Is “Nazi Social Security Benefits Termination Act of 2014” A Bill of Attainder?

November 18th, 2014

A bipartisan group of members of Congress has introduced the “Nazi Social Security Benefits Termination Act of 2014.” This bill, in short, would deny Social Security benefits to anyone who has had their citizenship revoked because they worked for the Third Reich. Specifically, “A participant in Nazi persecution is not eligible for any benefit.”

The statute defines a participant as someone whose citizenship has been revoked due to “participation in Nazi persecution.”

For purposes of this Act, the term participant in Nazi persecution means an individual—

(1) with respect to whom an order admitting the individual to citizenship has been revoked under section 340 of the Immigration and Nationality Act in any case in which such revocation is based on conduct described in section 212(a)(3)(E)(i) of such Act (relating to participation in Nazi persecution); or
(2) who has lost status as a national of the United States by voluntary renunciation under section 349(a)(5) of the Immigration and Nationality Act pursuant to a settlement agreement entered into with the Attorney General in which such individual has admitted to conduct described in section 212(a)(3)(E)(i) of such Act (relating to participation in Nazi persecution).
At first glance, this seems to be a bill of attainder. The law singles out a specific group of people–though not named–to be denied a statutory benefit. No judicial process is involved, even if the antecedent citizenship revocation was subject to judicial review.

At, Darren Smith has a lengthy post breaking down the bill of attainder caselaw, including United States v. Lovett, a case involving the termination of government compensation based on accusations of the House Un-American Activities Committee.

Legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial, are bills of attainder prohibited by the Constitution. Cummins v. Missouri, 4 Wall. 277; Ex parte Garland, 4 Wall. 333. P. 328 U. S. 315.

Smith adds:

The subject group, alleged Nazis, is clearly identifiable as such and comprises a small group of individuals, reportedly to be several dozen, among the scores of millions of Social Security beneficiaries at large.

Congress is surely applying punishment without trial in that the Justice Department only needs to declare a finding, not even probable cause, directed to the Social Security Administration declaring unilaterally and without trial or due process an individual had participated in persecutions as a member of the Nazi Party and therefore is ineligible for Social Security Benefits.

This obscure clause would render this provision unconstitutional.