In the latest installment of “AIG And Me” the House passed a bill today to punish the AIG people receiving legally contracted bonuses.  The vote was 328-93.

Now that they’ve got all that righteous indignation off their chests, the question is, is that legal?  The Heritage Foundation says The AIG Clawback: Possibly Unconstitutional, Doubtlessly Imprudent

As regards income due to AIG employees, this measure is a punitive one, intended to punish the company’s employees and executives for conduct that Congress and the public believe demonstrates greed and selfishness. This raises serious constitutional concerns. First, it may be tantamount to a bill of attainder, with respect to those individuals, and so prohibited under the Constitution. Second, it could constitute an unlawful taking of property.

But whether or not the measure is legally permissible, it is bad policy because it injects massive uncertainty and risk into compensation agreements at a time when the expense of doing so is likely to be great.

What is a bill of attainder?  “The Court has stated that a bill of attainder is any law that inflicts punishment on “named individuals or to easily ascertainable members of a group” without a judicial trial.  The punishment may be of a criminal nature, such as imprisonment or death, or it may be civil, such as denying an individual compensation.”

With this foray into political theater Congress is trampling all over the Constitution:

Article I, § 9, of the Constitution states: “No bill of attainder or ex post facto Law shall be passed.” The prohibition has several purposes. First, it enforces the Constitution’s separation of powers, thereby protecting individual rights. The judiciary, not the legislature, is the branch that judges the application of the law to specific individuals and entities, resolving the disputes before it on an individualized basis and ensuring that each case is afforded due process. For Congress to adjudge specific parties guilty and due certain punishment would necessarily intrude on this power. The result, as the Framers well knew from the country’s colonial experience, would be legislative tyranny: Britain’s parliament regularly enacted laws naming or describing particular individuals and sentencing them to death for some asserted infraction, usually treason.

Second, building on the structural purpose, the prohibition ensures that those subject to punishment will be accorded due process. Punishment meted out by the legislature is followed not by process but by enforcement: Property is seized, liberty curtailed, life taken. Our civil and criminal justice systems, however, guarantee broad procedural rights meant to protect the individual from unjust government action…

Third, the prohibition is an essential part of the regulation of the legislative branch to produce “sound legislation.” As the Framers knew quite well, legislators can be whipped into a froth by public sentiment or influential parties seeking to further their private ends. They are sometimes too ready to write law that upsets settled rights and expectations in life, liberty, or property…

There’s a lot more on this subject at the link.

The Founders were smart people.  Their brilliant system of government, which guaranteed the most freedom to the most people, is being unraveled before our eyes.  That’s the real crime.

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