Remember when Antonin Scalia said that "punishment" could only apply

[Rex_Goodheart]

in a situation where somebody has committed a crime?

Let me be the first to say that his scumminess is about to come back to haunt him.

Today's 90% TARP tax is likely bound for the Supreme Court. The challenge will be that the tax violates Article I's prohibition against Bills of Attainder and ex post facto laws. But in order for those prohibitions to apply, the governmental action has to be considered "punishment." Since the Congress is in no way charging the AIG recipients with a crime, how, Mr. Scalia, can you call it "punishment"?

[aquart]

1. Ooh, we're gonna see Scalia tap dancing.

[Rex_Goodheart]

2. Of course... that's what he does.

:)

[Greyskye]

4. (shudder)

I really didn't need that visual. :puke:

[imdjh]

3. I despise him

And yet, I think he did say something intelligent once or twice. I just can't remember what it was. He probably agreed with me on a 4th amendment issue. I hate it when that happens.

[BuyingThyme]

5. Don't you have your argument backwards?

[Rex_Goodheart]

6. I don't think so, but I admit to being old and senile. Enlighten me.

[BuyingThyme]

10. On second thought, maybe you're right.

[Rex_Goodheart]

7. I don't think so, but I admit to being old and senile. Enlighten me.

[sinkingfeeling]

8. I think the tax will withstand a challenge as constitutional. Here's the opinion of a legal person.

From Professor Laurence Tribe:


I'm in the process of taking a closer look at this issue at the request of several others both in and out of government, but I can tell you this much on the basis of what I know from my past research and experience: It would not be terribly difficult to structure a tax, even one that approached a rate of 100%, levied on some or all of the bonuses already handed out (or to be handed out in the future) by AIG and other recipients of federal bailout funds so that the tax would survive bill of attainder clause challenge.

Such a tax would presumably be leveled on the basis of some criterion sufficiently general to avoid classification as a measure targeting solely a closed class of identified and named individuals. The fact that the individuals subject to the tax in its retroactive application would in principle be readily identifiable would not suffice to doom the tax either from a bill of attainder perspective or from a due process perspective. Moreover, the fact that the aim of such a tax would be manifestly regulatory and fiscal rather than punitive and condemnatory, and that the tax would be part of a measure that would be prospective as well as retroactive in its operation, would serve to blunt the force of any bill of attainder challenge. Finally, such a tax would be devoid of the sting of political retribution and would not partake of the classic "trial by legislature" that the attainder ban was designed to avoid.

All things considered, I believe it very likely that Congress could design a fully constitutional means of clawing back into the federal treasury all amounts paid (or to be paid in the future) in the form of retention bonuses from federal funds disbursed either by the Federal Reserve Board pursuant to legislative authorization tracing to the 1930s or by the Treasury pursuant to the most recently enacted federal bailout and stimulus measures.

http://business.theatlantic.com/2009/03/laurence_tribe_is_taxing_aig_legal.php

[Gin]

9. the Senate has to vote...until then...no changes and the money is gone.

[Tangerine LaBamba]

11. Your premise is inapplicable here

It's a civil matter, not a crime. There's no "punishment," simply "remedies."

Sorry, but it doesn't work here, and I probably despise Scalia more than most...................