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Glen D. Nager's Statement at the Huawei Press Conference on May 29, 2019

May 30, 2019

Good Morning Everyone, I am Glen Nager, the lead counsel for the case, partner at Jones Day.

In March, Huawei filed a lawsuit in federal court in the Eastern District of Texas challenging the constitutionality of certain aspects of section 889 of the 2019 National Defense Authorization Act. Pursuant to an agreement with the government that this case presents pure questions of law that the court can decide by cross-motions, Huawei has moved for summary judgment on the ground that, under well-established Supreme Court and appellate case law, section 889 on its face violates the Bill of Attainder, Due Process, and Vesting Clauses of the United States Constitution.

As explained in the motion, the Constitution generally limits Congress to enacting laws and requires that application of those laws be left to the Executive and the courts. Congress may not selectively punish specific persons; Congress may not selectively deprive specific persons of property or liberty; and Congress may not itself exercise executive or judicial powers. But section 889 violates all of these constitutional rules.

As shown in the motion, section 889 is unconstitutional selective legislative punishment. It calls out Huawei by name. Moreover, as its sponsors admitted in legislative debate, section 889 seeks to drive Huawei out of the United States, i.e., to “banish” it from the country, a quintessential form of punishment. Furthermore, in contrast to laws that have been upheld by the courts, section 889 is not closely tailored to achieve a legitimate non-penal purpose—such as protecting national defense or government network security. Rather, by restricting purchases of Huawei equipment not only by federal agencies but also by government contractors and federal grant and loan recipients that have no connection to a defense function or a government information network, section 889 piles on burdens that are unnecessary to those purported purposes; and, by not restricting use of covered equipment in national defense functions or government information networks, and by not addressing any of the other manifest risks in the global supply chain for telecommunications equipment, section 889 is so underinclusive that it cannot be legally justified by reference to such non-penal purposes. Indeed, the legislative record shows that the restrictions in section 889 were enacted as a response to Huawei’s alleged past misdeeds and supposed association with the Chinese government—the most classic function of punishment and a quintessential violation of the Bill of Attainder Clause.

The motion also shows that, for similar reasons, section 889 violates due process and the separation of powers. Again, section 889 is selective legislation—singling out and targeting Huawei. Section 889 also deprives Huawei of protected property and liberty interests—without affording it constitutionally necessary due process. And, section 889 assumes the fact-finding and law application functions of the executive and the courts, contrary to the constitutional separation of powers. In other words, section 889 is the classic “trial by legislature” that the United States Constitution forbids.

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