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Update: Huawei lead counsel speaks out about the US case

Yesterday Huawei released to the public that they will be filing a lawsuit against the US government for violating the constitution. You can read our full coverage of that announcement here. Huawei lead counsel and Jones Day partner Glen Nager has released additional comments about the case, clarifying the details.

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

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

As it stands it seems that Huawei and their legal team are arguing that Congress is breaking the law on a constitutional base, and if there is one thing Americas can agree on, that is that the constitution must never be violated.

Nager continues, “As shown in the motion, section 889 is unconstitutional selective legislative punishment. It calls out Huawei by name. Moreover, as its sponsors admitted in legislative debate, section 889 seeks to drive Huawei out of the United States, i.e., to “banish” it from the country, a quintessential form of punishment. Furthermore, in contrast to laws that have been upheld by the courts, section 889 is not closely tailored to achieve a legitimate non-penal purpose—such as protecting national defence or government network security.

“Rather, by restricting purchases of Huawei equipment not only by federal agencies but also by government contractors and federal grant and loan recipients that have no connection to a defence function or a government information network, section 889 piles on burdens that are unnecessary to those purported purposes.”

“By not restricting the use of covered equipment in national defence functions or government information networks, and by not addressing any of the other manifest risks in the global supply chain for telecommunications equipment, section 889 is so underinclusive that it cannot be legally justified by reference to such non-penal purposes.”

The motion also shows that, for similar reasons, section 889 violates due process and the separation of powers. It will be interesting to see if Huawei and their legal team can shake up the tree with this latest announcement. However, as it stands right now I am unsure if anything good will come from this prolonged struggle.