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."
Maybe the people in Congress are smart enough to figure out a way to sneak this act of targeted revenge past the courts. Maybe, in other words, they have more brains than scruples. But so far, they haven't shown much of either.
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