Attainder & Equality

There's much buzz about the Bill of Attainder Clause of late. (Actually, the Constitution has two such clauses, one in Art. I., Sec. 9, which applies to the federal government, and another one in Art. I., Sec. 10, which applies to the states.) H.R. 1586---the bill passed by the House that taxes bonuses paid by major recipients of TARP funds at 90%---certainly smells like a bill of attainder, although it could survive constitutional scrutiny either on the ground that the tax is not a punishment or on the ground that the bill doesn't single out a particular person or corporation.

Whether H.R. 1586 is punishment is largely a matter of intent, and while everybody knows that the House was hopping mad when it passed H.R. 1586, that may not be enough to have a court deem the bill a punishment (should it be enacted and challenged). The law's defenders would simply say that what Congress was hopping mad about was the unjust enrichment of the bonus recipients, and that the bill does not punish them; it merely takes away that unjust enrichment. If the bonus recipients were not entitled to the bonuses in the first place, as Congress believes, then taking away 90% of the bonuses is simply restoring the status quo ante. Indeed, far from being punished, the recipients still get a boon from the federal govt, up to 10% of the value of the bonuses.

Maybe that argument will fly; maybe it won't. But Congress still has up its sleeve the seemingly killer argument that as written, H.R. 1586 doesn't single anybody out. This isn't merely a matter of using general language in a transparent effort to treat an individual case. (E.g., "In any Congressional District in which a Major League Baseball franchise with a name that rhymes with 'Head Box' plays its home games . . . ."). Rather, H.R. 1586 really would tax the bonuses of people who worked for other TARP fund recipients, not just A.I.G. So, under the Nixon case, there is a pretty good argument to be made that the bill is general enough that it's not an attainder.

But if so, that only shows the weakness of the protections afforded by the Bill of Attainder Clauses. The prohibitions on bills of attainder serve three overlapping functions sounding in: 1) separation of powers---it's the job of the courts, not the legislature, to adjudicate wrongdoing in particular cases; 2) due process---legislative procedures are not well suited to providing individuals a fair opportunity to present their arguments; and 3) equal protection---unpopular individuals should not be singled out by the legislature for adverse treatment but should have the benefit of the same law as everyone else.

If Congress can avoid the strictures of the Section 9 Bill of Attainder Clause by singling out not just one unpopular entity or person but throwing in a whole class of unpopular entities or persons, then the core values of the Clause are easily circumvented. Yale Law Professor Akhil Amar had a nice set of examples in an article he wrote in the 1996 Michigan Law Review defending the Supreme Court's Romer v. Evans decision as related to the anti-attainder principle. (The article is not available for free on the web, though anyone with WestLaw, Lexis or Heinonline access can find it at 96 Mich. L. Rev. 203 (1996).) He asked the reader to imagine whether a law that singled him out for punishment would be any more defensible if, instead of targeting just Akhil Amar, it targeted "All Americans of East Indian descent."

As a normative matter, it is clear that legislative singling out of a broader, but still politically powerless, group should not save what is otherwise a bill of attainder from condemnation. As a matter of doctrine, however, it might. The key constitutional difference between Amar's hypothetical example and H.R. 1586 is that Americans of East Indian descent are a suspect class based on national origin, whereas Americans who have received bonuses from firms that received TARP money are not. Therefore, Amar's hypothetical example is a violation of (the) equal protection (component of the Fifth Amendment Due Process Clause). Under the conventional reading of Nixon, neither Amar's hypothetical example nor H.R. 1586 would violate the Bill of Attainder Clause itself, but Amar's larger point---with which I agree---is that such bills nonetheless violate the spirit of the Bill of Attainder Clause. Whatever a court would be prepared to say if faced with the issue, one would hope that the Senate, as the historically cooler body, would place some value on that spirit.

Posted by Mike Dorf