Judge Posner Misses Perfect Opportunity to Cite Calder v. Bull

July 8th, 2011

One of my favorite lines in constitutional law is this gem from Justice Chase’s opinion in Calder v. Bull (1798):

“An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. . . . A few instances will suffice to explain what I mean . . . . [A] law that takes property from A and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it.”2

Illinois managed to pass an Act (“for I cannot call it a law”) that basically “giv[es] racetracks proceeds from a 3 percent tax on riverboats.” We are in Calder v. Bull territory here.

This corrupt act, championed by (none other than) Governor Blagojevich was largely seen as a payoff to “racetrack executive John Johnston, who owns two tracks.”

Per Judge Posner, the 7th Circuit En Banc found that the tax was “possibly of corrupt origin,” but denied the challenge.

A tax, possibly of corrupt origin, levied on one set of gambling enterprises to subsidize another may seem a fiscal travesty. But what has that to do with the Tax Injunction Act?

Come on Judge Posner! This is textbook Calder v. Bull. Taking from A and giving to B. It can’t be a law! Supreme Court precedent on point from before John Marshall!

H/T How Appealing