The AIG Bonus Tax is a Bill of Attainder

Does the House of Representatives ever bother to read the Constitution?

Article 1, Section 9, Clause 3...

No Bill of Attainder or ex post facto Law shall be passed.

And how do the federal courts interpret this clause?

U.S. v. Lovett...

Legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a trial, are 'bills of attainder' prohibited under this clause.

And in Cummings v. Missouri...

A bill of attainder, is a legislative act which inflicts punishment without judicial trial and includes any legislative act which takes away the life, liberty or property of a particular named or easily ascertainable person or group of persons because the legislature thinks them guilty of conduct which deserves punishment.

The stupid AIG bonus tax will probably never make it out of the Senate, but if it ever saw the light of day, the federal courts would nullify it in a New York minute.


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    The bottom line (5.00 / 1) (#5)
    by Bemused on Tue Mar 24, 2009 at 10:11:46 AM EST
      is that no case exists finding a very narrowly imposed 90% income tax surcharge, enacted in   direct response to actions which caused public and legislative outrage and which targets as a class those at whom the outrage is directed, is constituional.

      Equally true, no case has ever found such a tax (likely due to lack of precedential examples) unconstitutional,  and several other tax schemes have withstood BoA challenges and dicta in some of  those case makes it seem  a tax would need to be extraordinarily targeted and punitive for BoA analysis to apply.

      We probably won't find out if a tax can amount to a billof attainder and if so when because, politicians having grandstanded for what it's worth, this proposal won't become law and any tax that is enacted will be more thoughtfully drafted. (At least in terms of being blatantly narrow, punitive and confiscatory)

    venue (5.00 / 1) (#8)
    by Bemused on Thu Mar 26, 2009 at 09:57:36 AM EST
      I wish some of this stuff was from another planet, but alas...

    Excellent comment! (none / 0) (#9)
    by Jacob Freeze on Thu Mar 26, 2009 at 02:01:01 PM EST
    That sums up how I feel most of the time, and...

    It reminds me of a great poem by e e cummings!

    pity this busy monster,manunkind,

    not.  Progress is a comfortable disease:
    your victum(death and life safely beyond)

    plays with the bigness of his littleness
    -electrons deify one razorblade
    into a mountainrange;lenses extend

    unwish through curving wherewhen until unwish
    returns on its unself.
                          A world of made
    is not a world of born-pity poor flesh

    and trees,poor stars and stones,but never this
    fine specimen of hypermagical

    ultraomnipotence.  We doctors know

    a hopeless case if-listen:there's a hell
    of a good universe next door;let's go

    Discussion of this issue elsewhere (none / 0) (#1)
    by Jacob Freeze on Mon Mar 23, 2009 at 03:15:39 PM EST
    A couple of current articles discuss whether the bonus tax meets the definition of a bill of attainder, here, and here.

    Merits (none / 0) (#2)
    by Jacob Freeze on Mon Mar 23, 2009 at 03:42:13 PM EST
    It's worth noticing that most of the arguments against classifying the bonus tax as a bill of attainder in those links merely allege the rarity of laws overturned as bills of attainder, rather than arguing that the bill doesn't fit the language of Cummings v. Missouri.

    Specifics (none / 0) (#3)
    by Jacob Freeze on Mon Mar 23, 2009 at 03:50:36 PM EST
    The article in the La Times includes a brief expression of what I also believe to be the most offensive aspect of the bonus tax:

    "Courts sometimes look to the motivation of the legislature, and this looks like an intention to punish," said Steve Johnson, a former IRS lawyer who teaches tax law at the University of Nevada, Las Vegas. "It could also be viewed as government confiscation."

    I'm not (5.00 / 1) (#4)
    by Bemused on Mon Mar 23, 2009 at 04:06:28 PM EST
    prepared to say the Court would find this proposal is unconstituional as a bill of attainder, but you are exactly correct that no court has ever considered a tax surrounded by all the factors present here when holding the taxes at issues in those cases were not unconsitutional.

      None of the cases involved a tax that is simultaneously so heavily confiscatory, narrowly targeted against persons as opposed to activities or commodities and was enacted in an environment where the desire to "punish" was openly admitted in addition to being largely self-evident. Some are also missing the distinction between a tax intended to discourage a course of conduct in the future and a tax to make someone pay something back.


    Punitive intent (none / 0) (#6)
    by Jacob Freeze on Tue Mar 24, 2009 at 02:33:02 PM EST
    I agree with you that this thing will probably never make it out of the Senate, but I still think it's so blatantly targeted at AIG that most federal judges would kill it.

    Lawrence Tribe seems to think the obviously punitive intent of the bonus tax pushes it over the line into being a bill of attainder. Here, for example...

    I just got off the phone with Harvard professor (of Constitutional law) Laurence Tribe, who advised Obama during the campaign, and he says he's leaning towards seeing the new House bill to tax back all the AIG bonuses as unconstitutional.
    Tribe says the problem with the bill is that the Constitution forbids Congress from enacting a "bill of attainder," which would essentially "legislate punishment of an identifiable class," as he put it. Tribe noted that the Supreme Court had used that clause to slap down other laws.

    Tribe says the main problem is that it's hard to make the case that the law isn't "punitive."

    "Its punitive intent is increasingly transparent," Tribe says. "when you have Chuck Grassley calling on [executives] to commit suicide, and people responding to pitch fork sentiment, it's hard to argue that this isn't an attempt to punish an identifiable set of individuals who are the subject of understandable outrage."

    The whole point of opposing bills of attainder, Tribe says, is to prevent what some have called "trial by legislature."

    Well ultimately (5.00 / 1) (#7)
    by Bemused on Thu Mar 26, 2009 at 09:56:48 AM EST
      we'd likely be interested only in the 2nd or DC Circuit (I'm not prepareed to addres venus isses)and then the Supreme Court. I think that despite my personal view it should be considered unconstitutional that there is too little precedential law or applicable determinative reasoning to sate with confidence one way or the other.