On Tuesday, Huawei filed a legal motion against a government ban on its equipment as unconstitutional. It is the latest attempt by the Chinese technology company to push back against policies that limit its global reach.
Huawei is currently struggling with an existential threat to its business after the US Commerce Department has blocked the company from entering into contracts with US companies without government permission. The ban, introduced earlier this month, has already forced companies like Google to suspend work with the Chinese technology giant.
That order is only the last attempt by the US government to push Huawei out of the country. Before the wider prohibition, Congress passed a law that prevents Huawei products from use in the government, labeling them a potential security threat. That ban not only blocked government agencies from using the products, but all contractors who won lucrative government contracts also had to drop Huawei equipment. Faced with the ban, Huawei filed a lawsuit against the US in March, claiming that the action was unconstitutional.
That suit is still ongoing and we now have more insight into Huawei's legal argument a motion submitted last night, which outlines why the company believes that the government ban should be declared invalid. The motion requires a court to directly decide as a & # 39; summary judgment & # 39 ;.
As lawyers foresaw, Huawei claims that the government ban is "a beak of achievement". According to the constitution, Congress is forbidden to pass laws that target specific people, and Huawei says the ban is eligible.
In Huawei's document – which begins with a quote from James Madison – Huawei says Congress exceeded the law when it passed legislation that imposed the ban. Huawei was specifically mentioned in the defense budget, including the prohibition, and the company says the measure "denies Huawei any response procedure" to the decision. In rising language, the lawyers of Huawei claim that the legislation "produces the tyranny that the Framers feared" and should therefore be declared unconstitutional.
The US government has repeatedly argued that Huawei equipment can be used by the Chinese government to spy on American networks and that banning companies like Huawei is well within its national security powers. (Huawei has denied that its technology can be used to spy on the US.)
The company points to a precedent that goes back to the civil war and the cold war when the courts took action against former Southern soldiers and members of the Communist Party. The ban of Huawei, the company said, is also "selective" and "punitive": it "imposes the type of permanent disability on serving the government and / or pursuing the choice of someone who was punished in the past considered. "
Huawei, the company says, has been unfaithed by a legislative act such as & # 39; instead of having the opportunity to bring his case to court. This has also robbed her of a fair trial according to the law, it argues.
The business of the company faces a number of challenges. After concerns about cyber security, the US has set itself up a federal ban on software from the Russian Kaspersky Lab, a clear example of the Huawei order. Kaspersky also filed a legal challenge, arguing that the government had prepared an acceptance bill, but the government prevailed in court. In general, the courts have given the government ample freedom with regard to national security issues, so that Huawei's legal prospects are uncertain.
The wider prohibition, which affects the sale of American products to Huawei, raises its own set of legal problems. Whether Huawei will also be legal remains to be seen, but the legal maneuvering of this week gives an indication of what the arguments might look like in that case. (While trade negotiations with China continue, Trump has suggested that the Huawei ban can be lifted as part of a deal, which raises questions about the reasons for the national security of the administration.)
In a statement accompanying the motion, Huawei's chief officer said the ongoing crackdown "sets a dangerous precedent."
"Today it's telecom and Huawei," he said. "Tomorrow it could be your industry, your company, your consumers."