Yep this was predictable, this happen because we have idiots in this country who think our laws and constitution apply to everyone in the world. We have individuals who do not live here trying to use our laws against us for their own benefit why shouldn't a foreign company try and do the same.
For those who think this will be dismiss immediately think again, this will play out.
Pretty sure SCOTUS has already ruled that non-resident, non-citizens have no standing to challenge the US government on Constitutional grounds. And Congress absolutely has the power to "regulate commerce with foreign nations" (see Article I), so even in the unlikely event SCOTUS decides to hear this (I don't think any lower court's ruling would be binding on Congress without the approval of SCOTUS; I could be wrong), I doubt it will actually go anywhere.
We shall see, however.
What case are you referring to in the first sentence? What you suggest may be the case in particular contexts, but it isn't broadly the case. A non-resident, non-citizen can have standing to challenge the actions of the U.S. government on constitutional bases. See, e.g., Boumediene v Bush. At any rate, it doesn't matter here as this complaint is being brought by Huawei Technologies USA, Inc.
Standing is about (1) injury, (2) traceability, and (3) redressability.
As for lower court rulings, they can be binding (as you are using that term here) on Congress. A federal district or circuit court can, e.g., find that a provision enacted by Congress is unconstitutional and enjoin its enforcement. That happens fairly often. Such decisions can, of course, be appealed. But if they aren't, or if appeals are unsuccessful, a lower court ruling stands and has effect.
Lastly, yes, Congress has the power to regulate commerce with foreign nations. That's among its enumerated powers. But, as is the case with other enumerated powers, it still can't use that power in a way that violates other provisions of the Constitution. Congress has the power to, e.g., punish the counterfeiting of U.S. coins, but it can't use that power in a way that violates, e.g., the Equal Protection Clause.
Congress can rightfully claim National Security in this case, to eliminate Huawei and ZTE from our telecom infrastructure. Bills have already been introduced in the Senate to that effect.
Interesting that there are legal mechanisms available in the West that Huawei will use to pursue its cause, whereas U.S. based companies would have little to none of those mechanisms available in China.
Exactly right. So long as there is some reasonable alternative justification for the prohibition (other than "because we are punishing this company") then the Bill of Attainder prohibition won't apply. It's not for the Courts to second guess why Congress sets the procurement rules it does--absent a smoking gun.
@Carnegie do you have examples of the cases where SCOTUS "muddled the waters" on this topic? These seems cut and dry based on the plain reading of the Constitution, but I haven't read any cases where SCOTUS addressed this, so perhaps you're right and they have messed this up already.
Edit: The Wikipedia article does a nice job discussing the five (5!) cases where SCOTUS decided that a law was an unconstitutional bill of attainder. The key question in this case is whether prohibiting government agencies from purchasing telecommunication equipment from these 2 organization is "punishment" or not. If it's punishment then that's a problem since there wasn't due process and it wasn't conducted by the judiciary. If it's not punishment, it's not a bill of attainder, so no problem.
The Court modified the punishment prong by holding that punishment could survive scrutiny if it was rationally related to other, nonpunitive goals.[49] Finally, the Court concluded that the legislation must not be intended to punish; legislation enacted for otherwise legitimate purposes could be saved so long as punishment was a side-effect rather than the main purpose of the law.[50]
I don't think the US will have any trouble whatsoever in asserting a nonpunative goal, namely reducing the risk of foreign actors compromising government communications. This hail Mary by Huawei will fail completely and quickly.
That Wikipedia article offers a pretty superficial discussion of those cases. But it points to the muddying of waters that I was referring to. The Supreme Court has focused on different issues when it comes to whether or not something is a bill of attainder - e.g., past conduct versus future conduct, ability to escape from the specified class, punishment versus prevention.
As I indicated previously, whether something is a punishment is indeed a key consideration. But what makes something a punishment? In U.S. v Brown (1965) the Supreme Court offered a pretty expansive understanding of that term, at least as it might be considered with regard to alleged bills of attainder. The Court described it as including actions with preventative purposes, not just those with retributive purposes. I'd point people to Section IV of that opinion, which starts (citations and footnotes omitted):
The Solicitor General argues that § 504 is not a bill of attainder, because the prohibition it imposes does not constitute "punishment." In support of this conclusion, he urges that the statute was enacted for preventive, rather than retributive reasons -- that its aim is not to punish Communists for what they have done in the past, but rather to keep them from positions where they will in the future be able to bring about undesirable events. He relies on American Communications Ass'n v. Douds, which upheld § 9(h) of the National Labor Relations Act, the predecessor of the statute presently before us. In Douds, the Court distinguished Cummings, Garland, and Lovett on the ground that, in those cases "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."
This case is not necessarily controlled by Douds. For, to prove its assertion that § 9(h) was preventive, rather than retributive, in purpose, the Court in Douds focused on the fact that members of the Communist Party could escape from the class of persons specified by Congress simply by resigning from the Party:
"Here, the intention is to forestall future dangerous acts; there is no one who may not by a voluntary alteration of the loyalties which impel him to action, become eligible to sign the affidavit. We cannot conclude that this section is a bill of attainder."
Section 504, unlike § 9(h), disqualifies from the holding of union office not only present members of the Communist Party, but also anyone who has, within the past five years, been a member of the Party. However, even if we make the assumption that the five-year provision was inserted not out of desire to visit retribution, but purely out of a belief that failure to include it would lead to pro forma resignations from the Party which would not decrease the threat of political strikes, it still clearly appears that § 504 inflicts "punishment" within the meaning of the Bill of Attainder Clause. It would be archaic to limit the definition of "punishment" to "retribution."
Punishment serves several purposes; retributive, rehabilitative, deterrent -- and 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 purposes -- that is, the legislature made a judgment, undoubtedly based largely on past acts and associations (as § 504 is), 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. It is also clear that many of the early American bills attainting the Tories were passed in order to impede their effectively resisting the Revolution.
"In the progress of the conflict, and particularly in its earliest periods, attainder and confiscation had been resorted to generally, throughout the continent, as a means of war. But it is a fact important to the history of the revolting colonies that the acts prescribing penalties usually offered to the persons against whom they were directed the option of avoiding them by acknowledging their allegiance to the existing governments."
"It was a preventive, not a vindictive, policy. In the same humane spirit, as the contest approached its close, and the necessity of these severities diminished, many of the states passed laws offering pardons to those who had been disfranchised, and restoring them to the enjoyment of their property. . . . "
So, even if the point of the exclusion is to prevent Huawei from doing harm in the future - rather than to punish it for what it's done in the past - that exclusion could be considered a bill of attainder under Brown. Brown and U.S. v Douds (1950) are arguably at odds (and therefore Douds is effectively overruled) on that point. But even under Douds the present action could be considered a bill of attainder because Douds focused on whether someone could remove themselves from the class specified (and excluded) by Congress. Huawei can't really remove itself from being Huawei, and in this case Congress didn't specify a group (e.g. members of the Communist party), it specified a number of entities, to include Huawei.
Again, I'm not suggesting that Huawei will or should win this case. But, based on existing case law which can be taken in different directions (i.e. different aspects of it can be chosen as a focal point), I wouldn't rule out that possibility.
It's one thing for a legislature to say... if an entity poses this risk (perhaps based on past behavior), then it is excluded from doing this. A judicial process can then decide whether the exclusion applies to a given entity. It's another thing for a legislature to say... we've decided, based on its past behavior, that this particular entity poses this risk, therefore we are excluding it from doing this. We come back to the past conduct versus future conduct distinction. There's considerable grey area here.
The legal stuff aside , Huawei stated that their primary goal in taking this to court was to have a fair hearing where their side of the story is heard. In congress it was simply a one sided "We think Huawei is dangerous because we think so" and Huawei was not provided a chance to issue a counter argument. ... Basiclly, it's a case that Huawei "can't lose" -- because, if the courts agree to hear the case, then they get to have their voices heard.
Comments
... Basiclly, it's a case that Huawei "can't lose" -- because, if the courts agree to hear the case, then they get to have their voices heard.