Friday, March 20, 2009
Over at the Faculty Lounge (where I am frequently a guest, full disclosure), Con Law Prof (and Con Law casebook author) Calvin Massey has a brief post about a potential problem lurking in the AIG issue - and one tha I don't believe I've seen explored as yet. While various other Con Law angles have been evaluated, equal protection seems to have been a blind spot. Prof. Massey analogizes the AIG tax legislation to USDA v. Moreno and Romer v. Evans, stating:
If equal protection means anything, said the Court, "it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." So what's the legitimate governmental interest in imposing a tax of 90%, a rate selected because one congressman (I think it was Charlie Rangel) noted that state and local taxes would take care of the other 10%? To say that the legitimate interest is to recoup government funds used to make "inappropriate" compensation payments is just a gentler way of saying that we want to burn them at the financial stake. Evidence of this can be found in the fact that just a few months ago Congress specifically permitted these very same bonuses, but now -- when the mob is howling for the guillotine -- Congress is suddenly concerned about the propriety of the fisc. The level of popular and official venom is so high on this matter that it dwarfs the evidence of "a bare desire to harm" that animated the Court's conclusions in Moreno or Romer v. Evans. This legislation, if finally enacted, should be struck down forthwith.
Professor Massey's point is well taken and should be duly noted by all that are following these developments.