Outrage I Can Believe In

[Townsend]

Strange, that's not what the constitution says.

In the words of our Congress "constitution smonstitution".

[Gaspar]

FOTD, now's your chance, insert GWB constitution reference.

[nathanm]

Strange, that's not what the constitution says.

Strange that you completely ignored my second paragraph.

In the 1994 opinion United States v. Carlton, the U.S. Supreme Court unanimously held that retroactive tax laws did not violate the constitutional prohibition on ex post facto legislation.

[guido911]

The better constitutional analysis in my opinion would be under the bill of attainder proscription. In SeaRiver Maritime Financial Holdings, Inc. v. Mineta , 309 F.3d 662, 668 -669 (C.A.9 (Alaska),2002), the Ninth Circuit explained:

The Constitution instructs Congress that "No Bill of Attainder ... shall be passed." U.S. Const. art. I, § 9, cl. 3. A bill of attainder is "a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial." The Bill of Attainder Clause implements the doctrine of separation of powers.  "Just as Article III confines the Judiciary to the task of adjudicating concrete 'cases or controversies,' so too the Bill of Attainder Clause was found to 'reflect ... the Framers' belief that the Legislative Branch is not so well suited as politically independent judges and juries to the task of ruling upon the blameworthiness of, and levying appropriate punishment upon, specific persons.' "

Three key features brand a statute a bill of attainder: that the statute (1) specifies the affected persons, and (2) inflicts punishment (3) without a judicial trial.[/font]

[Internal citations omitted; punctuation in original]. See also, BellSouth Corp. v. F.C.C., 162 F.3d 678, 683-84 (D.C. Cir. 1998);Consolidated Edison Co. of New York, Inc. v. Pataki, 292 F.3d 338, 350 (2nd Cir. (N.Y.) 2002). In discussing what constitutes "punishment, the U.S. Supreme Court in Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841, 852, 104 S.Ct. 3348, 3355 (U.S.1984) identified three factors to be considered: "(1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes"; and (3) whether the legislative record "evinces a congressional intent to punish." [Citaion and punctuation omitted].

As such pertains to the tax on the AIG executive bonus tax, there is no question that such specifices a certain person, that being solely AIG executives. The second feature, punishment, is what is problematic.  In Pataki, supra, the Second Circuit discussed "punishment" as follows:

Legislated punishment is not always easy to identify outside the traditional punishments of death or incarceration. Neither "the fact that harm is inflicted by governmental authority," nor "the severity of [the] sanction is ... determinative of its character as 'punishment,' ". Indeed, as traditionally conceived, punishment implicates a variety of values that, in other contexts, bear no necessary relation to punishment. For example, a judicial order of compensation in a negligence action imposes "harm" on the defendant-he must pay the damage award-but that harm is merely compensatory for the plaintiff's injury, not punitive. Compensation may be part of a punishment, on the other hand, as where a criminal defendant is ordered to make restitution to his victim. Similarly, deterrence may be a legitimate, nonpunitive goal, such as deterrence of unreasonable conduct produced by a damages award for negligence-but it is also a core component of punishment. Retribution may be one value that is limited to the arena of punishment, but it is not a necessary part of "punishment."

[Internal citations omitted; punctuation in original]. Pataki, 292 F.3d at 350.

There is little doubt that Congress seeks to recover the bonus money as means to undue what it perceives as improper payments to persons it believes does not deserve them. Is it "punishment"? AIG will certainly argue that Obama's "greed" comment and the all the outrage certainly can be construed as punishment. Further, given that the tax is 90%, one could consider the tax is both an imposition of harm on AIG executives and seeks "retribution." Pataki, supra. Really, who knows. Heck, this analysis may be entirely imperfect.


Sorry for the legalize. When I read citations to wikipedia to explain complicated legal principles, I feel it necessary to throw out some real law for people to read and digest so a more sound argument can be advanced.

[Gaspar]

Well, thank you Mr. President. 

President Obama feels that the 90% tax on executive bonuses is unconstitutional, and won't support it.

THAT was unexpected.

I guess the constitution still works a little bit.

[nathanm]

Sorry for the legalize. When I read citations to wikipedia to explain complicated legal principles, I feel it necessary to throw out some real law for people to read and digest so a more sound argument can be advanced.

Wikipedia had good references to pertinent cases which can easily be looked up on Cornell's law site, that you try to shoehorn tax code revisions into completely unrelated law is only indicative of your ideological purpose.

The Supreme Court has held on numerous occasions that taxes are not a punitive measure, despite how you or I may feel about them when we pay them. In fact, a bill that would increase the tax rate on bonuses would fall so squarely within the tests that the Supreme Court has laid out for its entire history it's unlikely certorai would even be granted unless some appellate court chose to disregard 200 years of tax law precedent (and 90 years specific to income tax)

I don't have a citation handy, but one of the cases was directly on point, the only difference being the challenge was to the wisconson state legislature's change in the tax code as opposed to the federal congress.

[Gaspar]

Wikipedia had good references to pertinent cases which can easily be looked up on Cornell's law site, that you try to shoehorn tax code revisions into completely unrelated law is only indicative of your ideological purpose.

The Supreme Court has held on numerous occasions that taxes are not a punitive measure, despite how you or I may feel about them when we pay them. In fact, a bill that would increase the tax rate on bonuses would fall so squarely within the tests that the Supreme Court has laid out for its entire history it's unlikely certorai would even be granted unless some appellate court chose to disregard 200 years of tax law precedent (and 90 years specific to income tax)

I don't have a citation handy, but one of the cases was directly on point, the only difference being the challenge was to the wisconson state legislature's change in the tax code as opposed to the federal congress.

Well, President Obama taught as a constitutional scholar, and he feels it's not constitutional, so I think we'll just defer to his wise guidance. 

We certainly woulden't want to imply that he is just shooting from the hip. 
 

[USRufnex]

Gee, and all this time I thought I was "spooning" with a wealth redistributing socialist who pals around with terrorists..... I feel so dirty.     /sarcasm.

[Gaspar]

Looks like they are going to "rework" the budget.

"Sen. Bill Nelson, a member of the Senate Budget Committee, said the Obama budget will have to be revised in light of the latest Congressional Budget Office projections."
That's good.

&

Bejing and the Kremlin are both proposing a new currency, independent of the American dollar. Because Bernanke is printing and dumping Trillions of dollars on the international market.  Why?  No one knows, it just drops the value of our currency and destroys international faith in the dollar.

From Yesterday's issue of Canada's The Financial Post:

The circus-like U. S. political system seems to be declining into near chaos. Through it all, stock and financial markets are paralyzed. The more the policy regime does, the worse the outlook gets. The multi-ringed spectacle raises a disturbing question in many minds: Is this the end of America?

I really think that President Obama and Axelrod are doing the best they can, but they have made so many promises against the principals of capitalism that they are struggling to find a way to turn the economy around using a different set of principals.  If they were to loose the chains of government and let private industry surge they would be criticized, but that's what pulls us out of recessions every single time.  They will have to do it eventually.  Government has no power to sustain the people.  I guess we just wait now.

Cleaning up the toxic assets was a very good move.  We should have done that in week one.  Would have saved hundreds of thousands of jobs.  I remember during the election that someone else proposed doing that, but I don't remember who that could have been.

[cannon_fodder]

Is the end of America?

No.  Not even close.  If the cards play out right the United States emerges as a more powerful nation than before.  Recall that power is proportional to that held by other nations.  So long as we weaken less than other nations, we come out stronger.   Particularly if we position ourselves to benefit from this in some way.

What it will end is U.S. hegemony in world affairs.  For 20 years the US financial markets rules supreme, the US investment portfolio was the way to go, world politics was run by the US whenever and wherever we saw fit, and of course militarily no other 3 powers in the world can compete with the United States.  I expect to see the US challenged in the long term on at least several of those fronts. The world is far, far more wealthy now than in 1990 - but no one really cares about that at the moment.

[USRufnex]

So... socialism is okay if we socialize risk and allow Wall Street to redistribute wealth....... got it.

[guido911]

Wikipedia had good references to pertinent cases which can easily be looked up on Cornell's law site, that you try to shoehorn tax code revisions into completely unrelated law is only indicative of your ideological purpose.

The Supreme Court has held on numerous occasions that taxes are not a punitive measure, despite how you or I may feel about them when we pay them. In fact, a bill that would increase the tax rate on bonuses would fall so squarely within the tests that the Supreme Court has laid out for its entire history it's unlikely certorai would even be granted unless some appellate court chose to disregard 200 years of tax law precedent (and 90 years specific to income tax)

I don't have a citation handy, but one of the cases was directly on point, the only difference being the challenge was to the wisconson state legislature's change in the tax code as opposed to the federal congress.

First, I was not hammering you on your Wiki source, only that the law is far more complex than what it provides. In fact, you are correct to the extent that the U.S. Supreme Court has held that taxes are generally not considered punishment or punitive. Indeed, in Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 779-780, 114 S.Ct. 1937, 1946, 128 L.Ed.2d 767 (1994), the Court explained that "fines, penalties, and forfeitures are readily characterized as sanctions, taxes are typically different because they are usually motivated by revenue-raising, rather than punitive, purposes." See also, U.S. v. Brennick, 908 F.Supp. 1004, 1009 (D.Mass.1995).


However, in Bailey v. Drexel Furniture Co., 259 U.S. 20, 38, 42 S.Ct. 449, 451, 66 L.Ed. 817 (1922), the U.S. Supreme Court has also stated:

The difference between a tax and a penalty is sometimes difficult to define, and yet the consequences of the distinction in the required method of their collection often are important....Taxes are occasionally imposed in the discretion of the Legislature on proper subjects with the primary motive of obtaining revenue from them and with the incidental motive of discouraging them by making their continuance onerous. They do not lose their character as taxes because of the incidental motive. But there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty, with the characteristics of regulation and punishment.

[Emphasis added]. 

The underscored portion of the Bailey opinion is exactly the point I was making in my previous post. The proposed 90% tax has nothing to do with generating revenue, which you should concede is true. This is about seizure of property (money) from a few, specific individuals that the Obama administration and certain members of Congress have called greedy and the cause of the economic crisis.

This is all apparently moot now given Obama's recent statements as to the constitutionality of the tax and the Senate effectively burying it.

[nathanm]

The underscored portion of the Bailey opinion is exactly the point I was making in my previous post. The proposed 90% tax has nothing to do with generating revenue, which you should concede is true. This is about seizure of property (money) from a few, specific individuals that the Obama administration and certain members of Congress have called greedy and the cause of the economic crisis.

Your point may be true, but given the revenue raising aspect, the court wouldn't get that far in its analysis. If you're still interested in beating this (apparently) dead horse, I can go back and cite some cases.

FWIW, I do appreciate a rational, factual discussion. 

[guido911]

Your point may be true, but given the revenue raising aspect, the court wouldn't get that far in its analysis. If you're still interested in beating this (apparently) dead horse, I can go back and cite some cases.

FWIW, I do appreciate a rational, factual discussion. 

Nah. Horse beaten to oblivion.

[Gaspar]

Ok, back on topic. . .

AIG has now changed their name to AIU so that problem is solved.

JP Morgan Chase who just received $25 billion in TARP funds. Plans to buy two luxury corporate jets worth $138 million and also build "the premier corporate aircraft hangar on the eastern seaboard" to house them. The new hangar will apparently be built with reclaimed wood, quarry tile and even include a "vegetated roof garden." The Gulfstream 650's are supposed to be the "fastest," "widest" and "most comfortable" private jet ever.

I'm sure there will be stringent government oversight during the entire aircraft construction and delivery procedure to make sure that our money doesn't go to waste.