Glen D. Nager’s Statement at the Huawei Press Conference on March 7, 2019
Good Morning Everyone, I am Glen Nager, the lead counsel of this action, partner at Jones Day.
The lawsuit that Huawei Technologies Co., Ltd., and its subsidiary, Huawei Technologies USA, Inc., have filed in the Eastern District of Texas challenges the constitutionality of aspects of Section 889 of the 2019 National Defense Authorization Act. Specifically, the lawsuit is based on three distinct—but highly related—aspects of the U.S. Constitution: the Bill of Attainder Clause, the Due Process Clause, and the separation of powers embodied in the Vesting Clauses.
The Bill of Attainder Clause prohibits legislation that is both selective and imposes punishment. The Complaint argues that Section 889 violates this constitutional proscription, because among other things it selectively bars only Huawei (and one other entity) from providing certain products to the Federal Government, its contractors, and federal loan and grant recipients.
The Due Process Clause requires “due process of law” before anyone is deprived of life, liberty, or property. Under this Clause, a legislative deprivation of liberty is thus constitutional only if it is imposed in accordance with generally applicable rules. Our Complaint argues that Section 889 violates this generality requirement by singling out Huawei (and one other entity) and precluding it from selling covered equipment; indeed, it argues that Section 889 stigmatizes Huawei by selectively insinuating that Huawei is subject to Chinese Government influence and is a security risk.
Finally, the Constitution’s Vesting Clauses separate the legislative, executive, and judicial powers of the United States and repose them in distinct branches of government. Under the Vesting Clauses, Congress has only the power to make rules, not the power to apply those rules to individuals. Instead, the power to apply rules to specific individuals belongs to the executive and the judiciary. The Complaint argues that Section 889 violates the Vesting Clauses and the separation of powers embodied in them by effectively adjudicating Huawei’s supposed connection to the Chinese government, instead of allowing the Executive and the courts to make that judgment—as the statute allows for other Chinese companies.
In signing the 2019 NDAA, the President of the United States objected that provisions of the NDAA raise significant separation of powers concerns and reflect congressional overreach.The lawsuit that we have filed raises similar objections about Section 889 and asks the courts to declare Section 889 unconstitutional and enjoin it insofar as it applies to Huawei. We look forward to pursuing these claims in the courts.