The Constitution Did Not Enact Mr. Howard Fineman’s Preferred Tax Policies

Some of the nation’s foremost constitutional scholars have apparently decided to weigh in on the tax plan passed in the House:

O’DONNELL (3/19/09): You know, this is, this was a brilliant trap—a tax trap set by Nancy Pelosi.

I agree with [previous guest] Howard Fineman that this is unconstitutional. Chris Matthews had said so. I started saying so yesterday morning on MSNBC.

But it was a brilliant trap and here is why. There are 172 House members who take two oaths. They take an oath of office and then they take an oath to Grover Norquist, who is a Washington—a well-heeled Washingtonian fetishist about tax cuts. And they promised to him that they will never, ever vote to raise any taxes of any kind.

Which leaves us with the question — what provision of the Constitution, exactly, is the tax on bonuses supposed to violate? Ed — regrettably echoing the hapless Charles Krauthammer — says that “Bills of attainder” and “ex post facto” are two phrases well-known to high school freshmen taking mandatory civics classes, so they must certainly be known to Congressmen.” The ex post facto clause, however, has been held since the early 19th century to apply exclusively to criminal cases. The prohibition on bills of attainder is even less relevant; it certainly prohibits Congress from convicting AIG traders of criminal offenses without a trial, but says absolutely nothing about Congress’s ability to set tax policy.

Another blogger, in addition to the clearly erroneous claims, asserts that the bill violates the equal protection clause. The obvious problem with this argument, however, is that it proves too much. The tax code discriminates in countless ways — against renters and wage earners and in favor of homeowners and investment income earners, for example. It was been well-settled for decades that such discrimination require only some rational relationship to a legitimate government interest. The policy taxing bonuses for corporations that would have gone bankrupt without public support bears a much clearer relationship to a legitimate public objective than a law preventing anyone but an optometrist or ophthalmologist from putting lenses in glasses frames, which the Supreme Court upheld unanimously.

Using taxation to claw back benefits may or may not be good public policy. But it is plainly within the constitutional authority of Congress as it has been understood for many decades.