CITES BY TOPIC:  Bill of attainder

Defining Bills of Attainder-Thomas M. Saunders

Black's Law Dictionary, Sixth Edition, p. 165:

Bill of attainder.  Legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial.  United States v. Brown, 381 U.S. 437, 448-49, 85 S.Ct. 1707, 1715, 14 L.Ed. 484, 492; United States v. Lovett, 328 U.S. 303, 315, 66 S.Ct. 1073, 1079, 90 L.Ed. 1252.  An act is a "bill of attainder" when the punishment is death and a "bill of pains and penalties" when the punishment is less severe; both kinds of punishment fall within the scope of the constitutional prohibition.  U.S.Const.  Art. I, Sect 9, Cl. 3 (as to Congress);' Art. I, Sec, 10 (as to state legislatures).

[Black's Law Dictionary, Sixth Edition, p. 165]


The U.S. Congress cannot pass or impose and the IRS cannot enforce the imposition of financial penalties for not abiding with the tax laws against a natural person without the need for a judicial hearing.

Constitution, Article 1, Section 9, Clause 3:

'No State shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.'" A bill of attainder is a legislative act which inflicts punishment without a judicial trial.

If the punishment be less than death, the act is termed a bill of pains and penalties. Within the meaning of the Constitution, bills of attainder include bills of pains and penalties. In these cases the legislative body, in addition to its legitimate functions, exercises the powers and office of judge; it assumes, in the language of the text-books, judicial magistracy; it pronounces upon the guilt of the party, without any of the forms or safeguards of trial; it determines the sufficiency of the proofs produced, whether conformable to the rules of evidence or otherwise; and it fixes the degree of punishment in accordance with its own notions of the enormity of the offence.

United States v. Brown, 381 U.S. 437 (1965)

"The best available evidence, the writings of the architects of our constitutional system, indicates that the Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, or more simply - trial by legislature."

[United States v. Brown, 381 U.S. 437 (1965)]

Glidden Co. v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459 (U.S.App.D.C. 1962)

The judicial functions exercised by Article III courts cannot be performed by Congress nor delegated to agencies under its supervision and control. FN6 The bill of *601 attainder is banned by Art. I, s 9. If there is to be punishment, courts (in the constitutional sense) must administer it. As we stated in United States v. Lovett, 328 U.S. 303, 317, 66 S.Ct. 1073, 1079, 90 L.Ed. 1252:

FN6. The limitations on Article III courts that distinguish them from Article I courts were stated by Chief Justice Vinson in National Mut. Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582, 629-630, 69 S.Ct. 1173, 1201, 93 L.Ed. 1556, in words that have, I think, general acceptance, though on the precise issue he wrote in dissent:

‘In Keller v. Potomac Electric Power Co., 1923, 261 U.S. 428, 43 S.Ct. 445, 67 L.Ed. 731, where this Court had before it an Act under which the courts of the District of Columbia were given revisory power over rates set by the Public Utilities Commission of the District, the appellee sought to sustain the appellate jurisdiction given this Court by the Act on the basis that ‘Although Art. III of the Constitution limits the jurisdiction of the federal courts, this limitation is subject to the power of Congress to enlarge the jurisdiction, where such enlargement may reasonably be required to enable Congress to exercise the express powers conferred upon it by the Constitution.’ 261 U.S. at page 435, 43 S.Ct. 445, 67 L.Ed. 731. There, as here, the power relied upon was that given Congress to exercise exclusive jurisdiction over the District of Columbia, and to make all laws necessary and proper to carry such powers into effect. But this Court clearly and unequivocally rejected the contention that Congress could thus extend the jurisdiction of constitutional courts, citing the note to Hayburn's Case, 1792, 2 Dall. 409, 410, 1 L.Ed. 436; United States v. Ferreira, 1851, 13 How. 40, note 52, 14 L.Ed. 42 and Gordon v. United States, 1864, 117 U.S. 697. These and other decisions of this Court clearly condition the power of a constitutional court to take cognizance of any cause upon the existence of a suit instituted according to the regular course of judicial procedure, Marbury v. Madison, 1803, 1 Cranch 137, 2 L.Ed. 60, the power to pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision, Muskrat v. United States, 1910, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246; Gordon v. United States, supra, the absence of revisory or appellate power in any other branch of Government, Hayburn's Case, supra; United States v. Ferreira, supra, and the absence of administrative or legislative issues or controversies, Keller v. Potomac Electric Power Co., supra; Postum Cereal Co. v. California Fig Nut Co., 1927, 272 U.S. 693, 47 S.Ct. 284, 71 L.Ed. 478.'

‘Those who wrote our Constitution well knew the danger inherent in special legislative acts which take away the life, liberty, or property of particular named persons, because**1500 the legislature thinks them guilty of conduct which deserves punishment. They intended to safeguard the people of this country from punishment without trial by duly constituted courts.’

Moreover, when an Article III court of law acts, there is a precise procedure that must be followed:

‘An accused in court must be tried by an impartial jury, has a right to be represented by counsel, he must be clearly informed of the charge against him, the law which he is charged with violating must have been passed before he committed the act charged, he must be confronted by the witnesses against him, he must not be compelled to incriminate himself, he cannot twice be put in jeopardy for the same offense, and even after conviction no cruel and unusual punishment can be inflicted upon him.’ Id., 317-318, 66 S.Ct. at 1080.

[Glidden Co. v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459 (U.S.App.D.C. 1962)]

Young v. IRS, 596 F.Supp. 141 (N.D.Inc. 9/25/1984)

2. Bill of Attainder

The complaint also contains allegations that the plaintiff was somehow subject to a bill of attainder. The factual basis for this claim is completely absent from the complaint or any of plaintiff's other numerous documents. It is clear, however, that plaintiff's claim does not fall under the current interpretation of the bill of attainder clause of the constitution. A bill of attainder is generally defined as a legislative act which determines guilt and punishes an identifiable individual or group of individuals. See Nixon v. Administrator of General Services, 433 U.S. 425, 468, 97 S.Ct. 2777, 2802, 53 L.Ed.2d 867 (1977). Here, at least two of these three elements are not present. First, the Internal Revenue Code does not determine guilt. Although it authorizes the assessment of taxes and penalties, those assessments can be challenged in the tax court or in the district court. Thus, an assessment is not a conclusive determination of "guilt." Secondly, the tax laws do not punish. The mere fact that a law is burdensome does not make it punishment for bill of attainder purposes. See Nixon, id. at 470-71, 97 S.Ct. at 2804. An assessment of penalties for failure to file income tax returns may be punishment, but the fact that the penalties can be challenged on appeal means that the punishment is not final. The third element, selection of an individual or group of individuals, is not present, as the tax laws apply to all income earners and the penalty provisions apply to all taxpayers who fail to file. Such a blanket application to the population excludes the possibility of a "selection." It is thus clear that no bill of attainder or bill of pains and penalties (which is simply a lesser form of a bill of attainder) exists here.

Overall, it is abundantly clear that the tax laws apply with full force to plaintiff, and that his arguments are without any basis in the law. It is also clear that the exhibits offered to support his argument (in particular, the Congressional Research Service letter discussed above) undercut his argument, and in fact support the conclusion that the tax laws are positive law which apply to the plaintiff. It is in light of this obvious lack of merit in plaintiff's argument that the court now turns to defendants' motion for fees and costs.

[Young v. IRS, 596 F.Supp. 141 (N.D.Inc. 9/25/1984)]