A bill that President Barack Obama and congressional Democrats are proposing to force British Petroleum (BP) retroactively to pay the full cost of the Gulf of Mexico oil spill could be unconstitutional, some legal observers say.
Proposing the plan to increase the penalty for oil spill cleanups from $75 million to $10 billion to are Sens. Robert Menendez, D-N.J.; Ben Nelson, D-Neb.; and Frank Lautenberg, D-N.J., among others.
Since the Deepwater Horizon drilling rig sank off the Louisiana coast April 22 following an explosion that killed 11 workers, millions of gallons of oil have flowed into the Gulf of Mexico from nearly a mile under the surface.
Congress put the $75 million penalty figure in place after the devastating Exxon Valdez oil spill in Alaska in 1989, but the proposal calling for the $10 billion fine would be backdated to April 15, 2010.
Heritage Foundation legal scholar Hans Von Spakovsky tells Newsmax that the bill’s retroactive nature probably would violate the Constitution’s prohibition of ex post facto laws and bills of attainder. These provisions bar Congress from passing laws that penalize a category of individuals without legal due process and imposing punishments retroactively.
“If what they pass specifically targeted BP, it would meet the first step of the test,” Von Spakovsky says. “The second step would be, ‘What kind of punishment or assessment would the law assess against BP that would fit the definition of punishment?’”
Should the Menendez bill become law, it could face a constitutional challenge, says Judicial Watch President Tom Fitton.
“There are always exceptions, and it will always be up to judicial analysis as to whether it is an ex post facto law,” Fitton said.
Whether the bill actually is an ex post facto law pivots on more than 200 years of constitutional precedent, and courts previously have upheld laws that modify existing regulations, Fitton tells Newsmax.
“It will likely be challenged in court, but I am loathe to judge the outcome,” he says. “But I don’t think you can dismiss ex post facto concerns.”
Courts have previously upheld retroactive actions such as tax increases as constitutional.
Existing law makes it possible to penalize BP without running into possible constitutional issues, Von Spakovsky says.
“I really don’t understand what in the world he’s doing,” Von Spakovsky says, referring to President Obama. “There’s plenty of state laws, federal laws, tort claims that can be brought by anybody who suffers damages the exact same way people who were damaged and injured by the Valdez spill were able to bring suits and recover damages.
“So there is no need for another federal law on this, particularly this — a law that is questionable in its constitutionality. That frankly would just confuse the issue.”
Calls to Menendez’s office seeking comment were not returned.
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