The bill of attainder

It seems obvious to me that the AIG bonuses confiscation bill is unconstitutional.  The Constitution says:

No bill of attainder or ex post facto Law shall be passed.

The dictionary defines bill of attainder:

a legislative act that imposes punishment without a trial

That’s exactly what the bill is, so it’s unconstitutional, right?  Well, I’m relying here on the plain meaning of the Constitution.  That, I suppose, is what lawyers call a “naive argument.”  To find out what the Constitution really means, you can’t look at its text, you have to look at centuries of case law.

The legal scholars seem split.  On the constitutional side, you have Laurence Tribe (last week) and Jack Balkin.  On the unconstitutional side, you have Laurence Tribe (this week), Erik Jensen, and Jonathan Adler.  (Via InstapunditJustOneMinute, and Asymmetrical Information.)

The one thing everyone (except Congress) seems to agree on is this is terrible policy.  Not just because it would undercut Treasury’s ability to deal with the financial crisis, but because it’s a terrible precedent to say that the government can confiscate any income it thinks is too much.

The rush to do this, despite it obviously being a bad idea, is because the Democrats are exposed.  They made this happen, and now they need cover.


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