ArtI.S9.C3.3.9 Employment Qualifications and Ex Post Facto Laws

Article I, Section 9, Clause 3:

No Bill of Attainder or ex post facto Law shall be passed.

The Supreme Court has heard multiple ex post facto challenges to laws that limit the ability of the challengers to engage in certain professions. The Court has struck down laws it deemed to impose employment bans as punishment for past conduct. For instance, in Cummings v. Missouri, the Court considered a challenge to a post-Civil War amendment to the Missouri Constitution that required persons engaged in certain professions to swear an oath that they had never been disloyal to the United States.1 The Court held that the purpose and effect of the challenged amendment was to punish a group of individuals who had been disloyal to the United States, and the punishment they faced was effective exclusion from the covered professions.2 The Court noted that some of the covered acts of disloyalty were crimes when they were committed, while some were not. The amendment violated the Ex Post Facto Clause in either case, whether by retroactively increasing the punishment for an existing offense or by imposing punishment for acts that were not offenses at the time they were committed.3 The Court also held that the challenged provisions improperly “subvert[ed] the presumptions of innocence, and alter[ed] the rules of evidence” by “assum[ing] that the parties are guilty” and requiring them to “establish their innocence.” 4 In Ex parte Garland, the Court relied on its reasoning in Cummings to strike down a similar federal law.5

By contrast, the Court has rejected ex post facto challenges to laws that it found imposed legitimate, non-punitive employment qualifications. In Hawker v. New York, the Court denied a challenge to a state statute that barred any person convicted of a felony from practicing medicine.6 The Court concluded that the prohibition “is not to be regarded as a mere imposition of additional penalty, but as prescribing the qualifications for the duties to be discharged and the position to be filled.” 7 The Court further explained that a state “may require both qualifications of learning and of good character” of those engaged in the practice of medicine, may determine “that one who has violated the criminal laws of the state is not possessed of sufficient good character,” and “may make the record of a conviction conclusive evidence of the fact of the violation of the criminal law, and of the absence of the requisite good character.” 8 For similar reasons, the Court in Reetz v. Michigan rejected an ex post facto challenge to a state law that imposed new professional registration requirements for doctors and prohibited the practice of medicine by unregistered persons.9

In Garner v. Board of Public Works, the Supreme Court considered ex post facto challenges to a provision of the Charter of the City of Los Angeles barring from public employment any person who within the last five years had been affiliated with a group that advocated the forceful overthrow of the government, and a city ordinance requiring public employees to state whether they had ever been members of the Communist Party.10 The Court construed the challenged provisions to apply only after adoption of the Charter to “bar[ ] from the city’s public service persons who . . . advise, advocate, or teach the violent overthrow of the Government or who are or become affiliated with any group doing so.” 11 The Court held that “[t]he provisions operating thus prospectively were a reasonable regulation to protect the municipal service by establishing an employment qualification of loyalty to the State and the United States.” 12 It further held that the provisions were not ex post facto because, assuming that being fired for failure to satisfy the requirements constituted punishment, the conduct covered by the oath had been unlawful for years prior to imposition of the oath requirement, so the provisions did not operate to “impose[ ] punishment for past conduct lawful at the time it was engaged in.” 13

71 U.S. 277, 280–81 (1866). back
Id. at 320 (determining that the oath requirement “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, and that for many of them there was no way to inflict punishment except by depriving the parties, who had committed them, of some of the rights and privileges of the citizen” ). back
Id. at 327–28. back
Id. at 328. back
71 U.S. 333, 377–78 (1867). Cf. Pierce v. Carskadon, 83 U.S. 234, 237–39 (1873) (striking down a law making access to certain court proceedings contingent on an affidavit that, among other things, “such defendant never voluntarily bore arms against the United States, the reorganized government of Virginia, or the State of West Virginia” ). back
170 U.S. 189, 190–193 (1898). See also De Veau v. Braisted, 363 U.S. 144, 160 (1960) (plurality opinion) (rejecting an ex post facto challenge to a state law that prevented any person who had been convicted of a felony and had not been pardoned from serving as an officer or agent for certain labor organizations). back
Hawker, 170 U.S. at 200. back
Id. at 191. back
188 U.S. 505, 510 (1903). back
341 U.S. 716, 718–19 (1951). back
Id. at 720. back
Id. at 720–21. back
Id. at 721. back