Legal Research

Stung by public outrage at the bonuses awarded AIG executives, Congress has passed a confiscatory, 90% tax on bonuses of those earning more than $250,000 a year at firms that have accepted at least $5 billion in bailout funds. 

At first glance, this looks remarkably like a violation of Article I, Section 9, paragraph 3 of the Constitution, which provides that "No Bill of Attainder or ex post facto Law shall be passed."  Certainly, the intent is to retroactively punish a narrowly defined group of people.  In fact, the legislation is just what Madison, writing in The Federalist No. 44, feared as "the fluctuating policy which has directed the public councils." 

But, according to The New York Times, retroactive tax provisions have  been upheld against Constitutional attack in numerous cases.  As we continue to pour federal money into our faltering economy, many more of these "oversights" in the enabling legislation are bound to be revealed, making the idea of actually Reading the Bill seem like an ever-better idea.