Forget for a moment that the legislation to tax back the bonuses from AIG is a Bill of Attainder.
Forget that Bills of Attainder are prohibited by the Constitution. That part is of course easy to forget..Congress gave up on it long ago.
Forget that its also unconstitutional as an illegal taking and a violation of due process. But there I go harping on that irrelevant old document again.
If this passes, its death knell. If Congress suddenly discovers that it can take away money that they decide that someone doesn’t deserve, if we let them get away with that, there’ll be no stopping them.
All that will be necessary is to gin up the necessary “outrage†that someone got more than they should have.
Even if you agree that the AIG folks don’t deserve the money, this is not the way to handle it.
So ask yourself; how much do you make? Is it more than your neighbor? Might someone else think that its not fair that you got something that they didn’t?
Because that’s all it will take. If we let them get away with this.
Call your Senator. 202-224-3121
 UPDATE: Insta-jama-lanche
UPDATE 2: This is one of my Senators. He’s going to do the right thing, but he’s not doing it the right way. This is an occassion for firebreathing, and I’ve told him so.
UPDATE 3:Â Steve Chapman at the Chicago Tribune:
So the bill aims at sanctioning supposedly bad people by confiscating their earnings. As such, it sounds an awful lot like something the Constitution expressly forbids—a bill of attainder, which is a punishment of particular individuals imposed not by a court of law but by a legislative body.
Many if not most legal scholars believe this furious retribution can be structured to pass judicial review. But not Jonathan Turley, a George Washington University law professor. “I am not so confident that it would pass constitutional muster,” he told me. “While courts give Congress great discretion in the tax area, this would require a case of willful blindness.”
Turley speaks with special authority on the subject because of a rare achievement: In 2003, he persuaded a federal appeals court that a law passed by Congress was a bill of attainder. That statute revoked a divorced father’s visitation rights because his ex-wife claimed he had molested his daughter—a charge that courts repeatedly rejected. But it was overturned because the court found the measure, though it didn’t name him, was designed to place a severe burden on a specific person deemed to have done something terrible.
Ditto for this legislation. It’s aimed at AIG employees who accepted payments guaranteed them by a legal contract, and it’s intended to inflict pain to express disapproval of their conduct. Rangel, in fact, had earlier opposed the tax because it would be “punitive.” But after voting for it, he explained that “we had very few weapons” to use against the recipients. Taxation as a weapon—if that’s not punitive, what is?
To uphold the tax, says Turley, “the courts would have to ignore the open statements of members of Congress. They have done everything short of burning the AIG executives in effigy on the House floor.”
UPDATE 4:Â CNNMoney.com:
If enacted into law, the bill could be challenged as a “bill of attainder” – or a legislative act designed to punish an individual or well-defined group of individuals without a trial.
In any such challenge, it would be important to establish that Congress meant to punish AIG or its employees.
“Our message is clear: If you won’t give the bonuses back, we will tax them back,” Rep.
Steve Israel, D-N.Y., said at a Wednesday press conference to announce the legislation.”These people are getting away with murder,” Ways and Means Chairman
Charles Rangel, D-N.Y., said of AIG employees Thursday, during debate on the House floor. “They’re getting paid for the destruction they’ve caused to our communities.”Even President Obama had cutting words for AIG. “This is a corporation that finds itself in financial distress due to recklessness and greed,” he said Monday. “How do they justify this outrage to the taxpayers who are keeping the company afloat?”
And, there was this gem from Rep.
Charles Grassley, R-Iowa, one of four sponsors of Senate legislation to tax bonuses: “The first thing that would make me feel a little bit better towards them, if they had followed the Japanese example and come before the American people and take that deep bow and say, ‘I’m sorry,’ and then either do one or two things – resign or go commit suicide.”According to Andrew Grossman, senior legal analyst at the conservative think tank Heritage Foundation, “All of this is very strong evidence that Congress’ intent is punitive with this legislation.”
UPDATE 5: Nixon v Administrator of General Services
                       Fletcher v Peck
Comment by sdferr on 3/21 @ 3:27 am #
John Hinderaker wrote “Are We a Banana Republic?” analyzing just this proposition RTO. This entire sordid episode sours life. I simply had never imagined it possible but here it is. It’s sickening to see: beyond being stopped, it ought to carry a terrible penalty for its proponents, if there is yet justice to be found in the nation.
Comment by RTO Trainer on 3/21 @ 3:49 am #
Roger.
I have no doubt that my Senators will vote against this. It’ll be greatly surprised if they do otherwise.
But I’m still going to call. A silent vote on this isn’t enough. They MUST got to the floor and expose the treason.
Comment by serr8d on 3/21 @ 5:45 am #
In this case the ‘punishment’ is worse than the crime. The bonuses were ill-timed and frankly unearned, but a sniveling little trick like this legislation is poorly thought out overreach. Just shows how panicky our Dear Leaders really are.
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[...] THEY CAME FOR THE A.I.G. BONUSES, but I was not an A.I.G. employeee . . . . [...]
Comment by Anthony Howe on 3/21 @ 9:01 pm #
As written the law will apply to my household. I work for a bank that took (or was forced to take) TARP money. I earn a bonus. My wife earns a salary that exceeds mine. Cumulatively, we earn in excess of $250K.
Dead to rights.
Hi, I am upper middle management. My bonus is $20K. My salary is $155K. I DON’T work for AIG. Now why do I owe $18K of my bonus back exactly?
Comment by Mark on 3/21 @ 9:04 pm #
The Sunday NY Times will report that Obama wants legislation that will regulate executive pay at all banks, financial institutions and perhaps other companies as well. The reason for the bread and circuses fiasco over the bonuses is now clear. They will drive out the execs and put their own people in. This is getting scary – very scary and we better all wake up.
Comment by Insufficiently Sensitive on 3/21 @ 9:13 pm #
I have written both my Senators urging NO votes on the Senate companion bill. I asked that they act deliberative and Senatorial, and to remember the Constitution they’ve sworn to defend. However, they are both sincere, devout Blue-staters, and I have no confidence that they won’t just follow the Obama lynch mob in its ‘outrage’ to confiscate those bonuses.
It’s just too much like Lenin’s peasants mobbing to confiscate the landowners acres, before Lenin’s cadres in turn named those peasants ‘kulaks’, and called their KGB buddies to expropriate and exile them to Siberia.
This apparently is what we get for installing the Chicago mob in the White House and Congress. They aim to metastsasize Chicago to the size of the US of A.
Comment by Frank Martin on 3/21 @ 9:13 pm #
Remember all those mortgage loans that Congress worked to see were written down so the homeowner could stay in the home? When homes start to go back up in price, you dont suppose that Congress is going to want its take of the upside of your home sale, now do you?
Comment by Truthiness on 3/21 @ 9:25 pm #
Why doens Obama jsut skip the prelims and Naitonalize ALL banks, like Hug Chavez? That’s where he and Pelosi and Reid are headed.
Comment by Truthiness on 3/21 @ 9:26 pm #
Why doesnt Obama just skip the prelims and Nationalize ALL banks, like Hugo Chavez? That’s where he and Pelosi and Reid are headed – all collectivist thugs.
Comment by kentuckyliz on 3/21 @ 9:35 pm #
Illegal takings? Since SCOTUS effed up on the Kelo decision, I can believe anything is possible.
Peasants, grab your pitchforks.
Comment by Matt on 3/21 @ 9:37 pm #
what amazes me is that someone paid for a busload of “activists” to go picket the homes of the AIG employees. There were more reporters there than protesters apparently. Some is trying to ignite a class war in this country. Paging George Soros, perhaps? There are elements at work who are trying to bring down the United States at a fundamental level.
Comment by Debbie on 3/21 @ 9:42 pm #
I hate this, but seriously, I feel helpless. I’d love to “grab my pitchfork”, but then what???? Seriously, where is the GOP leadership? Or, forget the GOP, this movement needs a leader, stat. My Senators/congressmen are all the good guys right now so calling them to complain is preaching to the choir. Help me!
Comment by Joe buzz on 3/21 @ 9:45 pm #
it gets worse…now they are knocking on doors asking for pledges to he who reads the prompter:
http://www.youtube.com/watch?v=-7A-YwRi7t0&feature=related
Comment by Stephen on 3/21 @ 9:45 pm #
We have heard lots of people in the past yelling about the need for seperation of church and state(for good reason, although most people view it backwards). Today, we need people to be yelling about SEPERATION OF BUSINESS AND STATE. Let business solve it’s own problems … not the government. If the businesses screwed up let them fail (or let the other insurance companies clean it up). It was the politician that insisted on the easing of credit that created part of this mess. Lets not let them try to fix another business problems.
Comment by Jimmy J. on 3/21 @ 9:52 pm #
This is truly an outrage and if voters do not call/write their Senators it will not be struck down. They are our representatives, let them know what you think!
Comment by Techie on 3/21 @ 10:00 pm #
I’m generally polite as I can possibly be, but if one of those fools dares knock on mine, they are going to get a blue streak and a slammed door for their troubles.
That’ll put me on “the list”, won’t it?
Comment by Ernst Blofeld on 3/21 @ 10:10 pm #
On the positive side, maybe a good hard dose of Obama will turn Wall Street into Capitalists again.
Comment by RabelRabel on 3/21 @ 10:14 pm #
You guys don’t get it. This country elected a hard left redistributionist and gave him large majorities in the Congress to back him up. He won. You lost. There’s nothing you can do about it so lay back, loosen up and enjoy it. They’re just now feeling their oats so it’s only going to get worse.
Comment by DirtCrashr on 3/21 @ 10:18 pm #
I have no doubt that my representatives will vote for it, they are Feinstein, Boxer, and Pelosi and they are EVIL – they work for George Soros, not California or America.
Comment by Bob Smyth on 3/21 @ 10:24 pm #
Heres a lil’ story, perhaps a morality play(?) for all you who can’t wait to eat the rich and think you’ll be so much more happy once thay have all gotten their just deserts.
A family member called me to say the person they live with just lost their job unexpectedly, rather out of the clear blue sky. A little background here; this person had actively sought this job out, worked hard to get it just a few months after turning down another job, after being laid off for months from a prior position last year when the economy started to tank.
So the reason this person is now suddenly unemployed, and BTW, this is not salesperson or burger flipper job, rather a little bit up the food chain, the owner (more about this person in a minuet) declared after seeing the AIG unconstitutional targeted tax imposed illegally by the so called congress this week decided that was enough of the madness, enough of the attack, the war against business in this country. The unabashed hatred for those who actually work for their money and produce for the common weal (that means create jobs).
This owner is a very successful entrepreneur and has created several companies and they all have been a success and created many jobs for people over the years. But alas no more because this person has gone Galt. Yup, that very thing many of you love to deride and claim just can’t, won’t happen; why that’s just some high school crap from some so yesterday simplistic fiction, more right-wing nutty baloney-if you knew who these people are you might be taken aback.
The owner basically said, sorry folks but there is no longer a reason to pretend this is a free market environment any longer when there no limits on the arbitrary power of Congress. Sue me if you want but I have more money than you and can continue to live just fine here or in another place, sorry, but elections do have consequences. I wish you all the best.
So remember with the Connecticut Working Families Party “touring”
AIG private family homes this weekend will you feel better about eating the rich. Think this is the only story like this just beginning to be written?
Gee, it’s not like we live in a banana republic where government arbitrarily changes laws to it’s interests, not the publics. I mean it will only mean no more impairment of contracts, no bill of attainder/ex post facto law, no more property rights, no more equal protection, and no more due process. You know, rick folks stuff. But then not to worry since a power mad ideological out of control congress will ONLY apply this to the rich, those making $250,000 a year. Or at least as long as anyone still is able to make that…
I hope your dish of revenge tastes really really good. Enjoy.
Comment by Kathleen Napier on 3/21 @ 10:26 pm #
I think NBA players and other professional athletes as well as Hollywood stars make too much money. Why don’t we pass a bill to limit their pay?
Comment by Punkindrublic on 3/21 @ 10:28 pm #
Senators Nelson and Martinez; no clue where they stand. Either will be GONE if they support this abortion of justice. Banana republic? Indeed, we’re there. Thank you Obamanistas…you freakin’ morons.
Comment by dorkafork on 3/21 @ 10:36 pm #
Hey, why stop at bonuses? Let’s tax all their earnings at 90%. No, wait, 100%. Think of how much money the federal government can save! I like this new principle of punishing the workers for the mistakes made by the companies management (with the federal government’s approval). Lots of people don’t like Wal-Mart, let’s just take away any bonuses they get, too. We can take away a Wal-Mart greeter’s bonus while criticizing Wal-Mart for not paying their workers enough.
Comment by FLTom on 3/21 @ 10:45 pm #
Here’s what I see as the problem. AIG execs became socialists when they accepted public money to save the company and consequently their own jobs. A Bill of Attainder in 18th century England, which the Founders reacted against in the Constitution, referred to private citizens, not public employees, which, I would argue, AIG employees became when the took 170 billion dollars of public money.
The AIG bailout, TARP, etc., let the socialist camel’s nose into the tent. Obama is poised to ride the camel’s back and trample down the constitutional tent as quickly as he can. That’s the price we may pay for “keeping the system operational” after a huge host of irresponsible gamblers on Wall Street failed to apply prudent risk management to the reckless deals they were making.
Comment by RTO Trainer on 3/21 @ 10:56 pm #
FLTom; Why would a bill of attainder pertain only to private citizens and not to public employees? It’s a nice bit of legal obscurantism, but public employees are still private citizens anyway.
You really think that Wall Street is solely to blame?
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Comment by Peter on 3/21 @ 11:11 pm #
It would be refreshing if somebody would stop to review the value added by those who were paid bonuses. Liddy testified that AIG’s exposure was reduced by approximately $1 trillion. I assume somebody was responsible for those saving and that AIG and taxpayers benefitted from those efforts. If true, someone earned their bonus. It is certainly worth investigating before lighting a torch and joining the mob.
Comment by arbysauce on 3/21 @ 11:12 pm #
Workers of the world unite! That won’t fly in America will it? Please let’s vote in some responsible people, and make sure the vote is clean. Ya, I’m looking at you ACORN.
Comment by RTO Trainer on 3/21 @ 11:14 pm #
Peter;
Since the bonuses are contractual obligations, I don’t see that it matters. As I understand, these were retention bonuses, as opposed to performance bonuses anyway.
If it was a poorly considered or executed contract, so be it. It isn’t for the government to insert itself into that and doing so represents a further usurpation.
Comment by FLTom on 3/21 @ 11:16 pm #
RTO Trainer: The difference is clear. Public employees are justly governed in matters of compensation by the legislators and executive branch officials who oversee the public institutions where they work. Do you have a problem with the Postmaster General assigning compensation rates to postal workers? An AIG exec is no different than a letter carrier at this point.
To your second question, of course, Wall Street isn’t solely to blame. CRA, Barney Frank, Chris Dodd, Fannie Mae, Freddie Mac, GWB’s encouragement of easy mortgages, Alan Greenspan’s naive belief that risk management was a matter of self-interest for financial firms, without realizing that greed can push people passed the limits of risk — all these and more contributed to the disaster.
Wall Street, in its inimitable inventive fashion, took the environment it found itself in and fashioned some bizarre financial instruments out of it, which ended up blowing up the whole system and bringing us to the sorry state of affairs we now find ourselves in.
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Comment by Trudger on 3/21 @ 11:23 pm #
Well this was the first step. The next is having the central government decide what private companies, not government agencies, can pay their employees. Central wage planning for all workers. That’s change you can believe in!
Comment by FLTom on 3/21 @ 11:32 pm #
Peter: Liddy meant that AIG Financial Products traders had unwound (i.e., recovered monies already traded, to the extent possible) from their own deals, which had destroyed the company in the first place. These guys bring value to the table because they have the requisite knowledge about the original trade, and so are in a good position to unwind it.
One could argue that they extorted AIG by asking for “retention contracts” after the deals blew up, the company failed, and the Federal Government rode in on a white stallion, since they knew if they walked AIG would be in a helluva fix figuring out how to unwind the deals without them.
Comment by Darren on 3/21 @ 11:40 pm #
The real fun will start when the government has successfully chased away the people at AIG who know how to hedge AIG’s trillion-dollar derivatives exposure. Hey, what could possibly go wrong there, it’s just hundreds of contracts that have to be actively traded and closed out every day? I’m sure the good people at Treasury can do that, assuming anyone wants to join Treasury and be the next whipping boy for politicians who pass laws without reading them and then explode in anger at how their ill-considered actions have come back to bite them.
I wouldn’t blame a soul at AIG FP for bailing. Congress feels they can do better? It’s time we let Congress try, and reap the whirlwind they legislated into being. Our leaders are not fit for the times, they prove it every day.
Comment by Concerned Citizen on 3/21 @ 11:46 pm #
It will soon be all income over $250K will be taxed at 90% — this is only a test of the emergency taxation system. Who else will pay for all of Obama’s fun?
Don’t think they’ll try? FDR tried taxing all income over $25K at 100% in the Depression. Obama’s read that playbook.
Comment by Schwarze Tulpe on 3/21 @ 11:49 pm #
Atlas Shrugged. Read it. Understand its message. Save America.
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Comment by RTO Trainer on 3/22 @ 12:20 am #
Apples and oranges. First, regardless that the money passed through Federal hands on the way to AIG employees, does not and cannot convert them to Federal employees. Also, Federal employees are still guaranteed due process and protection for bills of attainder, so it wouldn’t matter anyway. It’s punitive taxation, pure and simple.
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Comment by GBD on 3/22 @ 12:43 am #
It is good to see that FLTom’s lack of actual knowledge of the situation does not stand in the way of having strong opinions. By the way, FLTom a bill of attainder is a punishment inflicted on a specific person by the legislature, but you might want to look it up.
Comment by FLTom on 3/22 @ 12:56 am #
“[Federal money] does not and cannot convert them to Federal employees” — Where is the case law to support that statement? “Cannot” is a very strong term, much too strong for the murky legal and constitutional waters AIG finds itself in as a result of its own act, i.e., taking 170 billion dollars from the American people.
Someone mentioned the redoubtable Ayn Rand, as someone always does on threads like this, and advised us to read Atlas Shrugged. At Tea Party demonstrations around the country a favorite sign reads, “Who is John Galt?” It’s interesting to wonder what crotchedy old Ayn would think of AIG execs. Are they an army of John Galts? Or doppelgangers of Ellsworth Toohey, Rand’s much loathed collectivist? For me, as I think it would be for Rand, the answer is easy: They’re Ellsworths all the way, baby. Ain’t no way John Galt would take a mountain of money from the Taxman just to save himself from his own mistakes.
Comment by Schwarze Tulpe on 3/22 @ 1:23 am #
Read the book. You will then understand who John Galt was, became, and what his modus operandi was.
Comment by Jeffersonian on 3/22 @ 1:32 am #
I think NBA players and other professional athletes as well as Hollywood stars make too much money. Why don’t we pass a bill to limit their pay?
Indeed, don’t most of them play in arenas subsidized by cities, counties and states?
Comment by FLTom on 3/22 @ 1:36 am #
Schwarze Tulpe: Do you actually think I’ve never read Atlas Shrugged, or The Fountainhead, or everything else Ayn Rand wrote, including the almost unreadable Introduction to Objectivist Epistemology, or 20 or so books by others about Ayn Rand?
I’ve forgotten more about Ayn Rand than most people on this thread will ever know.
Comment by RTO Trainer on 3/22 @ 1:44 am #
The only case law I’m aware of that could conceivably establish someone as a de facto federal employee would do with the various tort claims acts wich is civil liability with a question as to whether the government has liability or not.
But that’s not haow case law works–it’s a matter of positive law. It’s not a question as to whether precedent exists that would prevent a de facto finding, but if precedent permitting it. Here it would also need to be in regard to taking and due process, rather than liability.
If you know of such a precendet, I’d hope you’d share it with us.
And still, it wouldn’t matter. As I’ve already pointed out, this is not a matter of determining compensation. It’s about the power to retroactively abrogate contracts and punitive taxation. You keep ignoring those, as you seem to have no answer to them.
Comment by RTO Trainer on 3/22 @ 1:45 am #
That much is abundantly clear.
Comment by Schwarze Tulpe on 3/22 @ 1:52 am #
Then you know the answer. A young Galt would supposedly not have taken the money. The revolutionary Galt, bent on the destruction of the looters, would have taken the money as it expedited his objective. Nonetheless, Galt worked behind the scenes through his followers like D’Anconia. Knowing now that you have read the book, I am not exactly sure why you would have ever asked, “What would John Galt do?” (paraphrasing)
Comment by Schwarze Tulpe on 3/22 @ 1:55 am #
FLTom: “I’ve forgotten more about Ayn Rand than most people on this thread will ever know.”
Such pomposity! Worthy of James Taggart.
Comment by FLTom on 3/22 @ 2:07 am #
By the way, in the current catastrophe, there is a relevant Rand connection. Greenspan was a favorite Rand acolyte back in his student days and into his early days as a professional economist. Every week a small group including Greenspan gathered in Rand’s living room to discuss philosophy, and Greenspan’s star shone brightly in his mentor’s eye.
At some point after he achieved prominence among economists, Greenspan began to dilute his Objectivist convictions. Eventually, he renounced Rand, at least publicly, although he tried to be gentle about it. He migrated to a far more accomodationist position vis a vis regulation and government intervention in markets, more Hayekian than Randian, and even to the left of Hayek, really.
As we’ve seen, Greenspan failed to predict or prevent the current debacle, although he was uniquely placed to do so. Could it be that his lack of vision was directly proportional to the distance he sidled away from Rand? I’m just asking.
There can be no doubt where Rand would stand if she were alive today. Rand would loathe the bailouts, loathe TARP, loathe all the hand wringing about the falling sky. She’d regard it as the whining of weaklings.
Comment by FLTom on 3/22 @ 2:26 am #
RTO Trainer: I’m not happy about the legislation to tax the bonuses. Dangerous stuff, and frightening. My argument throughout the thread has not been to defend Pelosi’s socialist power grab, but to suggest that AIG bears the principle blame for putting her into a position to make a power grab by allowing her to pay AIG to get into bed with her in the first place.
They laid down with a dog, now they’re getting up with fleas.
Comment by FLTom on 3/22 @ 2:47 am #
“I am not exactly sure why you would have ever asked, “What would John Galt do?—
Let me get this straight. You say you know all about John Galt and Atlas Shrugged, but when you come across the sentence “Who is John Galt?” you’re a bit befuddled, and you think I was asking (paraphrase) “What would John Galt do?”
The world famous question “Who is John Galt?” is probably the most important literary device in Atlas Shrugged, so I can’t bring myself to believe that you actually aren’t familiar with it. Therefore you must think I wondered what John Galt would do. Is that like wondering what Jesus would do? If you re-read my post you’ll see I asked what Rand would think. Galt is simply a figment of her imagination and really, he can’t do anything at all unless she tells him to.
Rand would loathe AIG and its bonus babies. Absolutely loathe and revile them.
Comment by Schwarze Tulpe on 3/22 @ 3:44 am #
FLTom: “Ain’€™t no way John Galt would take a mountain of money from the Taxman just to save himself from his own mistakes.”
From this statement I deduced you were asking “What would John Galt do?” As I explained previously, John Galt may have done several things dependent upon which point he was in his life. “Who is john Galt” is something completely different as we both know (duh). Oh and your quote, “You say you know all about John Galt and Atlas Shrugged” is something I have never stated in my posts, nor do I claim it now. In fact there are certain aspects about Ayn Rand’s personal character I find loathsome and her philosophical teachings are to me just that, philosophy worth pondering but not to stylize my life after. I suspect Greenspan became his own man in this way. Not someone else’s.
Galt is very much like Rand’s Jesus per se, so yes, you keenly observed I was doing a double entendre in saying that. Credit to you.
Let’s put Ayn Rand to bed (yuck, sorry about that imagery) and leave it in this discussion other than it is completely fair, with respects to posts like this, to ask the question “Who is John Galt?” and why we need to seek him out.
Comment by Adjoran on 3/22 @ 3:46 am #
It’s not a Bill of Attainder. Congress has learned how to draft this stuff over the years: there are no named persons, only a class of income defined narrowly enough to target the desired victims is being taxed. Neither is it ex post facto, since the courts have long held the Congress can change the tax rates for the current calendar year, and those changes apply even to income received before the changes are signed into law. So there is no recourse under the Constitutional provisions most often being cited.
The upshot of this, of course, is that the only people qualified to save our investment in AIG will quit (their skills are at a premium in the financial sector right now, so why have filthy Democratic rabble coming to your family’s house when you can pull the same big bucks or better elsewhere?). AIG will fail, with the result of a worldwide meltdown that will make the Lehman Brothers failure look like a day at the beach.
But, let the rabble have their pound of flesh. Let them get upset over $165 million – $218 million while ACORN may get up to $2 billion from the stimulus bill. In terms of the numbers of taxpayer dollars and debt Obama is throwing around, $200 million is a rounding error.
The mob will destroy this country. They’ve made a good start by electing this incompetent, bumbling buffoon in the first place.
Comment by RTO Trainer on 3/22 @ 4:00 am #
“These clauses of the Constitution are not of the broad, general nature of the Due Process Clause, but refer to rather precise legal terms which had a meaning under English law at the time the Constitution was adopted. A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial. Such actions were regarded as odious by the framers of the Constitution because it was the traditional role of a court, judging an individual case, to impose punishment.” William H. Rehnquist
Comment by meya on 3/22 @ 4:43 am #
“The only case law I’m aware of that could conceivably establish someone as a de facto federal employee ”
How familiar are you with the case law on due process, or bill of attainder, or even the takings clause?
Comment by RTO Trainer on 3/22 @ 5:02 am #
Without giving a resume, I am, as most literate adults are, quite capable of looking up such information and learning enough to make an informed opinion. As well, I take my obligations to be an informed citizen seriously.
So, what qualifications have you to judge the quality and merits of my qualifications?
Comment by meya on 3/22 @ 5:21 am #
“So, what qualifications have you to judge the quality and merits of my qualifications?”
I’m wondering what familiarity you have because you’re wrong, not because you’re unqualified.
Comment by RTO Trainer on 3/22 @ 6:44 am #
This should be good.
So, meya, please tell us in what way I am wrong.
You could also explain being coy about it instead of simply laying it out from the start.
Comment by meya on 3/22 @ 7:02 am #
The due process required here would be notice and hearing. No reason why they won’t have it.
Taxing incomes isn’t really a taking. Congress has a separate power to do this besides the taking clause. If this was a taking, then the 5th amendment would be prohibiting all taxation, and the constitution wasn’t written to on one hand give the power to tax and then on the other hand remove that power. Takings is aimed at real property, where the government isn’t interested in the value of the property, but in the actual property — such as when it needs a right of way.
And this isn’t really a bill of attainder, even if you found a quote saying ‘one or more’ people. Setting a tax bracket isn’t a bill of attainder. Neither is setting that on a type of income with qualifications. It’s simple tax policy. Bills of attainders name individuals, declare them guilty and punish them, circumventing judgments and courts.
But I’d love to hear your ideas.
Comment by dicentra on 3/22 @ 8:31 am #
RTO:
An Instalanche! I’m green with envy and also dead chuffed on your behalf. Good on ya!
Comment by dorkafork on 3/22 @ 12:33 pm #
You could argue that, but you would be wrong. TARP was an agreement between the federal government and the financial institutions. If the federal government wanted AIG employees to become public employees, they should have made that part of the agreement. It’s the same as any other contract/legal agreement. They can’t just come back and say,”Oh, by the way, we own you now.” (“I have altered the deal. Pray I do not alter it further.”)
Comment by SDN on 3/22 @ 1:00 pm #
dorkafork, remember the result of that quote? The guy it was said to realized that it didn’t matter what he did, he was dead either way, so he went to behind the scenes resistance, fairly effectively. That’s next here too.
Comment by dorkafork on 3/22 @ 1:22 pm #
That’s a somewhat narrow view of bills of attainders. in Nixon v. Administrator of General Services, the Supreme Court held that in order to avoid violating the Bill of Attainder clause, the bill must not only not “inflict punishment”, but must “rationally be said to further non-punitive legislative purposes”, and must have “no evidence in the legislative history or in the provisions of the Act showing a congressional intent to punish”. The AIG tax would likely fail on both those counts.
More from the opinion:
I’d also note the “rational legislative purpose” test has also been applied to retroactive taxation, so it could fail constitutionally in that respect as well.
Comment by dorkafork on 3/22 @ 1:25 pm #
SDN, I never thought of it in that way before, but Lando shrugged.
Comment by meya on 3/22 @ 4:24 pm #
So we have first that these tax rates aren’t punishment. But also:
“but must “rationally be said to further non-punitive legislative purposesâ€, ”
Sets a real low threshold. And here the bill clearly has a rational non-punitive purpose: it claws back taxpayer money spent on bonuses.
Comment by RTO Trainer on 3/22 @ 5:29 pm #
You appear to be confusing legislation with regulation.
Normally you’d be right. Bu this isn’t exatly taxation. It’s both punitive and targeted–neither is the case with actual taxation. This is a taking under color of taxation. The Constitution (a proper noun, BTW) wasn’t written to allow people or groups to be targeted by the Congress, either.
This isn’t setting a tax braket. It’s crafting a set of conditions to apply to a specific group of people (and it’s going to spillover to affect others, BTW) which is precisely what makes it a Bill of Attainder. Bills of Attainder do not require that names be used, but that would help to identify them, and it does punish them, circumventing the courts. Note also that Attainder does not have to be about solely criminal matters either.
Comment by RTO Trainer on 3/22 @ 5:40 pm #
Comment by B Moe on 3/22 @ 5:42 pm #
And here the bill clearly has a rational non-punitive purpose…
Bullshit. You and all you little friends have spent the past weeks doing nothing but railing about how these incompetent idiots don’t deserve these bonuses.
Comment by meya on 3/22 @ 5:45 pm #
“You appear to be confusing legislation with regulation.”
Then please let me know what due process one gets with legislation. I’d love to hear your thoughts about what process we need here to make this legislation comport with due process.
“This is a taking under color of taxation.”
You may feel that way, but the 5th amendment wont prohibit it. Or require compensation for the taxes that congress has the power to levy.
“It’s crafting a set of conditions to apply to a specific group of people ”
Yup. Its crafted at a specific thing: taxing bonuses of TARP’ed companies. That’s the rational legislative purpose I mentioned above. Congress can do that. Someone above linked to Nixon v. Administrator of General Services. That was a law that NAMED NIXON and it wasn’t a bill of attainder.
“and it’s going to spillover to affect others, BTW”
All the more reason why it’s not a bill of attainder.
“Note also that Attainder does not have to be about solely criminal matters either.”
But it has to be punishment. 90% marginal tax rates aren’t punishment.
Comment by B Moe on 3/22 @ 5:49 pm #
90% marginal tax rates aren’t punishment.
You do realize you are batshit fucking insane?
Comment by meya on 3/22 @ 5:52 pm #
“You and all you little friends have spent the past weeks doing nothing but railing about how these incompetent idiots don’t deserve these bonuses.”
A rational purpose is a very low threshold. Note how for example, its not limited to the incompetent. Its about compensation at TARP companies.
” Schumer even says “take.—
Sure. The government ‘takes’ from my paycheck each week. But I don’t get compensation for that. Think about how that would work.
“If Congress wants a tax revolt, they are on the correct path.”
I think so. First bailouts, now this? Unbelievable that we tell companies what to do with our money. Though we did get Eric Cantor to vote for this, Norquist pledges and whatnot.
Comment by meya on 3/22 @ 5:54 pm #
“You do realize you are batshit fucking insane?”
We’ve had 90% marginal rates before. They weren’t punishment then and they aren’t now.
Comment by RTO Trainer on 3/22 @ 6:10 pm #
They weren’t back then, true. Do you know why? Do you know what’s different here?
Comment by RTO Trainer on 3/22 @ 6:18 pm #
Now you confuse your argument with mine.
There are no hearings with legislation, though you indicate that there would be, somehow….
Due process in the case of legislation would be passing Constitutional muster. This does not.
Steve Chapman at the Chicago Tribune:
Comment by RTO Trainer on 3/22 @ 6:24 pm #
CNNMoney.com:
Comment by dorkafork on 3/22 @ 6:46 pm #
Comment by B Moe on 3/22 @ 7:02 pm #
There is nothing rational about a 90% tax rate, to try to argue it is anything but putative is profoundly dishonest.
Comment by meya on 3/22 @ 7:46 pm #
“Due process in the case of legislation would be passing Constitutional muster.”
Notice and hearing is what due process promises. I agree it isn’t applicable here. Which is why I was curious why you mentioned it.
But it looks like you just tacked this on to your other constitutional ideas. So we take care of the others and that takes care of this one. That leaves takings and bill of attainder.
Takings is rather simple. Taxation can’t be takings, otherwise we couldn’t have taxation and the founders would have given congress the power to tax and then removed that power with the 5th amendment.
“Perhaps you should take the time to read through that opinion. ”
I did. RTO prefers to discuss by citing news articles though.
“There is nothing rational about a 90% tax rate, to try to argue it is anything but putative is profoundly dishonest.”
Its rational in that it does what what it aims at doing: discouraging bonuses at TARP’ed companies and attempting to make sure that TARP money used to pay bonuses is sent back to the taxpayer. Rational relation is a low threshold in constitutional analysis.
“Changing your tax rate from 0% to 90% is certainly punishment, and was intended as punishment.”
I’d be surprised if bonuses are taxed marginally at 0%. If they increased it only to 45, would that not be punishment? Heck if they had originally banned bonuses in TARP to begin with, would that be punishment?
Overall the problem with the bill of attainder argument is that it proves to much. Any regulation aimed at TARP which negatively affects people that TARP companies deal with will be a bill of attainder under this logic. It’s saying that Congress can no longer control TARP. Congress can still legislate in our economy and when doing so can differentiate between TARP recipients and non-TARP recipients.
Comment by RTO Trainer on 3/22 @ 8:13 pm #
If they had banned these bonuses, it would be differently unconstitutional; as an abridgement of contract.
This does not nullify Congress’ ability to control TARP. It does affirm those limitations that the Constitution has always placed on Congressional powers.
TARP was a bad idea–this is further illustration of that–but now we’re all stuck with it.
I don’t usually argue case law with my fellow laymen–most don’t get it. You seem to think you can (though your reading of Nixon, would indicate otherwise). So go check out Fletcher v Peck. It even includes a remarkably similar contract element.
Comment by RTO Trainer on 3/22 @ 8:15 pm #
They are also news articles that discuss relevent case law–selected because the include sound layman’s terms explanations.
Comment by dorkafork on 3/22 @ 8:37 pm #
You know there’s a forest behind those trees.
In order: 1) Yes. 2) No. I agree with you, the Democratic-controlled Congress fucked up big time, but the government doesn’t get to trample over the Constitution to correct mistakes it has made. It could have and should have made that part of the initial agreement. Then the companies would have had the freedom to accept or decline the agreement under the given terms.
They can discourage bonuses at future TARP’ed companies by making that part of the agreement for receiving TARP funds.
Are you ever going to read that Nixon opinion?
Comment by kindness on 3/22 @ 9:11 pm #
It’s so funny. For the last eight years liberals have screamed bloody murder of the trampling of the Constitution and the Bill of Rights yet here we are. Not two months into the Obama Administration and look who all of a sudden has a huge case of the Constitutional integrity and limits crowd. I guess the shoe is on the other foot now, eh?
Still…any tax raised by going after the bonus’ should be done by and within all legal means. It was damn stupid of AIG to give out that money. I can’t believe they didn’t see the can of worms it is.
Comment by B Moe on 3/22 @ 9:26 pm #
If I replace the word “bonus” with a common synomym, such as “reward”, would it maybe make it easier to see the putative aspect of this? Like if I promise you a reward, then deny it, that would commonly be seen as a punishment?
Comment by B Moe on 3/22 @ 9:28 pm #
It was damn stupid of AIG to give out that money. I can’t believe they didn’t see the can of worms it is.
Seriously, honesty is such a fucking pain in the ass sometimes.
Comment by meya on 3/22 @ 9:41 pm #
“Are you ever going to read that Nixon opinion?”
I read it. Even if we do have a classification here under nixon, we still have the non-punitive purpose of deciding that TARP moneys spent on bonuses are returned to the taxpayer.
“If they had banned these bonuses, it would be differently unconstitutional; as an abridgement of contract.”
Are you referring to the contract clause? Because when i read the constitution, it says “No State shall … pass any Law impairing the Obligation of Contracts.†State. That’s different than the feds.
“They can discourage bonuses at future TARP’ed companies by making that part of the agreement for receiving TARP funds. ”
You know, we can impose taxes on businesses and individuals in order to encourage or discourage behavior without having agreements with them. The discouragement will of course be via something negative happening. But that does not make it punishment.
Comment by B Moe on 3/22 @ 10:10 pm #
Even if we do have a classification here under nixon, we still have the non-punitive purpose of deciding that TARP moneys spent on bonuses are returned to the taxpayer.
Returned to the taxpayer? News to me, I thought they were going to be confiscated by the government.
Comment by B Moe on 3/22 @ 10:14 pm #
You know, we can impose taxes on businesses and individuals in order to encourage or discourage behavior without having agreements with them. The discouragement will of course be via something negative happening. But that does not make it punishment.
How the fuck do you define punishment, meya? Seriously. Because discouragement via something negative happening is pretty much it to those of us who actually speak English.
Comment by dorkafork on 3/22 @ 10:44 pm #
Look, idiot, we’ve already pointed out to you how the people who wrote the bill intended it as punishment. That quote of yours:
This precise logic was discussed in Nixon:
According to Nixon, a bill of attainder has to satisfy all 3 of these criteria: it has to target a specific person or narrow class of persons, it has to have a legitimate legislative purpose, and it has to be non-punitive both in effect and attempt.
It is discouraging behavior by inflicting punishment. It’s the goddamn definition of punitive.
There’s no further use in arguing this with you, but I will say this: I cannot wait until the Democrats cut a great road through the law to get after the Devil. When the Republicans turn round, where will they hide? “ACORN shouldn’t have gotten stimulus funds, that’s a taxing. Union member? Expect your rates to go up. Gotta return that money to the taxpayer.”
Comment by RTO Trainer on 3/22 @ 11:18 pm #
A single non-punitive rationale does not negate the history of punitive intent–clearly illustrated by the words of the lawmakers and the President.
Comment by meya on 3/22 @ 11:23 pm #
“Because discouragement via something negative happening is pretty much it to those of us who actually speak English.”
To me punishment entails more than just deterrence, but also includes the sort of vengeance one finds after a finding of sin, wrongdoing or fault. Plenty in our tax code serves as incentives or disincentives without those findings.
“According to Nixon, a bill of attainder has to satisfy all 3 of these criteria: it has to target a specific person or narrow class of persons, it has to have a legitimate legislative purpose, and it has to be non-punitive both in effect and attempt.”
So the class here is wide: all employees of TARP companies — whether AIG or not, whether the company is bankrupt or not, whether they did anything bad or not. The purpose is to discourage use of TARP money for bonuses and returning to the treasury TARP money used as bonuses. And the non-punitive, well, we’re in a land where any tax disincentive is a ‘punishment’ so we’ll just give up on that one.
“However expansive is the prohibition against bills of attainder, it was not intended to serve as a variant of the Equal Protection Clause, invalidating every Act by Congress or the States that burdens some persons or groups but not all other plausible individuals.”
Exactly.
Comment by meya on 3/22 @ 11:26 pm #
“A single non-punitive rationale does not negate the history of punitive intent–clearly illustrated by the words of the lawmakers and the President.”
If the test is for rational relation, then yes, a non-punitive rationale does go very far in negating the history of whatever punitive intent you’re finding in Congress deciding that AIG shall not give bonuses in an environment where they only live because of taxpayer money. Specially if the effect is to go after all TARP bonuses, not just the AIG ones.
Comment by RTO Trainer on 3/22 @ 11:31 pm #
No. The test is NO legislative history of punitive intent. ANY history is enough to satisfy the test. We have far more than the “merest scintilla” here: These people are bad. They have done wrong. Congress intends to correct them. They should give it back or it will be taken away. They should even kill themselves if they aren’t willing to quit.
Comment by RTO Trainer on 3/22 @ 11:32 pm #
Have you read Fletcher yet?
Comment by meya on 3/22 @ 11:53 pm #
“They should even kill themselves if they aren’t willing to quit.”
That’s a problem with legislative intent. That was said by a senator. The senate has not voted on this bill.
Nixon says this:
“Where such legitimate legislative purposes do not appear, it is reasonable to conclude that punishment of individuals disadvantaged by the enactment was the purpose of the decisionmakers.”
Here, the legitimate purpose of clawing back money and stopping bonuses DOES appear.
Comment by sdferr on 3/23 @ 12:33 am #
Obama**:
Comment by Hucklebuck on 3/23 @ 2:02 am #
Unfortunately, I live in IL so both of my “Senators” will gleefully vote for this bill of attainder. (That is it such seems perfectly clear to this atty.) I strongly encourage all of you with even marginally reasonable rep’s to lean on them, hard.
Comment by B Moe on 3/23 @ 3:48 am #
The purpose is to discourage use of TARP money for bonuses and returning to the treasury TARP money used as bonuses.
Why?
Comment by John B on 3/23 @ 5:22 am #
meya,
So until the Senate votes on this bill, they can’t have an intentions? Legislative intent would attach to those statements whether they were said before the bill was written, after it was written, or any time during the voting process. If a LEGISLATOR states that they INTEND to use a piece of legislation as punishment or retribution for a deed, it doesn’t matter WHEN they say it, it’s part of their INTENT. You’re using facts that support the very thing you’re arguing against, which is probably why people label you as “insane”.
How exactly is that a legitimate purpose? “I’m sorry, we meant to give you money, but we’re changing the rules after we gave it to you, and instead of allowing you to just give all of it back, and get out from uder our thumb, we’re going to take most of it back by taking it from 40 of your employees through taxes,” is NOT a “legitimate purpose”.
Comment by RTO Trainer on 3/23 @ 5:44 am #
The thing to be discouraged is any further TARP type program.
Had there been no bailout of AIG, they would have gone bankrupt and the contracts would have been voided. And that’s how the system is supposed to work.
Comment by Xrlq on 3/25 @ 12:11 am #
I agree that taxation isn’t ordinarily a taking, but I can’t see how this bill wouldn’t be. If a “tax” designed for the specific purpose of depriving someone of property already owned isn’t a taking, the takings clause itself means nothing. What’s to stop government from taking any real property they want, paying the owner “just compensation” on paper, and then taxing such just compensation as income at a rate of 100%? Or, if they felt like adding insult to injury, at 110%?
Comment by Estarcatus on 3/25 @ 4:02 am #
I have found the discussion in the comments quite fascinating. As someone with but a limited knowledge of Constitutional law, and specifically, the takings clause, I do not feel qualified to wade into the fray and offer a definitive opinion. Though, I must say that the high state of dudgeon that preceded the vote to *retroactively* tax the AIG bonuses, which were specifically *allowed* in the language of the bill authorizing monetary layouts to AIG does seem to have, how shall we say it, a punitive feel.
One wonders why our esteemed representatives feel the need to “claw back” the money now at all. The bill was, after all, written in English, and the terms of the deal as spelled out in the bill were available for all to read. Oh, they didn’t read it, you say. Imagine that. I shudder to think of the general clawing, keening and wailing that will follow the *next* bill, hastily written and even more hastily passed out the door of the Congress.
And, it just goes to show the limits of hefty contributions to politicians. The language was inserted at the last minute (campaign contributions work!), but is being “remedied” with great haste (well, maybe not so much). It leads to a logical question: how much of the TARP money is being sent back to our congress men and women in the form of campaign contributions? Me thinks there is a story here, if anyone cares to figure it out and then share it with the rest of us. Wonder what kind of tax rate we will see imposed on those “bonuses”?
Lovely little financial crisis we have going here, don’t you think? If it does nothing else than expose the fecklessness of our elected representatives, which in turn leads the citizens of our Republic to more carefully consider the ballot during the next election, well, it will have served some purpose after all.
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Comment by Wakefield Tolbert on 3/27 @ 1:59 am #
Playing the Devil’s Advocate here, what if I were to point to the Media Matters explanation for what they term the “myth” that Mark Steyn (among others on the Right Wings, like me) are handing out; to wit,
A) only the Bailout bonuses are up for grabs for the 90% rate–no one else has actually been mentioned by Obambi’s administration, nor Congress, and few outside of talk radio.
B) Obama’s comments were meant in a very legal jargon general sense to the effect that obviously the tax rates of all Americans need to be looked at, etc.
See for example:
http://mediamatters.org/limbaughwire/2009/03/23#0033
“Back from the break, Steyn cautioned listeners that, in a conflict between business interests and politicians, it is best to just let the “fat cats” have their bonuses, because that’s better than the 90 percent clawback tax the House passed for AIG. Steyn then claimed that on 60 Minutes last night, Obama said he wanted that 90 percent tax to apply more broadly.
A quick check of the interview transcript showed that to be untrue — asked if he thought the AIG bill was constitutional, Obama responded:
‘Well, I think that — as a general proposition, you don’t want to be passing laws that are just targeting a handful of individuals. You want to pass laws that have some broad applicability.‘
He wasn’t saying the 90 percent rate should apply more broadly, he said that tax laws in general should be broad.”