Monday’s NYT reported the Securities Industry and Financial Markets Association is investigating potential constitutional challenges to the President’s proposed $90-billion bank tax. It’s apparently not enough to argue that the President’s various economic and regulatory initiatives are bad policy — as this proposal is — it must also be unconstitutional.
Based on the article, SIFMA hopes to argue the tax is an unconstitutional bill of attainder or ex post facto law. I suppose another challenge, if the tax legislation is poorly drafted, could be that it is a direct tax and must be apportioned to be constitutional. None of this is likely to matter, however. Barring exceedingly poor draftsmanship, I doubt any court would strike down the tax, should it be enacted. If the AIG bonus tax would pass muster in the courts (as discussed in this thread), I don’t see any likelihood a more broad-based tax on banks would face any difficulty at all. [...]