Really, do you have to turn your comment on another blog into a diary?
A Bill of Attainder (0.00 / 0)
IMHO the tax on AIG bonuses has the status of a bill of attainder, meaning legislative punishment without trial, and confiscation of property is one of the classic instances of "attainder."
This stupid thing probably won't make it through the Senate anyway, but it's a very bad precedent, and the federal courts will nullify it in a New York minute, if it ever sees the light of day.
by: Jacob Freeze @ Mon Mar 23, 2009 at 10:25
Anyway, the bill would apply to any bailout recipients who receive more than $5 billion and there are income thresholds as well, as I understand it. Therefore, the class of people to which it would apply is not defined with the specificity required to be unconstitutional, in my opinion, and many people smarter than me also agree:
There are at least two different flavors of intelligent design - 1) the kind that would exist in a universe where God acted as watchmaker or through processes that were readily observable and quantifiable - no one takes issue with this view; and 2) the pseudo-creationist theory that God intervenes to fill-in evolutionary "gaps," which is mainly intended to cast doubt on evolutionary theory itself and thereby cause a return to creationist beliefs.
It's been so long since there has been good sport here, thank you for sharing your deep insight into foreign diplomacy with us. Only four years until the Palin revolution, my friend. Until then I hope you will keep us updated on presidential gift-giving. May I humbly suggest an occasional diary on shark attacks to spice things up?
In Lovett, the legislation named the people who were the subject of the legislation and essentially prohibited them from ever working for the federal government again, after they had been deemed subversive as part of congressional trial-type hearings. To be sure, the court stated that "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 judicial trial are bills of attainder prohibited by the Constitution," but this is not a case in which people are being blacklisted from a profession and it is not targeted at only a specific group of individuals.
Well, in Carlton the Supreme Court suggested that it no longer engaged in the type of pre-New Deal analysis that it did back then, and arguably whether the tax is "wholly new" or an amendment to an existing tax is a completely artificial distinction - in both cases, the taxpayer was not being taxed at the time of the financial transaction, but was taxed as a result of retroactive legislation. So, I don't even know if the due process argument would be very fruitful for the AIG employees, but it is an argument that at least passes the smell test and one could imagine that some of the conservative justices might find it appealing (then again, Scalia hates the concept of substantive due process and they may feel bound by Carlton).
I don't see an attainder issue - as I understand it, the bill is prospective and retrospective and applies to any other bailout recipients (above $5 billion) who give bonuses to their employees. Congress is often motivated by real-world events to produce legislation of general applicability, and so for each of those reasons I think it lacks the specificity necessary to qualify as a bill of attainder.
Whether the legislation raises a due process issue is one about which I am less sure. United States v. Carlton, which affirmed Congress's ability to pass retroactive tax legislation, makes note of two decisions from 1927/28, long-ignored but never overruled, which held that retroactive application of the gift tax was unconstitutional. In Carlton, the Supreme Court distinguished those cases as involving a "wholly new tax," which was not at issue there. If enacted, presumably this tax would constitute a "wholly new tax."
I'm not sure why you are focused on the rate of withdrawal in order to gin up controversy - no one campaigned on cutting troop levels by X% over Y period of time. The question is whether U.S. forces will have withdrawn from Iraq by 2011, as we were told they would be. The campaign promise was withdrawal within about 19 months, not 10% within three months, 20% within 6 months, etc.
As for Afghanistan, maybe you're suffering from memory loss but both Obama and McCain vowed to increase troop levels there. In fact, Obama first proposed sending two more divisions to Afghanistan, causing McCain to promise four additional divisions to appear tougher. Of course people can debate whether that is a prudent strategy, but it's not the case that people have been misled when it comes to Afghanistan.
Yeah, the facts in Carlton don't square well with this situation, though the general language regarding the test for constitutionality of retroactive tax legislation could be useful. I imagine that the AIG employees would argue that Carlton is not controlling since this involves the creation of a "wholly new tax," as discussed therein.
I will say that the issue is less cut-and-dried than I originally thought - the Supreme Court affirmed the legality of retroactive tax legislation in United States v. Carlton (1994). Still, this is a unique situation in that the proposed bill is directed primarily at a single party and the tax is intended to completely negate a stream of income. I do wonder how today's Supreme Court would view the issue.
What they would argue is that it is an ex post facto law intending to take away money to which they were contractually entitled and which was lawful given to them at the time the transfer was made (I haven't seen any argument that AIG unlawfully transferred the funds in the first place). The primary issue isn't with the tax rate, I don't think, the question is whether Congress can retroactively punish the employees.