The TikTok Divestiture Law: Absence of Bill of Attainder Concerns

The D.C. Circuit Court of Appeals unanimously upheld the legality of a law restricting TikTok’s operations in the United States, rejecting TikTok’s claim that the law violated the Bill of Attainder Clause of the Constitution. The court meticulously analyzed the law through the lens of established legal tests, concluding that it did not constitute a “punishment” as understood in the context of the Bill of Attainder Clause. This clause prohibits the legislature from singling out individuals or groups for punishment without a judicial trial.

TikTok’s primary argument centered on the assertion that the law, by specifically targeting the company, effectively confiscated its property and barred it from conducting business, actions historically considered bills of attainder. The court countered this argument by highlighting the distinction between confiscation and divestiture. The law, the court explained, mandates a sale of TikTok’s U.S. assets, not a seizure, offering the company the option to divest and subsequently re-enter the market. This crucial difference, the court argued, removes the law from the realm of historical punishments associated with bills of attainder. Furthermore, the court distinguished between individuals and corporations, noting that while the Bill of Attainder Clause might extend to corporations, the impact on corporations must be assessed differently than its effect on individuals.

The court’s analysis further delved into three established tests used to differentiate between permissible burdens and impermissible punishments: the historical test, the functional test, and the motivational test. The historical test examines whether the challenged statute aligns with the historical understanding of legislative punishment. The court determined that the Act’s divestiture requirement, offering a path for TikTok to return to the market, did not fall within the historical definition of a bill of attainder. It likened the situation to a line-of-business restriction, which doesn’t typically qualify as legislative punishment, particularly because TikTok could overcome the restriction by divesting and then returning to the U.S. market.

The functional test assesses whether the statute’s burdens are so disproportionate to its nonpunitive legislative purposes that they belie any legitimate aims. The court found the Act’s burden on TikTok to be proportionate, especially given its conclusion that the Act passed heightened scrutiny under the First Amendment. The law’s aim, the court determined, was to safeguard national security by mitigating the risks posed by data collection and potential manipulation of information, a legitimate nonpunitive objective. The mandated divestiture, rather than being a punishment, was viewed as a preventative measure against a security risk.

The final test, the motivational test, probes the legislative intent behind the Act, seeking to determine if punishment was the primary motivation. The court dismissed this argument due to the inherent difficulty in establishing congressional intent and the lack of “unmistakable evidence” of punitive intent, a high bar that TikTok failed to meet. The court found that the legislative record lacked any indication of a punitive intent against TikTok.

Thus, the court concluded that the law targeting TikTok neither historically qualified as a bill of attainder, nor functionally acted as a disproportionate burden relative to its nonpunitive national security goals. Moreover, there was no evidence of a punitive motive behind the legislation. The court’s decision hinges on the distinction between forced divestiture as a security measure and outright confiscation as punishment, as well as the law’s forward-looking protective nature rather than a backward-looking punitive one. The court’s emphasis on the availability of the divestiture exemption further reinforces its conclusion that the Act does not constitute a bill of attainder.

The court’s decision underscores the complexity of balancing national security concerns with individual or corporate rights. While acknowledging the significant burden placed on TikTok, the court ultimately prioritized the government’s interest in mitigating perceived national security risks. The decision further reinforces the high standard required to prove a violation of the Bill of Attainder Clause, especially in the context of corporate entities, demanding clear evidence of punitive intent and disproportionate burdens unrelated to legitimate legislative goals. The court’s thorough analysis of historical precedent, statutory function, and legislative intent provides a robust framework for future evaluations of laws challenged under the Bill of Attainder Clause.