Overruled


The Attainder Clause
March 19, 2009, 11:46 am
Filed under: Ian | Tags: ,

A friend of mine recently convinced me that levying a 100% tax on AIG bonus recipients would constitute an unconstitutional Bill of Attainder.  I see now that Professor Larry Tribe disagrees:

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.

Were I thinking as a cynical political opperative, I’d suggest that passing a 100% tax on AIG benefits is a win-win for Democrats.  Either the Court upholds the tax, in which case the con artists at AIG get what they deserve, or the Court strikes it down, in which case the public will be outraged at our judiciary and the conservatives who dominate it.

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