Judge rejects Huawei challenge to federal ban of its products

By Rick Weber  
February 19, 2020 at 11:29 AM

A federal judge in Texas has rejected China-based tech giant Huawei's challenge to a ban on government purchases of its products based on national security concerns, upholding the authority of Congress to establish the ban through the Fiscal Year 2019 National Defense Authorization Act.

The judge said Huawei failed to show how Congress violated the company's constitutional rights by legislating a ban under Section 889 of the FY-19 NDAA, citing findings by a congressional commission that Chinese tech companies pose "a threat as they 'are directly subject to direction by the Chinese Communist Party,'" according to the order issued Tuesday by the U.S. district court for eastern Texas.

"Huawei challenges Section 889 as unconstitutional on three grounds. Namely, Huawei asserts that Section 889: (1) violates the Bill of Attainder Clause; (2) violates the Due Process Clause; and (3) violates the Vesting Clauses. The Government maintains that Section 889 is constitutional on all challenged grounds," the court said in summarizing the case. "The Government further seeks dismissal of the individual defendants, which Huawei opposes."

Judge Amos Mazzant granted the government's request by finding that Huawei failed to show how Congress violated the U.S. Constitution's separation of powers.

The judge said: "It makes 'no difference' to the separation-of-powers analysis whether Congress legislates generally or with particularity," according to the order. "Indeed, Congressional action that is particularized is not presumptively nonlegislative."

Also, the court rejected Huawei's characterization of NDAA Section 889 as restricting executive and judicial branch functions.

"What Huawei pejoratively labels as Congress unconstitutionally adjudicating facts is better characterized as a thorough congressional investigation into a potential threat against the nation's cybersecurity," according to the order. "Congress's investigation led to the passing of a defense-appropriations bill as a prophylactic response to that threat."

In a statement yesterday, a company spokesman said: "Huawei is disappointed in today's ruling and while we understand the paramount significance of national security, the approach taken by the U.S. Government in the 2019 NDAA provides a false sense of protection while undermining Huawei's constitutional rights. We will continue to consider further legal options."

The ruling is a blow for Huawei, but not likely the final word in its full-court press in challenging multiple federal efforts to block the company's components from U.S. buildout of 5G networks. Huawei in December filed a complaint with U.S. Court of Appeals for the Fifth Circuit challenging the Federal Communications Commission's ban on the use of a federal fund to purchase its products mostly by rural telecom companies.