。 - 2 - pertinent provisions of section 889 of the John S. McCain National Defense Authorization Actfor Fiscal Year 2019, Pub. L. No. 115-232 (“NDAA” or “2019 NDAA”), that define certainequipment and services produced or provided by Huawei Technologies Co., Ltd. and itssubsidiaries and affiliates as “covered telecommunications equipment or services,” id.§ 889(f)(3)(A), (C), and consequently restrict the procurement and use of such equipment byexecutive agencies, federal government contractors, and federal loan and grant recipients, id.§ 889(a)-(b), are unconstitutional. Plaintiffs also seek an injunction and any other appropriaterelief. In support thereof, Plaintiffs allege as follows:PRELIMINARY STATEMENT1. The Framers of the United States Constitution were deeply concerned about thepotential abuse of legislative power. They believed that “[t]he legislative department iseverywhere extending the sphere of its activity, and drawing all power into its impetuousvortex,” and that as a result, “[i]t is against the enterprising ambition of this department that thepeople ought to indulge all their jealousy and exhaust all their precautions.” The Federalist No.48 (James Madison). The Framers accordingly granted Congress only limited and enumeratedlegislative powers; divided these powers between a House of Representatives and a Senate;subjected the exercise of these powers to strict procedures; and vested the executive and judicialpowers in separate, independent branches of the government.2. One of the Framers’ particular concerns was that the legislature would use itspower to target specific individuals for adverse treatment. The Framers believed that, if thelegislature could itself sanction specific persons “without hearing or trial” conducted by theExecutive or the courts, “no man can be safe, nor know when he may be the innocent victim of aprevailing faction.” 3 The Papers of Alexander Hamilton, at 485–86 (Harold C. Syrett ed. 1961– Case 4:19-cv-00159 Document 1 Filed 03/06/19 Page 2 of 54 PageID #:2 NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_- 3 - 1979). Thus, even where the Framers otherwise granted Congress enumerated legislative powers,they prohibited it from using those powers to enact bills of attainder that impose punishment onspecific individuals identified by the legislature. Further, through the Due Process Clause, theyprohibited legislation that would single out particular persons for deprivations of liberty. Finally,through the Vesting Clauses and the resulting separation of powers, the Framers prohibitedlegislation that, rather than simply enacting a general rule, applied a rule to an individual case orperson. 3. Provisions of section 889 of the 2019 NDAA violate these constitutionallimitations. In particular, section 889 specifically targets Plaintiff Huawei Technologies Co.,Ltd., and its subsidiaries and affiliates, such as Plaintiff Huawei Technologies USA, Inc. Section889 calls out Huawei by name, legislatively adjudicates it to be connected to the Government ofthe People’s Republic of China, and precludes U.S. government agencies not only frompurchasing specified Huawei equipment and services, but also from contracting with or awardinggrants or loans to third parties who purchase or use such equipment or services—regardless ofwhether the equipment or services have any impact on or connection to the government of theUnited States. The actual and intended effect of these prohibitions is to bar Huawei fromsignificant segments of the U.S. market for telecommunications equipment and services, therebyinflicting immediate and ongoing economic, competitive, and reputational harms on Huawei.4. Section 889 permanently imposes these burdens and sanctions on Huawei withoutgiving it a fair hearing or the opportunity to rebut the allegations against it, and withoutopportunity for escape. The statute specifically and expressly applies these broad prohibitionsand sanctions only to Huawei and one other named entity. In contrast, the statute gives theSecretary of Defense, in consultation with the FBI Director or the Director of NationalCase 4:19-cv-00159 Document 1 Filed 03/06/19 Page 3 of 54 PageID #:3 NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_- 4 - Intelligence, authority to determine whether other entities are owned or controlled by, orotherwise connected to, the Chinese government—determinations that are then subject to judicialreview under the Administrative Procedure Act. The statute affords those Officers of the UnitedStates the discretion to change their determinations if they find, for example, that the facts abouta particular entity have changed. But those Officers have no such discretion with respect toHuawei: even if those Officers definitively find that Huawei has no connection to the Chinesegovernment, the prohibitions targeting, and sanctions imposed on, Huawei will remain in place.In short, section 889 blacklists Huawei and bars it from significant sectors of the U.S.telecommunications market, all without giving Huawei a fair hearing at which it could beinformed of and confront the accusations made against it. 5. In so doing, section 889 violates at least three constitutional provisions: It violatesthe Bill of Attainder Clause by singling out Huawei for punishment—blacklisting it, impugningboth its general reputation and its specific commitment to honoring the laws of the United States,and denying it any procedure through which it can clear its name and escape sanction. Section889 also violates the Due Process Clause by selectively depriving Huawei of its liberty— severely curtailing its freedom to do business, stigmatizing it by effectively branding it a tool ofthe Chinese government and a risk to U.S. security, and denying it any pre-deprivation legalprocess to confront the congressional charges against it. And section 889 violates the VestingClauses and the resulting separation of powers by legislatively adjudicating Huawei to be“guilty” of an alleged connection to the Chinese government, and by implication a threat to U.S.security, rather than leaving it to the Executive and the courts to make and adjudicate any suchcharges.Case 4:19-cv-00159 Document 1 Filed 03/06/19 Page 4 of 54 PageID #:4 NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ NNl_ 。。。。。。