By Joel D. Joseph, author of Black Mondays:
Worst Decisions of the Supreme Court
U.S. District Court Judge Beryl Howell ruled on May 2, 2025, that President Trump's executive order targeting the Perkins Coie law firm was unconstitutional. On behalf of the Biden campaign, Perkins Coie filed responses to 65 court cases brought by President Trump challenging the 2020 election results. Perkins Coie won 64 of these cases. It is for that reason that President Trump issued Executive Order 14320 on March 6, 2025, specifically naming Perkins Coie for its representation of President Biden. This executive order attempts to punish the firm by taking away security clearances and prohibiting it from obtaining government contracts.
Judge Howell ruled the executive order to be unconstitutional: "Using the powers of the federal government to target lawyers for their representation of clients and avowed progressive employment policies in an overt attempt to suppress and punish certain viewpoints, however, is contrary to the Constitution, which requires that the government respond to dissenting or unpopular speech or ideas with 'tolerance, not coercion'." Judge Howell found that the executive order violates the First (free speech) , Fifth (due process) and Sixth (right to an attorney of your choice) amendments to the Constitution.
Bills of Attainder and Ex Post Facto Laws
A bill of attainder is a legislative act that declares a person or group guilty of a crime and imposes punishment without a trial, which is prohibited in the United States by Article I, Section 9, and Article I, Section 10, of the Constitution. Article 1, Section 9, Clause 3, provides: "No Bill of Attainder or ex post facto Law shall be passed."
An ex post facto law is a law that retroactively changes the legal consequences or status of actions that were committed, or relationships that existed, before the enactment of the law. In criminal, it may criminalize actions that were legal when committed.
Because Perkins Coie did not raise the issue of the executive order violating the constitutional prohibition of bills of attainder and ex post facto laws, Judge Howell did not rule on that basis. However Article I, Section 9 of the Constitution, clearly outlaws bills of attainder and ex post facto laws.
The Justice Department argued before Judge Howell that the president's executive order did not run afoul of Article I, Section 9, because that article applies to Congress not the President. However, the principle applies to legislative acts and an executive order is a Presidential legislative act.
Executive Orders
The Constitution does not mention executive orders. The number and extent of executive orders has increased dramatically over the past 249 years. The first was issued by letter dated June 8, 1789, asking executive department heads to provide "a full precise, and distinct general idea of the affairs of the United States" they oversaw. President Washington issued eight executive orders, John Adams one, President Jefferson four, Madison one, Monroe one and John Quincy Adams three. In stark contrast, President Trump has issued 147 during his first 100 days. These facts were provided by the American Presidency Project, University of California, Santa Barbara.
President Trump is usurping the role of Congress by issuing executive orders where legislation should be enacted. Congress gave the president the authority to impose tariffs under the International Emergency Economic Powers Act (IEEPA, 50 U.S.C. 1701 et seq. However, Congress did not give the president the power to punish lawyers or universities.
Trump's executive orders that target law firms and universities are bills of attainder and ex post facto laws because they target a person or group "guilty" of doing something that the president did not like. These orders are therefore unconstitutional under Article I, Section 9 of the U.S. Constitution.
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