Posted by Jonathan Adler:
More on AIG Bonus Tax as Bill of Attainder:
http://volokh.com/archives/archive_2009_03_22-2009_03_28.shtml#1237734930
The prevailing academic view seems to be that courts are unlikely to
invalidate a confiscatory tax on bonuses received by executives at AIG
and other TARP recipient companies. [1]Paul Sracic at Youngstown State
takes a different view.
Congress may have more of a problem with the Bill of Attainder
provision than they are admitting. This is because the separation
of powers principle that might normally argue for judicial
deference may run in the other direction here.
Chief Justice Earl Warren wrote in US. v. Brown (1965) that the
basic reason for a Bill of Attainder clause was to prevent �trial
by legislature.� This is because �the legislative branch is not so
well suited as politically independent judges and juries to the
task of ruling upon the blameworthiness of, and levying appropriate
punishment upon specific persons. �
Congress can always levy a tax that seems punitive to those who
have to shell out the money. Legislative motive is therefore
crucial to both limiting and to giving teeth to Bill of Attainder
analysis. Does anyone think that it would be difficult to prove in
court that the overwhelming reason that this bill was passed was to
confiscate the ill-gotten gains of those AIG employees who received
the bonuses? It is money that is already in their pockets. In this
sense then, confiscation of property is being used as a punishment.
When Congress does this, it is a Bill of Attainder.
I am sympathetic to this view, but I still think courts will be
reluctant to invalidate the tax. It may be generally understood that
the tax is motivated by public outrage against the issuance of these
bonuses, but it could still be "difficult to prove in court that the
overwhelming reason that this bill was passed was to confiscate the
ill-gotten gains of those AIG employees." Courts are rightfully
reluctant to evaluate legislation on the basis of stray comments made
by legislators, particularly if different legislators express
different opinions. Key members of Congress have already begun to
distance themselves from arguments that the tax is a punitive measure.
Rep. Charles Rangel, for instance, argued on Fox News Sunday this
morning that the tax is really about protecting taxpayers, and not
about punishing AIG execs. Whether we believe him or not, such
comments will make it difficult to prove that Congress acted with an
illegitimate motive, particularly given the broad deference courts
have shown Congress in this area. So while I am sympathetic to the
view that the tax is, in fact, an unconstitutional Bill of Attainder,
I remain skeptical that the federal courts would so hold.
References
1. http://www.as.ysu.edu/~polisci/srac.htm
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