Posted by Jonathan Adler:
Is the AIG Bonus Tax Really a "Tax"?
http://volokh.com/archives/archive_2009_03_22-2009_03_28.shtml#1237829222
[1]From Barrons:
Richard Epstein of the University of Chicago Law School says that
while the tax is more egregious than others, there's no precedent
to point to that says the scheme is unconstitutional. But this
assumes that what Congress has designed really is a tax, says Erik
Jensen of Case Western Reserve University Law School.
"Yes, the taxing clause of the Constitution gives Congress the
power 'to lay and collect taxes,' and ordinarily a court won't
strike down a charge that Congress says is a tax," Jensen wrote in
an e-mail in response to our query. "But that's a matter of
deference, not principle. The proposals now before Congress aren't
anything like business-as-usual taxation, where deference would be
appropriate. A charge imposed at a confiscatory rate of 90% on only
a few specified people and on only part of their income isn't what
the Constitution means by 'tax.' "
Jensen adds: "It's obvious from the way members of Congress are
talking that punishment, not revenue-raising, is involved here.
Whatever label Congress uses, confiscating a well-defined category
of property from a small group of people sounds a lot more like a
taking than it does a tax."
I think that's right (and not just because Erik's a colleague). The
key to any constitutional challenge (whether under the Bill of
Attainder clause or some other provision) will be convincing a court
that the AIG bonus tax is not actually a "tax." The problem is that
courts are usually inclined to accept congressional characterizations
of legislation -- though perhaps this provision will be a stretch too
far.
Meanwhile, Professor Larry Tribe is [2]reportedly having second
thoughts on the constitutionality of the provision.
References
1. http://online.barrons.com/article/SB123758844832599951.html
2.
http://theplumline.whorunsgov.com/economy/law-professor-who-advised-obama-says-house-aig-bill-may-be-unconstitutional/
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