Thursday, March 19, 2009

AIG Bonuses & Constitutional Remedies

What are the constitutional ramifications of Congressional action seeking recoup of the bonuses paid to AIG executives?

Over at TaxProf Blog, Paul Caron has a great post with supporting materials for Larry Tribe's Tribe
opinion that "the proposed 90% tax on the bonuses paid out by AIG would pass constitutional muster under the Bills of Attainder and Ex Post Facto clauses Article I, Section 9; the Contract Clause of the Article I, Section 10; the Due Process Clause of the Fifth Amendment; and the Takings Clause of the Fifth Amendment."

Over at Balkanization, Sandy Levinson argues in his post Images that Congress could abrogate the contracts: "the Contract Clause prohibiting the "impairment" of contracts applies, textually, only to state governments, not to the national government."

One of the most innovative ideas I've seen - - - and one seemingly not being considered by Congress - - - comes from ConLaw Prof, Mae Kuykendall.


She posted what she calls a "novel" notion on the ConLawProf listserve; it is quoted here with her permission:

[H]as anyone considered having the AIG bonus recipients declared "enemy combatants?"  That would seemingly open up a much wider range of legal tools for gathering information about co-conspirators and possible continuing plots, and for persuading them to return the money.  According to some distinguished lawyers and former high officials, it is a very useful concept for situations that have not previously been encountered and which pose extraordinary threats to the American people.  Moreover, no one knows in what communities these "geeks bearing formulas" are now located; many Americans would be terrified to know one was living in their town.  Removing them to a remote, high-security location, outside the zone of the usual niceties of due process, may be a good solution.


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