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The Expansionist
Thursday, March 19, 2009
Really Getting Tuf on Bonuses. Congress pretended to get tuf on thieving executives at companies that have received Government bailouts. But this is their idea of getting tuf:
The bill would impose a 90 percent tax on bonuses given to employees with family incomes above $250,000 at American International Group and other companies that have received at least $5 billion in government bailout money. It would apply to any such bonuses issued since Dec. 31.
So a $250,000 bonus is just fine with Congress? It's not fine with me, and not fine with the bulk of the American people.
Moreover, legal experts say that these taxes will never actually take effect, because the Supreme Court will strike down this measure as unconstitutional, as being an ex post facto (retroactive) measure and/or bill of attainder. Oh? Didn't any of these people ever hear of Article III, Section 2?
In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Judicial Review, Judicial Dictatorship. The Constitution nowhere grants the Supreme Court the power to void a law duly passed by Congress and the President, or by Congress alone over Presidential veto, in accordance with the procedures set out in the Constitution. The power to void laws was invented, simply seized out of the clear blue sky, by the Supreme Court, without any Constitutional warrant whatsoever, in the notorious case of Marbury v. Madison .That asserted power is entirely extralegal and unconstitutional.
Thomas Jefferson, for one, understood full well that absolute power, given to the Supreme Court, would produce judicial dictatorship:
You seem ... to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.
Abraham Lincoln, pondering the destruction wrought upon the Republic by the Supreme Court's Dred Scott decision, said:
[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.
In short, five old fools (a majority of the nine members of the Supreme Court) — or even all nine members of one Court — cannot be permitted to thwart the will of the people.
To prevent this, the Framers put into the Constitution a zinger of a provision that empowers Congress to forbid courts to review a particular act, not just a category of governmental behavior. That provision lies fallow, unused, most of the time, but can be trotted out to preempt courts from seeking to overrule the people, any time Congress may so choose.
Reread the wording:
In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
This means that any time Congress wishes to make an exception from standard practice, it can do so. An online discussion of the question "How can the legislature override the judicial review power of the supreme court?" includes this info:

No, [judicial review] can be avoided, last time was in 2001. Check out
(House of Representatives - May 15, 2001)
H.R. 1696

"(3) The decision to construct the World War II memorial at the dedicated Rainbow Pool site, decisions implementing this subsection, and decisions regarding the design for the World War II memorial are final and conclusive and shall not be subject to administrative or judicial review."

I checked the wording of the legislation as passed, and that provision is indeed there.
The validity of Congressional prohibition of judicial review was implicitly accepted by the Supreme Court in Webster v. Doe (1988). In that case, the failure of Congress to preclude judicial review worked in favor of a gay man. But I read a few years ago that Congress had passed some antihomosexual legislation with a provision forbidding judicial review. I didn't find any such act in the Google search I ran today, but that may be only because I didn't plug in precisely the right search terms. In any event, the power of Congress to forbid judicial review on a particular piece of legislation is well understood.
Thus, if Congress does NOT forbid judicial review of measures to roll back the obscene bonuses paid by AIG and other recipients of bailout money, when everyone expects the Supreme Court to strike down this legislation because of its retroactivity and specificity to a small number of recipients, we must conclude that Congress is merely grandstanding, not passing serious legislation, seriously intended to recapture those wrongful bonuses, at all.
Let us for a minute, however, assume that Congress, caught in hypocrisy, were to feel compelled to prohibit judicial review of this legislation. The question then becomes "How much of a bonus to executives should be permitted by a corporation that receives taxpayer bailout money?" Is $250,000 a reasonable upper limit? Or is $1,000 — enuf to buy, say, modest Christmas presents for a typical household — a reasonable upper limit?
Congress is used to dealing with very big numbers. The rest of us?, not so much. Let us compare a $250,000 bonus to what the typical American makes. Let's start with people on a fixed income, just barely getting by in this tough time, or even falling behind.
The typical Social Security payout is $1,153 per month, which totals $13,836 for an entire year. A bonus of "only" $250,000 is 18 times the typical Social Security recipient's base income (which may also be total income) for an entire year. As if that weren't bad enuf, that $250,000 is also only a bonus, on top of the recipient's actual yearly salary, which could be hundreds of thousands of dollars more. A bonus is paid in one month. $250,000 is 216 times the typical monthly income of a person on Social Security. So I ask, how is Congress being 'tough' on bonuses?
In case anyone thinks it unfair to compare Social Security recipients to these executives, let's take the typical income of an ordinary working person as our point of departure: $32,140 per year, or $2,678 per month. $250,000 is 7.8 times the typical annual income, and 93 times the typical monthly income. I repeat, how is Congress being 'tough' on bonuses?
Congress should ELIMINATE bonuses ENTIRELY, save perhaps $1,000 at the holidays, for EVERY company that receives taxpayer money. We who pay for these bonuses don't make even a large fraction of the BONUS figures we see tossed around, let alone salary-plus-bonus. Why should we suffer to pay, to the rich, bonuses for failure? We should NOT. Congress should forbid bonuses higher than $1,000 once a year, until every dime the taxpayers have poured into these companies has been repaid. You want to talk about incentive? That should serve as an enormous incentive to corporate executives to succeed, and pay back taxpayers — so they can resume paying themselves outrageous amounts. Congress can do this, and make it stick, simply by FORBIDDING JUDICIAL REVIEW of its anti-bonus legislation. Citizens need to know that, and insist on it.
(The current U.S. military death toll in Iraq, according to the website "Iraq Coalition Casualties", is 4,259 — for Israel.)

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