Yale University Law Professor Jack Belkin takes a look at the Constitutional arguments against the bonus tax bill that the House of Representatives passed last week:
[T]here is no problem under the Bill of Attainder Clause because the tax does not single out specific individuals for punishment; in addition it is both prospective and retrospective in application. First, the tax defines the class to which it applies to an abstractly defined group rather than naming particular individuals. It applies to persons working for enterprises that have received emergency government subsidy; it is not aimed at particular companies or specific employees. Second, the tax is for a regulatory purpose, as described above, and not for a punitive purpose. Preventing misuse of government funds, limiting bad incentives, and avoiding moral hazard are regulatory purposes, not punitive purposes. The fact that isolated members of Congress may have expressed an impermissible punitive or retributive purpose does not mean that the tax violates the Constitution if the text of the bill on its face has an overtly regulatory purpose. Third, the tax is both prospective and retrospective in its targets, which is consistent with a regulatory as opposed to a punitive purpose.
Balkin also examines objections to the bonus tax based on the Due Process Clause, the Takings Clause, and the Ex Post Facto Law clause. As I concluded last week, he finds each of these objections even weaker than the Bill of Attainder argument.
Balkin adds one final point that’s worth noting:
It is worth noting that the fact that the proposed taxes are constitutional does not mean that they are necessarily good public policy.
To which James Joyner adds:
Just because something would likely pass Supreme Court muster doesn’t mean it’s within the spirit of the Constitution as written by the Framers. The courts have construed some of our rights exceedingly narrowly while crafting others out of shadows.
True on both counts, but, alas, Congress doesn’t really seem to care about Constitutional limits to it’s authority anymore, and the Supreme Court doesn’t seem inclined to do anything about it.
