Simple question: 401(k) seizure.....isn't this an ex post facto law?

Me ^ | 11/7/2008 | Me

[Red in Blue PA]

And if not, why not?

You cannot have a law which says that people adding to their accounts have money which is theirs and THEN pass a law which confiscates this money.

From everything I learned in school that would qualify as an ex post facto law. Where am I going wrong?

[traditional1]

That's the way I see it, too. Along with that, how is this not a "taking" (personal property) under the Constitution, also?

Inquiring minds want to know!

[johnny7]

[allmost]

They are going to start with changing the tax code to prevent any tax benefits. It takes time to stack the judiciary enough to accomplish their longer term goals.

[mgc1122]

You’ll find your average Marxist doesn’t give a rat’s ass about the law, and fairness.

And if you expect the courts to be on your side, all the messiah has to do is increase the size of the SCOTUS by a couple seats (like FDR did), and voila ... rubber stamping aplenty.

[Soliton]

No more vanities! Ask your lawyer.

[Red in Blue PA]

But it should not even get to the argument of “personal property” if it indeed is an ex post facto law, which would be unconstitutional.

In the United States, ex post facto laws are prohibited in federal law by Article I, section 9 of the U.S. Constitution and in state law by section 10. Over the years, when deciding ex post facto cases, the United States Supreme Court has referred repeatedly to its ruling in the Calder v. Bull case of 1798, in which Justice Chase established four categories of unconstitutional ex post facto laws. The case dealt with Article I, section 10, since it dealt with a Connecticut state law.

http://en.wikipedia.org/wiki/Ex_post_facto_law

[ilgipper]

I do not see how they do this w/o pissing off a lot of people really bad, besides the legalities. I suppose they could make it optional.

[Red in Blue PA]

Sorry, but a vanity was required, as I have seen much talk about the 401k issue but NONE regarding how it could be an ex post facto law, and therefore, unconstitutional.

[devere]

By past court decisions, ex-post-facto only applies to criminal laws.

5th amendment “nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” might provide some weak protection. Don’t get your hopes up.

[Hugin]

No. Ex post facto refers only to criminal law. You cannot be prosecuted for doing something that was not a crime when you did it. It has nothng to do with civil law.

[San Jacinto]

An ex post facto law only applies in a crimnal law context--makng somrthing illegal after the fact. No application to your scenario. However, seizure of 401 accounts would violate the prohibition against taking property without due process of law.

I'm not sure there is a proposal to seize the accounts as opposed to abolishing the tax treatment which makes them attractive.

[conservative cat]

No, I cannot believe it would be legal now, but if they stack the judiciary more, they might be able to get away with it from that perspective. However, I HOPE they try this. I can’t wait for them to attempt all their crazy ideas under the mistaken idea they have a Marxist mandate. They will kill their party.

[Red in Blue PA]

They can change the tax code from here on forward, but they cannot make a law retroactive if it goes against the original intent. (ie. adding money to an account which is YOURS, not the govts)

[prplhze2000]

Its not a taking if they follow Dr. Ghilarducci’s plan and give you a nice valuation for your 401k at August 08 levels as well as a tax credit. They aren’t going to seize the 401k plan per se, what they will do is remove the tax deferment for contributions and try to entice people to transfer their funds to GRA’s with high valuations. Employers will discontinue 401k matches and employees will see their income taxes rise because it will be figured into their ordinary income.

No ex post facto factor here.

[silverleaf]

Just look at national elections held over the past 2 cycles, democrat efforts to subvert republican victories by rewriting state election laws, and you will see the concept of “ex post facto” law has been thrown out the door.

[ejonesie22]

It is perfectly legal under Democratic control of the federal government. The Constitution is just a “guideline’ and a list of negative rights you know...

[meyer]

Employers will discontinue 401k matches and employees will see their income taxes rise because it will be figured into their ordinary income.

In such a scenario, employers might discontinue 401K matches, but I seriously doubt that employees would see their incomes rise, and if they do, it would not be an equivalent amount since the match has tax advantages for the employer while the wages would not.

[trad_anglican]

You cannot have a law which says that people adding to their accounts have money which is theirs

The money in your 401k is not technically yours. It's being held for you in trust - except for any after tax money that you may have put in - that is yours.

The plans being discussed grandfather in current balances so you don't lose any money in which you have a nonforfeitable interest. They will transfer that money from a trust sponsored by your employer to a trust sponsored by the government.

I'm not saying I agree with this from a policy position, but technically they would not be taking money that is yours.

[tx_eggman]

You’ll find your average Marxist doesn’t give a rat’s ass about the law, and fairness. And if you expect the courts to be on your side, all the messiah has to do is increase the size of the SCOTUS by a couple seats (like FDR did), and voila ... rubber stamping aplenty.

History's not a strong suit eh, mgc .. FDR tried .. but failed.

Linky Thing: Judiciary Reorganization Bill of 1937