Tribe v. Tribe

Laurence Tribe makes news by telling a reporter he as had second thoughts and now worries that the Rage Tax might be unconstitutional.

A few days back, Laurence Tribe made news by telling a reporter he was sure that a Rage Tax bill could be written that would pass Constitutional muster.

Yesterday:

Moreover, the fact that the aim of such a tax would be manifestly regulatory and fiscal rather than punitive and condemnatory, and that the tax would be part of a measure that would be prospective as well as retroactive in its operation, would serve to blunt the force of any bill of attainder challenge.

Today:

Tribe says the main problem is that it’s hard to make the case that the law isn’t “punitive.”

“Its punitive intent is increasingly transparent,” Tribe says. “when you have Chuck Grassley calling on [executives] to commit suicide, and people responding to pitch fork sentiment, it’s hard to argue that this isn’t an attempt to punish an identifiable set of individuals who are the subject of understandable outrage.”

Hmm, maybe Congress should not have titled this the "We Want To Drive Them Before Us And Hear The Lamentations Of Their Women But This Is The Best We Can Do Act of 2009".  Bygones.

Keen observers will prefer the notion that Tribe is being kind enough to lay down covering fire (or at least a smokescreen) for the White House.  Legal eagles will note that Yale prof Jack Balkin, hardly a Constitutional slouch himself, snorts at the Tribe argument.  Sorry, the current Tribe argument.

What next?  Obama won't have the guts to veto this, so he does need to see it talked to death somehow.  Is there a hero in the Senate who will tell the American people to get over it on this bonus thing?  Doubtful.

My suggested solution - in response to the Rage Act the Senate passes a slightly different bill; call it the Fury Act.  Then in the House-Senate Conference the parties discover irreconcilable differences (Rage!  No, Fury!) and the bill dies.  There is nothing wrong with Kabuki that can't be fixed by what's right with Kabuki.

Comments

[clarice]

Heh--take that Tom Collins and DoT..HEH HEH HEH

[Charlie (Colorado)]

Alternately, Shumer or Dodd block it, depending on where the TV cameras are that day.

[Thomas Collins]

That's a relief! Now Tribe disagrees with me.

Seriously, I think this is all for show. The bonus tax passed by the House is unlikely to pass. The problem is that compensation, already subject to byzantine rules that in many cases involve stiff taxes or deduction limitations (take a look at sections 409A, 280G and 4999 of Title 26 of the US Code for a start), is not likely to escape unscathed in this Congress with this Prez.

[Extraneus]

As rse reminded us in the previous thread about Tribe's reluctance to give law-student Obama any "grunt" work, considering him more lf a "collegue" than a student, let's not take Tribe's comments too literally when they can be construed to help Obama.

Loeb University Professor Laurence H. Tribe ’62, who employed Obama as a research assistant when the senator was still a student, said that Obama had the potential to become one of the best presidents in United States history.

“We are dealing with someone who has a chance of being the greatest president since Franklin Roosevelt,” Tribe said.

He briefly paused, and then he added, “Well, maybe I could drop the Franklin Roosevelt part.”

[JorgXMcKie]

Unfortunately, I think our current best outcome is death by conference committee.

The real problem is that Congress is scared sh*tless that the average voter will figure out how much of the mess is their fault and some of them (not enough, probably) will lose their jobs.

[Thomas Collins]

Aw c'mon, clarice, we know that the reason Tribe changed his mind is because he has been reading JOM and wants to avoid facing your wrath!!!

[Extraneus]

Here we go.

“I thought of him much more as a colleague” than a student, said Laurence Tribe, a law professor at Harvard for whom Mr. Obama worked. “I didn’t think of him as someone to send out on mechanical tasks of digging out all the cases.” Other students could do that, Professor Tribe added.

[MayBee]

“I thought of him much more as a colleague” than a student, said Laurence Tribe, a law professor at Harvard for whom Mr. Obama worked. “I didn’t think of him as someone to send out on mechanical tasks of digging out all the cases.” Other students could do that, Professor Tribe added.

Tribe long ago recognized that there is always someone else who should be do the work for Obama. We can't be surprised now.

[Thomas Collins]

I would love to continue sparring with you over this, clarice, but I need to pack up and catch the train that will get me home in time to see Jack Bauer hopefully pull off another "Save the Day" miracle.

By the way, do any JOMers think that it could be President Allison Taylor who is the insider feeding the bad folks all the inside info on the White House? I know it seems crazy, given that she was taken hostage, but one never knows with the plot twists of 24!

If not President Taylor, who is the traitor who hasn't been caught yet (or perhaps there are more than one)?

[MayBee]

And JournoLister Joe Klein played his part at his blog this am:

If you want to be angry about something, get pissed at a media culture that goes beserk about bonuses one week and forgets all about them the next.

Pay no attention to the President going beserk about bonuses one week and hoping we forget about them the next.

[rse]

Thank you Clarice, Ex, and Maybee,

I remembered that quote because whenever I tried to talk with certain people last fall about relevant facts I knew would be troubling, they would respond that he had to be "smart" because he was EIC of Harvard Law Review.

What a shield to criticism that proved to be.

[Extraneus]

Imagine if Bush had the army this guy has behind him? He'd probably still be president.

[Extraneus]

Yeah, he's not just "smart," rse,

“We are dealing with someone who has a chance of being the greatest president since Franklin Roosevelt,” Tribe said.

He briefly paused, and then he added, “Well, maybe I could drop the Franklin Roosevelt part.”

I think I love that quote.

[clarice]

He was a political pick; he wrote only one indistinguished unimportant law note in his life; did little if any work on the HLR and the year he was editor it churned out stuff which is the least cited in the history of the review.
More smoke and mirrors..Which profs were covering for this Manchurian candidate? Tribe? Ogglethorpe? Who else?
Did he take non-law school electives for all of his 2d and 3d years? Harvard allows that you know.

[Chris]

Tribe v. Tribe. Could get interesting.

TC,
My money is on the FBI guy as the traitor.

[clarice]

Ooops--I meant Ogletree

[clarice]

Yup--Ogletree says Barack was one of his students:

http://www.youtube.com/watch?v=DTmcQF_0GD0

[Extraneus]

Huh?

15 of top 20 bonuses returned by AIG employees

[Patrick R. Sullivan]

Exhibit A in the challenge to the bonus tax would be this, I think.

'These people'! How could that be misunderstood?

[DebinNC]

Fannie and Freddie refused Barney's suggestion and started paying out bonuses..per WSJ.

An overly generous description of BO's 11 yrs. as a lawyer: LUN

[pagar]

Employee A is the janitor for company X, puts in his 40 hrs, get paid, cashed his paycheck and get robbed on the way home. Police track down the robber, put the robber in jail and give Employee A his money back.

Employer AAA is a higher level employee, has a contract to perform certain duties, performs them and gets his check. Along comes masked AG and demands the employee give back his check, for no other reason than someone thinks it too big.

Neither Employer A or Employee AAA have done anything to justify being robbed. Why is it bad to rob employee A, but good to rob employee AAA? There is something just not right about taking earned money from these employees. IMO.

[MayBee]

There is something just not right about taking earned money from these employees. IMO.

It really isn't for no other reason than someone thinks it's too big.
It is also because it's being funded by the US Taxpayer, and showing some respect for that fact (if you can afford it) is a good thing.

[clarice]

"He finds it very hard to shoot back a real quick, simple answer. His instinct was to better understand what the nuances were.”

I'll bet.

[Neo]

Take a look at the March 30, 1988 case involving “aiming the legislation” and “equal protection under the law” …

… a federal court yesterday ruled that Kennedy’s last-minute amendment forcing publisher Rupert Murdoch to sell a newspaper or television station in Boston and New York is unconstitutional.
The US Court of Appeals, in an unusually direct critique of a senator’s action, said Kennedy’s insistence that he was not aiming the legislation at Murdoch is “suspect.” The court, with both Reagan appointees voting together, ruled 2-1 that the Massachusetts senator’s amendment deprived Murdoch of his equal protection under the law and his right to free speech.

[PeterUK]

"Hmm, maybe Congress should not have titled this the "We Want To Drive Them Before Us And Hear The Lamentations Of Their Women But This Is The Best We Can Do Act of 2009". "

I wished I'd said that.

[memomachine]

Hmmmm.

Can it be like Mortal Kombat?

I got 5 quatloos on Barney Frank. He has the eyes of a vicious weasel.

[clarice]

Not only was that very witty, PUK, but I think TM is dead on about the irreconcilable Rage and (to be drafted) Fury Bills.

[mel]

"Reconcile" is not a cooperative word any more, btw. It takes on very special meaning in the Senate rules.

[daveinboca]

Rage & Fury will be reconciled in Joint Committee and start baahing like fierce lambi=poos.

Good catch by Neo.

[PeterUK]

From DeniNC link.

"The story turns up the one oral argument Obama had before the Seventh Circuit, where he volleyed with Judge Richard Posner. (Law Blog Audio Clip of the Day: Click here and listen!) Obama defended a whistleblower who was allegedly blackballed by his bosses after he reported them for fraud. The issue was whether an arbitrator could award punitive damages. Obama won and his client, Ahmad Baravati, got to keep the extra $120,000. “I found he’s a very smart, innovative, skilled, relentless advocate for his client,” Baravati told the Sun-Times. “When I met him, he reminded me of Abraham Lincoln.”

Ahmad Baravati is an interesting Chicago character.

[Jane]

I think this is all for show.

Me too. And I'm still pushing for a Rage Act against Congress. I just can't figure out how to get it done.

[Letalis Maximus, Esq.]

The paradigm is right. To understand Washington, D.C., and anything/everything that happens there, one merely need to keep in mind these two truths:

1) Everything that is done there is pretty much Kabuki Theater. The style is overdone, the drama is contrived, and the outcome is pre-ordained.

2) The two major political parties function like organized crime families, complete with godfathers, capos, made guys, soldiers, and consigliere. They don't use those actual terms, but that is how they almost always act.

[PeterUK]

"Baravati told the Sun-Times. “When I met him, he reminded me of Abraham Lincoln.”"

HOW could they take a man that old to court?

[Ignatz Ratzkywatzky]

"He finds it very hard to shoot back a real quick, simple answer. His instinct was to better understand what the nuances were.”

Yeah, I've seen lawyers like that in court. They usually end up sued for malpractice after making a hash of their clients lives.

Barry apparently figured it would be more befitting his special instincts to do it to the whole country at once.

[Gmax]

If a girl is free to change her mind, certainly a metrosexual like L Tribe has almost the same freedom, No?

[PeterUK]

"He finds it very hard to shoot back a real quick, simple answer. His instinct was to better understand what the nuances were.”

If fact, that is probably the answer he put on all his written exam work.

[bad]

“I found he’s a very smart, innovative, skilled, relentless advocate for his client,” Baravati told the Sun-Times.

Bernardine Dohrn did a heckava job.

[Danube of Thought]

"take that Tom Collins and DoT"

I would gladly take "it" if I knew which one I'm supposed to take--Tribe's former opinion or his current one?

My initial guess was that bills of attainder are only prohibited if they provide for criminal penalties. That's clearly wrong; it's sufficient if they are "punitive." The other requirement is that they plainly target some narrow group for punishment, and on that one I have no idea, as far as this bill is concerned. Like Tribe, I'm badly confused.

In any event, I think a lot better when I'm getting paid...

[pagar]

It is also because it's being funded by the US Taxpayer, and showing some respect for that fact (if you can afford it) is a good thing.

These employees didn't make any deal with the taxpayers when the payments were set up.

The people who aren't showing any respect for the US taxpayer are in Washington and the state capitals. They are known as lawmakers, and the laws they make should not be used to take money from people just because they think the employee earned far too much.

Does anyone know where the money that is being returned 15 of top 20 bonuses returned by AIG employees is going.

If it's the money that the taxpayers are supposed to shell out to study HOG Farm Odors in Iowa, I can save the taxpayers every dime that study will cost. Don't like the odor produced by Iowa Hog Farms, move to a place where they don't raise hogs. I completed my study on the matter, and took positive steps to solve the problem at 7AM the day after I graduated from high school. In 54 years, I have never had to spend another dime to avoid Iowa hog farm odors.

My guess is every dime the employees return will go to someone else that deserves it a lot less than the employee who earned it. The last thing any current politician is going to allow, is that money they have gotten their hands on will be returned to the taxpayer.

[Patrick R. Sullivan]

Take on James Madison, DoT. Federalist 44:

Bills of attainder, ex-post-facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. .... The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and lessinformed part of the community. They have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding. They very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society.

[MayBee]

These employees didn't make any deal with the taxpayers when the payments were set up.

The people who aren't showing any respect for the US taxpayer are in Washington and the state capitals. They are known as lawmakers, and the laws they make should not be used to take money from people just because they think the employee earned far too much.

I agree with your first sentence, although people lose employment, salary, and benefits all the time when job conditions change. I'm not saying these bonuses were wrong, and especially they probably weren't wrong when they were set up.
However, I think it wouldn't kill someone making several million dollars to think twice about accepting a tax-payer funded bonus (if they can afford to forgo it).
I agree with your second sentence.
I agree with your third sentence, although again, in this case it isn't just because they think the employee earned far too much. It is also because the taxpayer started footing the bill.

I think limiting what people make just because they make too much (in the wrong field) is coming next.

[clarice]

DoT:"I think a lot better when I'm getting paid"
Ain't it the truth? Focuses the mind.
So does the possibility of being sued for malpractice.

[DrJ]

I think a lot better when I'm getting paid.

May I use this without attribution? I have "clients" who always try to get something for nothing.

[Porchlight]

"He finds it very hard to shoot back a real quick, simple answer. His instinct was to better understand what the nuances were.”

Pretty much tells you all you need to know about Barack Obama. He has no guiding principles (or at least none that he is willing to reveal), so a quick and simple answer is impossible. Thus all he has ever done is dissemble, equivocate and generally BS his way through life.

[pagar]

Maybee, thanks for putting up with me tonight.
I'm just in a bad mood over all of it, I guess. If I thought the money might come back to the taxpayers, I guess I would feel better but I don't think it will.

PeterUK, that is a really interesting link, especially the sentence at the end:

Obama was successful with his client. They managed to ensure that this charity was able to issue the necessary grants for Iran’s scientific needs without the regulation of the ILLINOIS COMMERCE COMMISSION. Now Iran can enjoy status in the space club.

Did Obama contribute more to help Iran than we know about? Does anyone care?

[Charlie (Colorado)]

However, I think it wouldn't kill someone making several million dollars to think twice about accepting a tax-payer funded bonus (if they can afford to forgo it).

I'm beginning to wish they wouldn't use "bonus". This would be a lot clearer if people were saying "It wouldn't kill someone to think twice about accepting a salary for their taxpayer-funded jobs."

I won'der why Barney and Chuck never say it that way?

[glenda]

TC...Re:24...it's that Garafolo twit who's the traitor--oh--she's not acting!!!

[Jane]

Which one is Garafolo?

[MayBee]

Heh, Charlie.
And you are right, it is part of their salary rather than a bonus.
But again, people do take reduced salaries when job conditions change.
I have great friends out of work, their salaries are much reduced. Others are not getting bonuses or not getting raises.

The problem is, nobody asked AIG to change the salary structure when conditions changed. The bonuses were protected by Geithner, Obama, and Congress.
I don't think the AIG employees are so special that they alone can't take reduced salaries. I also don't think they are so special that they alone must be singled out after their salaries were specifically protected.

[jimmyk]

However, I think it wouldn't kill someone making several million dollars to think twice about accepting a tax-payer funded bonus

You write as if this is a gift from the taxpayers. I'm guessing these people created more value for the taxpayer than they were getting paid. Perhaps it's the taxpayers that should be showing some respect and appreciation here.

[glenda]

The dark-haired FBI computer expert.

[MayBee]

You write as if this is a gift from the taxpayers. I'm guessing these people created more value for the taxpayer than they were getting paid.

You know, I hate Obama's talk about taxpayers who are the most "deserving" getting a tax cut.
And I hate this talk as if these people are specially deserving of bail out money.
My friends at Lehman would love a bonus about now.
My unemployed friends whose companies didn't get taxpayer $$$ would probably still love to have their salaries.
Are you really going to tell me they are all less *deserving* of taxpayer money?

[Danube of Thought]

"Bills of attainder, ex-post-facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact,..."

I have no quarrel at all with Madison on this matter. My question is simply whether the "bonus" tax is in fact a bill of attainder. I don't know. In this instance, I hope that the courts will say that it is, if it ever comes to that.

I heard the story in law school of a distinguished lawyer who was arguing a case before an appeals court. He argued X, whereupon a judge confronted him with a quotation from an article he had written in which he had argued not-X. Asked to account for the difference, he said "well, your honor, I think better when I'm getting paid." Not too bad--what the hell else could he say?

[clarice]

When on the spot, make them laugh..good strategy.

[PD]

"Which one is Garafolo?"

Janis, the computer tech with the glasses, who always seems set upon when asked to do something.

[bad]

who always seems set upon when asked to do something.

Ahhh, a lib in the show as well....

[PD]

bad, you caught my meaning.

[jimmyk]

And I hate this talk as if these people are specially deserving of bail out money.

I think people who are promised pay in exchange for work, and do the work, should get paid. It's that simple, really. If the government came in and laid them off, there would have been no injustice in that either. But to have them do the work and then not pay them is wrong. The fact that some other people in other companies got laid off or whatever, is quite beside the point. Why is that so difficult to understand?

[MayBee]

I think people who are promised pay in exchange for work, and do the work, should get paid. It's that simple, really. If the government came in and laid them off, there would have been no injustice in that either. But to have them do the work and then not pay them is wrong. The fact that some other people in other companies got laid off or whatever, is quite beside the point. Why is that so difficult to understand?

It isn't that I don't understand, it is that I disagree with you.
I agree not paying them would be wrong.
I also think people often look around at the new circumstances presented to them, and realize they may want to do things differently.
Like Liddy himself taking $1 from the government to run AIG.
Or Peyton Manning forgoing a scholarship at UT. Or any sports star who agrees to a lower salary so the team can hire someone else and stay under the salary cap.
Or a family who qualifies for S-Schip deciding to buy insurance themselves because they can.

AIG got what many companies want, a second chance on the taxpayer's dime. A self-examination, in the face of that fact, wouldn't have been the worst thing that ever happened to any very well-compensated employee.

[Gekkobear]

Live in the wrong place, and 90% Fed, + State and incidentals (do FICA etc. apply?) you ca easy hit over 100%.

So you got a bonus last month, this month the Government (in total) demands 103% of your bonus in taxes?

I'm thinking once I hit a tax rate in excess of 100% I'm definitely taking some time off; maybe cutting back on my hours and salary.