Lawrence J. Kramer

Not the Tax Clawback I Had in Mind

Chris Butler has it exactly right. There is no such thing as a good "tax" clawback, because a clawback isn't a tax; it's a forfeiture. The Congress can tax income retroactively, and it can impose excise taxes on behavior it wishes to deter. But it cannot impose excise taxes retroactively. And a special, confiscatory tax on a particular kind of income received by a particular kind of person - "When they came for the AIGers, I said nothing, because I was not an AIGer" - is a tyrant's ploy. Fortunately, the Founding Fathers had words for that sort of thing, words like "attainder" and "ex post facto."