New Orleans        The United States Constitution is clear.  The government can’t punish individuals without judicial determination, or in America’s whacky world, corporations, since the courts have ruled that they are “individuals” for legal purposes.  I don’t want to dive down that hole with you this minute, though, but stay with me.

Article I, Section 9, Clause 3 prohibits “bills of attainder.”  Congress is forbidden to pass such laws.  Additionally, Article I, Section 10, Clause 1, does the same thing, but applies it to state governments saying that state legislatures cannot punish individuals without a trail.  In the same clause the constitution forbids the passage of ex post facto laws, which is to say laws that punish after the fact something that was done in the past that was legal then.  Congress and states can pass laws that forbid something from happening in the future and make that illegal, but they can’t say someone violated a law or regulation that had not been promulgated at the time.  Furthermore, nothing in government legislatively or through executive fiat can punish someone for something without going through the judicial process.  The courts get to decide guilt and innocence, not the President or Congress.

Are you with me still?  If you are, you can see why the Trump administration’s attack on individuals, law firms, universities and others is in fact unconstitutional and why injunctions against their activity are raining down on them from one federal judge to another.

In the case of Trump using the Justice Depart to go after law firms because they have represented people and parties opposed to his policies or personal actions, that’s a bill of attainder.  Same thing can be said about his trying to punish companies and universities for having maintained diversity, equity, and inclusion programs.  They could argue, and it is true, that under the Biden administration and in the wake of the George Floyd killing that DEI was in fact public policy and nationally encouraged.  Some even argue that Trump’s unilateral withdrawal of security clearances for former officials and others is also a bill of attainder.  This case was eloquently argued by James Hoffman, a professor and dean emeritus at Lewis & Clark Law School, in the op ed section of the Wall Street Journal.  This argument is also part and parcel of judicial rulings, so this is not just some scatterbrained notion that woke me up in the middle of the night.

This also falls somewhere between personal and professional for me as well.  The attack on ACORN by Congress, barring the organization from any federal funding was argued on the basis of it being a bill of attainder.  ACORN won in federal court, but lost on appeal.  Reading the constitution carefully, we may have lost because we really weren’t receiving federal money, nor was Congress trying to claw back money they claimed that we received.  They were trying to bar us from future funds.

That’s not the case with Columbia or Penn that had been awarded grants that are now being threatened and pulled back.  The actions against law firms blocking them from representing clients and even being on federal agency premises where they have been in the past, also seems open and shut.  In all of these cases the Executive branch will argue they are trying to punish these outfits in the future, but despite the fact that Congress is now on its knees before the President, it is still the case that the President and the Executive branch are not empowered to legislate. There is no such legislation being passed. They are not empowered to determine guilt or punishment, which is the exclusive jurisdiction of the courts.

All of this is no more than an illegal power grab.  It’s unconstitutional as well.  Even the Supreme Court’s conservative so-called originalists will have trouble defending this mess when it hits their docket.  The Trump administration is moving on a program that says, we’ll break the law until we’re stopped.  We all need to support the stopping.