Two Senate Democrats, New York’s Chuck Schumer and Pennsylvania’s Bob Casey, are proposing what looks an awfully lot like a constitutionally prohibited bill of attainder.
The story broke recently that suspected Nazis were receiving Social Security benefits (although apparently the issue has had some low level notice for some time). Reportedly the Justice Department has used the retention of SS benefits (how drolly appropriate) as leverage to get suspected Nazis to skedaddle out of the U.S. If they were convicted they would lose the benefits, but if they voluntarily agreed to deportation without being charged, or simply fled before being charged, they’d still be eligible for benefits. The Justice Department has denied this, but reportedly the State Department and the Social Security Administration previously have argued with Justice about this.
Of course no one likes Nazis, and who in their right mind could defend them? But the problem I see here is that precisely because these men left–whether surreptitiously or through an agreement negotiated with Justice–all remain suspects only: none have been convicted of a crime, and so none can legitimately be punished.
Article 1, section 9, paragraph 3 says very explicitly, “No bill of attainder or ex post facto Law shall be passed.” Speaking precisely, a bill of attainder refers only to bills meting out capital punishment, and similar bills meting out less punishment were called bills of pains and penalty. But in Cummings v. Missouri the Supreme asserted that
It has been decided that bills of pains and penalties, which inflict a milder degree of punishment, are included within bills of attainder.
Justice Joseph Story described the problems with bills of attainder.
In such cases, the legislature assumes judicial magistracy, pronouncing upon the guilt of the party without any of the common forms and guards of trial, and satisfying itself with proofs, when such proofs are within its reach, whether they are conformable to the rules of evidence, or not. In short, in all such cases, the legislature exercises the highest power of sovereignty, and what may be properly deemed an irresponsible despotic discretion, being governed solely by what it deems political necessity or expediency, and too often under the influence of unreasonable fears, or unfounded suspicions.’
For all that we despise Nazis as the worst of the worst, the Constitution has no worst-of-the-worst exception. But how many lawmakers will receive more credit from their constituents for standing up for constitutional rights for Nazis than they will for punishing Nazis?
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