Capital Markets

The Bonus Bills Suck, but Are They Unconstitutional?

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In today's Wall Street Journal, University of Chicago law professor Richard Epstein asks, "Is the Bonus Tax Unconstitutional?" Unfortunately, he does not actually answer that question. He says the retroactive confiscation of AIG bonuses probably would be upheld by the courts, given the relevant Supreme Court precedents. It is not a constitutionally proscribed "bill of attainder," because it applies not just to AIG employees but to people working at other firms receiving bailout money. And the Supreme Court has unanimously ruled that Ex Post Facto Clause does not apply to tax laws. Epstein says the two most promising approaches in the current legal environment would be "substantive due process" or the Fifth Amendment's Takings Clause, but he is not sanguine about the prospects for either. Yet he concludes that "if Congress doesn't stop its descent into the abyss, the Court should confess its past sin of constitutional passivity and stop it for them." He writes:

The AIG bonuses were made pursuant to valid contracts entered into before the receipt of the bailout money. They were ratified in the legislation that provided for the bailout, and efforts to find loopholes in these contracts have proved unavailing.

Thus any sensible system of limited government should consider the proposed bills unconstitutional.

But I can't tell from the essay which constitutional provision Epstein thinks should be understood to bar the bonus tax. Maybe he's suggesting that the Ex Post Facto Clause was intended to cover tax laws, although the Supreme Court has ruled otherwise. Or maybe he's saying taxes count as "takings" (which would be weird, because then what would constitute "just compensation"?). Or maybe he's saying the Due Process Clause should be read broadly enough to forbid this sort of thing, although that raises difficult questions about how to apply the clause in a constrained, principle way.

Don't get me wrong. I think the bonus grab is terrible policy: impulsive, irrational, unjust, and counterproductive, simultaneously undermining economic confidence and the rule of law. I'd like to believe it's also unconstitutional. But I've yet to hear a persuasive explanation of why, and Epstein's essay makes me think there may not be one.

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  1. I think the problem is that the Court was too accomodating in waiving the ex post facto clause for taxes, and as in most instances where the Court attempts an accomodation, we’re now fucked for all time because of stare decisis.

    The previous Court probably thought, “Well, it would hinder the legislature’s ability to collect taxes too much if changes in tax law had to wait a full fiscal year [or more, in the case of capital gains] to become effective, so we’ll just close our eyes this one time and let them change tax laws on the fly.” Little did the Court know that making this accomodation would render the ex post facto clause entirely moot.

    Make no mistake – it’s a dead letter clause now. Just another one on the pile. Because if tax laws can be changed in the manner suggested in the AIG matter and it’s constitutional, I can criminalize anything I want to after the fact by using the tax code. All I have to do is impose onerous duties on whatever conduct I want to retroactively punish, with hefty jail time for those who can’t or won’t pay. Voila.

  2. Maybe he’s suggesting that the Ex Post Facto Clause was intended to cover tax laws, although the Supreme Court has ruled otherwise.

    I hope so, although I have zero expectation the court would ever reverse that precedent.

  3. I love the implied conclusion to this:

    any sensible system of limited government should consider the proposed bills unconstitutional.

    and this:

    He says the retroactive confiscation of AIG bonuses probably would be upheld by the courts, given the relevant Supreme Court precedents.

    Namely, that we no longer have a sensible system of limited government.

    I’d like to believe it’s also unconstitutional. But I’ve yet to hear a persuasive explanation of why

    Free yourself from adherence to bad precedent, and it becomes much easier on two counts:

    It is patently obvious that the bill is intended to punish, not to raise revenue. As such, it violates the ex post facto clause. Congress should not be able to negate the Constitutional limitations on its authority by a transparent “form over function” charade.

    A case can also be made that, at some point, taxes become a taking. A 100% tax, is, in my view, clearly a taking and should be unconstitutional in the absence of individualized due process. Again, Congress should not be indulged in formalistic exercises intended to evade Constitutional limitations on its power.

    So, if a 100% tax is a taking, what is the upper limit on taxes? There is no clear answer, but I think a 90% tax can fairly be termed a taking as well.

  4. Funny, I don’t remember the Constitution stating that ex post facto laws were okay if they applied to taxes. Nope. I think it said they weren’t allowed, period.

  5. RC Dean,

    I agree with you on the 100% tax. Also, considering most state and city taxes, a 90% tax becomes effectively a 100% tax.

    For me, for example, a 90% marginal federal tax would become a 100.9% tax. 90 federal + 2.9 medicare fica + 5.8 state + 2.2 local.

  6. The law is what I say it is
    remember “I won”

    Barrak Obama

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  8. On what basis has the Supreme Court ruled that Congress can impose retroactive taxes? Hell, even the friggin’ *Soviet* constitution banned retroactive taxes (allowed for peaceful secession, too.)

    Seems to me like this should be struck down both as a bill of attainder and for being ex post facto. But given that the courts are outright hostile to the idea of any economic liberty or property rights being protected in the Constitution, I don’t expect them to do anything about it.

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  10. Maybe he’s suggesting that the Ex Post Facto Clause was intended to cover tax laws, although the Supreme Court has ruled otherwise.

    I wouldn’t look to the SCOTUS as an authority on constitutional law.

  11. I think the problem is that the Court was too accomodating in waiving the ex post facto clause for taxes, and as in most instances where the Court attempts an accomodation, we’re now fucked for all time because of stare decisis.

    Stare decisis is optional for the Supreme Court. They tend to follow their own precedents but are not required to, the way lower courts are. The Court can, and has, changed its mind on fairly broad legal issues. Plessy v. Ferguson is a prime example of this.

    There might be an Equal Protection Clause argument as to whether the distinction between employees of bailed-out companies and others has a rational basis with regard to bonuses.

  12. One serious difference in the bonus tax is that Congress and the president are on record that this is a punitive measure. I think it will be struck down on that basis.

  13. But I can’t tell from the essay which constitutional provision Epstein thinks should be understood to bar the bonus tax.

    Epstein doesn’t think there is a good way to bar the tax. very depressing.

  14. Interesting strategy Cotton. Let’s see how it works out. I’m intrigued by the possibilities of a higher level of taxation for people who live on taxpayer dollars.

  15. Funny, I don’t remember the Constitution stating that ex post facto laws were okay if they applied to taxes. Nope. I think it said they weren’t allowed, period.

    According to Thomas Jefferson, the constitution bars them only in criminal cases. He doesn’t think they are are ever right, but his view is (from wikipedia):

    The federal constitution indeed interdicts them in criminal cases only; but they are equally unjust in civil as in criminal cases, and the omission of a caution which would have been right, does not justify the doing what is wrong.

  16. Stare decisis is a red herring. It ain’t in the constitution. The federal district courts and the courts of appeal are not constitutionally bound by stare decisis. The doctrine itself is an example of improper judicial activism. Improper in that there is no textual support for the doctrine.

  17. Stuart-

    Where in the document is there such a limitation?

  18. Another example of improper judicial activism is the holding that the ex post facto clause does not apply to taxes. The constitution does not grant the judiciary the right to narrow any rights of the individual.

  19. Libertymike,

    I wouldn’t go quite that far on stare decisis. There are a number of common law principles that are implicitly assumed by the Constitution. While I don’t think refusing to apply stare decisis violates the Constitution, there is a certain presumption that courts will generally follow precedent barring a compelling reason to divert from it. If courts didn’t do that, then we’d lose the predictability generated by common law and would likely have to turn to a civil system.

    I suppose one way to look at this is that the U.S., like Britain, has an unwritten constitution. Where we’re different is that the key points of our overall constitution are written down. These common law principles show up more in state law, but they exist in the federal system, too.

  20. It is depressing because Epstein knows more about the constitution than any commenters here. I wonder what kind of explanation you might get from Dr. No’s office?

  21. Where in the document is there such a limitation?

    I’m neither a lawyer nor a constitutional scholar, but isn’t TJ a pretty good source for the writer’s intent?

  22. because it applies not just to AIG employees but to people working at other firms receiving bailout money

    It’s still a bill of attainder, just one that has a lot of collateral damage. The court would have only to look at the motive for the legislation, which the members of the congres have been braying at the top of their lungs for the last week.

    -jcr

  23. Stuart-

    TJ was not an author of the constitution.

  24. but isn’t TJ a pretty good source for the writer’s intent?

    I think TJ was in France.

  25. The Supreme Court is full of illiterates who can’t read the Constitution.

    And stop calling these bonuses. Many of these payouts were deferred compensation that was contractually obligated.

  26. Stare decisis is a red herring. It ain’t in the constitution. The federal district courts and the courts of appeal are not constitutionally bound by stare decisis. The doctrine itself is an example of improper judicial activism. Improper in that there is no textual support for the doctrine.

    Federal stare decisis is a necessary implication of a federal court system that involves multiple levels of review and only optional certiorari review by the Supreme Court, which I believe is all governed by Congress’s plenary power to oversee the setup of the federal courts.

    Congress has authority under the Constitution to modify the Supreme Court’s authority in any way it sees fit, but has never chosen to remove stare decisis.

    Straying a bit from the original topic, I suppose. I’ve read other opinions that question whether federal courts would even agree to consider a challenge to this statute.

  27. The highest income tax rate was once 90%. That was never found to be unconstitutional. Clearly, if one wants to tax these bonuses (or any other type of income) at a 90% rate, it strikes me as constitutional as well (although probably not smart policy).

    The main problem here is that these companies have only been quasi-nationalized, which causes problems as they act like, well, like private companies do, but are actually subject to the whims of the public and government officials. Either they should be nationalized completely and become government agencies, or they should be given no funds and allowed to go bankrupt. Shit or get off the pot.

  28. TJ was not an author of the constitution.

    We have a winner! Which is why that whole “separation of church and state” from his letter bugs the crap out of me. Smart guy, and definitely important, but not the definitive interpretation of a document he didn’t help write.

    James Madison, on the other hand, is a far more credible source on the Constitution.

  29. I suspect that it’s not technically unconstitutioal. Though it should be.
    It is clearly aimed at punishing a specific, narrowly defined, politically unpopular group of people. It was clearly enacted in response to a specific act (the payment of the bonuses).

    It’s clearly an abuse of power in the same spirit as an ex-post-facto law.

    I’m fairly confident however, that this bill ain’t going to make it out of congress.

    It would be *interesting* to see whether Obama would have to veto it if it got to his desk, but I suspect that cooler heads in both parties are going to make sure it never gets there.

    The rest are just putting on a political show. By the time this thing gets around to a full vote, public anger will have quelled, and it will be quietly burried.

  30. The other little detail that confuses matters is the fact that there is already a federal law on the books that specifically permitted the payment of these bonuses. And although the Obama folks claimed they were unaware of the AIG bonuses, the bonuses were duly disclosed in an SEC filing that AIG filed last November, if I recall correctly.

    Thus, bonus recipients are not simply relying on contracts. They relied on federal law guaranteeing them the right to receive them. I’ve got to think that would carry a lot of weight with the courts.

  31. In the strictest sense ex post facto laws relate to criminal activity.

    And, I don’t give a shit. It became taxpayer business when AIG took the money.

    Yes, there should have been strings on the payments in the beginning and there weren’t.

    Bottom Line is that without taxpayer funding those crybaby execs would be walking to the bus stop with empty wallets.

    I’ve got clients who are going bankrupt. The feds are not dropping by to make sure the annual bonuses get paid.

  32. And stop calling these bonuses. Many of these payouts were deferred compensation that was contractually obligated.

    So what.

    Neither contracts nor federal law supercedes an empty checking account.

    The bastards can go put in a claim at the labor board for their unpaid compensation. Just like the rest of the unwashed masses who have had a stick shoved up their ass.

    It amazes me that any libertarian could defend anything to do with this entire AIG bailout mess.

    Now go drink a suitcase of Bud.

  33. It’s obviously Ex Post Facto. I could give a flying crap about the BS reasons that have been cooked up over the years to label Ex Post Facto things as something besides Ex Post Facto. But this is just so plain and straightforward a violation, that I’d hope most people would be immune to any Jedi Mind Tricks surrounding this issue.

  34. isn’t TJ a pretty good source for the writer’s intent?

    For the DoI, sure. For the con, I want to see what Madison had to say about it.

  35. I don’t understand why taking government money necessarily means the government gets to micromanage the operations of the firm. Buffet bought a raft of Goldman Sachs common stock – you don’t see him calling balls and strikes for what employees get paid. What’s more, the government didn’t buy stock it bought preferred stock which doesn’t even have any voting rights! The government is wading in, taking senior security to existing claims, but demanding priviledges even greater than those normall afforded to common stock.

    After that, most of the people complaining about this are middle to lower income people who don’t pay net taxes in the first place. Only the top 1/5th of taxpayers put in more than they get out! (the 2nd quintile breaks even)

  36. that was for you TWC – by the way… wanted to respond…

  37. Thank you citzenry for ignoring that we picked $550 dollars from each of your pockets while getting outraged over the 50 cents that went to the executives. Mission accomplished.

    Take back the bailout and let them fail, outrage problem solved. There is a time-honored method of sorting out the balance sheet and who gets dibs.

  38. The tax code is a criminal code.

    It sets out behaviors in which I must engage or face criminal penalties.

    Taxes can stop being part of criminal law when the state stops putting evaders in jail.

  39. I see Im late on the TJ/Madison dealy.

    TWC,

    Some of us have the ability (or misability) to separate the bailout money from what AIG does with it after it gets it. I favored, and still favor, letting AIG fail. However, once they receive money, from whatever source, it only makes sense for them to continue to uphold their contracts.

    Think of this whole discussion having a giant libertarian disclaimers #1-47 pasted on top.

  40. I also dont understand why the outrage at the exec “bonuses” and not at the wages of their secretaries.

  41. So what.

    Neither contracts nor federal law supercedes an empty checking account.

    The bastards can go put in a claim at the labor board for their unpaid compensation. Just like the rest of the unwashed masses who have had a stick shoved up their ass.

    It amazes me that any libertarian could defend anything to do with this entire AIG bailout mess.

    Now go drink a suitcase of Bud.

    Who’s defending the bailout?

    We are merely arguing that, having prevented AIG from entering bankruptcy, the federal government has absolutely no right to now try to pick and choose which creditors of AIG get paid and which ones don’t.

    The way to stop these bonuses was to let AIG fail. The federal government didn’t do that. They filled up that “empty checking account” you refer to.

    And now they want to say, “Oh wait, we only meant that money to go to the holders of credit default swaps. We don’t want that money to go to employees with big contracts!” And the federal government can go fuck itself.

  42. Just in case anyone thought only the Dems made stupid ass economic laws to try and prevent the recession. May as well make a law saying the stock market is only allowed to go up.

  43. And thus we get to the truth of the matter, that the government can do whatever the fsck it wants to and no piece of parchment is going to protect us from it.

  44. TWC: I really don’t give a fuck about whether the AIG execs are getting their money.

    I care about the dangerous precedent that is being set up by congress enacting a specific ex-post-facto tax law to expropriate earning that were legally authorized.

    If Congress had abbrogated the retention bonuses back in October, or and have not inserted language specifically authorizing them, this wouldn’t be an issue.

    ANY sane libertarian, any sane individual that doesn’t want to live in fear of the state expropriating their earnings at 90% just because they are unpopular, should be concerned about this. If they can do this to the AIG guys, they can do it to anyone.

    After all, there’s nothing in the constitution that says that only people that take bailout money can be subjected to ex-post-facto taxation.

    This kind of law, if it stands, could apply to ANYONE. Absolutely ANYONE.

  45. And now they want to say, “Oh wait, we only meant that money to go to the holders of credit default swaps.

    Yeah, because that’s such bunch of angels and philanthropists.

    If people had any idea who was really getting the AIG money, there would be (well-justified) rioting in the streets.

    Those of you who burn one ounce of indignation on the deferred comp are being played for fools, falling for a con, looking in the couch cushions for pennies while thieves haul your big-screen TV out the front door.

  46. SCOTUS OT: Has anyone read Justices White’s dissent in Pollock? He seemed to think that taxes on rents and interest was perfectly constitutional as a “uniformly applied” indirect tax, and thus the 16th Amendment was not even necessary (Harlan concurred with White’s dissent and went on to be the only dissenting justice in Plessy v. Ferguson). At the time, the first tax bracket started at $4000 which is like $80,000 in today’s dollars, and I’m pretty sure wages were not treated as income but salaries were. If anyone can confirm this for me, and explain the difference between “wages” and “salaries” in 1895, I would appreciate it. I’m trying to figure out how exactly middle-class people were tricked into paying income tax, as most of their “income” derives from their labor rather than property, and (imo) should not be taxed. Did Congress ever intend for average white-collar workers (of which there were few in 1895, I admit) to be taxed like this?

  47. If people had any idea who was really getting the AIG money, there would be (well-justified) rioting in the streets.

    Aye.
    Because guess what. The money is to pay off (effectively) insurance on phantom profits.

    I.e. make a lot of money on paper. Have it insured. Market tanks. Instead of taking a loss, you collect the insurance. As long as the insurance company can afford to pay, that is. Which it can if the federal government keeps funneling money to them.

    What is effectively going on is that we’re helping banks and hedge funds realize the paper profits they made in the last decade on MBSes. Because the government thinks that if they take their losses there will be no capital left in the market to finance the regular economy.

  48. or the Fifth Amendment’s Takings Clause

    Doomed. The extraction of the bonuses from AIG executives serves a “public purpose”. Done and done.

    Next story.

  49. The AIG bonuses were made pursuant to valid contracts entered into before the receipt of the bailout money.

    So there we see it, on the screen, AIG executives complaining that “this deal just keeps getting worse all the time”, and Darth Geihtner telling them to “pray he doesn’t alter the deals any further”.

    The US is doomed as a beacon of liberty or economic freedom. We’re just a quasi-socialized europe-like economy, trading protection schemes to featherbed our “most critical” industries.

  50. If people had any idea who was really getting the AIG money…

    Well, it’s not like any corporate welfare bill was ever passed without the claim that it was for the “little guy”…”the workers”…”Main Street not Wall Street”…you get my drift.

    None ever proposed a bill saying “the purpose of this bill is to increase the profits of fat cats”.

    In fact almost without fail corporate welfare is proposed by the “friends of the working man” ie the Democrats.

    That’s why I have often remarked that the only difference if Al Gore had stolen the election is that Enron would have gotten a bailout. For the workers and to fight climate change, of course.

  51. TJ was not an author of the constitution.

    James Madison, on the other hand, is a far more credible source on the Constitution.

    I am aware that Jefferson was not an author. But he was a mentor to, and very influential with his life long friend Madison, who lived just down the street. (Yes, I am a Wahoo).

    To quote wikipedia again:

    Because Jefferson served as minister to France from 1785 to 1789, he was not able to attend the Philadelphia Convention. He generally supported the new constitution despite the lack of a bill of rights and was kept informed by his correspondence with James Madison.

    Jefferson was well aware meaning of Ex Post Facto at the time. To paraphrase from the book The Constitutional Convention of 1787, ‘At the convention, John Dickinson observed that the term, Ex Post Facto, applied to criminal cases only, and would not restrain the States from retroactive law in civil cases, and so some further provision was required.’

    BTW, I think these retroactive tax laws are horrible, but the constitutionality is an interesting issue.

  52. Fifth Amendment’s Takings Clause

    Good luck with that.
    I think state used it for toilet paper back in the 1930s. I could be wrong, though, and any attempt to invoke it is probably a welcome source of comedy for court followers.

  53. Hazel, I don’t understand. Why is my bank stock down like 80% if the money going to AIG made banks whole on mortgage backed securities?
    Do banks insure MBS for 100% of the face?

  54. And the Supreme Court has unanimously ruled that Ex Post Facto Clause does not apply to tax laws.

    Or more accurately, the Supreme Court has unanimously ruled that the ex post facto clause prohibition on ex post facto laws of any kind does not apply to the kind of laws that bring revenue to the government.

  55. And although the Obama folks claimed they were unaware of the AIG bonuses, the bonuses were duly disclosed in an SEC filing that AIG filed last November, if I recall correctly.

    As I pointed out in another post, apparently the feds’ attitude is that they don’t conduct due diligence when acquiring a big equity position in a company; due diligence is for the little people.

  56. Doomed. The extraction of the bonuses from AIG executives serves a “public purpose”. Done and done.

    You’re forgetting the part of the Takings Clause that requires “just compensation.” What’s being taken here is cash. The value of cash is, well, its cash value, so “just compensation” for cash is the equivalent amount of cash.

    IOW, the Takings Clause prohibits the seizure of money even for a public purpose. You can only seize money as a penalty, after due process.

  57. You’re forgetting the part of the Takings Clause that requires “just compensation.” What’s being taken here is cash. The value of cash is, well, its cash value, so “just compensation” for cash is the equivalent amount of cash.

    They aren’t going to be thrown into jail. That’s the “just compensation.” Darth Obama’s saying “yo, I just compensated you, bitch.”

  58. This is from another thread.
    Hazel Meade makes a similar point above.

    vanya | March 25, 2009, 4:55pm | #
    I’ll simplify this so even Gillespie can understand.

    1. Large financial houses place bets for years, inflating asset values, and generating false profits.

    2. Employees of these houses pay themselves large salaries and bonuses year after year derived from what we now know were non-existent profits.

    3. Government bails out these companies with taxpayer money when their profits turn out to have actually been losses after all.

    4. Employees of said Companies whose salaries and bonuses are pretty much entirely funded from taxpayer money, at least retroactively (because AFAIK none of them have offered to pay back the compensation they received over the past 10 years when these Companies turn out to have not been profitable at all) whine bitterly when the government tries to take some of this government funded compensation back. And this guy is supposed to be a libertarian hero?

    Saying “I was against the bailout but these guys should get their bonuses” is probably the most ridiculous position you can take. No. The bailout was a huge mistake, and continuing to pour cash into these zombies to fund high levels of compensation is just compounding that mistake.

    Clearly, the bonuses are a distraction that should be ignored. And clearly a tax law is not the way to get the money back, but it can not be repeated enough times that these guys did not earn their compensation (with the emphasis on the fact that “these guys” means the ones involved in phantom profit schemes.

  59. robc | March 26, 2009, 2:46pm | #
    I also dont understand why the outrage at the exec “bonuses” and not at the wages of their secretaries.

    See above comment.
    It is because people have an understanding of that basic dynamics of the situation. The secretary earned her money…the guys making losing bets on phantom money did not.

  60. “According to Thomas Jefferson, the constitution bars them only in criminal cases.”

    Probably because, in Jefferson’s time, the Federal government did not tax the people directly very much, and the ones that did exist would be difficult to collect ex post facto.

    On a side note, looking to Jefferson of all the Founders for expertise on how to interpret the Constitution is…odd. Jefferson played no direct role in writing the Constitution and was not even in country for most time of the Convention.

  61. The secretary earned her money…the guys making losing bets on phantom money did not.

    The guys who got the bonuses aren’t the guys making the losing bets on the phantom money. They are the dealers at the casino.

    The guys with the losing bets are Goldman Sachs, and Deutsche Bank, and others. the financial instutitions whose failure the entire bailout is predicated on avoiding.

  62. With the Court bizarrely ruling that sex offender registries and “you can’t live here” statutes are not punishments, and are therefore are not constitutionally barred as ex post facto law, even the supposed application of the Ex Post Facto clause to criminal law is severely weakened if not outright eviscerated.

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