Sunday, March 29, 2009

CRS Report - HR 1586 Bill of Attainder?

Followers of this blog may recall a brief discussion about whether any of the seven bills pending in the House designed to tax bonuses for private companies that have taken bailout money, if signed into law, could become an ex post facto law. The issue of whether the bill could be considered a "Bill of Attainder," also improper under the Constitution, was left for another day.

Now, the Congressional Research Service has issued a report that deals with many of the potential challenges to HR 1586 and S.651 if they became law. Blog maestro Paul Caron posts his analysis here and the CRS Report itself here.

After rejecting claims that the bills could be a denial of 5th Amendment due process rights, equal protection rights, or the takings clause, the Report deals summarily with the possibility that either bill could result in an ex post facto law. More interesting is the discussion that begins on p. 8 of the Report about the provision against a Bill of Attainder. Depending on how Congess acts from this point forward it appears that either bill could result in a Bill of Attainder. Interestingly, p. 16 of the Report deals with the issue of legislative history. How Congress decides what they will do and how they go about doing it may be a clear indication of whether the resulting law will be affirmed or if it could be struck down as unconstitutional.

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