The Plum Line
Tuesday, March 24, 2009
I just got off the phone with Harvard professor Laurence Tribe, who advised Obama during the campaign, and he says he’s leaning towards seeing the new House bill to tax back all the AIG bonuses as unconstitutional.
Tribe’s assertion could spell big trouble for the measure, because it could harden opposition within the Obama administration against the proposal at a time when Obama and his advisers are already expressing doubts about it.
Tribe had previously said that he thought the measure — which would slap a 90% tax on bonuses for executives whose family incomes exceed $250,000 — would pass constitutional muster. But now, after taking a closer look, he’s not so sure.
Tribe says the problem with the bill is that the Constitution forbids Congress from enacting a “bill of attainder,” which would essentially “legislate punishment of an identifiable class,” as he put it. Tribe noted that the Supreme Court had used that clause to slap down other laws.
Tribe says the main problem is that it’s hard to make the case that the law isn’t “punitive.”
“Its punitive intent is increasingly transparent,” Tribe says. “when you have Chuck Grassley calling on [executives] to commit suicide, and people responding to pitch fork sentiment, it’s hard to argue that this isn’t an attempt to punish an identifiable set of individuals who are the subject of understandable outrage.”
The whole point of opposing bills of attainder, Tribe says, is to prevent what some have called “trial by legislature.” Tribe concludes: “That’s the primary vulnerability.”
This could be a problem for House Dems. More on this soon.
Update: David Kurtz observes:
The White House is cool to this legislation to begin with. Tribe’s changing course may help give the necessary political/legal cover to slow roll it in the Senate or eventually veto it — if it gets that far.
Update For Legal Bookworms And Obsessives Only: Another scholar, Yale’s Jack Balkin, differs with Tribe and says it’s wholly Consitutional.
This article was posted: Tuesday, March 24, 2009 at 5:18 am