On Second Thought

[David Farber <dave () farber net>]

Begin forwarded message:

From: David Bolduc <bolduc () austin rr com>
Date: March 23, 2009 9:31:58 PM EDT
To: Dave Farber <dave () farber net>, johnmacsgroup () yahoogroups com
Subject: On Second Thought

Two short pieces.

<http://www.talkingpointsmemo.com/archives/2009/03/ 
on_second_thought.php>

On Second Thought

03.23.09 -- 12:13PM
By David Kurtz
After initially concluding that the AIG bonus tax was constitutional,  
Harvard law prof Larry Tribe has taken a closer look and is now not so  
sure.

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.

===================================

<http://theplumline.whorunsgov.com/economy/law-professor-who-advised-obama-says-house-aig-bill-may-be-unconstitutional/ 
>

Law Professor Who Advised Obama Says House AIG Bill May Be  
Unconstitutional
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.





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