I wrote last week about the AIG bonus mess, opining, "Any attempt now to write a law that attacks these specific bonuses will likely be challenged on the grounds that it violated the Constitution's prohibition on bills of attainder."
Today, Hah-vard's Laurence Tribe, the standard bearer for all things liberal in the law, has apparently come to the same conclusion:
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.”
Thank you, Professor Tribe. Frankly, I'm feeling a little faint right now, but I appreciate the fact that you have accidentally careened into the right conclusion. Let's do this again sometime.