90% Bonus Tax as a Bill of Attainder

Ever since the House approved a bill that would tax the infamous AIG bonuses and the like at 90%, numerous people have wondered whether the bill (if it becomes a law, which seems unlikely) would be unconstitutional under the Bill of Attainder Clause in Article I, Section 9 of the federal Constitution. The law professors at Volokh Conspiracy, for example, have offered some thoughtful commentary.

The issue sent me back to my copy of The Heritage Guide to the Constitution, published in 2005 by Regnery. I originally bought The Heritage Guide on an impulse, thinking it might be fun to browse through. But it has since become my go-to source whenever I want some quick learning on a constitutional provision. While I have other, more "professional" sources on constitutional law in my office (including the 6-volume treatise published by West), The Heritage Guide is the best place I've found for an intelligent overview.

On the question of bills of attainder, The Heritage Guide points out, first, that the Constitution prohibits both the federal government (in Art. I, Sec. 9) and the states (in Art. I, Sec. 10) from passing bills of attainder and ex post facto laws. The Guide then explains that, while at common law bills of attainder "condemned specifically designated persons or groups to death" (my emphasis), Chief Justice John Marshall, in the 1810 opinion Fletcher v. Peck, stated that "a Bill of Attainder may affect the life of an individual, or may confiscate his property, or may do both."

In the 20th century, the Guide goes on, the Supreme Court devised a three-part test for determining whether a legislative enactment is a bill of attainder: "such legislation specifies the affected persons (even if not done in terms within the statute), includes punishment, and lacks a judicial trial." Most recent Supreme Court opinions on whether legislation violates the Bill of Attainder Clause have turned on the "punishment" prong of the test. For instance, exclusion from employment has been found to be punishment, but the denial of non-contractual government benefits (such as financial aid) has been found not to be punishment.

This is a broader reading of the clause than I had recalled (if we ever studied this provision in Con Law class, which I doubt). The argument that the 90% tax is a bill of attainder would therefore seem to have some promise.