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Re: On Second Thought
From: David Farber <dave () farber net>
Date: Tue, 24 Mar 2009 09:08:45 -0400

Begin forwarded message:

From: Mark Blacknell <mb () blacknell net>
Date: March 24, 2009 8:30:44 AM EDT
To: David Farber <dave () farber net>
Subject: Re: [IP] On Second Thought

Note what Tribe’s analysis turns on – “punitive intent” as determined by statements from Congressmen and Senators. Now, putting aside the wholly amusing question of how some of the supposed strict constructionists on the Supreme Court might handle such things, consider whether this measure could be passed on the grounds of wanting to shape good compensation policy. I believe it certainly could. I think it’s perfectly reasonable to set an effective compensation cap at companies that have managed themselves so poorly that they are surviving on government handouts (and not punitive – remember, but for the government handouts, there would be no one to pay these bonuses).

Mark Blacknell
Washington, DC

On 3/24/09 7:14 AM, "David Farber" <dave () farber net> wrote:

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

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 <http://tpmdc.talkingpointsmemo.com/2009/03/will-senate-slow-the-aig-taxs-roll-to-a-halt.php > 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 <http://theplumline.whorunsgov.com/economy/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 <http://www.talkingpointsmemo.com/archives/2009/03/on_second_thought.php > :

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 <http://theplumline.whorunsgov.com/economy/ivy-smackdown-another-legal-prof-gives-house-aig-plan-the-thumbs-up/ > .

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