>> Thursday, January 14, 2010

Y'know, if the President Of The United States wasn't a former Con Law professor, I'd probably be more worried that the President's proposed "Financial Crisis Responsibility Fee" to be levied on banks was an unconstitutional Bill Of Attainder designed to mute administration critics by taking a popular stand against a justifiably unpopular target. But I suppose I should trust the President not to do something like that, right? Because there's no way a President of the United States would suggest something illegal or quasi-illegal to bolster sagging popularity and approval ratings, right?


But assuming that the Financial Crisis Responsibility Fee is, in fact, constitutional: this will really teach those banks a lesson by cutting into their profits--I mean, there's no way they would maintain their profit margins by passing the FCRF along to their customers in the form of raised transaction and service fees, right?



Jim Wright Thursday, January 14, 2010 at 10:35:00 AM EST  

That's you, Eric, a glass half full kind of guy.

Vallo: A glass half full of DEATH!

Eric Thursday, January 14, 2010 at 10:41:00 AM EST  

Hell, Jim, and I thought I was bitching about the glass being empty....

Nathan Thursday, January 14, 2010 at 10:49:00 AM EST  

That's silly Eric,

The glass has a constant flow filling it up with goodness and thirst quenching a slightly slower rate than the hole in the bottom draining it.

David Thursday, January 14, 2010 at 12:31:00 PM EST  

Nothing a few lay-offs of support staff can't pay for at the big firms.

Hey, I worked for Morgan Stanley for three years, 2000-2003....when business got tough, the tough layed off operational staff.

Be careful what you wish for, America.

Tom Thursday, January 14, 2010 at 6:28:00 PM EST  

Eric, I wouldn’t presume to say why the President might want the FCRF, but it does seem to me to be an unconstitutional Bill of Attainder. But what do I know?

While following the links you provided, I had an interesting thought. It seems to me that Copyright Extensions could be seen as ex post facto laws. The Constitution doesn’t discriminate between such laws for punishment or benefit, just prohibits any ex post facto laws. I wonder…

Eric Thursday, January 14, 2010 at 6:46:00 PM EST  

Tom, it's an interesting question, but I don't think the ex post facto clause could be applied to copyright extensions; the only people who are penalized or are denied a benefit by a copyright extension are people who would benefit by a work passing into the public domain in the near future, so the extension isn't really retroactively affecting their rights in the past or present. While you're right that the Constitution doesn't distinguish between benefit and punishment, there's a practical issue of who would have standing to bring a challenge to the extension.

That having been said: extensions generally don't retroactively put public domain works back into copyright (i.e. once copyright lapses, it's lapsed); were Congress to attempt to extend copyright in a way that reverted a public domain work back into copyright, I suspect an ex post facto challenge would become very viable.

As for the FCRF: while there might be a way to craft it so that it isn't a Bill Of Attainder, the fact that the President has discussed it in the context of criticizing bonuses paid by banks to their officers and that the proposed "fee" (as reported) would only apply to a criticized-segment of TARP beneficiaries (it appears automakers, for instance, would be immune), I think your instinct is correct. I don't see how it isn't unconstitutional. It's not an area of specialty for me, and I'm not well-grounded in the caselaw, but it certainly looks problematic, and if I were a lawyer for one of the possibly-affected banks, that's the angle I'd be working.

Tania Friday, January 15, 2010 at 12:32:00 AM EST  

Eric, posts like this are why I love you and want to corrupt you.

Warner (aka ntsc) Friday, January 15, 2010 at 8:31:00 AM EST  

Haven't read the bill and don't intend to, however the courts have held since about day one that taxes on specific segments are legal. There was a WW I era Federal excise tax on telephones that lasted until the late 20th century. Taxes on luxury items are so common the concept made it into a board game.

As to the copy-right extension, while the court case rested on different clauses of the Constitution, it did make it to the top court and was upheld as still being a reasonable (insert proper constitutional language as needed) length of time. At the time I was the engineering side of the legal IP team for one of the major media companies.

Eric Friday, January 15, 2010 at 9:31:00 AM EST  

Warner, taxes on a luxury item aren't comparable to a tax on a specific sector of industry. And taxes on a specific sector of industry are only legal if they aren't Bills Of Attainder.

The U.S. Supreme Court wrote in U.S. v. Lovett, 328 U.S. 303 (1946), quoting Cummins v. Missouri, 4 Wall. 277:

A bill of attainder is a legislative act which inflicts punishment without a judicial trial. If the punishment be less than death, the act is termed a bill of pains and penalties. Within the meaning of the Constitution, bills of attainder include bills of pains and penalties.

I am not sure it makes a difference whether the FCRF is labeled a "fee" or a "tax," but it's unfortunate that it appears to be crafted to target a specific group of banks that have been subjected to criticism from those who are proposing the bill. On the side of the FCRF not being a Bill Of Attainder, it does appear that the FCRF would target some banks that didn't receive TARP funds; is this sufficient to make the FCRF a general bill? Frankly, I'm not sure.

Having not read the bill, and being outside my area of legal expertise, I'm not going to say that the FCRF is definitely a Bill Of Attainder, nor will I say that Congress couldn't craft a very-specifically-targeted tax that isn't a Bill Of Attainder. But I will say that I'm afraid that what I've heard about the FCRF suggests that it walks like a Bill Of Attainder, quacks like a Bill Of Attainder, and likes to swim around when it's not flying south for the winter like a Bill Of Attainder.

I should also point out that I'm not opposed to nailing the banks for being irresponsible assholes shamelessly sucking on the public teat with the bailout and lacking the decency to even act chagrined about it on principle. But part of the thing about living in a nation of laws and all that is that I have to accept that there may be things I'd like to see done that can't legally be done and therefore shouldn't be. Sometimes you just have to suck it up and accept that that's just how things go.

David Friday, January 15, 2010 at 11:17:00 AM EST  

Tania's post sound just SO a good way;)

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