By Hope King and Chloe Aiello
In order to win its case against the U.S., Huawei has to prove it's being punished over allegations that the company is a threat to U.S. security, Julian Ku, professor and academic dean at Hofstra Law told Cheddar Thursday.
"They have to show what Congress did was a punishment, almost akin to criminal punishment," Ku said.
The Chinese telecommunications giant filed its lawsuit against the U.S. Wednesday evening, claiming it had been unfairly singled out through parts of the 2019 National Defense Authorization Act (NDAA), which allocates defense spending annually.
"[The suit] is not frivolous but it's not likely to succeed ... A lot of this would be different if this were a judicial proceeding, but this is a decision made by Congress ー a policy decision," Ku said, adding that courts may be very hesitant to second guessing Congress.
Huawei's argument, however, also claims that Congress overreached with its ban, violating the separation of powers provision in the Constitution.
By singling out the company, alleging it to be connected to the Chinese government, and banning business with government and related organizations, section 889 of the NDAA "usurps functions properly committed to the Executive and Judiciary, and deprives Huawei of the structural protections available when such functions are exercised by their constitutionally-assigned branches, such as opportunities for executive consultation and subsequent judicial review, and the possibility of reconsideration," according to the claims.
Ku believes these arguments are "very unpersuasive."
"Congress has to make a lot of judgments about risks and security," he said. "I don't think Huawei has a fundamental right to do business with U.S. government, which is what their due process argument is."
What it does do, however, is put the U.S. government on the defensive, said Ku. The U.S. has banned Huawei's equipment on the basis of allegations the company has ties to the Chinese government and is a threat to national security. Now Congress will have to prove it.
With its lawsuit, Ku said Huawei was making a statement: "We’re willing to go to court and prove our case and expose ourselves to the judicial process."
"In that sense it’s pretty smart for them to do this," he added. "They’re using the U.S. court system, showing they really believe in the U.S. constitutional system."
Huawei has attempted to push back on suspicion that it is too close to the Chinese government. It has been accused of stealing secrets from U.S. companies and also banned from conducting business in Australia. Tensions with the U.S. culminated when Huawei's CFO, Meng Wanzhou, was arrested in Canada in December on suspicion of violating U.S. sanctions against Iran. She is currently awaiting an extradition hearing scheduled for May.
The next step in the case is to wait for the U.S. government to file a response, which Ku believes will likely be a request for dismissal.
Huawei was the top telecommunications equipment provider as of the third quarter of last year, with 28 percent of the global market according to research group Dell’Oro. The company also overtook Apple last year as the second biggest smartphone maker by global shipment.
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