to the extent that Congress was merely reimposing the MFJ, it did

not engage in action derivatively punitive. Furthermore, the actual

terms of the Special Provisions stay close to their legitimate ends.

By clearly linking a lifting of the long distance and

telecommunications equipment restrictions to competition in the

BOCs’ local markets, and by making the structural separation

condition for entry into the nascent and vulnerable information

services market temporary, Congress has tailored the burdens imposed
41

to an appropriate end of promoting competition. Finally, and

although SBC has argued fervently to the contrary, the mere fact

that the Special Provisions are limited in application to the BOCs

(and thus do not cover other LECs with substantial local market

power, like GTE) does not cast substantial doubt on the fit of this

tailoring. As the D.C. Circuit has expressly recognized, “[b]ecause

the BOCs’ facilities are generally less dispersed than GTE’s, they

can exercise bottleneck control over both ends of a [long distance]

telephone call in a higher fraction of cases than GTE” (or any of

the other LECs, for that matter), and it is thus rational to subject

them to additional burdens in order to achieve the overall goal of

competitive local and long distance service. BellSouth, 144 F.3d

at 67.

Third, we reason that the Special Provisions are not punitive

because neither their terms nor their legislative history

demonstrates the “smoking gun” evidence of punitive intent necessary

to establish a bill of attainder. As the Supreme Court clarified

in Selective Service, “‘unmistakable evidence of punitive

intent . . . is required before a Congressional enactment of this

kind may be struck down’” on attainder grounds. Id., 468 U.S. at

856 n.15 (quoting Flemming, 363 U.S. at 619); cf. Lovett, 328 U.S.

at 315 (for an example of such evidence). To be sure, there were

some isolated references in congressional debate to the Bell
28See SBC Communications, 138 F.3d at 412:

The question of how best to achieve [the goals of the

Act] . . . was the subject of great debate. Some thought

that the local and long-distance markets should be open

to all competitors immediately. Others believed that the

BOCs should have to wait until actual competition was

introduced in their local markets before providing

interLATA service, since it was claimed that the

long-distance market is already competitive. As might be

expected for an issue of this economic significance, an

extended lobbying struggle ensued. The end product was

a compromise between the competing factions.

42

System’s questionable business practices prior to the MFJ, which

were offered as evidence of the general potential for abuse of local

market power. But, still, SBC has pointed us towards no indication

that the Special Provisions were themselves enacted to punish the

BOCs for past antitrust violations. Instead, the legislative record

is really quite clear that Congress--certainly as a whole--

considered the Special Provisions to be just what they appeared to

be: a prophylactic, compromise regulation of the BOCs’ local market

power to ensure greater competition in all of the nation’s

telecommunications markets.

Finally, and perhaps most fundamentally, we conclude that the

Special Provisions are not punitive because they were part of a

larger quid pro quo. Combined with § 601(a)(1), the Special

Provisions represent a hard-fought compromise on a massive issue of

public policy which, in the end, contained both good and bad

elements for the BOCs.28 For example, although the information
43

services restriction lifted under the MFJ was partially reimposed

under § 274, the BOCs were immediately freed, by operation of

§ 601(a)(1) and the other Special Provisions, from existing MFJ

restrictions on their ability to offer incidental and out-of-region

long distance service. More importantly, the Special Provisions

gave the BOCs a clear delineation of what they needed to do to

achieve a lifting of all the old MFJ restrictions in the future--

certainly a step up, from the BOCs’ perspective, from being under

Judge Greene’s perpetual supervision. It is perhaps for this reason

that the BOCs have apparently consistently represented, outside of

litigation, that they were pleased with the Act. Indeed, in a

public news release, SBC’s Chairman lauded the Act as “landmark

legislation” that would allow SBC “immediately [to] provide longdistance service outside [its] . . . region and to [its] cellular

customers everywhere,” and that created “clear and reasonable

pathways” for SBC to obtain permission to provide in-region long

distance service in the future--“pathways that [SBC was] happy

with.” The other BOCs made similar comments, and they clearly were

effective in persuading Congress of their support for the Act. See

142 Cong. Rec. S393 (daily ed. Jan. 26, 1996) (remarks of Sen.

Pressler) (“We now have the regional Bell companies supporting the

bill and we have the long-distance companies supporting the bill.

That is an unusual, rare moment in American history when the
44

regional Bells and long-distance companies are temporarily at peace,

so to speak.”); id. at S696 (daily ed. Feb. 1, 1996) (statement of

Sen. Kerrey) (noting that the Act was “a very unusual piece of

legislation in that the demand for it [wa]s coming from . . . the

whole range of corporations; . . . RBOC’s, long-distance, cable,

broadcast; all of them”); id. at S699 (daily ed. Feb. 1, 1996)

(statement of Sen. Lott) (“The telephone companies are supporting

this legislation. The long-distance companies are supporting this

legislation--both of them would like to have a little more in their

sections, but basically they know this is good

legislation . . . .”). Be that as it may, it is at any rate clear

that a legislative quid pro quo on this level simply cannot be

punitive for attainder purposes.

For all of the foregoing reasons, we find that the Special

Provisions ultimately are nonpunitive as an historical, functional,

and motivational matter. They are therefore not an unconstitutional

and odious bill of attainder as that term has been defined by the

Supreme Court. To the extent that the district court concluded

otherwise, it was in error, and its decision on that point is

accordingly reversed.

B

As noted above, however, SBC and the other appellees also urge

three additional constitutional arguments as alternate bases for
45

affirming the judgment of the district court. Having found the

Special Provisions not to constitute a bill of attainder, we must

obviously consider these alternate theories. We do so only briefly,

however, as they are far less substantial.

1

The appellees first make two interrelated arguments that the

Special Provisions violate the constitutional requirement of

separation of powers--i.e., that the Special Provisions represent

an arrogation to the legislative branch of powers functionally

vested in the judicial branch by the very firmament of the

Constitution. See generally Plaut, 514 U.S. at 218-25 (noting,

among other things, that “[t]he Framers of our Constitution lived

among the ruins of a system of intermingled legislative and judicial

powers” and felt a “sense of a sharp necessity to separate the

legislative from the judicial” in designing their new system).

Despite their strong institutional pedigree, neither argument has

significant merit.

First, the appellees contend that the Special Provisions

violate separation of powers because they address themselves to a

particular judicial consent decree--the MFJ--in such a way as to

alter the result. They rely on the well accepted rule that it

violates separation-of-powers principles for Congress to reopen any

adjudication that represents the “final word of the judicial
46

department” on a case. See Plaut, 514 U.S. at 225-27. Yet under

Pennsylvania v. Wheeling and Belmont Bridge Co., 59 U.S. (18 How.)

421 (1855), it has long been clear that Congress may change the law

underlying ongoing equitable relief, even if, as in Wheeling itself,

the change is specifically targeted at and limited in applicability

to a particular injunction, and even if the change results in the

necessary lifting of that injunction. See id. at 429. The only

real question on this point would seem to be whether Wheeling

survives the Court’s more recent separation of powers jurisprudence,

as recently recited in Plaut. In that case, however, Justice Scalia

could hardly have been more clear that “nothing in our holding today

calls [Wheeling] into question.” Id., 514 U.S. at 232.

Obviously, Wheeling survives, as all of the circuit courts to

consider separation-of-powers challenges to the Prison Litigation

Reform Act of 1995 recently concluded. In those cases the courts

dealt with a statute, 18 U.S.C. § 3626(b)(2), that mandated the

termination of certain existing consent decrees if they were not

based upon a newly announced standard of factual findings. In

upholding this provision in the face of a separation-of-powers

attack, five courts expressly held that Congress could interfere

with ongoing consent decrees, because such decrees were not “final
29See Dougan v. Singletary, 129 F.3d 1424, 1426 (11th Cir.

1997) (per curiam) (“As the Court explained in Plaut v. Spendthrift

Farm, Inc., a true ‘final judgment’ here means not an appealable

judgment, but one that represents the ‘last word of the judicial

department with regard to a particular case or controversy.’

Consent decrees are final judgments, but not the ‘last word of the

judicial department.’”); Inmates of Suffolk County Jail v. Rouse,

129 F.3d 649, 657 (1st Cir. 1997) (Selya, J.) (“Plaut and Wheeling

Bridge, read together, teach that equity requires, and the

separation of powers principle permits, legislatures to direct that

courts respond to changes in substantive law by revisiting forwardlooking injunctions.”); Benjamin v. Jacobsen, 124 F.3d 162, 171 (2d

Cir. 1997) (Calabresi, J.) (“In distinguishing Wheeling Bridge, the

Plaut Court implicitly drew a similar distinction between two kinds

of final judgments for separation of powers purposes--final

judgments without prospective effects, which could not be

constitutionally revised through legislation, and final judgments

with prospective effects, whose effects could be constitutionally

so revised.”); Gavin v. Branstad, 122 F.3d 1081, 1087 (8th Cir.

1997) (Bowman, J.) (“Plaut does not hold that final judgments are

invariably immune to congressional tinkering; what Plaut protects

is ‘the last word of the judicial department with regard to a

particular case or controversy.’ In a continuing case, a consent

decree is not the last word of the courts in the case, even after

the decree itself has become final for purposes of appeal.”);

Plyler v. Moore, 100 F.3d 365, 371 (4th Cir. 1996) (Wilkins, J.)

(“[A]s made clear by the Court in Plaut, an attempt to alter

legislatively a legal judgment violates the separation-of-powers

doctrine. A judgment providing for injunctive relief, however,

remains subject to changes in the law. These principles apply

equally to consent decrees and litigated judgments.”) (citations to

Wheeling and other cases omitted).

47

judgments” for separation-of-powers purposes.29 Indeed, even the

one court to strike down § 3626(b)(2) was forced to concede that

“Wheeling established the principle that the state of the law at the

time a final judgment embodying a permanent injunction is entered

is not part of what is ‘final’ about the judgment.” Taylor v.

United States, 143 F.3d 1178, 1182 (9th Cir. 1998) (Ristani, J.).
48

Despite this great weight of authority, the appellees counter

that the congressional interference in this case is more suspect,

because it is so specific. Yet, as noted, the legislation in

Wheeling was rife with specificity: the change effected by Congress

was specifically directed at altering the legal status of a single,

named bridge in order to change the result of a particular

injunction. See id., 59 U.S. at 429. Specificity was also

manifestly evident in the more recent related case of Robertson v.

Seattle Audubon Society, 503 U.S. 429, 434-35, 437-40 (1992), where

Justice Thomas, writing for a unanimous Court, found no separationof-powers problem in a statute that changed the law with respect to

two pending lawsuits identified by name and caption number. In the

light of all these precedents, we simply cannot see a separation-ofpowers problem based on the Special Provisions’ interference with

the MFJ in this case.

That leaves the second line of attack, which, as we understand

it, is a not-too-well-defined argument that all of the problematic

aspects of the Special Provisions--including particularly their

specificity, their interference with the MFJ, and the near-punitive

nature of the liability they impose--when added together somehow

amount to a separation-of-powers violation that is greater than the

sum of its parts. Although this argument finds appealing rhetorical

support in the more sweeping statements of some of the Court’s older
49

cases, including particularly the admonition offered by Justice

Marshall in Fletcher and seconded by Chief Justice Warren in Brown

that “[i]t is the peculiar province of the legislature to describe

general rules for the government of society; the application of

those rules to individuals in society would seem to be the duty of

other departments,” see Brown, 381 U.S. at 446, it is squarely and

specifically contradicted by Plaut. In that case, Justice Breyer

raised a very similar argument in his one-vote concurrence. See

id., 514 U.S. at 241-46. Justice Scalia’s six-vote majority opinion

soundly rejected it, however, noting (in addition to the abovequoted statement from footnote nine) that:

The nub of th[e] infringement consists not of the

Legislature’s acting in a particularized and hence

according to the concurrence) nonlegislative fashion; but

rather of the Legislature’s nullifying prior,

authoritative judicial action. It makes no difference

whatever to that separation-of-powers violation that it

is in gross rather than particularized . . . or that it

is not accompanied by an “almost” violation of the Bill

of Attainder Clause, or an “almost” violation of any

other constitutional provision.

See id. at 239 & n.9. In the light of Plaut, there is thus no

viability to the “amorphous” theory either, and the appellees’

separation-of-powers challenge in this case must fail.

2

The appellees next argue that the Special Provisions violate

the Equal Protection Clause by discriminating against the BOCs by

name. Under City of New Orleans v. Dukes, 427 U.S. 297 (1976),
50

however, specification of named parties in economic regulation is

clearly permissible for equal protection purposes so long as the

regulation is rationally related to a legitimate governmental

interest and does not trammel fundamental personal rights or draw

upon inherently suspect distinctions such as race, religion, or

alienage. Id. at 304-06. As should be manifest from the entire

history of this area of the law, regulation of an LEC’s conduct in

the local telephone service market neither restricts fundamental

individual rights nor lacks rational relation to the government’s

legitimate interest in ensuring greater competition in all

telecommunications markets. Furthermore, the specification of the

BOCs in the Special Provisions at issue here was not based on

invidious criteria like race, religion, or alienage. As such, the

Special Provisions are not inconsistent with the Equal Protection

Clause.

3

Finally, the appellees urge that, even if the other Special

Provisions are allowed to stand, § 274 must go as it impermissibly

infringes the BOCs’ right to free speech. The D.C. Circuit recently

rejected an identical challenge to § 274 by another RBOC, however,

see BellSouth, 143 F.3d at 67-71, and we can find no reason to

disagree with its result and analysis. Because § 274 does not in

any way differentiate speech on the basis of content, its speech
51

restricting provisions are subject only to (at most) intermediate

scrutiny review under Turner Broadcasting System, Inc. v. FCC, 512

U.S. 622, 642 (1994) (Turner I). Under that standard, a restriction

will be upheld “if it advances important governmental interests

unrelated to the suppression of free speech and does not burden

substantially more speech than necessary to further those

interests.” Turner Broadcasting System, Inc. v. FCC, 117 S.Ct.

1174, 1186 (1997) (Turner II). Obviously, the competition-enhancing

interests discussed above are manifestly sufficient to meet the

first hurdle. Furthermore, because § 274 merely imposes a

structural separation requirement on speech activities, not an

absolute bar, its restrictions are practically de minimis in this

necessarily corporate context, and certainly do not burden

substantially more speech than necessary to accomplish its

legitimate goals. For these reasons, the contention that § 274

violates the BOCs’ right to free speech is entirely lacking in

merit.

V

In the end, the constitutional prohibition against bills of

attainder is a specific rather than a general guaranty of rights.

Cf. Lovett, 328 U.S. at 321 (Frankfurter, J., joined by Reed, J.,

concurring [in the judgment]). Nothing in the Court’s jurisprudence

should be read to allow that specific guaranty wholly to escape the
30We are unable to see this case in the single-minded terms

expressed in the dissenting opinion. We have faithfully, to the

best of our ability, recounted the sinuous journey of bills of

attainder from the earliest days to the present day. Like a

Christmas pie, these cases--as a whole and indeed individually--

provide a little something for every taste, and are rich with

selective quotes to support a chosen conclusion. In arriving at

our conclusions, we have tried to synthesize these diverse

expressions and applications of the bill of attainder clause in

order to apply it in this context of business regulation--its first

such application. What we think the dissenting opinion has not

observed in its straightforward stride is that attainder requires

an element of punishment. There are employment bars and there are

employment bars--some of the same character, others of a different

character. A non-perpetual legislative bar, which forbids only a

corporation’s participating in a particular segment of the general

business in which the corporation is engaged is not punishment when

52

implications of its historical origins, and since the age of

Blackstone and before, it has been clear that for a bill to attaint,

it simply must invoke the punitive. In this case, that has not

occurred. Although the Special Provisions may well constitute a

legislative judgment that the BOCs currently have an inherent and

natural potential to restrain competition by virtue of their local

market power, the Act does not declare them monsters or otherwise

seek to punish them on the basis of past conduct, and thus does not

run afoul of the Bill of Attainder Clause. Because the

Constitution’s additional requirements of separation of powers,

equal protection of the laws, and free speech are also not even

arguably infringed by the Act, the judgment of the district court

is accordingly

R E V E R S E D.30
that bar is enacted for nonpunitive appropriate legislative

purposes under conditions to which that business effectively has

agreed. Indeed, we are not sure the dissent is otherwise convinced

given its acknowledgment that there is no real “victim” of Congress

in this case.

53
54

JERRY E. SMITH, Circuit Judge, dissenting:

En route to minting a “regulatory exception” to the Bill of

Attainder Clause, the majority holds that punishment is not

punishment when it is inflicted with a “prophylactic” intent. The

majority reaches this cherished goal by stitching together a

patchwork of concurrences and dissents and by brushing aside binding

Supreme Court majority opinions as “aberrant” and “unsensible.”

I respectfully dissent.

I.

The Telecommunications Act of 1996 singles out twenty named

corporations for severe line-of-business restrictions characterized,

in the Act's telling language, as the “Special Provisions.” This

case hinges on whether these economic restrictions, which bar the

named firms from lucrative telecommunications markets, amount to

legislative “punishment” as historically understood.

A.

The Supreme Court has consistently held that bars to employment

constitute punishment for purposes of the Bill of Attainder Clause.

In one of the earliest bill of attainder cases, Cummings v.

Missouri, 71 U.S. (4 Wall.) 277, 320 (1866), the Court observed that
55

“[d]isqualification from the pursuits of a lawful avocation . . .

may also, and often has been, imposed as punishment.” The Court

struck down, as a bill of attainder, a provision in the Missouri

Constitution prohibiting Confederates or their sympathizers from

holding certain jobs. The Court recognized that “in the pursuit of

happiness all avocations, all honors, all positions, are alike open

to every one, and that in the protection of these rights all are

equal before the law. Any deprivation or suspension of any of these

rights for past conduct is punishment, and can be in no otherwise

defined.” Id. at 321-22 (emphasis added).

The law has not changed. In Ex parte Garland, 71 U.S.

(4 Wall.) 333 (1866), the Court applied Cummings's reasoning to

strike down, as a bill of attainder, a federal statute barring

Confederates from practicing in the federal courts. More recently,

in United States v. Lovett, 328 U.S. 303 (1946), the Court

reaffirmed the principle that line-of-work restrictions are

inherently punitive, invalidating a federal statute terminating the

salaries of three named federal employees. And in United States v.

Brown, 381 U.S. 437 (1965), the Court once again held that a statute

proscribing entry into a certain line of work constituted

punishment, striking down a federal statute that forbade members of

the Communist Party from serving as labor union officials.
56

Any doubt that employment bars fall squarely within the

historical conception of punishment was erased by the Court's two

most recent bill of attainder cases. In Nixon v. Administrator of

Gen. Servs., 433 U.S. 425, 474 (1977), the Court canvassed the

various burdens historically deemed punitive, concluding that “[o]ur

country's own experience with bills of attainder resulted in the

addition of another sanction to the list of impermissible

legislative punishments: a legislative enactment barring designated

individuals or groups from participation in specified employments

or vocations . . . .”

The Court's latest pronouncement, in Selective Serv. Sys. v.

Minnesota PIRG, 468 U.S. 841 (1984), echoes Nixon: “In our own

country, the list of punishments forbidden by the Bill of Attainder

Clause has expanded to include legislative bars to participation by

individuals or groups in specific employments or professions.”

468 U.S. at 852. Indeed, employment bars “have constituted the most

common sort of statutes struck down by the Court as unconstitutional

bills of attainder.” BellSouth Corp. v. FCC, 144 F.3d 58, 72-73

(D.C. Cir. 1998) (Sentelle, J., dissenting) (citing Selective

Service, 468 U.S. at 852).

The majority's ancillary argument that “the Special Provisions

are not punitive because they do not impose a perpetual bar” is

meritless. The majority quotes Selective Service, 468 U.S. at 853,
57

which states that “[a] statute that leaves open perpetually the

possibility of [qualifying for some specifically denied benefit]

does not fall within the historical meaning of forbidden legislative

punishment” (brackets added by majority). But in Brown, the Court

had already considered and rejected the majority's escapability

argument, explaining:

We do not read [two prior cases] to have set up inescapability as an absolute prerequisite to a finding of

attainder. Such an absolute rule would have flown in the

face of explicit precedent, Cummings v. Missouri, 4 Wall.

277, 324, as well as the historical background of the

constitutional prohibition. A number of anteConstitution bills of attainder inflicted their

deprivations upon named or described persons or groups,

but offered them the option of avoiding the deprivations,

e.g., by swearing allegiance to the existing government.

381 U.S. at 457 n.32. This illustrates that the Bill of Attainder

Clause cannot be avoided simply by inserting into the statute a

means of escape. The fact that the federal government holds the key

to the Baby Bells' prison is irrelevant.

B.

Faced with the unhappy reality of well over a century of

Supreme Court cases holding that employment bars constitute

punishment, the majority announces the discovery of a heretofore

unrecognized exception to the Bill of Attainder Clause: the

“prophylactic exception.” Apparently this creature awakens only in
58

cases such as thisSSwhen Congress punishes, but acts with a

beneficent, regulatory intent.

The method through which the majority traces the evolution of

the “prophylactic exception” reveals its suspect pedigree. The

exception's origin is said to lie in Justice Miller's dissent in

Garland, where he suggested that the employment bar at issue was not

punitive because Congress did not intend it as such. Rather,

Justice Miller argued, the statute should properly be viewed as a

prophylactic measure, because Congress merely sought to protect the

public from the future misdeeds of the attainted individuals. See

71 U.S. (4 Wall.) at 393-96 (Miller, J., dissenting).

This theory, rejected by the Garland majority, was purportedly

adopted some decades later in Dent v. West Virginia, 129 U.S. 114

(1889), and Hawker v. New York, 170 U.S. 189 (1898). Unlike most

of the authorities the majority relies on to support the

prophylactic exception, Dent and Hawker are majority opinions. But

they have little to say about this case: The statute at issue in

Dent did not single out individuals for punishment, but concerned

a state's generally applicable licensing requirements; similarly,

the burden in Hawker was imposed on a class rather than named

individuals. In any event, no subsequent case has interpreted Dent

and Hawker the way the majority does hereSSas authorizing
59

congressional punishment of individuals as long as the statute can

be said to prevent future harms.

The cornerstone of the majority's theory is Justice

Frankfurter's concurrence in Lovett, 328 U.S. at 318. Although

Justice Frankfurter distinguished between “harm [that is] inflicted

by government authority” and “punishment,” id. at 324 (Frankfurter,

J., concurring), the majority of the Court refused to embrace this

view. Cf. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 66

(1996) (holding that a minority opinion is “of questionable

precedential value, largely because a majority of the Court

expressly disagreed with the rationale of the plurality”). Rather

than adopt Justice Frankfurter's narrow reading of the Bill of

Attainder Clause, the Court majority held that the challenged law,

which terminated the salaries of three named federal employees,

“'operates as a legislative decree of perpetual exclusion' from a

chosen vocation” and therefore “clearly accomplishes the punishment

of named individuals without a judicial trial.” Lovett, 328 U.S.

at 316 (quoting Garland, 71 U.S. (4 Wall.) at 377). The majority

quite plainly equated employment bars with punishment.

Finally, Brown and Nixon foreclose any suggestion that the full

Court subsequently adopted Justice Frankfurter's minority view.

Brown, which the panel majority cryptically claims “did not purport

fully to abandon the prior development of the punitive element,”
60

concluded that the employment restriction at issueSSbarring members

of the Communist Party from holding certain jobsSSamounted to

punishment. The Court surveyed its bill of attainder jurisprudence

and, relying on Garland and Lovett, held that the statute “plainly

constitutes a bill of attainder” because “it designates in no

uncertain terms the persons who possess the feared characteristics

and therefore cannot hold union office . . . .” 381 U.S. at 449,

450.

Nixon is even more direct. There, the Court explained that

“legislative enactment[s] barring designated individuals or groups

from participation in specified employments or vocations” are

“impermissible” and “unquestionably have been held to fall within

the proscription of Art. I, § 9.” 433 U.S. at 473, 474. This stark

language leaves little room for the majority's “prophylactic

exception”: Impermissible is impermissible. Once a court

determines that Congress has imposed a burden historically deemed

punitive, such as the employment bar at issue here, that is the end

of the analysis. The majority protests that such a reading of Nixon

is “ritualistic and unsensible,” but it is difficult to squeeze a

prophylactic exception out of the Court's statement that “[a]

statutory enactment that imposes [an employment bar] on named or

identifiable individuals would be immediately constitutionally

suspect.” Id. at 473 (emphasis added).
61

Moreover, to the extent the Court considered congressional

purpose in passing the law, it did so only after it had determined

that the challenged burden did not fit the historical definition of

punishment; its consideration of legislative intent was a means of

ensuring that “new burdens and deprivations [are not] legislatively

fashioned that are inconsistent with the bill of attainder

guarantee.” Id. at 475. 

The Court began its analysis by asking whether the burdenSSthe

confiscation of presidential recordsSSfell into the category of

“immediately suspect” punishments, such as a bar to employment.

After concluding that President Nixon “cannot claim to have suffered

any of these forbidden deprivations at the hands of Congress,” the

Court remarked that “our inquiry is not ended by the determination

that the [statute] imposes no punishment traditionally judged to be

prohibited by the Bill of Attainder Clause.” Id. at 475. Only then

did the Court turn to legislative purposeSSan inquiry that would not

have been necessary if President Nixon had suffered one of the

“forbidden” deprivations.

The Selective Service Court clarified this point. It

explained:

Our inquiry does not end with a determination that

[the statute] does not inflict punishment in its

historical sense. To ensure that the Legislature has not

created an impermissible penalty not previously held to

be within the proscription against bills of attainder, we
62

must determine whether the challenged statute can be

reasonably said to further nonpunitive goals.

468 U.S. at 853-54 (citing Nixon, 433 U.S. at 475-76). 

The majority's reading of these cases is sadly ironic. In both

Nixon and Selective Service, the Court sought to expand the

protections of the Bill of Attainder Clause by looking to

legislative purpose. The Court's concern was congressional

creativity in dreaming up new burdens that fell outside the category

of burdens historically deemed punitive; by considering legislative

intent, the Court erected an additional safeguard to protect

individuals from new types of congressionally-devised punishment.

The majority's interpretation, by contrast, contracts the scope

of the clause. The majority looks to legislative intent not to

protect citizens from congressional overreaching, but as a means of

empowering Congress to pass punitive laws it could not otherwise

enactSSsimply by claiming an intent to “regulate” rather than

punish. Thanks to the prophylactic exception, Congress may now

single out individuals for punishments that were, until today,

routinely held unconstitutional.

C.

In deeming nonpunitive a burden that the Nixon Court

characterized as “unquestionably” punitive, 433 U.S. at 473, the
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majority reasons that punishment is not really punishment if it is

inflicted for preventive purposes. The majority concludes that

“[a]lthough the Special Provisions may well constitute a legislative

judgment that the BOCs currently have an inherent and natural

potential to restrain competition by virtue of their local market

power, the Act does not declare them monsters or otherwise seek to

punish them on the basis of past conduct, and thus does not run

afoul of the Bill of Attainder Clause.” The majority distinguishes

between retribution (the imposition of a burden for wrongful past

conduct) and prevention (the imposition of a burden to reduce the

likelihood of future harmsSShere, antitrust violations).

This distinction is flatly contradicted by Brown, which rejects

such a cramped view of punishment and undermines the majority's

novel interpretation of the clause. In holding that an employment

bar constituted punishment, even when imposed for prophylactic

purposes, the Court explained:

It would be archaic to limit the definition of

“punishment” to “retribution.” Punishment serves several

purposes: retributive, rehabilitative, deterrentSSand

preventive. 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.

Historical considerations by no means compel restriction

of the bill of attainder ban to instances of retribution.

A number of English bills of attainder were enacted for

preventive purposesSSthat is, the legislature made a

judgment, undoubtedly based largely on past acts and
64

associations . . . that a given person or group was

likely to cause trouble (usually, overthrow the

government) and therefore inflicted deprivations upon

that person or group in order to keep it from bringing

about the feared event.

381 U.S. at 458-59. 

Consider a statute that sentences to death a named individual

who announces that he has criminal tendenciesSSbut has yet to commit

a crime. Under the majority's theory, this law is not a bill of

attainder: It does not “seek to punish on the basis of past

conduct,” and it serves a legitimate prophylactic function. This

hypothetical illustrates the impossibility of confining the clause's

protections to retributive measures. As the Court explained, a

burden is rendered no less punitive by being based on future, rather

than past, wrongdoing.

In fact, the majority's concession that “the Act may well

constitute a legislative judgment that the BOCs currently have an

inherent and natural potential to restrain competition” falls

squarely within the Court's description of a bill of attainder:

when “the legislature [makes] a judgment . . . that a given person

or group [is] likely to cause trouble . . . and therefore [inflicts]

deprivations upon that person or group in order to keep it from

bringing about the feared event.” Id. at 458-59. Here, Congress

made a legislative judgment that the BOC's were likely to cause

troubleSSthey were likely to commit antitrust violationsSSand
65

inflicted deprivations (severe line-of-business restrictions) in

order to keep the Baby Bells from bringing about the feared event.

Accordingly, under a straightforward application of Brown, the

“prophylactic exception” is a chimera, and the Special Provisions

are a bill of attainder.

D.

In sum, the unbroken line of Supreme Court precedent compels

the conclusion that the Special Provisions, because they impose an

employment bar, constitute historical punishment forbidden by the

Bill of Attainder Clause. The Court has never held that Congress

can single out named individuals for burdens historically deemed

punitive simply because legislators are animated by a well-meaning,

regulatory spirit. Yet that is precisely what the majority holds

today, sidestepping the Nixon Court's statement, 433 U.S. at 473,

that this type of law is “immediately constitutionally suspect.”

II.

The Bill of Attainder Clause has long been regarded as

protecting unpopular individuals or groups from trial-bylegislature. As the Court explained in South Carolina v.

Katzenbach, 383 U.S. 301, 324 (1966), the clause protects those “who

are peculiarly vulnerable to nonjudicial determinations of guilt.”
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A quick survey of the caselaw confirms this view: The clause has

been invoked to rescue Confederates and Communists from

congressional wrath.

And that is what makes the Bill of Attainder analysis so

unusual in this context: The Baby Bells, represented by armies of

lawyers and lobbyists, hardly fit anyone's notion of a helpless

victim. Moreover, there is evidence in the record that the Baby

Bells, by their own account, prevailed in the legislative process.

While their apparent consent to the Special Provisions does not

estop them from challenging the restrictions in this court, it

certainly undercuts their claim to victimhood. As the majority

notes, the Special Provisions were part of a larger quid pro quo.

But the Bill of Attainder Clause serves a dual purpose: Not

only does it rescue individuals from trial-by-legislature, it also

preserves the separation of powers. The clause is a check on

Congress's power to legislate; it forbids Congress from passing

punitive laws that target individuals. Congress may, of course,

pass laws conferring benefits on individuals, see Plaut v.

Spendthrift Farm, Inc., 514 U.S. 211, 239 n.9 (1995), but when it

wishes to impose punishment, it must legislate in general terms and

allow the judicial branch to decide which individuals have violated

the laws and must be punished.
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The Court explained the clause's role in preserving the

separation of powers most thoroughly in BrownSSan opinion the panel

majority tars as “somewhat aberrant.” The Court began its

discussion by reviewing the history of the clause, describing it as

a barrier “to ensure that the legislature would not overstep the

bounds of its authority and perform the functions of the other

departments.” 381 U.S. at 444 (emphasis omitted). It then stated

precisely why the statute, which imposed an employment bar on

members of the Communist Party, violated the clause:

In [enacting the statute] Congress has exceeded the

authority granted it by the Constitution. The statute

does not set forth a generally applicable rule decreeing

that any person who commits certain acts or possesses

certain characteristics (acts and characteristics which,

in Congress' view, make them likely to initiate political

strikes) shall not hold union office, and leave to courts

and juries the job of deciding what persons have

committed the specified acts or possess the specified

characteristics. Instead, it designates in no uncertain

terms the persons who possess the feared characteristics

. . . .

Id. at 450.

The Court noted that Congress was free to pass laws weeding

subversives out of the labor movementSSonly it had to do so through

generally applicable legislation, otherwise it overstepped its

constitutional bounds. In language directly applicable to the

instant case, the Court explained that Congress “cannot specify the

people upon whom the sanction it prescribes is to be levied. Under
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our Constitution, Congress possesses full legislative authority, but

the task of adjudication must be left to other tribunals.” Id. at

461.

Brown stands for the idea that the Bill of Attainder Clause

protects not only individual liberty, but also the other branches

of government. The clause, in other words, helps ensure that

Congress does not encroach on the executive's or judiciary's turf.

As the Court concluded, id. at 442, “the Bill of Attainder Clause

was intended not as a narrow, technical (and therefore soon to be

outmoded) prohibition, but rather as an implementation of the

separation of powers, a general safeguard against legislative

exercise of the judicial function.”

This is hardly a novel, twentieth-century interpretation. In

one of the earliest bill-of-attainder cases, Fletcher v. Peck,

10 U.S. (6 Cranch) 87, 136 (1810), Chief Justice Marshall explained

that “[i]t is the peculiar province of the legislature, to prescribe

general rules for the government of society; the application of

those rules to individuals in society would seem to be the duty of

other departments.” In fact, this understanding predates even the

Marshall Court:

Writings contemporary with the drafting of the

Constitution express great concern lest the legislature

assume the power to implement the total policy of

government without the participation of the other

branches, and support the thesis that the bill of
69

attainder clause should be viewed as a limitation on

legislatures fully as broad, and as necessary to the

effective separation of powers, as that which has been

imposed upon courts by article III.

Note, The Bounds of Legislative Specification: A Suggested Approach

to the Bill of Attainder Clause, 72 YALE L.J. 330, 343 (1962) (cited

with approval in Brown, 381 U.S. at 457 n.32). In this sense, even

if the BOC's somehow “consented” to Congress's imposing the Special

Provisions, that consent is as irrelevant as is a litigant's

“consenting” to subject-matter jurisdiction. Congress simply lacks

the power to legislate in this way.

In enacting the Special Provisions, Congress adjudicated. It

not only specified the sanction but also identified the specific

corporations upon whom the sanction was to be leviedSSnot

coincidentally, the same corporations involved in the prior AT&T

litigation. The Bill of Attainder Clause says that when Congress

wishes to impose certain burdens historically deemed punitive, it

can do so only through laws of general applicability. The actual

application of these laws to specific parties must be left to the

other branches of government. Congress runs afoul of the Bill of

Attainder Clause when it enacts punitive legislation that targets

certain entitiesSSeven where, as here, the punishment comes cloaked

in the mantle of prophylactic economic regulation.
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III.

The majority today opens a loophole in the Bill of Attainder

Clause, allowing Congress to pass legislation that historically has

been held unconstitutional. In doing so, the majority redefines our

traditional understanding of the clause's mandate: Congress cannot

single out an individual and deprive him of his life, liberty, or

freedom to work. Because the Telecommunications Act's “Special

Provisions” amount to a bill of attainder, I respectfully dissent.