January 22, 2010
Bank Tax, Attainder Clause
Posted by David Zaring

Would the bank tax be constitutional?  John Carney says no in this interesting text and purpose analysis.  But I think you also have to look at the precedent, and we've opined on the limited ways the attainder clause limits government here (in Christine's post on the tax) and here, and here's Balkinization.  This came up with the AIG bonus tax debates, and attainder is one of those constitutional protections that, if given full effect would be really constraining ... and so, in the sorts of concessions to modernity that courts often make in constitutional law, it isn't given a very broad interpretation.  Or that's my view, anyway, but my understanding (or affection for) constitutional law is so limited that I could easily be wrong..

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