The AIG/TARP "Clawback" Is Dubious - But Is It Also Unconstitutional?

Co-contributor Francis Cianfrocca did an excellent job this morning noting many of the more surprising and odious aspects of the hastily (and emotionally) hashed-together “clawback” legislation that recently breezed through the House.

Those aspects are bad enough – and they represent an ugly and dangerous turn in “policy.”

But there’s an even more important issue.

Is this “clawback” provision blatantly unconstitutional?

More below the fold….

To my simple reading of things, the answer to that question is an easy “Yes, it is.”

The key provision is a clause in the Constitution prohibiting the passing into law of what is known as a “Bill of Attainder“:

Definition: A legislative act that singles out an individual or group for punishment without a trial.

The Constitution of the United States, Article I, Section 9, paragraph 3 provides that: “No Bill of Attainder or ex post facto Law will be passed.”

This indeed seems to be the situation we have here.

The reason for this provision in the Constitution was spelled out very clearly by James Madison in the Federalist Papers:

“Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. … The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community.” James Madison, Federalist Number 44, 1788.

A more recent comment on this provision comes from the late Chief Justice of the Supreme Court, William Rehnquist:

A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial. Such actions were regarded as odious by the framers of the Constitution because it was the traditional role of a court, judging an individual case, to impose punishment.” William H. Rehnquist, The Supreme Court, page 166.

Based on the wording of the provision in the Constitution and the comments of these two distinguished jurists, it would seem that the “clawback” provision is unconstitutional.

Now, admittedly I’m not an attorney (though I work with them all the time), and I realize that there is a long amount of case law on this topic – regarding in particular differences in application of the “attainder” determination to monetary (rather than criminal) punishments.

But the Constitution is meant to be read and understood by non-attorneys. Right?