Are We a Banana Republic?

Posted by John at 4:15 PM I'm stupefied to find that some people are defending the constitutionality of Nancy Pelosi's discriminatory, confiscatory and retroactive tax on people who receive bonus income from companies that got TARP money. I would have considered it a bright line rule that the government can't identify a class of unpopular people and impose a special tax on them. What's next? A 100% income tax on registered Republicans, retroactive to last year? If Pelosi's bill passes muster, why not?

One theory, presumably, is that since the government is contributing TARP money it can put whatever strings it wants on that money. (Including, I guess, strings imposed after the fact that would deprive employees of agreed-upon consideration for work they've already performed.) But that theory has been rejected in a variety of contexts. The government cannot condition its spending on a relinquishment of constitutional rights. Here's a thought experiment: how about putting a condition (retroactively, of course) on TARP money that says no employee of any bank that receives such money (or his spouse) can get an abortion? Would Nancy Pelosi think that's constitutional?

Wells Fargo didn't want any TARP money, but the government forced it to take more than $5 billion worth, so Wells Fargo employees who receive bonuses would be subject to Pelosi's proposed tax. Say you're a teller at a Wells Fargo branch in Minnesota and you're married to a lawyer who makes $250,000 this year. You get a $10,000 bonus for your good work during 2008. The government steals it all (90 percent federal plus 8.5 percent state plus, unless it's included in the 90 percent, 3 percent Medicare). That is simply insane.

If the Pelosi bill is actually enacted into law (which I still think is doubtful) and upheld by the courts, there is no limit to the arbitrary power of Congress. In that event, we have no property rights and there is no Constitution--no equal protection clause, no due process clause, no impairment of contracts clause, no bill of attainder/ex post facto law clause. Instead, we are living in a majoritarian tyranny. As I explained here, there is nothing wrong with the AIG bonuses and no reason why they should be repaid. But even if you think it was wrong for AIG to pay them, Pelosi's proposed confiscatory tax--total taxes would exceed 100 percent in some jurisdictions--is an outrage. If Congress can appease a howling mob of demagogues by enacting discriminatory tax legislation against a group of people who are, for the moment, politically unpopular, even though the vast majority of them have nothing to do with the supposed problems that have given rise to popular outcry--imagine, say, Congress enacting a surtax on the incomes of all homosexuals in response to a notorious case of homosexual molestation--then the idea that the Constitution affords us any sort of protection against arbitrary government power is an illusion.

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