Legal blog Above The Law wonders whether the AIG bonus tax is an unconstitutional bill of attainder.
A bill of attainder is a legislative act declaring someone a criminal. Since this confiscation is done through taxation rather than criminal punishment, the bonus tax is not technically a bill of attainder.
The claim that the bonuses are unconstitutional, I think, has to be framed as a violation of the rights to due process and equal protection under the law.
The narrative that the lawyers opposing the tax might use is that this confiscatory act was fueled by violent populist rage, targeted at specific people, and culminated in a confiscation of property from individuals who had no representation, without any trial or finding by a jury, as a punishment.
In support of such an argument, the analogy to a bill of attainder is certainly relevant; what Congress is doing here is arguably precisely what the framers intended to prevent by banning such laws. However, the Constitutional prohibition on such acts doesn't resolve this issue because the bonus tax is technically distinguishable.
The success of such an argument also hinges on whether this tax can be distinguished from taxes that have been upheld in the past (there were constitutional challenges to the income tax).
Regardless, this whole bonus crusade is destructive and idiotic. Grandstanding politicians are pounding a simple and symbolic issue, because they aren't smart enough to address the real problem.
This is wasting the time of officials who need to be working on the plan to get toxic securities off of institutional balance sheets, and its undermining the ability of Obama and the Treasury to operate at a time when they need to be able to act decisively.
The $165 million Congress is trying to claw back is dwarfed by the amount of wealth that has been destroyed while officials were jostling to get in front of television cameras to pretend to be outraged over bonuses everybody knew about weeks ago.
And when all the rage these legislators are stoking gets innocent Americans killed, I hope they can live with that