SBC Communications v. FCC ( 1998 )

  •                      Revised September 23, 1998
                            FOR THE FIFTH CIRCUIT
                                 No. 98-10140
                                       Intervenor Plaintiffs-Appellees,
                                   Defendants - Appellees - Appellants,
                        Intervenor Defendants - Appellees - Appellants,
          Appeals from the United States District Court for the
                        Northern District of Texas
                             September 4, 1998
    Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.
    E. GRADY JOLLY, Circuit Judge:
           This appeal challenges the constitutionality of a significant
    part of the Telecommunications Act of 1996.                 The FCC, the United
    States, and numerous interested intervenors appeal the district
    court’s      determination    that   §§       271-75   of   the   Act,    47   U.S.C.
    §§ 271-75, are an unconstitutional bill of attainder.                    Finding the
    provisions at issue to be nonpunitive in character, we hold that
    they are not, in fact, a bill of attainder as that term has been
    defined by the Supreme Court.             Because we further hold that the
    provisions are also consistent with the constitutional requirements
    of separation of powers, equal protection, and free speech, we
    reverse the judgment of the district court.
           As every antitrust law student learns these days, in 1974 the
    Department of Justice brought a massive, precedent-setting Sherman
    Act1 suit against AT&T.         See United States v. AT&T, 
    461 F. Supp. 1314
           (D.D.C.   1978).   For    many      years   before     the    suit,   most
            15 U.S.C. § 1 et seq.
    telecommunications equipment and telephone service in the United
    States--both local and “long distance”--had been provided by AT&T
    and its corporate affiliates, collectively known as the Bell
    System.     See United States v. AT&T, 
    552 F. Supp. 131
    , 222 (D.D.C.
    1982).     Although certain isolated aspects of the Bell System had
    become the subject of intermittent antitrust actions, consent
    decrees, and federal legislative intervention dating back to 1949,
    see generally United States v. AT&T, 552 F.Supp. at 135-38, no
    broad-based attack on the system itself had ever been launched.                    In
    1974, however, the government changed all that.                 It alleged, among
    other things, that the way AT&T used its various state-granted
    local service monopolies to also monopolize the markets in long
    distance     service       and   telecommunications           equipment      was   in
    contravention of § 2 of the Sherman Act.                     See United States v.
    AT&T, 461 F.Supp. at 1317-18.                    AT&T ultimately conceded this
    assessment,      for,   after    some    initial        procedural    wrangling,   it
    eventually settled with the government in what became known as the
    AT&T Consent Decree or Modified Final Judgment (“MFJ”). See United
    States v. AT&T, 552 F.Supp. at 222-234, aff’d sub nom. Maryland v.
    United States, 
    460 U.S. 1001
     (1983).                     Under the MFJ, AT&T was
    required    to    divest    itself      of       its   twenty-two    local   exchange
    subsidiaries, which became known as the Bell Operating Companies or
    “BOCs.”   552 F.Supp. at 223.2   The BOCs were then grouped into
          As District Judge Greene explained the divestiture:
              The key to the Bell System’s power to impede
         competition has been its control of local telephone
         service. The local telephone network functions as the
         gateway to individual telephone subscribers. It must be
         used by long-distance carriers seeking to connect one
         caller to another.       Customers will only purchase
         equipment which can readily be connected to the local
         network through the telephone outlets in their homes and
         offices.    The enormous cost of the wires, cables,
         switches, and other transmission facilities which
         comprise that network has completely insulated it from
         competition. Thus, access to AT&T’s local network is
         crucial if long distance carriers and equipment
         manufacturers are to be viable competitors.
              AT&T has allegedly used its control of this local
         monopoly to disadvantage these competitors in two
         principal ways.    First, it has attempted to prevent
         competing long distance carriers and competing equipment
         manufacturers from gaining access to the local network,
         or to delay that access, thus placing them in an inferior
         position vis-a-vis AT&T’s own services. Second, it has
         supposedly used profits earned from the monopoly local
         telephone operations to subsidize its long distance and
         equipment businesses in which it was competing with
              For a great many years, the Federal Communications
         Commission has struggled, largely without success, to
         stop practices of this type through the regulatory tools
         at its command.    A lawsuit the Department of Justice
         brought in 1949 to curb similar practices ended in an
         ineffectual consent decree. Some other remedy is plainly
         required; hence the divestiture of the local Operating
         Companies from the Bell System. This divestiture will
         sever the relationship between this local monopoly and
         the other, competitive segments of AT&T, and it will thus
         ensure--certainly better than could any other type of
         relief--that the practices which allegedly have lain
         heavy on the telecommunications industry will not recur.
    552 F.Supp. at 223.
    seven “regional Operating Companies” or “RBOCs.”     552 F.Supp. at
    142 n.41.    In addition, because the BOCs were allowed to retain
    their state-regulated local service monopolies under the terms of
    the MFJ, they became subject to various restrictions on their own
    lines of business.     In particular, the BOCs were barred from
    competing in the markets for long distance,3 telecommunications
    equipment,    and   information   services   (including   electronic
    publishing and alarm monitoring).      552 F.Supp. at 224.4     The
          By “long distance,” we refer to what is technically known as
    “interLATA” service. In implementing the MFJ, the district court
    established numerous local access and transport areas or “LATAs”
    within which the BOCs were permitted to operate and provide
    telephone service.    See United States v. West. Elec. Co., 
    569 F. Supp. 990
    , 993-94 (D.D.C. 1983). The way the long distance line-
    of-business restriction played out, each BOC was allowed to
    transmit telecommunications information only between points within
    a single LATA, providing what is, basically, the traditional local
    telephone service, even though every BOC encompassed several LATA’s
    as a geographical matter.     When a person in one LATA called a
    person in another, the BOC serving the caller’s LATA was required
    to transmit the call to an interexchange carrier, such as AT&T or
    MCI, which then carried the call on its own network across the LATA
    boundaries, whereupon it was picked up by the BOC (possibly the
    same one) that served the called party’s LATA. See United States
    v. West. Elec. Co., 
    969 F.2d 1231
    , 1233 (D.C. Cir. 1992). This is
    “long distance” service. Local, or “intraLATA” service, on the
    other hand, is the making of calls entirely within a single LATA,
    even though such calls are sometimes subject to per-minute tolls.
          Again, as Judge Greene explained:
              After the divestiture, the Operating Companies will
         possess a monopoly over local telephone service.
         According to the Department of Justice, the Operating
         Companies must be barred from entering all competitive
         markets to ensure that they will not misuse their
         monopoly power. The Court will not impose restrictions
    restriction on information services was subsequently lifted, see
    United States v. West. Elec. Co., 
    767 F. Supp. 308
     (D.D.C. 1991),
    993 F.2d 1572
     (D.C. Cir. 1993), but the BOCs then became
    subject to detailed FCC regulations governing the provision of
    information and other “enhanced” services.         See generally In re
    Computer III Further Remand Provisions: Bell Operating Company
    Provision of Enhanced Services, 10 F.C.C.R. 8360 (1995).
         As the very existence of the numerous and ponderous post-1982
    decisions of the D.C. courts should make clear, however, the MFJ was
    far from a final resolution of the nation’s telecommunications
    dilemma.    Its   enforcement   and   alteration    in   the   light   of
    technological progress and changing market circumstances ultimately
    required substantial monitoring on the part of the district court,
    and the extensive judicial tinkering that resulted prompted many
         simply for the sake of theoretical consistency.
         Restrictions must be based on an assessment of the
         realistic circumstances of the relevant markets,
         including the Operating Companies’ ability to engage in
         anticompetitive behavior, their potential contribution to
         the market as an added competitor for AT&T, as well as
         upon the effects of the restrictions on the rates for
         local telephone service. This standard requires that the
         Operating Companies be prohibited from providing long
         distance services and information services, and from
         manufacturing equipment used in the telecommunications
         industry. Participation in these fields carries with it
         a substantial risk that the Operating Companies will use
         the same anticompetitive techniques used by AT&T in order
         to thwart the growth of their own competitors.
    552 F.Supp. at 224.
    pundits     to   dub    District     Judge      Greene     the   country’s
    “telecommunication’s czar.”5      Unsurprisingly, Congress soon became
    skeptical   of   this   unusual    title   of   judicial   nobility,6   and
    ultimately spent many long and contentious years in drafting a
    system of comprehensive telecommunications regulation to replace and
    supplement the MFJ.     See SBC Communications, Inc. v. FCC, 
    138 F.3d 5
          See Fred H. Cate, The National Information Infrastructure:
    Policymaking and Policymakers, 6 Stan. L. & Pol’y Rev. 43, 50
    (1994) (noting that, although “Judge Greene rendered his decision
    approving the Modified Final Judgment in 1982,” he “retained
    jurisdiction under the consent decree to control the operations of
    both AT&T and the [RBOCs]” and “the breadth of that decree and the
    substantial discretion given judges to interpret antitrust laws,
    ‘probably makes him the single most powerful decisionmaker in U.S.
    communications policy today,’” a veritable “‘telecom czar’”)
    (quoting Mark S. Nadel, U.S. Communications Policymaking: Who &
    Where, 13 Hastings Comm. & Ent. L. J. 273, 289 (1991) and Telcom
    Showdown: Battle Lines Harden as Baby Bells Fight to Kill
    Restrictions, Wall St. J., July 22, 1994, at A1, respectively); see
    also Michael Schrage, Is There a Shade of Greene In the Microsoft
    Decision?, Wash. Post, Feb. 17, 1995, at B3 (“Judge Greene has been
    alternately praised and excoriated as a ‘telecommunications czar’
    whose impact on telecommunications is still more forceful than that
    of AT&T Chairman Robert Allen or Tele-Communications Inc. boss John
    Malone.”); Editorial, Review & Outlook: State of the Presidency,
    Wall St. J., Feb. 2, 1990, at A14 (“Judge Greene made himself
    Telecommunications Czar as part of the AT&T breakup; maybe he’d now
    like to take over running Lebanon.”); Paula Dwyer, The Baby Bells:
    Ready, Get Set, Diversify, 2962 Bus. Wk. 29 (1986) (noting that a
    1986 D.C. Circuit ruling was “the latest blow to Judge Greene, who,
    as czar of the breakup of AT&T, is the ‘dominant influence on the
    industry,’ according to William L. Weiss, chairman and chief
    executive of Ameritech,” and remarking, presciently, that “Greene’s
    clout and influence are already under attack on Capitol Hill, where
    lawmakers are pushing legislation to return supervision of the Baby
    Bells to the FCC”).
          Cf. U.S. Const., Art. I, sec 9, cl.8.
    410, 412-13 (D.C. Cir. 1998).                     On February 8, 1996, President
    Clinton    executed     these        legislative       labors    into   law   as   the
    Telecommunications Act of 1996 (the “Act”).
         As has been widely recognized, the core function of the Act is
    to “‘provide for a pro-competitive, deregulatory national policy
    framework . . . by opening all telecommunications markets to
    competition.’”     SBC Communications, 138 F.3d at 413 (quoting H.R.
    Conf. Rep. No. 104-458, at 1 (1996), reprinted in 1996 U.S.C.C.A.N.
    at 124).     To effectuate this goal, the Act prohibits states and
    localities     from     sanctioning           local     service      monopolies     or
    “‘prohibiting the ability of any entity to provide . . . intrastate
    telecommunications service.’”                Id. (quoting 47 U.S.C. § 253(a)).
    It also places numerous and onerous duties and restrictions on all
    local telephone service providers (“Local Exchange Carriers,” or
    “LECs”)7   that   are    designed        to       prevent    a   recurrence   of   the
    uncompetitive use of local service market power that occurred under
    the Bell System.      See id.; 47 U.S.C. §§ 251-52.
         In addition to these generally applicable local competition
    provisions, however, the Act also contains a number of provisions
    directed     specifically       at     the    BOCs.         First,   the   uncodified
    § 601(a)(1) provides that the restrictions imposed by the MFJ are
          Of which there are now many hundreds of independent examples
    (e.g., GTE Corp., Sprint Communications Company, Southern New
    England Telephone Company, etc.) in addition to the BOCs.
    lifted and replaced by the restrictions of the Act. See Pub. L. No.
    104-104, § 601(a)(1), 110 Stat. 143 (1996); cf. United States v.
    West. Elec. Co., 
    1996 WL 255904
     (D.D.C. Apr. 11, 1996) (terminating
    the MFJ in accordance with § 601(a)(1)).       Second, §§ 271-76,
    entitled “Special Provisions Concerning Bell Operating Companies,”
    impose renewed line-of-business restrictions on the activities of
    the twenty remaining BOCs; § 153(4) of the Act makes quite clear
    that the additional restrictions are only applicable to these twenty
    specific, named corporations.   See 47 U.S.C. §§ 153(4) & 271-76.
    It is these latter “Special Provisions” that are at the heart of
    this case, and they must accordingly be examined in some detail.8
         Inconvenient to that purpose, the Special Provisions       are
    drafted in that rather soulless bureaucratese that is an all too
    familiar sight on the American legal landscape.   We have attempted
    to pierce the statutory fog, however, and would summarize the
    Special Provisions’ effect essentially as follows.
         First, under § 271, each BOC must obtain prior authorization
    from the FCC before providing non-incidental long distance service
    to customers within the states in which the BOC was allowed to
    provide local service prior to the enactment of the Act (“in-region
    long distance service”).   47 U.S.C. § 271(a) & (b).   The FCC is to
          With the exception of § 276, relating to payphone service,
    which has not been challenged.
    grant   authorization    only   after        a   number    of    complex     criteria
    evidencing free competition in the particular local service market
    have been established.        47 U.S.C. § 271(d)(3); see generally SBC
    Communications, 138 F.3d at 413-14.              Even then, however, the BOC in
    question may initially only provide long distance service through
    a separate affiliate.     47 U.S.C. §§ 271(d)(3)(B) & 272(f)(1).                  The
    BOCs are permitted to provide incidental long distance service and
    long distance service to customers located outside of their regions
    of former monopoly (“out-of-region long distance service”) without
    significant     limitation    or    prior        authorization.         47     U.S.C.
    § 271(b)(2) & (3).
         Second, under § 273, the BOCs may not manufacture or provide
    telecommunications equipment until they have met the requirements
    for non-incidental, in-region long distance service in § 271(d),
    and, once again, even then only through a separate affiliate for an
    interim period.    47 U.S.C. §§ 272(f)(1) & 273(a).
         Finally,    under   §§   274   &   275,       the    BOCs   may   not   provide
    electronic publishing or alarm monitoring services until February 8,
    2001, unless they do so by way of a separate affiliate or joint
    venture and, in the case of alarm monitoring, only if they were
    engaged in the business prior to November 30, 1995.                    47 U.S.C. §§
    274(a), 274(g)(2), & 275(a).
         Essentially, the Special Provisions recreate most of the
    original    line-of-business     prohibitions       of   the   MFJ,    with    some
    tweaking.     In the case of information services, the recreation
    represents a reimposition of restrictions that had already been
    lifted under the regime of the MFJ.             In the case of in-region long
    distance service and telecommunications equipment, however, the Act
    simply changes the administrator and specifies the rules by which
    Judge Greene’s long-running restrictions can be lifted.
         On April 11, 1997, plaintiff SBC Communications, which is of
    course one of the RBOCs,9 applied to the FCC pursuant to § 271 to
    have the long distance line-of-business restriction lifted for its
    local service area of Oklahoma.             The FCC determined that the
    statutory criteria had not been met, and therefore denied the
    application on June 26, 1997.       SBC appealed that ruling to the D.C.
    Circuit,    where   it   was   affirmed    on    March   20,   1998.     See   SBC
    Communications, 138 F.3d at 410.
         Without waiting for the outcome of that appeal, however, on
    July 2, 1997, SBC and its subsidiaries filed suit against the United
          SBC is currently parent to BOCs Southwestern Bell, Pacific
    Bell, and Nevada Bell, and will become parent to Illinois Bell,
    Indiana Bell, Wisconsin Bell, Michigan Bell, and Ohio Bell upon
    completion of its planned merger with Ameritech, another RBOC.
    Southwestern Bell provides local service to customers in Texas,
    Missouri, Oklahoma, Arkansas, and Kansas.    Pacific Bell serves
    States and the FCC in the Federal District Court for the Northern
    District of Texas, alleging that all of the Special Provisions were
    facially unconstitutional under the Bill of Attainder and Equal
    Protection Clauses, and that § 274 violated the Free Speech Clause
    as     well.      Several   long        distance   companies,    including     MCI
    Telecommunications Corp., Sprint Communications Company, and AT&T,
    the BOCs’ erstwhile parent, intervened on the government’s side in
    the dispute, and two other RBOCs, US West Communications and Bell
    Atlantic Corp., intervened on SBC’s. Bell Atlantic added a slightly
    more    nuanced    separation      of    powers    challenge    to   SBC’s   other
    constitutional complaints.
           On December 31, 1997, ruling on cross-motions for summary
    judgment, District Judge Kendall held that the Special Provisions
    constituted an unconstitutional bill of attainder and that they were
    severable from the rest of the Act.                He therefore granted SBC’s
    motion and declared the challenged sections void.               From this final
    judgment the United States, the FCC, and the defendant-intervenors
    timely appeal.
           This court reviews the constitutionality of a federal statute
    de novo.       United States v. Bailey, 
    115 F.3d 1222
    , 1225 (5th Cir.
         On appeal, SBC and the other appellees urge all of the
    arguments offered below as potential bases for affirming some or all
    of the decision of the district court.                   We consider each contention
    in turn, beginning with SBC’s primary and most substantial complaint
    that the Special Provisions constitute a bill of attainder.
         Article I, sec. 9, cl. 3 of the United States Constitution
    provides that “[n]o Bill of Attainder or ex post facto law shall be
    passed [by Congress].”10           As the Supreme Court has often clarified,
    “[i]n        forbidding    bills     of    attainder,        the    draftsmen      of     the
    Constitution       sought     to    prohibit       the    ancient    practice      of     the
    Parliament in England of punishing without trial ‘specifically
    designated       persons    or     groups.’”        Selective       Service      System    v.
    Minnesota Public Interest Research Group, 
    468 U.S. 841
    , 847 (1984)
    (quoting       United     States    v.    Brown,    
    381 U.S. 437
    ,   447    (1965)).
    Consistent with this characterization, the Court has generally
    defined a bill of attainder as “‘a law that legislatively determines
    guilt and inflicts punishment upon an identified individual without
    provision of the protections of a judicial trial.’”                        Id. (quoting
    Nixon v. Administrator of General Services, 
    433 U.S. 425
    , 468
          Art. I, sec. 10, cl.                  1     contains    a    parallel      provision
    applicable to the states.
    (1977)). Where, as here, the liability in question clearly attaches
    by operation of the legislative act alone, the constitutional test
    may be summarized in the following two-pronged test: First, has the
    legislature     acted   with    specificity?      Second,   has   it   imposed
         In this case, SBC argues that the Special Provisions constitute
    a   bill   of    attainder      because    they   impose    line-of-business
    restrictions on named corporations.            As SBC portrays the Special
    Provisions, they represent Congress’s unconstitutional legislative
    determination that the BOCs are the guilty spawn of AT&T, who
    deserve to be deprived of their current ability to enter the long
    distance, information services, and telecommunications equipment
    markets as punishment for the immutable past antitrust violations
    of their former parent.        The district court essentially agreed with
    this analysis.
         Notwithstanding beguiling arguments that support the district
    court’s holding, at bottom, we simply cannot find a constitutional
    violation in this case.        Even assuming that the Bill of Attainder
    Clause applies to corporations,11 and even assuming that the Special
          Which does seem likely. Although the Court has yet to reach
    the question directly, it has suggested as much in dictum. See
    Plaut v. Spendthrift Farm, Inc., 
    514 U.S. 211
    , 239 n.9 (1995)
    (indicating that the Clause applies to laws that punish “a single
    individual or firm”) (emphasis added). Furthermore, it has been
    established that a number of very similar constitutional rights do
    apply in the corporate setting. See, e.g., Virginia Pharmacy Bd.
    Provisions are sufficient to meet the specificity prong of the
    test,12 there simply cannot be a bill of attainder unless it is also
    v. Virginia Citizens Consumer Council, Inc., 
    425 U.S. 748
    (freedom of speech); United States v. Martin Linen Supply Co., 
    430 U.S. 564
     (1977) (double jeopardy); Penn Central Transportation Co.
    v. New York City, 
    438 U.S. 104
     (1978) (takings); Marshall v.
    Barlow’s, Inc., 
    436 U.S. 307
     (1978) (searches and seizures);
    Helicopteros Nacionales de Colombia v. Hall, 
    466 U.S. 408
    (due process); Metropolitan Life Ins. Co. v. Ward, 
    470 U.S. 869
    (1985) (equal protection).
          Again, probably a safe assumption in this case, as the
    Special Provisions identify the burdened parties by name. In the
    entirety of the Supreme Court’s attainder jurisprudence, the only
    case to suggest that a statute naming individuals might not satisfy
    the specificity prong of the test was the very unusual Nixon.
    There, the Court indicated that a law requiring Richard M. Nixon by
    name to turn over his presidential papers to the Administrator of
    General Services might not be specific enough to constitute a bill
    of attainder, because, as the only former president whose papers
    were not protected in a presidential library, Nixon represented a
    “legitimate class of one” for purposes of such legislation. Id.,
    433 U.S. at 472. That unusual case seems inapposite to the one at
    hand, particularly in the light of the fact that the rest of the
    Court’s attainder jurisprudence, both subsequent and prior, has
    consistently applied a broad interpretation of specificity. See,
    e.g., Selected Service, 468 U.S. at 847 (noting that “‘[t]he
    singling out of an individual for legislatively imposed punishment
    constitutes an attainder whether the individual is called by name
    or described in terms of conduct which, because it is past conduct,
    operates only as a designation of particular persons’”) (quoting
    Communist Party v. Subversive Activities Control Board, 
    367 U.S. 1
    86 (1961)); United States v. Brown, 
    381 U.S. 437
     (1965) (finding
    law applicable to past members of the Communist Party specific
    enough to constitute an attainder); Cummings v. Missouri, 71 U.S.
    (4 Wall.) 277 (1866) (noting that, although “bills [of attainder]
    are generally directed against individuals by name,” they “may also
    be directed against a whole class,” as “[t]he bill against the Earl
    of Kildare and others, passed in the reign of Henry VIII,” which
    “enacted that ‘all such persons which be or heretofore have been
    comforters, abettors, partakers, confederates, or adherents unto
    the said’ late earl, and certain other parties, who were named, ‘in
    his or their false and traitorous acts and purposes, shall in
    the case that the Special Provisions impose punishment on the BOCs.
    As Justice Scalia recently reiterated in Plaut v. Spendthrift Farm,
    514 U.S. 211
         The premise that there is something wrong with
         particularized legislation is of course questionable.
         While legislatures usually act through laws of general
         applicability, that is by no means their only legitimate
         mode of action.    Private bills in Congress are still
         common, and were even more so in the days before
         establishment of the Claims Court. Even laws that impose
         a duty or liability upon a single individual or firm are
         not on that account invalid--or else we would not have
         the extensive jurisprudence that we do concerning the
         Bill of Attainder Clause, including cases which say that
         it requires not merely “singling out” but also
         punishment, and a case which says that Congress may
         legislate “a legitimate class of one.”
    Id. at 239 n.9 (citing United States v. Lovett, 
    328 U.S. 303
    , 315-18
    (1946), and Nixon, 433 U.S. at 472, for the two final propositions);
    see also Selective Service, 468 U.S. at 851 (stating expressly that
    “[e]ven if the specificity element were deemed satisfied,” the
    provision at issue “would not necessarily implicate the Bill of
    Attainder Clause,” because “[t]he proscription against bills of
    attainder reaches only statutes that inflict punishment on the
    specified   individual   or   group”).13   Because   punishment   is   a
    likewise stand, and be attainted, adjudged, and convicted of high
    treason’”) (quoting 28 Hen. VIII, c. 3 (1536)).
          See also BellSouth Corp. v. FCC, 
    144 F.3d 58
    , 63-64 (D.C.
    Cir. 1998) (finding punishment a necessary condition of a bill of
    attainder, regardless of specificity, in rejecting an attack on
    § 274 of the Special Provisions at issue in this case); Dehainaut
    v. Peña, 
    32 F.3d 1066
    , 1071 (7th Cir. 1994) (same with regard to a
    necessary element of an unconstitutional bill of attainder, and
    because we can find in the Special Provisions no punishment--as that
    term must be defined in the context of this case--our resolution of
    that question is dispositive of the attainder claim.
          As an initial matter, however, we must acknowledge that just
    what constitutes “punishment” for purposes of the Bill of Attainder
    Clause is a question of some historical and doctrinal complexity.
    In   particular,   the   distinction    between   the   punitive   and   the
    prophylactically regulatory, which is of course at the root of this
    case, is admittedly a fine one.
          Under the common law, there were no such nuances: the very
    concept of “attainder” was clearly limited to criminal cases of a
    capital nature.    As Blackstone described it:
          When sentence of death, the most terrible and highest
          judgment in the laws of England, is pronounced, the
          immediate inseparable consequence by the common law is
          attainder. For when it is now clear beyond all dispute,
          that the criminal is no longer fit to live upon the
          earth, but is to be exterminated as a monster and a bane
          to human society, the law sets a note of infamy upon him,
          puts him out of it’s [sic] protection, and takes no
    provision imposing a perpetual employment bar on the air traffic
    controllers fired by President Reagan); Fresno Rifle and Pistol
    Club, Inc. v. Van de Kamp, 
    965 F.2d 723
    , 727 (9th Cir. 1992) (same
    with regard to a law affecting certain named firearms (and thus
    their manufacturers)); but see BellSouth, 144 F.3d at 72 (Sentelle,
    J., dissenting) (noting that, although “mere specificity may not
    make an act a bill of attainder,” in “most cases the Court has
    required little more”).
          farther care of him than barely to see him executed. He
          is then called attaint, attinctus, stained, or blackened.
          He is no longer of any credit or reputation; he cannot be
          a witness in any court; neither is he capable of
          performing the functions of another man: for, by an
          anticipation of his punishment, he is already dead in
          law.    . . .      The consequences of attainder are
          forfeiture, and corruption of blood.
    4 William Blackstone, Commentaries *373-74 (citing 3 Inst. 213).14
    Tough stuff.       Nevertheless, and consistent with this definition,
    common law bills of attainder were “such special acts of the
    legislature,       as   inflict[ed]   capital   punishments     upon    persons
    supposed to be guilty of high offences, such as treason and felony,
    without      any   conviction   in    the   ordinary   course   of     judicial
    proceedings.”15     3 Joseph Story, Commentaries on the Constitution of
               As Blackstone further clarified:
          [W]hen judgment is once pronounced, both law and fact
          conspire to prove [the attainted person] completely
          guilty; and there is not the remotest possibility left of
          any thing to be said in his favour.        Upon judgment
          therefore of death, and not before, the attainder of a
          criminal commences: or upon such circumstances as are
          equivalent to judgment of death; as judgment of outlawry
          on a capital crime, pronounced for absconding or fleeing
          from justice, which tacitly confesses the guilt. And
          therefore either upon judgment of outlawry, or of death,
          for treason or felony, a man shall be said to be
               For example, the 1685 attainder of James, Duke of Monmouth:
          WHEREAS James duke of Monmouth has in an hostile manner
          invaded this kingdom and is now in open rebellion,
          levying war against the king, contrary to the duty of
    the United States § 1338 at 209 (Boston 1833).    A similar act that
    inflicted “a milder degree of punishment than death” was termed a
    “bill of pains and penalties.”   Id. at 209-10.
         Although some of the Supreme Court’s earliest opinions appeared
    to recognize that attainder was technically confined to capital
    cases,16 its subsequent jurisprudence has uniformly supported a
    broader sweep for the constitutional prohibition.        See, e.g.,
    Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 138 (1810) (Marshall, J.)
    (“A bill of attainder may affect the life of an individual, or may
    confiscate his property, or may do both.”); Cummings, 71 U.S. at 323
    (“Within the meaning of the Constitution, bills of attainder include
         allegiance; Be by and with the advice and consent of the
         lords spiritual and temporal, and commons in this
         parliament assembled, and by the authority of same, That
         the said James duke of Monmouth stand and be convicted
         and attainted of high treason, and that he suffer pains
         of death, and incur all forfeitures as a traitor
         convicted and attainted of high treason.
    1 Jac. II, c. 2 (1685), quoted in Nixon, 433 U.S. at 473 n.35.
          See, e.g., Calder v. Bull, 3 U.S. (3 Dall.) 386, 389 (1798)
    (noting that “the Parliament of Great Britain claimed and exercised
    a power to pass [ex post facto] laws, under the denomination of
    bills of attainder, or bills of pains and penalties; the first
    inflicting capital, and the other less, punishment”); Marbury v.
    Madison, 5 U.S. (1 Cranch) 137, 179 (1803) (Marshall, J.) (“The
    constitution declares that ‘no bill of attainder or ex post facto
    law shall be passed.’ If, however, such a bill should be passed
    and a person should be prosecuted under it, must the court condemn
    to death those victims whom the constitution endeavours to
    bills of pains and penalties.”); Lovett, 328 U.S. at 314 (“‘A bill
    of attainder is a legislative act which inflicts punishment without
    a judicial trial.’”) (quoting Cummings, 71 U.S. at 323); Brown, 381
    U.S. at 447 (noting that “the Bill of Attainder Clause [i]s not to
    be given a narrow historical reading (which would exclude bills of
    pains and penalties), but [i]s instead to be read in light of the
    evil the Framers . . . sought to bar: legislative punishment, of any
    form or severity, of specifically designated persons or groups”);
    cf. 3 Story, Commentaries § 1338 at 210 (“But in the sense of the
    constitution, it seems, that bills of attainder include bills of
    pains and penalties.”) (citing Fletcher).17 Apart from making clear
          Although our information is somewhat limited, see Note,
    Beyond Process: A Substantive Rationale for the Bill of Attainder
    70 Va. L
    . Rev. 475, 477 (1984) (stating that “[t]here is no
    record of any debate about including a ban on the bills in the
    Constitution,” and that the provision “is scarcely mentioned by
    contemporary commentators”), this broad construction of the
    Clause’s reach would appear to be consistent with the contemporary
    views of the Framers. In addressing Congress shortly after the
    Whiskey Rebellion of 1794, President Washington opined that
    “certain self-created societies” had been responsible for
    encouraging the insurrection. 4 Annals of Cong. 788 (1794). As it
    turned out, certain members of Congress were none too fond of these
    “Democratic Societies” or “Jacobin Clubs” either, and when the
    House considered its ceremonial reply to the President’s speech,
    Rep. Fitzsimons of Pennsylvania moved to insert a paragraph
    expressing “reprobation” of the societies. 4 Annals of Cong. 899.
    As Professor Currie has described it, “the friends of France
    exploded in wrath” at the suggestion.      See generally David P.
    Currie, The Constitution in Congress: The Federalist Period 1789-
    1801 190-91 (Chicago 1997). More to the present point, however,
    James Madison was of the specific opinion that including the
    paragraph would constitute a bill of attainder, because
    “denunciation” was punishment for purposes of that provision of the
    that the Clause reaches punishment of a lesser severity than the
    death penalty, however, these general statements provide little
    assistance to our present inquiry.
         More guidance is found by considering the details of the
    Court’s development of the punishment prong.                           In Cummings v.
    Missouri, 71 U.S. (4 Wall.) 277 (1866), and its companion case, Ex
    Parte        Garland,    71   U.S.    (4    Wall.)    333   (1866),     Justice   Field
    considered whether laws requiring that persons swear an oath under
    penalty of perjury disclaiming any past sympathy for the Confederacy
    before engaging in certain professions18 constituted punishment for
    attainder purposes.           Noting that “[t]he deprivation of any rights,
    civil or political, previously enjoyed, may be punishment, the
    circumstances           attending     and    the     causes     of    the   deprivation
    determining this fact,” 71 U.S. at 320, and that “[d]isqualification
    from the pursuits of a lawful avocation . . . may also[ be], and
    often has been, imposed as punishment” under the English law, id.
    (citing 4 Blackstone, Commentaries at *44), he held that the oath
    requirements acted to exclude the burdened individuals from lawful
    employment       on     the   basis   of    past     conduct,   and    were   therefore
    Constitution.           4 Annals of Cong. 934.
          Ministry   under   a  provision   of   Missouri’s   post-war
    constitution in Cummings, and the practice of law in federal court
    under a congressional enactment in Garland.
    punishment for attainder purposes.      See Cummings, 71 U.S. at 325;
    Garland, 71 U.S. at 380.
         Although Cummings and Garland might be viewed as establishing
    that any exclusion from a profession on the basis of past conduct
    is punishment for attainder purposes,19 a closer examination reveals
    a more subtle analysis.    In both cases, a four-vote dissent written
    by Justice Miller was premised on the belief that the laws in
    question were enacted not to punish the burdened individuals but
    instead as a prophylactic measure to protect the public from their
    probable future bad acts.     See Garland, 71 U.S. at 393-96 (Miller,
    J., joined by Chase, CJ., and Swayne & Davis, JJ., dissenting)
    (arguing that, in the light of recent historic events, the oath
    requirement was merely a legitimate “qualification, exacted in self-
    defence, of all who took part in administering the government . . .
    and . . . was not passed for the purpose of inflicting punishment,
    however merited, for past offences”).     Although obviously taking a
    different view of the ultimate outcome, Justice Field appeared to
              See, e.g., Cummings, 71 U.S. at 321-22:
         The theory upon which our political institutions rest is,
         that all men have certain inalienable rights--that among
         these are life, liberty and the pursuit of happiness; and
         that in the pursuit of happiness all avocations, all
         honors, all positions, are alike open to every one, and
         that in the protection of these rights all are equal
         before the law. Any deprivation or suspension of any of
         these rights for past conduct is punishment, and can be
         in no otherwise defined.
    agree with Justice Miller’s core proposition that a properly crafted
    prophylactic measure could survive attainder analysis, even where
    the finding of a propensity for future conduct was based solely on
    past acts, and the result was a bar from future employment.                       See
    Cummings, 71 U.S. at 319-20 (noting that “[i]t is evident from the
    nature of the pursuits and professions of the parties . . . that
    many   of     the   acts,   from    the   taint   of    which    they   must    purge
    themselves, have no possible relation to their fitness for those
    pursuits and professions” and that the oath requirement, therefore,
    “was exacted, not from any notion that the several acts designated
    indicated unfitness for the callings, but because it was thought
    that the several acts deserved punishment”); Garland, 71 U.S. at 379
    (“The legislature may undoubtedly prescribe qualifications for the
    office, to which [the burdened individual] must conform, as it may,
    where it has exclusive jurisdiction, prescribe qualifications for
    the pursuit of any of the ordinary avocations of life.                            The
    question, in the case, is not as to the power of Congress to
    prescribe qualifications, but whether that power has been exercised
    as a means for the infliction of punishment, against the prohibition
    of the Constitution.”).
           This    relevance    of     applicational       context   and    the    proper
    existence of a “prophylactic” exception to the Bill of Attainder
    Clause20 was developed further in Dent v. West Virginia, 
    129 U.S. 114
     (1889), and Hawker v. New York, 
    170 U.S. 189
     (1898).    First, in
    Dent, Justice Field made a major interpretation of his own majority
    opinions in Cummings and Garland in the context of a bill of
    attainder challenge to a state law requiring certain educational
    qualifications in order to practice medicine.    He held:
         The cases of Cummings v. State of Missouri, 
    4 Wall. 277
         and of Ex parte Garland, id. 333, upon which much
         reliance is placed, do not, in our judgment, support the
         contention of the plaintiff in error. . . . They only
         determine that one who is in the enjoyment of a right to
         preach and teach the Christian religion as a priest of a
         regular church, and one who has been admitted to practice
         the profession of the law, cannot be deprived of the
         right to continue in the exercise of their respective
         professions by the exaction from them of an oath as to
         their past conduct, respecting matters which have no
         connection with such professions. Between this doctrine
         and that for which the plaintiff in error contends there
         is no analogy or resemblance.       The constitution of
         Missouri and the act of Congress in question in those
         cases were designed to deprive parties of their right to
         continue in their professions for past acts, or past
         expressions of desires and sympathies, many of which had
         no bearing upon their fitness to continue in their
         professions. The law of West Virginia was intended to
         secure such skill and learning in the profession of
         medicine that the community might trust with confidence
         those receiving a license under authority of the state.
    129 U.S. at 125-28 (emphasis added).   In Hawker, the Court took the
    Dent analysis one step farther and upheld a state ban on medical
          The dissent erroneously credits us instead of Justices Miller
    and Field with the “discovery” of this exception. We have only
    supplied its moniker.
    practice by convicted felons as also not constituting punishment for
    purposes of the Bill of Attainder or Ex Post Facto Clauses. Relying
    expressly on the above quoted language in Dent, the Court held that
    the law was not unconstitutional because it did not “seek[] to
    further punish a criminal, but only to protect . . . citizens from
    physicians of bad character.”         Id. at 196.
         Further development of the prophylactic exception emerged under
    Justice Frankfurter’s tutelage.            In United States v. Lovett, 
    328 U.S. 303
     (1946), the Court examined a federal law that cut off
    salary payments to certain named federal employees, allegedly due
    to their “subversive” activities. Finding that the law “‘operate[d]
    as a legislative decree of perpetual exclusion’ from a chosen
    vocation,” and thus “accomplishe[d] punishment of named individuals
    without    judicial   trial,”      Justice     Black   struck    it    down   as   an
    unconstitutional bill of attainder.                328 U.S. at 316 (quoting
    Cummings    and   Garland).        Justice     Frankfurter      took   a   slightly
    different view, however.           Taking his cue from Hawker and the
    historical    foundations     of    the   Clause    in   the    English    law,    he
    reiterated that “punishment is a prerequisite” for a bill of
    attainder, and that:
         Punishment presupposes an offense, not necessarily an act
         previously declared criminal, but an act for which
         retribution is exacted. The fact that harm is inflicted
         by governmental authority does not make it punishment.
         Figuratively speaking all discomfiting action may be
         deemed punishment because it deprives of what otherwise
         would be enjoyed. But there may be reasons other than
         punitive for such deprivation. A man may be forbidden to
         practice medicine because he has been convicted of a
         felony, or because he is no longer qualified.        “The
         deprivation of any rights, civil or political, previously
         enjoyed, may be punishment, the circumstances attending
         and the causes of deprivation determining this fact.”
    328 U.S. at 324 (Frankfurter, J., joined by Reed, J., concurring [in
    the judgment]) (citing Hawker and Dent, and quoting Cummings, 71
    U.S. at 320, respectively) (emphasis added).    Because he found no
    indication in the text of the statute or the circumstances of its
    passage that Congress intended it as a punitive measure, Justice
    Frankfurter concluded that it was not a bill of attainder.   Id. at
         Following Lovett, Justice Frankfurter’s views on the Bill of
    Attainder Clause commanded a majority for a number of cases in which
    the Court rejected every attainder challenge that it considered.
    See American Communications Ass’n v. Douds, 
    339 U.S. 382
    , 413-14
    (1950) (Vinson, CJ.) (rejecting attainder challenge to federal law
    conditioning recognition of a labor organization on the filing of
    affidavits by its officers that they did not belong to the Communist
    Party and did not believe in overthrow of the government by force);
          The dissent dismisses our reference to Justice Frankfurter’s
    concurrence in Lovett because it did not reflect the majority view
    in that case. Such a back-of-the-hand to the alleged “cornerstone
    of the majority’s theory” (see Dissent, p. __) ignores the
    influence of the Frankfurtian view in many subsequent cases cited
    Garner v. Board of Pub. Works, 
    341 U.S. 716
    , 722-23 (1951) (Clark,
    J.) (same as to municipal ordinance requiring employees to take oath
    that they had not advocated, or belonged to organization advocating,
    overthrow of government by force and violence in the preceding five
    years); DeVeau v. Braisted, 
    363 U.S. 144
    , 160 (1960) (Frankfurter,
    J.) (same as to state law prohibiting felons from soliciting or
    receiving dues on behalf of any waterfront union); Flemming v.
    363 U.S. 603
    , 617 (1960) (Harlan, J.) (same as to federal
    law providing for the termination of Social Security benefits of
    aliens who were deported on certain grounds); Communist Party v.
    Subversive Activities Control Board, 
    367 U.S. 1
    , 86-88 (1961)
    (Frankfurter, J.) (same as to federal law imposing registration and
    other burdens on “Communist-action” organizations).      Although some
    of these decisions were premised in part on a strict historical
    reading22 of the Clause23 as requiring that a bill specify the
              Since expressly abandoned.    See Brown, 381 U.S. at 447.
          Based on Justice Frankfurter’s general model of bifurcated
    constitutional adjudication:
         Broadly speaking two types of constitutional claims come
         before this Court.    Most constitutional issues derive
         from the broad standards of fairness written into the
         Constitution (e.g. “due process,” “equal protection of
         the laws,” “just compensation”), and the division of
         power as between States and Nation. Such questions, by
         their very nature, allow a relatively wide play for
         individual legal judgment. The other class gives no such
         scope. For this second class of constitutional issues
         derives   from   very   specific   provisions   of   the
    offense and clearly declare the guilt of the burdened individual or
    class        to   be   unconstitutional,24      they   also   maintained     the
    prophylactic exception developed in Hawker and Dent.                See, e.g.,
    Douds, 339 U.S. at 413-14 (finding Lovett, Garland, and Cummings
    distinguishable because “in the previous decisions 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,” and noting that, even though “the history of the [burdened
            Constitution.    These had their source in definite
            grievances and led the Fathers to proscribe against
            recurrence of their experience.         These specific
            grievances and the safeguards against their recurrence
            were not defined by the Constitution. They were defined
            by history. Their meaning was so settled by history that
            definition was superfluous. Judicial enforcement of the
            Constitution must respect these historic limits.     The
            prohibition of bills of attainder falls of course among
            these very specific constitutional provisions.
    Lovett, 328 U.S. at 321 (Frankfurter, J., joined by Reed, J.,
    concurring [in the judgment]).
          See Lovett, 328 U.S. at 321-23 (Frankfurter, J., joined by
    Reed, J., concurring [in the judgment]) (“The distinguishing
    characteristic of a bill of attainder is the substitution of
    legislative determination of guilt and legislative imposition of
    punishment for judicial finding and sentence. . . . All bills of
    attainder specify the offense for which the attainted person was
    deemed guilty and for which the punishment was imposed. There was
    always a declaration of guilt either of the individual or the class
    to which he belonged. The offense might be a pre-existing crime or
    an act made punishable ex post facto.”).
    individuals’] past conduct was the foundation for the judgment as
    to what the future conduct is likely to be,” that fact “does not
    alter the conclusion that [the statute] is intended to prevent
    future action rather than to punish past action”); DeVeau, 363 U.S.
    at 160 (finding that the state “sought not to punish ex-felons, but
    to devise what was felt to be a much-needed scheme of regulation of
    the waterfront, and for the effectuation of that scheme it became
    important whether individuals had previously been convicted of a
    felony”); Flemming, 363 U.S. at 617 (noting, with respect to the
    statute before the Court, that “it cannot be said, as was said of
    the statute in Cummings, that [the disability imposed] bears no
    rational connection to the purposes of the legislation of which it
    is a part, and must without more therefore be taken as evidencing
    a Congressional desire to punish”) (citing Cummings, 71 U.S. at 319,
    and Dent, 129 U.S. at 126).
         After this Frankfurtian phase, however, the Court appeared to
    pointedly reassess the essential nature of the Clause, and the scope
    of the punishment requirement.   In United States v. Brown, 
    381 U.S. 437
     (1965), after surveying the above described cases, Chief Justice
    Warren viewed the Bill of Attainder Clause as expressive of some of
    the most fundamental ideals of separation of powers, in addition to
    its more specific prohibition:
         [T]he Bill of Attainder Clause not only was intended as
         one   implementation  of   the  general   principle  of
         fractionalized power, but also reflected the Framers’
         belief that the Legislative Branch is not so well suited
         as politically independent judges and juries to the task
         of ruling upon the blameworthiness of, and levying
         appropriate punishment upon, specific persons.     “Every
         one must concede that a legislative body, from its
         numbers and organization, and from the very intimate
         dependence of its members upon the people, which renders
         them liable to be peculiarly susceptible to popular
         clamor, is not properly constituted to try with coolness,
         caution, and impartiality a criminal charge, especially
         in those cases in which the popular feeling is strongly
         excited,--the very class of cases most likely to be
         prosecuted by this mode.” By banning bills of attainder,
         the Framers of the Constitution sought to guard against
         such dangers by limiting legislatures to the task of
         rulemaking.    “It is the peculiar province of the
         legislature to describe general rules for the government
         of society; the application of those rules to individuals
         in society would seem to be the duty of other
    381 U.S. at 445-46 (quoting 1 Cooley, Constitutional Limitations
    536-37    (8th   ed.   1927),   and        Fletcher,   10   U.S.   at   136,
    respectively).25   Acting on this broad view of the Clause’s role in
          See also Landgraf v. USI Film Prod., 
    511 U.S. 244
    , 267 n.20
    (1994) (quoting Richmond v. J.A. Croson Co., 
    488 U.S. 469
    , 513-14
    (1989) (Stevens, J., concurring in part and concurring in the
         Legislatures are primarily policymaking bodies that
         promulgate rules to govern future conduct.            The
         constitutional prohibitions against the enactment of ex
         post facto laws and bills of attainder reflect a valid
         concern about the use of the political process to punish
         or characterize past conduct of private citizens. It is
         the judicial system, rather than the legislative process,
         that is best equipped to identify past wrongdoers and to
         fashion remedies that will create the conditions that
         presumably would have existed had no wrong been
    the constitutional structure, Chief Justice Warren held that the law
    in question--making it a crime for a past or current member of the
    Communist Party to hold certain union positions with a potential to
    disrupt   interstate   commerce--was   an   unconstitutional   bill   of
         The statute does not set forth a generally applicable
         rule decreeing that any person who . . . possesses
         certain characteristics . . . shall not hold union
         office, and leave to courts and juries the job of
         determining what persons . . . possess the specified
         characteristics. Instead, it designates in no uncertain
         terms the persons who possess the feared characteristics
         and therefore cannot hold union office without incurring
         criminal liability--members of the Communist Party.
    Id. at 450.
         The broad holding in Brown was not without its caveats,
    however, and to these we must turn in order to assess the precise
    role of punishment in the case.        In distinguishing § 32 of the
    Banking Act of 1933--providing that the officers, directors, and
    and The Federalist No. 44, at 301 (James Madison) (J. Cooke ed.
         Bills of attainder, ex post facto laws, and laws
         impairing the obligation of contracts are contrary to the
         first principles of the social compact, and to every
         principle of sound legislation. . . . The sober people
         of America are weary of the fluctuating policy which has
         directed the public councils. They have seen with regret
         and with indignation, that sudden changes and legislative
         interferences in cases affecting personal rights, become
         jobs in the hands of enterprizing and influential
         spectators; and snares to the more industrious and less
         informed part of the community.
    employees of certain securities firms could not serve as officers,
    directors, or employees of member banks in the Federal Reserve
    System--from the statute at issue, the Court noted that:
         [The union law], unlike § 32 of the Banking Act, inflicts
         its deprivation upon the members of a political group
         thought to present a threat to national security. As we
         noted above, such groups were the targets of the
         overwhelming majority of English and early American bills
         of attainder.    Second, § 32 incorporates no judgment
         censuring or condemning any man or group of men.       In
         enacting it, Congress relied upon its general knowledge
         of human psychology, and concluded that the concurrent
         holding of the two designated positions would present a
         temptation to any man--not just certain men or members of
         a certain political party.       Thus insofar as § 32
         incorporates a condemnation, it condemns all men. . . .
         In designating bank officers . . . Congress merely
         expressed the [general] characteristics it was trying to
         reach in an alternative, shorthand way.
    Id. at 453-54.
         Thus, although Brown began with a fairly broad construction of
    the Clause, and thereby supplied SBC with a large portion of its
    argument in the instant case, it did not purport fully to abandon
    the prior development of the punitive element.       As the above
    discussion makes clear, one of the key reasons that the Court found
    § 32 distinguishable was that it did not incorporate a “judgment
    censuring or condemning any man or group of men.”     Further, the
    Court explicitly left open the possibility of accomplishing non-
    punitive, prophylactic economic legislation by way of “shorthand”
          This latter theme was picked up one last time in Nixon v.
    Administrator of General Services, 
    433 U.S. 425
     (1977), where the
    Court   summarized   and   rationalized    its   extensive     attainder
    jurisprudence and developed the most comprehensive analysis of the
    punishment prong that has been offered to date.       In that case, the
    Court upheld a law that, as noted, directed Richard M. Nixon by name
    to turn over his presidential papers to the Administrator of General
    Services.   After discussing why Nixon “constituted a legitimate
    class of one,” see supra, note 12, the Court went on to explain
    that, even if the specificity element were deemed to be satisfied,
    it would still have to inquire whether Congress “‘inflict[ed]
    punishment’ within the constitutional proscription.”         433 U.S. at
    472-73 (quoting Lovett, 328 U.S. at 315).         After examining the
    historical underpinnings of the Clause and noting that the statute
    at issue did not involve any of the traditional examples of
    “punishment” which had been held to implicate attainder analysis in
    the   past--including   death,   imprisonment,   banishment,    punitive
    confiscation of property, and employment bars (as evidenced by
    Cummings)--the Court launched into a three-stage examination of
    general punitive character.      See id. at 473-75.   First, the Court
    noted that it “often has looked beyond mere historical experience
    and has applied a functional test of the existence of punishment,
    analyzing whether the law under challenge, viewed in terms of the
    type and severity of burdens imposed, reasonably can be said to
    further nonpunitive legislative purposes.”             See id. at 475 (citing
    Cummings, 71 U.S. at 319-320, Hawker, 170 U.S. at 193-194, and Dent,
    129 U.S. at 128, among other cases).               Because the protection of
    Nixon’s    presidential    papers    was       unquestionably    a   legitimate,
    nonpunitive legislative purpose that the burdens imposed by the
    statute were well designed to further, the Court concluded that the
    law was nonpunitive under the functional approach.               See id. at 476-
    78.   Next, the Court looked to legislative purpose.              Because there
    was no indication in the legislative history of a specific intent
    to punish--unlike in past cases like Lovett, where the House Report
    characterized the named individuals as “‘subversive . . . and . . .
    unfit . . . to continue in Government employment’”--the Court
    concluded that this test also came out in favor of a nonpunitive
    finding.    See id. at 478-80 (quoting Lovett, 328 U.S. at 312).
    Finally,   the    Court   turned    to   the    structure   of   the   statutory
    provisions.      Because it also evinced a nonpunitive quality to the
    legislation, by protecting, for example, Nixon’s ability to access
    the papers himself and to raise claims of privilege with regard to
    them in court proceedings, the Court concluded that this test also
    indicated a nonpunitive character.            See id. at 481-82.     Because the
    statute did not “impose criminal penalties or other punishment,” the
    Court concluded that it was not a bill of attainder, regardless of
    its specificity.      Id. at 482 (quotations omitted).
         In the light of the 400 years of case law and history that we
    have considered, we believe that Nixon stands, ultimately and
    concisely, for the following proposition: if legislation has a
    legitimately nonpunitive function, purpose, and structure, it does
    not constitute punishment for purposes of the Bill of Attainder
    Clause, even where it imposes the historically punitive sanction of
    barring designated individuals from engaging in certain professions.
    This statement is consistent with the older, traditional lines of
    analysis   in   the    Court’s   attainder   jurisprudence,   including
    particularly the prophylactic exception developed in Cummings,
    Garland, Dent, Hawker, and Justice Frankfurter’s concurrence in
    Lovett.    It is also not inconsistent with the more sweeping
    separation of powers theory espoused by Chief Justice Warren in his
    somewhat aberrant Brown opinion, at least to the extent that that
    case left open the possibility of using “shorthand” designations in
    otherwise proper categorical legislation.      Although some portions
    of Nixon might be read to suggest that historical punishments are
    “inherently suspect,”26 we find this suggestion inapposite to the
          See id., 433 U.S. at 473 (noting that “the substantial
    experience of both England and the United States with such abuses
    of parliamentary and legislative power offers a ready checklist of
    particular area of employment bars. As Nixon makes clear, this type
    of liability is only an “historical” punishment to the extent that
    certain examples have been declared punitive in past cases like
    Cummings and Lovett.   See Nixon, 433 U.S. at 474.      Because these
    building blocks for the historical characterization themselves
    contain the very seeds of the prophylactic exception, and because
    Nixon’s “functional test” is rooted in that very exception as
    developed in the employment bar cases of Hawker, Dent, and Cummings,
    see Nixon, 433 U.S. at 475, it simply cannot be convincingly
    maintained that employment bars are inherently historically punitive
    without reference to Nixon’s other considerations.
         More importantly, however, such a reading would contradict the
    Supreme Court’s own most recent recapitulation of the punishment
    prong.   In Selective Service, the Court stated that:
         In deciding whether a statute inflicts forbidden
         punishment, we have recognized three necessary inquiries:
         (1) whether the challenged statute falls within the
         historical meaning of legislative punishment; (2) whether
         the statute, “viewed in terms of the type and severity of
         burdens imposed, reasonably can be said to further
         nonpunitive legislative purposes”; and (3) whether the
         legislative record “evinces a congressional intent to
    deprivations and disabilities so disproportionately severe and so
    inappropriate to nonpunitive ends that they unquestionably have
    been held to fall within the proscription of Art. I, § 9” and that
    “[a] statutory enactment that imposes any of those sanctions on
    named   or   identifiable   individuals   would   be   immediately
    constitutionally suspect”).
    468 U.S. at 852 (quoting Nixon, 433 U.S. at 473, 475-76, & 478,
    respectively).      Nothing in Selective Service suggests that the
    historical punishment test is ever dispositive on its own, or that
    it should be conducted without reference to the actual history
    underlying the sanction at issue, and we decline to read such a
    ritualistic and unsensible formulation into the Clause.              See also
    BellSouth,    144   F.3d    at   65   (stating     that   “[e]ven    measures
    historically associated with punishment--such as permanent exclusion
    from    an   occupation--have    been      otherwise   regarded     when   the
    nonpunitive aims of an apparently prophylactic measure have seemed
    sufficiently clear and convincing”) (internal quotations omitted);
    Dehainaut, 32 F.3d at 1071 (stating that, “[e]ven where a fixed
    identifiable group . . . is singled out and a burden traditionally
    associated with punishment--such as permanent exclusion from an
    occupation--is imposed, the enactment may pass scrutiny under bill
    of   attainder   analysis   if   it   seeks   to   achieve   legitimate    and
    nonpunitive ends and was not clearly the product of punitive
           Adapting the Selective Service formulation to this case in the
    light of our inquiries, the question becomes whether the Special
    Provisions, viewed in terms of the type and severity of burdens
    imposed and the expressed intent of Congress, reasonably can be said
    to further nonpunitive legislative purposes such that the sanction
    at issue, a bar from participation in certain businesses, is neither
    historically nor functionally nor motivationally punitive.              We can
    only conclude that they can, and therefore find that the Special
    Provisions are constitutionally sound.
         First       and   perhaps   foremost,   we   think   that   the   Special
    Provisions are not punitive because they do not impose a perpetual
    bar on the BOCs’ entry into any of life’s avocations.            In Cummings,
    Garland, and Lovett, the burdened individuals were barred from all
    future employment in certain professions based on immutable past
    acts.        Under the Special Provisions, on the other hand, the BOCs
    will be allowed to enter each of the affected areas as soon as the
    statutory criteria regarding competition in their local service
    markets are met, and, in the case of information services, in 2001
    regardless.        As the Supreme Court expressly stated in Selective
    Service, “[a] statute that leaves open perpetually the possibility
    of [qualifying for some specifically denied benefit] does not fall
    within the historical meaning of forbidden legislative punishment.”
    468 U.S. at 853.27
          We recognize that meeting the competition criteria may not
    be an easy matter for the BOCs. Still, nothing in the statute or
    SBC’s recent experiences with the FCC and the D.C. Circuit leads us
    to suspect that it will be impossible, and we are satisfied that
    the BOCs will be able to emerge from the restrictions when it is in
    their economic and business interest to meet the stiff criteria.
         Second,    we   conclude    that    the     Special     Provisions   are   not
    punishment because they serve a nonpunitive purpose: attempting to
    ensure fair competition in the markets for local service, long
    distance, telecommunications equipment, and information services.
    Indeed, even under the MFJ, we do not understand that the line-of-
    business restrictions imposed on the BOCs were intended to have a
    punitive function.     As Judge Greene stated, the restrictions were
    imposed because “[p]articipation in these fields carries with it a
    substantial risk that the Operating Companies will use the same
    anticompetitive techniques used by AT&T in order to thwart the
    growth of their own competitors.”                United States v. AT&T, 552
    F.Supp. at 224.      This rationale seems much more like a judgment
    “condemning all men” in certain inherently conflicted positions than
    an impermissible “judgment censuring or condemning any man or group
    of men” for their personal conduct, see Brown, 381 U.S. at 453-54,
    so to the extent that Congress was merely reimposing the MFJ, it did
    not engage in action derivatively punitive. Furthermore, the actual
    terms of the Special Provisions stay close to their legitimate ends.
    By   clearly    linking    a     lifting       of    the    long   distance     and
    telecommunications equipment restrictions to competition in the
    BOCs’   local   markets,   and    by    making      the    structural   separation
    condition for entry into the nascent and vulnerable information
    services market temporary, Congress has tailored the burdens imposed
    to an appropriate end of promoting competition.                    Finally, and
    although SBC has argued fervently to the contrary, the mere fact
    that the Special Provisions are limited in application to the BOCs
    (and thus do not cover other LECs with substantial local market
    power, like GTE) does not cast substantial doubt on the fit of this
    tailoring. As the D.C. Circuit has expressly recognized, “[b]ecause
    the BOCs’ facilities are generally less dispersed than GTE’s, they
    can exercise bottleneck control over both ends of a [long distance]
    telephone call in a higher fraction of cases than GTE” (or any of
    the other LECs, for that matter), and it is thus rational to subject
    them to additional burdens in order to achieve the overall goal of
    competitive local and long distance service.               BellSouth, 144 F.3d
    at 67.
           Third, we reason that the Special Provisions are not punitive
    because    neither    their     terms     nor   their     legislative    history
    demonstrates the “smoking gun” evidence of punitive intent necessary
    to establish a bill of attainder.             As the Supreme Court clarified
    in     Selective   Service,     “‘unmistakable       evidence      of   punitive
    intent . . . is required before a Congressional enactment of this
    kind may be struck down’” on attainder grounds.               Id., 468 U.S. at
    856 n.15 (quoting Flemming, 363 U.S. at 619); cf. Lovett, 328 U.S.
    at 315 (for an example of such evidence).               To be sure, there were
    some    isolated   references    in     congressional     debate   to   the   Bell
    System’s questionable business practices prior to the MFJ, which
    were offered as evidence of the general potential for abuse of local
    market power.        But, still, SBC has pointed us towards no indication
    that the Special Provisions were themselves enacted to punish the
    BOCs for past antitrust violations. Instead, the legislative record
    is   really       quite    clear   that   Congress--certainly      as    a   whole--
    considered the Special Provisions to be just what they appeared to
    be: a prophylactic, compromise regulation of the BOCs’ local market
    power        to   ensure   greater   competition   in   all   of   the       nation’s
    telecommunications markets.
          Finally, and perhaps most fundamentally, we conclude that the
    Special Provisions are not punitive because they were part of a
    larger quid pro quo.               Combined with § 601(a)(1), the Special
    Provisions represent a hard-fought compromise on a massive issue of
    public policy which, in the end, contained both good and bad
    elements for the BOCs.28             For example, although the information
                 See SBC Communications, 138 F.3d at 412:
            The question of how best to achieve [the goals of the
            Act] . . . was the subject of great debate. Some thought
            that the local and long-distance markets should be open
            to all competitors immediately. Others believed that the
            BOCs should have to wait until actual competition was
            introduced in their local markets before providing
            interLATA service, since it was claimed that the
            long-distance market is already competitive. As might be
            expected for an issue of this economic significance, an
            extended lobbying struggle ensued. The end product was
            a compromise between the competing factions.
    services restriction lifted under the MFJ was partially reimposed
    under § 274, the BOCs were immediately freed, by operation of
    § 601(a)(1) and the other Special Provisions, from existing MFJ
    restrictions on their ability to offer incidental and out-of-region
    long distance service.    More importantly, the Special Provisions
    gave the BOCs a clear delineation of what they needed to do to
    achieve a lifting of all the old MFJ restrictions in the future--
    certainly a step up, from the BOCs’ perspective, from being under
    Judge Greene’s perpetual supervision. It is perhaps for this reason
    that the BOCs have apparently consistently represented, outside of
    litigation, that they were pleased with the Act.       Indeed, in a
    public news release, SBC’s Chairman lauded the Act as “landmark
    legislation” that would allow SBC “immediately [to] provide long-
    distance service outside [its] . . . region and to [its] cellular
    customers everywhere,” and that created “clear and reasonable
    pathways” for SBC to obtain permission to provide in-region long
    distance service in the future--“pathways that [SBC was] happy
    with.”   The other BOCs made similar comments, and they clearly were
    effective in persuading Congress of their support for the Act.   See
    142 Cong. Rec. S393 (daily ed. Jan. 26, 1996) (remarks of Sen.
    Pressler) (“We now have the regional Bell companies supporting the
    bill and we have the long-distance companies supporting the bill.
    That is an unusual, rare moment in American history when the
    regional Bells and long-distance companies are temporarily at peace,
    so to speak.”); id. at S696 (daily ed. Feb. 1, 1996) (statement of
    Sen. Kerrey) (noting that the Act was “a very unusual piece of
    legislation in that the demand for it [wa]s coming from . . . the
    whole range of corporations; . . . RBOC’s, long-distance, cable,
    broadcast; all of them”); id. at S699 (daily ed. Feb. 1, 1996)
    (statement of Sen. Lott) (“The telephone companies are supporting
    this legislation.    The long-distance companies are supporting this
    legislation--both of them would like to have a little more in their
    sections,    but     basically     they   know    this    is   good
    legislation . . . .”).   Be that as it may, it is at any rate clear
    that a legislative quid pro quo on this level simply cannot be
    punitive for attainder purposes.
         For all of the foregoing reasons, we find that the Special
    Provisions ultimately are nonpunitive as an historical, functional,
    and motivational matter. They are therefore not an unconstitutional
    and odious bill of attainder as that term has been defined by the
    Supreme Court.     To the extent that the district court concluded
    otherwise, it was in error, and its decision on that point is
    accordingly reversed.
         As noted above, however, SBC and the other appellees also urge
    three additional constitutional arguments as alternate bases for
    affirming the judgment of the district court.                      Having found the
    Special Provisions not to constitute a bill of attainder, we must
    obviously consider these alternate theories. We do so only briefly,
    however, as they are far less substantial.
         The appellees first make two interrelated arguments that the
    Special    Provisions     violate    the      constitutional         requirement     of
    separation of powers--i.e., that the Special Provisions represent
    an arrogation to the legislative branch of powers functionally
    vested    in   the   judicial   branch       by    the     very    firmament    of   the
    Constitution.        See generally Plaut, 514 U.S. at 218-25 (noting,
    among other things, that “[t]he Framers of our Constitution lived
    among the ruins of a system of intermingled legislative and judicial
    powers” and felt a “sense of a sharp necessity to separate the
    legislative from the judicial” in designing their new system).
    Despite their strong institutional pedigree, neither argument has
    significant merit.
         First, the appellees contend that the Special Provisions
    violate separation of powers because they address themselves to a
    particular judicial consent decree--the MFJ--in such a way as to
    alter the result.        They rely on the well accepted rule that it
    violates separation-of-powers principles for Congress to reopen any
    adjudication     that   represents    the         “final    word    of   the   judicial
    department” on a case.   See Plaut, 514 U.S. at 225-27.     Yet under
    Pennsylvania v. Wheeling and Belmont Bridge Co., 59 U.S. (18 How.)
    421 (1855), it has long been clear that Congress may change the law
    underlying ongoing equitable relief, even if, as in Wheeling itself,
    the change is specifically targeted at and limited in applicability
    to a particular injunction, and even if the change results in the
    necessary lifting of that injunction.    See id. at 429.    The only
    real question on this point would seem to be whether Wheeling
    survives the Court’s more recent separation of powers jurisprudence,
    as recently recited in Plaut. In that case, however, Justice Scalia
    could hardly have been more clear that “nothing in our holding today
    calls [Wheeling] into question.”    Id., 514 U.S. at 232.
         Obviously, Wheeling survives, as all of the circuit courts to
    consider separation-of-powers challenges to the Prison Litigation
    Reform Act of 1995 recently concluded.    In those cases the courts
    dealt with a statute, 18 U.S.C. § 3626(b)(2), that mandated the
    termination of certain existing consent decrees if they were not
    based upon a newly announced standard of factual findings.        In
    upholding this provision in the face of a separation-of-powers
    attack, five courts expressly held that Congress could interfere
    with ongoing consent decrees, because such decrees were not “final
    judgments” for separation-of-powers purposes.29    Indeed, even the
    one court to strike down § 3626(b)(2) was forced to concede that
    “Wheeling established the principle that the state of the law at the
    time a final judgment embodying a permanent injunction is entered
    is not part of what is ‘final’ about the judgment.”       Taylor v.
    United States, 
    143 F.3d 1178
    , 1182 (9th Cir. 1998) (Ristani, J.).
          See Dougan v. Singletary, 
    129 F.3d 1424
    , 1426 (11th Cir.
    1997) (per curiam) (“As the Court explained in Plaut v. Spendthrift
    Farm, Inc., a true ‘final judgment’ here means not an appealable
    judgment, but one that represents the ‘last word of the judicial
    department with regard to a particular case or controversy.’
    Consent decrees are final judgments, but not the ‘last word of the
    judicial department.’”); Inmates of Suffolk County Jail v. Rouse,
    129 F.3d 649
    , 657 (1st Cir. 1997) (Selya, J.) (“Plaut and Wheeling
    Bridge, read together, teach that equity requires, and the
    separation of powers principle permits, legislatures to direct that
    courts respond to changes in substantive law by revisiting forward-
    looking injunctions.”); Benjamin v. Jacobsen, 
    124 F.3d 162
    , 171 (2d
    Cir. 1997) (Calabresi, J.) (“In distinguishing Wheeling Bridge, the
    Plaut Court implicitly drew a similar distinction between two kinds
    of final judgments for separation of powers purposes--final
    judgments without prospective effects, which could not be
    constitutionally revised through legislation, and final judgments
    with prospective effects, whose effects could be constitutionally
    so revised.”); Gavin v. Branstad, 
    122 F.3d 1081
    , 1087 (8th Cir.
    1997) (Bowman, J.) (“Plaut does not hold that final judgments are
    invariably immune to congressional tinkering; what Plaut protects
    is ‘the last word of the judicial department with regard to a
    particular case or controversy.’ In a continuing case, a consent
    decree is not the last word of the courts in the case, even after
    the decree itself has become final for purposes of appeal.”);
    Plyler v. Moore, 
    100 F.3d 365
    , 371 (4th Cir. 1996) (Wilkins, J.)
    (“[A]s made clear by the Court in Plaut, an attempt to alter
    legislatively a legal judgment violates the separation-of-powers
    doctrine. A judgment providing for injunctive relief, however,
    remains subject to changes in the law.      These principles apply
    equally to consent decrees and litigated judgments.”) (citations to
    Wheeling and other cases omitted).
         Despite this great weight of authority, the appellees counter
    that the congressional interference in this case is more suspect,
    because it is so specific.          Yet, as noted, the legislation in
    Wheeling was rife with specificity: the change effected by Congress
    was specifically directed at altering the legal status of a single,
    named   bridge   in   order   to   change   the   result   of   a   particular
    injunction.      See id., 59 U.S. at 429.            Specificity was also
    manifestly evident in the more recent related case of Robertson v.
    Seattle Audubon Society, 
    503 U.S. 429
    , 434-35, 437-40 (1992), where
    Justice Thomas, writing for a unanimous Court, found no separation-
    of-powers problem in a statute that changed the law with respect to
    two pending lawsuits identified by name and caption number.             In the
    light of all these precedents, we simply cannot see a separation-of-
    powers problem based on the Special Provisions’ interference with
    the MFJ in this case.
         That leaves the second line of attack, which, as we understand
    it, is a not-too-well-defined argument that all of the problematic
    aspects of the Special Provisions--including particularly their
    specificity, their interference with the MFJ, and the near-punitive
    nature of the liability they impose--when added together somehow
    amount to a separation-of-powers violation that is greater than the
    sum of its parts. Although this argument finds appealing rhetorical
    support in the more sweeping statements of some of the Court’s older
    cases, including particularly the admonition offered by Justice
    Marshall in Fletcher and seconded by Chief Justice Warren in Brown
    that “[i]t is the peculiar province of the legislature to describe
    general rules for the government of society; the application of
    those rules to individuals in society would seem to be the duty of
    other departments,” see Brown, 381 U.S. at 446, it is squarely and
    specifically contradicted by Plaut.   In that case, Justice Breyer
    raised a very similar argument in his one-vote concurrence.      See
    id., 514 U.S. at 241-46. Justice Scalia’s six-vote majority opinion
    soundly rejected it, however, noting (in addition to the above-
    quoted statement from footnote nine) that:
         The nub of th[e] infringement consists not of the
         Legislature’s acting in a particularized and hence
         according to the concurrence) nonlegislative fashion; but
         rather   of    the   Legislature’s   nullifying    prior,
         authoritative judicial action. It makes no difference
         whatever to that separation-of-powers violation that it
         is in gross rather than particularized . . . or that it
         is not accompanied by an “almost” violation of the Bill
         of Attainder Clause, or an “almost” violation of any
         other constitutional provision.
    See id. at 239 & n.9.    In the light of Plaut, there is thus no
    viability to the “amorphous” theory either, and the appellees’
    separation-of-powers challenge in this case must fail.
         The appellees next argue that the Special Provisions violate
    the Equal Protection Clause by discriminating against the BOCs by
    name.   Under City of New Orleans v. Dukes, 
    427 U.S. 297
    however, specification of named parties in economic regulation is
    clearly permissible for equal protection purposes so long as the
    regulation is rationally related to a legitimate governmental
    interest and does not trammel fundamental personal rights or draw
    upon inherently suspect distinctions such as race, religion, or
    alienage.    Id. at 304-06.    As should be manifest from the entire
    history of this area of the law, regulation of an LEC’s conduct in
    the local telephone service market neither restricts fundamental
    individual rights nor lacks rational relation to the government’s
    legitimate   interest   in    ensuring   greater   competition   in   all
    telecommunications markets.     Furthermore, the specification of the
    BOCs in the Special Provisions at issue here was not based on
    invidious criteria like race, religion, or alienage.       As such, the
    Special Provisions are not inconsistent with the Equal Protection
         Finally, the appellees urge that, even if the other Special
    Provisions are allowed to stand, § 274 must go as it impermissibly
    infringes the BOCs’ right to free speech. The D.C. Circuit recently
    rejected an identical challenge to § 274 by another RBOC, however,
    see BellSouth, 143 F.3d at 67-71, and we can find no reason to
    disagree with its result and analysis.      Because § 274 does not in
    any way differentiate speech on the basis of content, its speech
    restricting provisions are subject only to (at most) intermediate
    scrutiny review under Turner Broadcasting System, Inc. v. FCC, 
    512 U.S. 622
    , 642 (1994) (Turner I). Under that standard, a restriction
    will be upheld “if it advances important governmental interests
    unrelated to the suppression of free speech and does not burden
    substantially      more    speech   than       necessary      to   further      those
    interests.”     Turner Broadcasting System, Inc. v. FCC, 
    117 S. Ct. 1174
    , 1186 (1997) (Turner II). Obviously, the competition-enhancing
    interests discussed above are manifestly sufficient to meet the
    first    hurdle.     Furthermore,     because       §   274    merely    imposes   a
    structural separation requirement on speech activities, not an
    absolute bar, its restrictions are practically de minimis in this
    necessarily     corporate     context,        and   certainly      do   not   burden
    substantially      more    speech   than       necessary      to   accomplish    its
    legitimate goals.         For these reasons, the contention that § 274
    violates the BOCs’ right to free speech is entirely lacking in
         In the end, the constitutional prohibition against bills of
    attainder is a specific rather than a general guaranty of rights.
    Cf. Lovett, 328 U.S. at 321 (Frankfurter, J., joined by Reed, J.,
    concurring [in the judgment]). Nothing in the Court’s jurisprudence
    should be read to allow that specific guaranty wholly to escape the
    implications of its historical origins, and since the age of
    Blackstone and before, it has been clear that for a bill to attaint,
    it simply must invoke the punitive.         In this case, that has not
    occurred.     Although the Special Provisions may well constitute a
    legislative judgment that the BOCs currently have an inherent and
    natural potential to restrain competition by virtue of their local
    market power, the Act does not declare them monsters or otherwise
    seek to punish them on the basis of past conduct, and thus does not
    run   afoul   of   the   Bill   of   Attainder   Clause.    Because   the
    Constitution’s additional requirements of separation of powers,
    equal protection of the laws, and free speech are also not even
    arguably infringed by the Act, the judgment of the district court
    is accordingly
                                                           R E V E R S E D.30
          We are unable to see this case in the single-minded terms
    expressed in the dissenting opinion. We have faithfully, to the
    best of our ability, recounted the sinuous journey of bills of
    attainder from the earliest days to the present day.        Like a
    Christmas pie, these cases--as a whole and indeed individually--
    provide a little something for every taste, and are rich with
    selective quotes to support a chosen conclusion. In arriving at
    our conclusions, we have tried to synthesize these diverse
    expressions and applications of the bill of attainder clause in
    order to apply it in this context of business regulation--its first
    such application. What we think the dissenting opinion has not
    observed in its straightforward stride is that attainder requires
    an element of punishment. There are employment bars and there are
    employment bars--some of the same character, others of a different
    character. A non-perpetual legislative bar, which forbids only a
    corporation’s participating in a particular segment of the general
    business in which the corporation is engaged is not punishment when
    that bar is enacted for nonpunitive appropriate legislative
    purposes under conditions to which that business effectively has
    agreed. Indeed, we are not sure the dissent is otherwise convinced
    given its acknowledgment that there is no real “victim” of Congress
    in this case.
    JERRY E. SMITH, Circuit Judge, dissenting:
         En route to minting a “regulatory exception” to the Bill of
    Attainder    Clause,    the   majority     holds   that   punishment   is    not
    punishment when it is inflicted with a “prophylactic” intent.                The
    majority    reaches    this   cherished    goal    by   stitching   together   a
    patchwork of concurrences and dissents and by brushing aside binding
    Supreme Court majority opinions as “aberrant” and “unsensible.”
    I respectfully dissent.
         The Telecommunications Act of 1996 singles out twenty named
    corporations for severe line-of-business restrictions characterized,
    in the Act's telling language, as the “Special Provisions.”                 This
    case hinges on whether these economic restrictions, which bar the
    named firms from lucrative telecommunications markets, amount to
    legislative “punishment” as historically understood.
         The Supreme Court has consistently held that bars to employment
    constitute punishment for purposes of the Bill of Attainder Clause.
    In one of the earliest bill of attainder cases, Cummings v.
    Missouri, 71 U.S. (4 Wall.) 277, 320 (1866), the Court observed that
    “[d]isqualification from the pursuits of a lawful avocation . . .
    may also, and often has been, imposed as punishment.”                    The Court
    struck down, as a bill of attainder, a provision in the Missouri
    Constitution prohibiting Confederates or their sympathizers from
    holding certain jobs.        The Court recognized that “in the pursuit of
    happiness all avocations, all honors, all positions, are alike open
    to every one, and that in the protection of these rights all are
    equal before the law. Any deprivation or suspension of any of these
    rights for past conduct is punishment, and can be in no otherwise
    defined.”     Id. at 321-22 (emphasis added).
          The law has not changed.               In Ex parte Garland, 71 U.S.
    (4 Wall.) 333 (1866), the Court applied Cummings's reasoning to
    strike down, as a bill of attainder, a federal statute barring
    Confederates from practicing in the federal courts.               More recently,
    in   United   States    v.   Lovett,    
    328 U.S. 303
        (1946),    the   Court
    reaffirmed     the   principle       that    line-of-work      restrictions      are
    inherently punitive, invalidating a federal statute terminating the
    salaries of three named federal employees.              And in United States v.
    381 U.S. 437
     (1965), the Court once again held that a statute
    proscribing     entry   into     a    certain    line    of    work     constituted
    punishment, striking down a federal statute that forbade members of
    the Communist Party from serving as labor union officials.
         Any   doubt    that    employment   bars   fall   squarely   within   the
    historical conception of punishment was erased by the Court's two
    most recent bill of attainder cases.          In Nixon v. Administrator of
    Gen. Servs., 
    433 U.S. 425
    , 474 (1977), the Court canvassed the
    various burdens historically deemed punitive, concluding that “[o]ur
    country's own experience with bills of attainder resulted in the
    addition     of   another    sanction    to   the   list   of   impermissible
    legislative punishments: a legislative enactment barring designated
    individuals or groups from participation in specified employments
    or vocations . . . .”
         The Court's latest pronouncement, in Selective Serv. Sys. v.
    Minnesota PIRG, 
    468 U.S. 841
     (1984), echoes Nixon:                “In our own
    country, the list of punishments forbidden by the Bill of Attainder
    Clause has expanded to include legislative bars to participation by
    individuals or groups in specific employments or professions.”
    468 U.S. at 852. Indeed, employment bars “have constituted the most
    common sort of statutes struck down by the Court as unconstitutional
    bills of attainder.”        BellSouth Corp. v. FCC, 
    144 F.3d 58
    , 72-73
    (D.C. Cir. 1998) (Sentelle, J., dissenting) (citing Selective
    Service, 468 U.S. at 852).
         The majority's ancillary argument that “the Special Provisions
    are not punitive because they do not impose a perpetual bar” is
    meritless.    The majority quotes Selective Service, 468 U.S. at 853,
    which states that “[a] statute that leaves open perpetually the
    possibility of [qualifying for some specifically denied benefit]
    does not fall within the historical meaning of forbidden legislative
    punishment” (brackets added by majority).       But in Brown, the Court
    had already considered and rejected the majority's escapability
    argument, explaining:
         We do not read [two prior cases] to have set up ines-
         capability as an absolute prerequisite to a finding of
         attainder. Such an absolute rule would have flown in the
         face of explicit precedent, Cummings v. Missouri, 
    4 Wall. 277
    , 324, as well as the historical background of the
         constitutional   prohibition.      A  number   of   ante-
         Constitution   bills   of   attainder   inflicted   their
         deprivations upon named or described persons or groups,
         but offered them the option of avoiding the deprivations,
         e.g., by swearing allegiance to the existing government.
    381 U.S. at 457 n.32.     This illustrates that the Bill of Attainder
    Clause cannot be avoided simply by inserting into the statute a
    means of escape. The fact that the federal government holds the key
    to the Baby Bells' prison is irrelevant.
         Faced with the unhappy reality of well over a century of
    Supreme   Court   cases   holding   that   employment   bars   constitute
    punishment, the majority announces the discovery of a heretofore
    unrecognized exception to the Bill of Attainder Clause:              the
    “prophylactic exception.” Apparently this creature awakens only in
    cases    such    as   thisSSwhen     Congress    punishes,     but   acts   with   a
    beneficent, regulatory intent.
          The method through which the majority traces the evolution of
    the “prophylactic exception” reveals its suspect pedigree.                     The
    exception's origin is said to lie in Justice Miller's dissent in
    Garland, where he suggested that the employment bar at issue was not
    punitive because Congress did not intend it as such.                        Rather,
    Justice Miller argued, the statute should properly be viewed as a
    prophylactic measure, because Congress merely sought to protect the
    public from the future misdeeds of the attainted individuals.                   See
    71 U.S. (4 Wall.) at 393-96 (Miller, J., dissenting).
          This theory, rejected by the Garland majority, was purportedly
    adopted some decades later in Dent v. West Virginia, 
    129 U.S. 114
    (1889), and Hawker v. New York, 
    170 U.S. 189
     (1898).                  Unlike most
    of    the   authorities       the    majority    relies   on    to   support    the
    prophylactic exception, Dent and Hawker are majority opinions.                  But
    they have little to say about this case:              The statute at issue in
    Dent did not single out individuals for punishment, but concerned
    a state's generally applicable licensing requirements; similarly,
    the burden in Hawker was imposed on a class rather than named
    individuals.      In any event, no subsequent case has interpreted Dent
    and     Hawker   the    way    the    majority    does    hereSSas    authorizing
    congressional punishment of individuals as long as the statute can
    be said to prevent future harms.
         The    cornerstone      of    the    majority's    theory          is    Justice
    Frankfurter's concurrence in Lovett, 328 U.S. at 318.                        Although
    Justice Frankfurter distinguished between “harm [that is] inflicted
    by government authority” and “punishment,” id. at 324 (Frankfurter,
    J., concurring), the majority of the Court refused to embrace this
    view.    Cf. Seminole Tribe of Florida v. Florida, 
    517 U.S. 44
    , 66
    (1996)   (holding   that    a     minority    opinion   is   “of    questionable
    precedential   value,      largely    because    a   majority      of    the    Court
    expressly disagreed with the rationale of the plurality”).                     Rather
    than adopt Justice Frankfurter's narrow reading of the Bill of
    Attainder Clause, the Court majority held that the challenged law,
    which terminated the salaries of three named federal employees,
    “'operates as a legislative decree of perpetual exclusion' from a
    chosen vocation” and therefore “clearly accomplishes the punishment
    of named individuals without a judicial trial.”              Lovett, 328 U.S.
    at 316 (quoting Garland, 71 U.S. (4 Wall.) at 377).                 The majority
    quite plainly equated employment bars with punishment.
         Finally, Brown and Nixon foreclose any suggestion that the full
    Court subsequently adopted Justice Frankfurter's minority view.
    Brown, which the panel majority cryptically claims “did not purport
    fully to abandon the prior development of the punitive element,”
    concluded that the employment restriction at issueSSbarring members
    of the Communist Party from holding certain jobsSSamounted to
    punishment.    The Court surveyed its bill of attainder jurisprudence
    and, relying on Garland and Lovett, held that the statute “plainly
    constitutes a bill of attainder” because “it designates in no
    uncertain terms the persons who possess the feared characteristics
    and therefore cannot hold union office . . . .”              381 U.S. at 449,
           Nixon is even more direct.         There, the Court explained that
    “legislative enactment[s] barring designated individuals or groups
    from participation in specified employments or vocations” are
    “impermissible” and “unquestionably have been held to fall within
    the proscription of Art. I, § 9.”         433 U.S. at 473, 474.          This stark
    language    leaves   little   room    for      the   majority's   “prophylactic
    exception”:      Impermissible       is   impermissible.          Once    a   court
    determines that Congress has imposed a burden historically deemed
    punitive, such as the employment bar at issue here, that is the end
    of the analysis. The majority protests that such a reading of Nixon
    is “ritualistic and unsensible,” but it is difficult to squeeze a
    prophylactic exception out of the Court's statement that “[a]
    statutory enactment that imposes [an employment bar] on named or
    identifiable    individuals    would      be   immediately   constitutionally
    suspect.”    Id. at 473 (emphasis added).
         Moreover, to the extent the Court considered congressional
    purpose in passing the law, it did so only after it had determined
    that the challenged burden did not fit the historical definition of
    punishment; its consideration of legislative intent was a means of
    ensuring that “new burdens and deprivations [are not] legislatively
    fashioned    that   are   inconsistent      with   the   bill    of   attainder
    guarantee.”    Id. at 475.
         The Court began its analysis by asking whether the burdenSSthe
    confiscation of presidential recordsSSfell into the category of
    “immediately suspect” punishments, such as a bar to employment.
    After concluding that President Nixon “cannot claim to have suffered
    any of these forbidden deprivations at the hands of Congress,” the
    Court remarked that “our inquiry is not ended by the determination
    that the [statute] imposes no punishment traditionally judged to be
    prohibited by the Bill of Attainder Clause.”         Id. at 475.      Only then
    did the Court turn to legislative purposeSSan inquiry that would not
    have been necessary if President Nixon had suffered one of the
    “forbidden” deprivations.
         The    Selective     Service   Court    clarified    this    point.     It
              Our inquiry does not end with a determination that
         [the statute] does not inflict punishment in its
         historical sense. To ensure that the Legislature has not
         created an impermissible penalty not previously held to
         be within the proscription against bills of attainder, we
         must determine whether the challenged statute can be
         reasonably said to further nonpunitive goals.
    468 U.S. at 853-54 (citing Nixon, 433 U.S. at 475-76).
         The majority's reading of these cases is sadly ironic. In both
    Nixon   and   Selective      Service,       the    Court    sought      to    expand    the
    protections     of   the    Bill     of    Attainder        Clause   by       looking    to
    legislative     purpose.       The        Court's    concern      was    congressional
    creativity in dreaming up new burdens that fell outside the category
    of burdens historically deemed punitive; by considering legislative
    intent,   the   Court      erected    an       additional    safeguard        to     protect
    individuals from new types of congressionally-devised punishment.
         The majority's interpretation, by contrast, contracts the scope
    of the clause.       The majority looks to legislative intent not to
    protect citizens from congressional overreaching, but as a means of
    empowering Congress to pass punitive laws it could not otherwise
    enactSSsimply by claiming an intent to “regulate” rather than
    punish.   Thanks to the prophylactic exception, Congress may now
    single out individuals for punishments that were, until today,
    routinely held unconstitutional.
         In   deeming     nonpunitive          a     burden    that   the        Nixon    Court
    characterized as “unquestionably” punitive, 433 U.S. at 473, the
    majority reasons that punishment is not really punishment if it is
    inflicted for preventive purposes.    The majority concludes that
    “[a]lthough the Special Provisions may well constitute a legislative
    judgment that the BOCs currently have an inherent and natural
    potential to restrain competition by virtue of their local market
    power, the Act does not declare them monsters or otherwise seek to
    punish them on the basis of past conduct, and thus does not run
    afoul of the Bill of Attainder Clause.”   The majority distinguishes
    between retribution (the imposition of a burden for wrongful past
    conduct) and prevention (the imposition of a burden to reduce the
    likelihood of future harmsSShere, antitrust violations).
         This distinction is flatly contradicted by Brown, which rejects
    such a cramped view of punishment and undermines the majority's
    novel interpretation of the clause.   In holding that an employment
    bar constituted punishment, even when imposed for prophylactic
    purposes, the Court explained:
         It would be archaic to limit the definition of
         “punishment” to “retribution.” Punishment serves several
         purposes:   retributive, rehabilitative, deterrentSSand
         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 purposesSSthat is, the legislature made a
         judgment, undoubtedly based largely on past acts and
         associations . . . 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.
    381 U.S. at 458-59.
         Consider a statute that sentences to death a named individual
    who announces that he has criminal tendenciesSSbut has yet to commit
    a crime.     Under the majority's theory, this law is not a bill of
    attainder:      It does not “seek to punish on the basis of past
    conduct,” and it serves a legitimate prophylactic function.           This
    hypothetical illustrates the impossibility of confining the clause's
    protections to retributive measures.           As the Court explained, a
    burden is rendered no less punitive by being based on future, rather
    than past, wrongdoing.
         In fact, the majority's concession that “the Act may well
    constitute a legislative judgment that the BOCs currently have an
    inherent and natural potential to restrain competition” falls
    squarely within the Court's description of a bill of attainder:
    when “the legislature [makes] a judgment . . . that a given person
    or group [is] likely to cause trouble . . . and therefore [inflicts]
    deprivations upon that person or group in order to keep it from
    bringing about the feared event.”          Id. at 458-59.   Here, Congress
    made a legislative judgment that the BOC's were likely to cause
    troubleSSthey    were   likely   to   commit   antitrust    violationsSSand
    inflicted deprivations (severe line-of-business restrictions) in
    order to keep the Baby Bells from bringing about the feared event.
    Accordingly, under a straightforward application of Brown, the
    “prophylactic exception” is a chimera, and the Special Provisions
    are a bill of attainder.
         In sum, the unbroken line of Supreme Court precedent compels
    the conclusion that the Special Provisions, because they impose an
    employment bar, constitute historical punishment forbidden by the
    Bill of Attainder Clause.       The Court has never held that Congress
    can single out named individuals for burdens historically deemed
    punitive simply because legislators are animated by a well-meaning,
    regulatory spirit.     Yet that is precisely what the majority holds
    today, sidestepping the Nixon Court's statement, 433 U.S. at 473,
    that this type of law is “immediately constitutionally suspect.”
         The   Bill   of   Attainder     Clause   has   long     been   regarded   as
    protecting     unpopular     individuals      or    groups     from   trial-by-
    legislature.      As   the   Court    explained      in    South    Carolina   v.
    Katzenbach, 38
    3 U.S. 3
    01, 324 (1966), the clause protects those “who
    are peculiarly vulnerable to nonjudicial determinations of guilt.”
    A quick survey of the caselaw confirms this view:          The clause has
    been    invoked   to   rescue   Confederates    and   Communists     from
    congressional wrath.
           And that is what makes the Bill of Attainder analysis so
    unusual in this context:    The Baby Bells, represented by armies of
    lawyers and lobbyists, hardly fit anyone's notion of a helpless
    victim.    Moreover, there is evidence in the record that the Baby
    Bells, by their own account, prevailed in the legislative process.
    While their apparent consent to the Special Provisions does not
    estop them from challenging the restrictions in this court, it
    certainly undercuts their claim to victimhood.            As the majority
    notes, the Special Provisions were part of a larger quid pro quo.
           But the Bill of Attainder Clause serves a dual purpose:           Not
    only does it rescue individuals from trial-by-legislature, it also
    preserves the separation of powers.         The clause is a check on
    Congress's power to legislate; it forbids Congress from passing
    punitive laws that target individuals.        Congress may, of course,
    pass   laws   conferring   benefits   on   individuals,    see   Plaut    v.
    Spendthrift Farm, Inc., 
    514 U.S. 211
    , 239 n.9 (1995), but when it
    wishes to impose punishment, it must legislate in general terms and
    allow the judicial branch to decide which individuals have violated
    the laws and must be punished.
         The   Court    explained   the    clause's    role    in   preserving   the
    separation of powers most thoroughly in BrownSSan opinion the panel
    majority   tars    as   “somewhat     aberrant.”     The    Court   began    its
    discussion by reviewing the history of the clause, describing it as
    a barrier “to ensure that the legislature would not overstep the
    bounds of its authority and perform the functions of the other
    departments.”      381 U.S. at 444 (emphasis omitted).          It then stated
    precisely why the statute, which imposed an employment bar on
    members of the Communist Party, violated the clause:
         In [enacting the statute] Congress has exceeded the
         authority granted it by the Constitution. The statute
         does not set forth a generally applicable rule decreeing
         that any person who commits certain acts or possesses
         certain characteristics (acts and characteristics which,
         in Congress' view, make them likely to initiate political
         strikes) shall not hold union office, and leave to courts
         and juries the job of deciding what persons have
         committed the specified acts or possess the specified
         characteristics. Instead, it designates in no uncertain
         terms the persons who possess the feared characteristics
         . . . .
    Id. at 450.
         The Court noted that Congress was free to pass laws weeding
    subversives out of the labor movementSSonly it had to do so through
    generally applicable legislation, otherwise it overstepped its
    constitutional bounds.       In language directly applicable to the
    instant case, the Court explained that Congress “cannot specify the
    people upon whom the sanction it prescribes is to be levied.             Under
    our Constitution, Congress possesses full legislative authority, but
    the task of adjudication must be left to other tribunals.”   Id. at
           Brown stands for the idea that the Bill of Attainder Clause
    protects not only individual liberty, but also the other branches
    of government.     The clause, in other words, helps ensure that
    Congress does not encroach on the executive's or judiciary's turf.
    As the Court concluded, id. at 442, “the Bill of Attainder Clause
    was intended not as a narrow, technical (and therefore soon to be
    outmoded) prohibition, but rather as an implementation of the
    separation of powers, a general safeguard against legislative
    exercise of the judicial function.”
           This is hardly a novel, twentieth-century interpretation.   In
    one of the earliest bill-of-attainder cases, Fletcher v. Peck,
    10 U.S. (6 Cranch) 87, 136 (1810), Chief Justice Marshall explained
    that “[i]t is the peculiar province of the legislature, to prescribe
    general rules for the government of society; the application of
    those rules to individuals in society would seem to be the duty of
    other departments.”   In fact, this understanding predates even the
    Marshall Court:
           Writings   contemporary  with   the  drafting  of   the
           Constitution express great concern lest the legislature
           assume the power to implement the total policy of
           government without the participation of the other
           branches, and support the thesis that the bill of
         attainder clause should be viewed as a limitation on
         legislatures fully as broad, and as necessary to the
         effective separation of powers, as that which has been
         imposed upon courts by article III.
    Note, The Bounds of Legislative Specification: A Suggested Approach
    to the Bill of Attainder Clause, 72 YALE L.J. 330, 343 (1962) (cited
    with approval in Brown, 381 U.S. at 457 n.32).       In this sense, even
    if the BOC's somehow “consented” to Congress's imposing the Special
    Provisions, that consent is as irrelevant as is a litigant's
    “consenting” to subject-matter jurisdiction. Congress simply lacks
    the power to legislate in this way.
         In enacting the Special Provisions, Congress adjudicated.         It
    not only specified the sanction but also identified the specific
    corporations    upon   whom   the   sanction   was   to   be   leviedSSnot
    coincidentally, the same corporations involved in the prior AT&T
    litigation.    The Bill of Attainder Clause says that when Congress
    wishes to impose certain burdens historically deemed punitive, it
    can do so only through laws of general applicability.          The actual
    application of these laws to specific parties must be left to the
    other branches of government.       Congress runs afoul of the Bill of
    Attainder Clause when it enacts punitive legislation that targets
    certain entitiesSSeven where, as here, the punishment comes cloaked
    in the mantle of prophylactic economic regulation.
         The majority today opens a loophole in the Bill of Attainder
    Clause, allowing Congress to pass legislation that historically has
    been held unconstitutional. In doing so, the majority redefines our
    traditional understanding of the clause's mandate:   Congress cannot
    single out an individual and deprive him of his life, liberty, or
    freedom to work.   Because the Telecommunications Act's “Special
    Provisions” amount to a bill of attainder, I respectfully dissent.