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Blog > What does the Bill of Attainder Clause say about newfangled punishments?

What does the Bill of Attainder Clause say about newfangled punishments?

October 27, 2016 I By WENCONG FA

Three years ago, California businesses faced crippling liability in the wake of court decisions interpreting the state’s minimum wage laws. This year, the state legislature enacted Assembly Bill 1513, which allows businesses to avoid statutory liability if they promptly paid back wages in accordance with those decisions. Yet, to secure the support of a powerful union, the legislature crafted carve-outs to prevent two businesses — Fowler Packing and Gerawan Farming — from taking advantage of this law.

The carve-outs violate the Bill of Attainder Clause, which prohibits legislatures from singling out individuals for punishment. Today Pacific Legal Foundation filed this friend-of-the-court brief, which asks the Ninth Circuit to restore the Constitution’s robust protection against bills of attainder.

The legislature attempts to evade the prohibition on bills of attainder by arguing that the carve-outs do not impose traditional forms of punishment, such as death or banishment. Yet the Bill of Attainder Clause prevents the legislature from imposing any form of punishment on specified individuals, regardless of whether such punishment is conventional or innovative.

For example, the Supreme Court has invalidated legislation that prohibited certain government employees from receiving federal funds. The Court recognized that although such legislation did not impose a death sentence, it stigmatized those affected by deeming them unworthy to receive the same funds that flow to their peers. AB 1513’s carve-outs operate in a similar manner. By denying Fowler and Gerawan the relief afforded to every other business in California, the legislature has branded Fowler and Gerawan with a badge of infamy. Accordingly, the Ninth Circuit should take a hint from the Supreme Court, and use the Bill of Attainder Clause to invalidate the carve-outs in AB 1513.

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