On the “Original” 13th Amendment and Bills of Attainder

TommyPaine asks: .

Q1. What is your take on the original 13^th Amendment?

A1. A while back someone asked about it, and I wrote a reply you will find @ https://douglassbartley.wordpress.com/2012/04/03/the-mystery-of-the-two-13th-amendments/

Q2. Is the National Defense Authorization Act, in regard to the part where the President can declare someone guilty of a crime, an unconstitutional Bill of Attainder.

A2. Do you have a citation to the pertinent section?

From the Technical Law Journal.[1]

1. “No State shall * * * pass any Bill of Attainder . . . .“[2]

2. A bill of attainder is a “legislative act that singles out an individual or group for punishment without a trial.”

3. “The Bill of Attainder Clause was intended . . .  as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function or more simply—trial by legislature.”  U.S. v. Brown[3]

4. Justice Rehnquist: A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial.  Such actions were regarded as odious by the framers of the Constitution because it was the traditional role of a court, judging an individual case, to impose punishment.”[4]

As a bill of attainder is a legislative act, the president can not be guilty of issuing one. However, if he has purported to do so, the bill would among other things, be ultra vires and the offense would be one of violating the doctrine of the separation of powers and worse even, that of assuming a power that congress doesn’t even have. As executive, he has no legislative powers whatever; and if he tries to legislate, he should be removed from office for that reason alone.

Please write back with more information.

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[1] http://www.techlawjournal.com/glossary/legal/attainder.htm

[2] U.S. Const., Article 10,  as applicable to states. Virtually identical in verbiage is Article 9 which applies as against the federal government. “No Bill of Attainder . . .  shall be passed.”

[3] 381 U.S. 437, 440 (1965). http://supreme.justia.com/cases/federal/us/381/437/

[4] William H. Rehnquist, The Supreme Court, p. 166.