One of the few conservatives to stand up to Bush lets fly on the AIG business and the Republicans who supported the tax hike:

Ironically, Barack Obama may save the Republicans from their own craven cowardice. He and his advisers have signaled that the administration has serious problems with the confiscatory tax bill–including doubts about its constitutionality. Liberal legal scholar Lawrence Tribe thinks the 90% tax might violate the Constitution’s prohibition against bills of attainder–laws that single out specific people for punishment. It’s appalling that 85 Republican congressmen never gave any thought to this consideration in their rush to pander to ignorant fools.

The worsening of the government’s budget deficit virtually ensures that higher taxes will be required in the not too distant future. When that day comes, Republicans will undoubtedly claim that anti-tax purity prevents them from supporting such action. However, in the case of 85 House members this won’t be the case. We already know what they are; it’s just a question of negotiating the price.

No Republicans voted for the stimulus package. 85 voted for the unconstitutional AIG clawback. What does that tell you about the GOP?

4 thoughts on “Bartlett”

  1. You know, I really hate it when people use the word “unconstitutional” to mean “something I disagree with.” The bonus clawback is in no way a bill of attainder; far narrower taxes have passed constitutional muster in the past. A notable example is the AMT, which affected only 155 households when it was introduced. Neither is the bill an ex post facto law, since it deals with income earned during the 2009 tax year. Congress tinkers with the tax code every year, sometimes right up to the end of December.

    There are reasonable arguments to be made for and against the clawback. My take on it is that the government created this problem when they rushed the bailout bill into law without thinking about the consequences. If they’d taken the time to think about it a bit more, maybe someone would have spelled out exactly what liabilities the taxpayers were and were not willing to shoulder. Instead, Congress bought a pig in a poke, and now they’re stunned that what they found when they opened the bag was not what they were expecting.

  2. I see your point but I still disagree. The caveats put around this bill are window dressing. The form may not be a bill of attainder but the function is. Congress had months to put in a general provision on bonuses. They didn’t act until they got mad at AIG.

    This is essentially the economic equivalent of the torture memos — an effort to get around the law and the Constitution through lawyer tricks. We’re not impairing contracts, we’re just taxing the money away. It’s not directed at AIG, just any company getting more than $5 billion from the Feds.

    So technically, you are right. But practically, when you have to find ways to weasel around the Constitution, you might as well be violating it.

  3. rpl, does credibility mean anything? We now have a government who is saying their word means nothing. They’ll give you the OK, then a few weeks later not only revoke their agreements, but try to make themselves out the heroes in the process. I do agree that throwing money at this was a mistake to begin with, but where’s the Senate panel on that one? Why aren’t their colleagues made to testify to explain themselves, particularly Dodd? The problem is that the government is setting itself up to take control of these industries to run them, and stirring up the mob to do it. What happened to getting in and getting out as quickly as possible?

  4. Mike & section8, you are both making good arguments as to why the clawback is bad policy, but that was exactly my point. A bill can be bad policy without being “unconstitutional”. Opponents of measures like this like to cry “unconstitutional” because they hope for a do-over when the law gets challenged in court, but that is exactly the sort of “activist judiciary” that we claim to deplore when we see it in other contexts. Are we saying that it only really bothers us when the decision goes against us? That sort of attitude does far more harm to the rule of law than any tax, however punitive.

    Mike, you say that the clawback is “like” a bill of attainder, but argument by analogy is not a valid form of argument. A bill of attainder is a bill that imposes a punishment without a judicial trial. In US law taxation is not considered punishment (perhaps provided that the tax is targeted to a particular asset or income source–I’m a little unclear on that point). Similarly targeted taxes have passed constitutional muster in the past. In light of these facts, there isn’t really much to discuss on the constitutional question.

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