S. 3646 — No Political Enemies Act

This section states the following congressional findings: (1) Congress has not delegated to the President authority to designate an entity as a domestic terrorist organization; (2) the President lacks inherent Article II authority to make such a designation; (3) the First Amendment guarantees freedom of speech, freedom of the press, the right to peaceably assemble, and the right to petition the government; and (4) no federal employee, including the President and Vice President, may violate constitutional rights.

This section defines terms used in the Act, including "(1) covered enforcement claim" as a claim by the Federal Government alleging a violation of Federal civil or criminal law (including regulations); "(2) covered Federal official" as an officer or employee of the executive branch (including the President, Vice President, and independent agency personnel); "(3) covered Government action" as an exercise of investigative, regulatory, or enforcement authority against a specific covered person (including unauthorized actions but excluding those against Federal employees regarding their employment); "(4) covered person" as a domestic entity or an individual who is a U.S. citizen or national, lawful permanent resident, or present in the United States or its territories; "(5) domestic entity" as an entity organized under the laws of the United States or any State or territory; "(6) protected speech or participation" as constitutionally protected speech (e.g., criticism or dissent); and "(7) substantially motivated by protected speech or participation" as when such speech is a motivating factor (not necessarily the sole or primary reason), except for actions under specified statutes regulating political speech (e.g., 52 U.S.C. 10102 and the Voting Rights Act of 1965).

This section prohibits a covered federal official from initiating or directing a covered enforcement claim or covered government action against a covered person if substantially motivated by the person's protected speech or participation or otherwise intended to suppress, burden, or punish such speech or participation.

This section establishes an affirmative defense to any covered enforcement claim if the claim was substantially motivated by the protected speech or participation of the covered person. If a covered person presents substantial evidence of such motivation after the government initiates the claim, the court (1) orders expedited discovery on the government's motivations, with authority to review privileged materials in camera and ex parte upon the Attorney General's affidavit; and (2) requires the government to prove by clear and convincing evidence that legitimate grounds unrelated to protected speech justify the claim and that it was not substantially so motivated. If the government fails to meet this burden, the court dismisses the claim or awards appropriate relief.

This section establishes a civil cause of action allowing a covered person to seek injunctive or other equitable relief in an appropriate U.S. district court, including the U.S. District Court for the District of Columbia, against a covered federal official or executive branch agency for a covered government action substantially motivated by the covered person's protected speech or participation. A First Amendment violation suffices to establish harm warranting relief, and a likelihood of success on the merits establishes irreparable harm for emergency, temporary, or preliminary injunctive relief. Federal courts have jurisdiction over such actions without regard to 28 U.S.C. §§ 1346(a), 2342, 2349; 5 U.S.C. § 701(a); or 8 U.S.C. 1252 (which limits judicial review of certain immigration removal orders, including expedited removal under INA § 235(b)(1) [8 U.S.C. 1225(b)(1)] and denials of discretionary relief). (Thus, covered persons may seek district court injunctions against immigration enforcement actions notwithstanding the jurisdictional bars of 8 U.S.C. 1252.) This section further authorizes courts to enjoin tax assessments or collections, without regard to 26 U.S.C. 7421 (the Anti-Injunction Act), if a covered government action to deny, investigate, or revoke tax-exempt status is substantially motivated by protected speech or participation.

This section authorizes a covered person to bring a civil action for damages against a covered federal official in an appropriate U.S. district court (or the U.S. District Court for the District of Columbia) if the official knowingly initiated or directed a covered government action substantially motivated by the covered person's protected speech or participation that violated the person's constitutional rights. The section abrogates the official's immunity to the maximum extent permitted by the Constitution, except where the official (1) acted in good faith and (2) any motivating speech, expression, or association was clearly unprotected. It prohibits the United States from indemnifying the official unless a court determines immunity applies or indemnification is necessary for complete relief because the plaintiff seeks U.S. payment for full recovery and the official demonstrates inability to pay. Nothing in the section invalidates or limits other judicially or statutorily created claims, remedies, rights, or procedures.

This section authorizes federal courts to award reasonable attorneys' fees and costs to a party opponent in proceedings relating to a covered government action or enforcement claim—including under sections 5, 6, or 7—if the party demonstrates that the action was substantially motivated by the party's protected speech or participation. For criminal matters, an award requires dismissal of the prosecution, acquittal, or court injunction of pre-enforcement activities; for civil matters, the party must substantially prevail (i.e., obtain a judicial order, enforceable agreement, voluntary government change if the claim is not insubstantial, or injunctive relief not overturned). The section exempts such awards from all statutory limits on attorney fees and costs, including those under the Criminal Justice Act (18 U.S.C. §3006A) (i.e., maximum compensation rates and caps for counsel and services appointed to represent indigent persons in federal criminal cases), the Equal Access to Justice Act (28 U.S.C. §2412), and related appropriations restrictions.

This section amends the Antideficiency Act (31 U.S.C. 1341(a)) by (1) adding subparagraph (E) to paragraph (1) to prohibit obligating or expending federal funds for any covered government action or covered enforcement claim against a covered person that is substantially motivated by protected speech or participation by the covered person (terms as defined in section 3 of the No Political Enemies Act); and (2) adding paragraph (3) to authorize any aggrieved person to bring a civil action in an appropriate U.S. district court or the U.S. District Court for the District of Columbia seeking injunctive or other equitable relief, with jurisdiction notwithstanding 28 U.S.C. §§ 1346(a), 2342, and 2349; 5 U.S.C. § 701(a); or 8 U.S.C. § 1252.

This section requires the Attorney General to submit quarterly unclassified reports (with a possible classified annex) to the Senate and House Judiciary Committees, not later than 30 days after the end of each calendar quarter, on covered matters—defined as Department of Justice (DOJ) criminal investigations, prosecutions, or enforcement actions requiring headquarters or leadership approval under statute, regulation, or policy, or designated by the Attorney General or Deputy Attorney General as of significant public interest or sensitivity. The reports must include (1) summaries of covered matters initiated, approved, declined, or closed during the quarter; (2) the basis for any declination, approval, or directive by Department leadership; (3) significant changes in Department policy governing approval or oversight of covered matters; and (4) aggregated data on prosecutorial declarations. Additionally, this section requires the Attorney General to notify the committees within three business days of any court order that rejects or allows discovery into a prosecutorial declaration or materially affects its confidentiality or validity.

This section establishes a severability clause, providing that if any provision of the Act or its amendments, or its application to any person or circumstance, is held unconstitutional, the remainder of the Act and its application to other persons or circumstances shall not be affected.