HERE’s one of two bills currently in the house I can find.
Excerpt;
(a) In General.–In the case of an employee or former employee of a
covered TARP recipient, the tax imposed by chapter 1 of the Internal
Revenue Code of 1986 for any taxable year shall not be less than the
sum of–
(1) the tax that would be determined under such chapter if
the taxable income of the taxpayer for such taxable year were
reduced (but not below zero) by the TARP bonus received by the
taxpayer during such taxable year, plus
(2) 90 percent of the TARP bonus received by the taxpayer
during such taxable year.
Now from the constitution ;
No Bill of Attainder or ex post facto Law shall be passed.
In the context of the Constitution, a Bill of Attainder is meant to mean a
bill that has a negative effect on a single person or group (for example,
In U.S. Constitutional Law, the definition of what is ex post facto is more limited. The first definition of what exactly constitutes an ex post facto law is found in Calder v Bull (3 US 386 ), in the opinion of Justice Chase: 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.
Since some form of this is likely to pass, I would like to hear some comments on the legal stances on these actions. Seems
to me that the proposed bill is both a Bill of Attainder AND ex post facto, but I’m not a lawyer. The “Catches” I see are that we
aren’t talking about a crime and the precident on “Taxes” are that they target “Groups” of people anyway. I.E. Anyone that makes more
thank “X” dollars. If this is proven unconstitutional I don’t see how our tax code could be constitutional either.
I have had the same thoughts. This is precisely the kind of targeted governmental action that scared the crap out of the Founding Fathers.
Now, how to dodge around what are fairly plain statements in the Constitution? As you point out, the USSC work on the topic is geared toward what is criminal behavior. That is actually a pretty good dodge. There is a broad line between criminal rights and civil rights. Where does that line get blurry? You guessed it: Tax code. The Congress will say, “What? We are just exercising our right to lay and collect taxes.” The bonus recipients will argue that they are being selectively persecuted because of their involvement in AIG, Merrill, etc. and the tax is just the method of persecution.
Who wins in the end? Doesn’t matter. The execs will be screwed in the process of fighting the fight.
It should disturb people that the government is chasing people to serve a political end.
This seems to be a good definition of Bill of Attainder in the context of AIG payments.
“The Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function or more simply - trial by legislature.” U.S. v. Brown, 381 U.S. 437, 440 (1965).
“Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. … The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community.” James Madison, Federalist Number 44, 1788.
This seems to be the result of the slippery slope of using the tax code to promote behaviour. If the tax code can be used to promote charitable contributions, home ownership, strong families, then why not use it to promote equity (i.e., not giving bonuses to those we deem as undeserving).
While I agree that the current activity is in violation of the Constitution, mostly for the points you make, I don’t think that matters. Obama should be impeached, along with most of the folks in Congress.
Obama should be impeached, along with most of the folks in Congress.
Which leads to something Rob C alluded too. When congress passes a bill like this, and likely they will, Obama signs it, likely he will and IF the superior court strikes it down, likely they won’t, have the congress and administration gone against their oath of office and should they be impeached?
Again I’m not saying that should happen, I’m asking if it could. From my perspective congress and the administration are playing with the very grounds the constitution is based on here and again IMO, not much of a blurry line at all. OTOH I’m fully aware that many, probably most, don’t see things the way I do so I’m more concerned the bill will be passed and maybe not even challenged and if it is, not over ruled.
In a broad sense, I think you’re exactly right. However, Calder has been interpreted to stand for the proposition that the ex post facto law prohibition in the Constitution applies only to criminal law. This might be a good reason for SCOTUS re-examine Calder. Bills of attainder are likewise rooted in criminal conduct, but I don’t know that they have a particular SCOTUS decision backing that application like Calder does for the ex post facto prohibition.
That said, Tri N OC’s quotes certainly give one pause to think about exactly what our founding fathers intended when they included these limits.
I HATE the idea of these people getting bonuses, but what Congress is doing now scares the ever-lovin’ shit out of me. It’s just plain WRONG, no matter how popular it is with the people.
As I noted in another thread, I definitely think it amounts to a bill of attainder.
Does it also constitute an ex post facto law? As you observed, the prohibition on ex post facto laws has been interpreted as applying only to laws pertaining to crimes. Thus the question becomes: If a law does not expressly identify an act as a crime, but calls for punishment of that act as if it were a crime, has it not in effect defined the act as a crime? In this case, the moral indignation expressed by the legislators who are supporting this legislation certainly suggests that the intent of such a law would be to define a new crime–ex post facto.
I HATE the idea of these people getting bonuses, but what Congress is doing now scares the ever-lovin’ shit out of me. It’s just plain WRONG, no matter how popular it is with the people.
Two wrongs don’t make a right. What AIG has done has TONS of precedent and however distasteful under the conditions is little more than “Business as usual”. What congress is attempting to do is a whole new level of targeting individuals and in essence punishing them via the tax code for behavior that they “Don’t like”.
As others have mentioned this can all be “Waived away” by saying “We do this all the time in the tax code”. That is without doubt true and without doubt needs to be examined as well.
The passage of this law by the House of Representatives scares me far more than ANY discussions around the laws concerning the Patriot Act.
This is our government going after private citizens who did nothing more than sign an employment contract and accept the payments under that contract. Why anyone would think this is acceptable is beyond me.
In this case, the moral indignation expressed by the legislators who are supporting this legislation certainly suggests that the intent of such a law would be to define a new crime–ex post facto.
I thought about this for a while as well. By taxing at a 90% rate is that not a “Punishment” and or a “fine” rather than an actual “Tax bracket”? Since one could argue that it is a punishment, that would turn the action of the AIG employees into a “punishable offense” or simply a crime.
If I’m reading what you wrote correctly you’d agree that although it is not currently a crime, punishing the act would be a crime, since the act has already taken place it is by default ex post facto.
Why anyone would think this is acceptable is beyond me.
Simple, class warfare. “The rich bastards should pay”. It’s part and parcel of politics at this point and people think it’s “Ok” to punish the “Rich”
What people don’t realize is that “The rich” will eventually mean anyone that makes more than the government gives them.
As I posted in another thread I listened to the governor of our state of Illinois, say “We have adjusted the tax so that people who can most afford it can pay”. Turns out if you’re single and make more than 14K a year “You can most afford it” or if you’re married with 2 kids and make more than 56K “You can most afford it”…the rich are getting awfully poor these days.
“If I’m reading what you wrote correctly you’d agree that although it is not currently a crime, punishing the act would be a crime, since the act has already taken place it is by default ex post facto.”
I’m arguing that the proposed bill punishing the act in effect defines it as criminal behavior, and therefore the legislation would be an ex post facto law in the accepted sense of the term. Even more clearly, it is a bill of attainder, and for both reasons it is unconstitutional. As a personal opinion rather than a legal remark, I could also say that I find it morally outrageous (as was also the bailout itself, of course).
As I noted in another thread, I definitely think it amounts to a bill of attainder.
Does it also constitute an ex post facto law? As you observed, the prohibition on ex post facto laws has been interpreted as applying only to laws pertaining to crimes. Thus the question becomes: If a law does not expressly identify an act as a crime, but calls for punishment of that act as if it were a crime, has it not in effect defined the act as a crime? In this case, the moral indignation expressed by the legislators who are supporting this legislation certainly suggests that the intent of such a law would be to define a new crime–ex post facto.
Some guy named Laurence Tribe, who knows a thing or two about the subject, would disagree:
I’m in the process of taking a closer look at this issue at the request of several others both in and out of government, but I can tell you this much on the basis of what I know from my past research and experience: It would not be terribly difficult to structure a tax, even one that approached a rate of 100%, levied on some or all of the bonuses already handed out (or to be handed out in the future) by AIG and other recipients of federal bailout funds so that the tax would survive bill of attainder clause challenge.
Such a tax would presumably be leveled on the basis of some criterion sufficiently general to avoid classification as a measure targeting solely a closed class of identified and named individuals. The fact that the individuals subject to the tax in its retroactive application would in principle be readily identifiable would not suffice to doom the tax either from a bill of attainder perspective or from a due process perspective. Moreover, the fact that the aim of such a tax would be manifestly regulatory and fiscal rather than punitive and condemnatory, and that the tax would be part of a measure that would be prospective as well as retroactive in its operation, would serve to blunt the force of any bill of attainder challenge. Finally, such a tax would be devoid of the sting of political retribution and would not partake of the classic “trial by legislature” that the attainder ban was designed to avoid.
All things considered, I believe it very likely that Congress could design a fully constitutional means of clawing back into the federal treasury all amounts paid (or to be paid in the future) in the form of retention bonuses from federal funds disbursed either by the Federal Reserve Board pursuant to legislative authorization tracing to the 1930s or by the Treasury pursuant to the most recently enacted federal bailout and stimulus measures.
**This is our government going after private citizens who did nothing more than sign an employment contract and accept the payments under that contract. Why anyone would think this is acceptable is beyond me. **
Seems to be a distinction between the Constitutionality of the action by Congress on one hand, and if the courts would deem the act unconstitutional on the other. Just because the bill would violate the letter if not spirit of the Constitution per the points made above, does not mean that Congress could not draft a document and then bring the courts along to allow the bill to proceed. In other words, just because the Supreme Court does not deem the bill to be unconstitutional does not mean that it is constitutional.
"the aim of such a tax would bemanifestly regulatory and fiscal rather than punitive and condemnatory…"
Incredible. To anyone with an ounce of sense–which no doubt would exclude a lot of law professors–its aim is very manifestly punitive and condemnatory. One need only listen to the anger and moral outrage expressed by its proponents to understand what the aim of the proposed tax is.
Finally, such a tax would be devoid of the sting of political retribution and would not partake of the classic “trial by legislature” that the attainder ban was designed to avoid.
Guess I’m not following this line. If this isn’t “Trial by legislature” what is? The legislature has decided this is a bad thing, put the offenders on trial and are now implementing a “punishment”. One could also argue some level of “Political retribution” as well.
I’m SURE they could craft something that will be “Deemed” constitutional, especially in today’s atmosphere, doesn’t change the fact that it would really be “Skirting the edges” and have to be “Crafted” in way to actually be constitutional.
Not sure we want to be crafting legislation that is purposefully crafted to “Get thru some loop holes”
You are perhaps correct that Congress is vested with the constitutional power to pass legislation that is in fact unconstitutional. (Of course, that legislation will ultimately not have the force of law.) But the oath or affirmation required of legislators by the Constitution (I cited the wording in a post the other day) is positive, not negative. It does not merely affirm that the legislator will act within the limitations of his constitutional powers; rather it affirms that the legislator will “support” the Constitution itself. I think it is at least arguable that promoting legislation that is clearly unconstitutional does not support the Constitution, but on the contrary tends to undermine it.
BTW, I was not arguing that any attempt at impeachment of such officials was necessarily in order; such would probably be politically infeasible at this point. I do think it is important for people to recognize clearly what is going on, however.
Guess I’m not following this line. If this isn’t “Trial by legislature” what is? The legislature has decided this is a bad thing, put the offenders on trial and are now implementing a “punishment”. One could also argue some level of “Political retribution” as well.
Of course it is! The point is that Congress would be attempting to “thread the needle” around a bill of attainder by *characterizing *it as an exercise of the power to tax. Which, as every knows, is also the power to destroy. The Congress and President would be relying on the very hate they are stirring up to allow it to pass. I think the courts would stand up to it. The problem is that it would take years to get through the court system.