CT Blue

Just before Obama’s press conference (which I thought went well) I happened to catch a snippet of Chris Matthews opining with certainty that the bill recently passed by the House, which seeks to tax those bonuses, was obviously a bill of attainder and quite obviously unconstitutional.

This, along with a related meme that the bill is an ex post facto law and unconstitutional for that reason, has been spewed by many a talking head. Both claims are laughably false.

A bill of attainder is a legislative act declaring that an individual is guilty of a crime (or merely a person that the legislature doesn’t like), which act imposes criminal sanctions on that person, i.e., imprisonment or death. The victim of a bill of attainder gets no trial. He or she just goes directly to jail or to the hangman.

An ex post facto law is a legislative act that retroactively declares a completed act to be a criminal. The person charged has the right to a trial, but the act for which they are being prosecuted was not illegal at the time. Elementary notions of fairness dictate that a person should be on notice, before they commit an act, that the act is illegal and subject to criminal sanctions.

Each of these involves criminal sanctions. The tax bill does not.

Civil statutes can be, and often are, retroactive or retrospective. Retrospective civil legislation can raise constitutional issues, but it isn’t necessarily easy to get a law knocked out just because it’s retrospective.

In any event, this legislation appears to be changing the law for the present tax year, and not previous tax years, so it doesn’t appear to qualify as retrospective. It is not unusual for changes to be made in tax laws that either increase or decease taxes for that tax year.

I myself had an unhappy experience regarding retrospective legislation. One of the first appeals I ever took involved a guy who had some retrospective liability imposed on him (or more precisely, a class of people to which he belonged). I can’t remember the precise facts anymore, but I do recall that the case law is all over the place regarding what is and what is not allowed. I lost the case, and as I recall, it wasn’t even close.

The fact that this legislation is aimed at a fairly narrow class of people is also a not uncommon thing, apparently. Normally this sort of narrowly crafted legislation is designed to grant special treatment to a very narrowly defined class, and such legislation has been upheld. It is not immediately obvious why legislation aimed at disadvantaging a narrow class of earners couldn’t be upheld.

This is not to say that there are not some constitutional questions raised by the tax bill. My guess is that the strongest might be made under the due process clause, but the case would by no means be a slam dunk. Given our corporate friendly Supreme Court, it’s not unlikely that the bonus recipients would win in that arena. But even this Supreme Court would likely refuse to rely on either the ex post facto clause or the bill of attainder clause.

In sum, there are legitimate policy reasons to oppose the bill, and there may even be some constitutional issues involved, but these blatherers who casually invoke the bill of attainder clause should really be required to do a little research. It it truly amazing how ignorant are the people who monopolize our discourse.