The company Huawei has filed a lawsuit against the United States government due to the legislative ban contained in the National Defense Authorization Act (NDAA), which forbids the company from supplying telecommunication equipment to federal agencies. The law also bars federal loans for the purchase of such products.
The case was filed before a federal district court in Texas, against the United States Government, the U.S. General Services Administration Administrator, the Secretary of Labor, the Secretary of Health and Human Services, the Secretary of Education, the Secretary of Agriculture, the Secretary of Veterans Affairs, and the Acting Secretary of the Interior.
According to the complaint filed, the 2019 NDAA, more specifically its Section 889, is unconstitutional as it directly forbids federal authorities from signing procurement agreements with Huawei to purchase telecommunication equipment or federal or granting federal loans for such purpose.
In short, Section 889 is not only contrary to the economic interests of the United States and its citizens, and ineffective at advancing U.S. security interests, it is also contrary to the Constitution of the United States.
Injuries to the U.S Constitution
The first injury to the U.S Constitution is the violation of the Bill of Attainder Clause, which prohibited that legislature impose punishment, without hearing the other party or trial.
The second unconstitutionality relates to the violation of the Due Process Clause, that prohibited legislation that would single out particular persons or deprivations of liberty. In this case, the legislative act affects business freedom.
The third unconstitutionality is the violation of the principle of the separation of powers, as Congress must not act as prosecutor, judge, and enforcer of the sanction of prohibition against the company, without any evidence of it having business connections with the Chinese government, as well as of threats to cybersecurity.
The company also claims that Section 889 of the National Defense Authorization Act bars Huawei from doing business with the federal government even as to agencies that have no significant connection to defense, information security, or national security.
It further argues that the U.S. law causes significant damages to Huawei's business by creating unfair conditions amongst competitors.
Thus, the U.S federal government may purchase telecommunication equipment from Nokia, Ericsson, and other competitors, but cannot purchase products from Huawei.
Finally, Huawei requests that Section 889 of the 2019 National Defense Authorization Act be declared unconstitutional, as it violates the Bill of Attainder Clause, the Due Process Clause of the Constitution’s Fifth Amendment, and the Constitution’s Vesting Clause and resulting separation of powers.
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*Ericson M. Scorsim is lawyer and legal consultant in Communications Law. PhD from Universidade de São Paulo. Founder of the Law firm Meister Scorsim Advocacia. Author of the ebook Themes of Communications Law in the Case Law of the Brazilian Supreme Court.
