In the United States, Congress' seeming inability to pass a fiscal cliff bill before the 1/1/13 12:00 AM deadline has sparked discussion that Congress could potentially pass a bill sometime in January and make its effects retroactive to the 1/1/13 12:00 AM deadline, thus eliminating any effect that their delay would have had.

As I understand them, ex post facto laws are any law that attempts to change the legal status of a person's actions after the fact. Additionally, these types of laws are expressly forbidden by the United States Constitution. Since a retroactive fiscal cliff deal would change the legal obligations of all taxpayers on January 1, 2013 after the fact, would this not be an unconstitutional use of Congress' power? If not, what criteria of an ex post facto law is missing in this example?

4 Answers 4


from http://www.usconstitution.net/glossary.html#EXPOST:

1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.

Notice how that definition does not waver from criminal law. It means that you can't get prosecuted for something that wasn't against the law when the act happened.

If Congress does anything to the fiscal cliff in January, it won't cause anyone to have already committed a crime, therefore it won't violate the interpretation of ex post facto law.

Also, If a fiscal cliff agreement does get passed, people will, if anything, have a smaller tax burden, so the point is moot in the scope of the fiscal cliff.

  • @user 1873 but a tax increase in january 13 isn't going to change anyone's status from non-criminal to criminal. Maybe if the increase happened in April of 2014, than it might Dec 31, 2012 at 23:30

Ex post facto laws, meaning "after the fact," is expressly forbidden in the Constitution, Article I, Section 9 (Section 10 prohibits states from enacting similar laws)

No Bill of Attainder or ex post facto Law shall be passed

But, ever since Marbury v. Madison, the Supreme Court has decided that it is the ultimate authority on what is or isn't constitutional. They have ruled that tax law is exempt from that section of the Constitution.

In 1986, in a move to encourage the growth of employee stock ownership plans (ESOP), congress allowed companies to deduct half the proceeds from the sale of company stock to ESOP. An enterprising individual did, taking a $600k loss but saving $2.5 million in taxes. In 1987, the IRS discovered that this tax change was going to cost them more than expected, so congress retroactively amended the law. In UNITED STATES v. CARLTON, the court found:

The 1987 amendment's retroactive application to Carlton's 1986 transactions does not violate due process. Under the applicable standard, a tax statute's retroactive application must be supported by a legitimate legislative purpose furthered by rational means. See, e.g., Pension Benefit Guaranty Corp. v. R. A. Gray & Co., 467 U.S. 717, 729-730

Another issue here, is even if it were unconstitutional, you would need someone with standing to bring the case to court. I doubt you can find an individual or legal entity that wants to pay more taxes, or a government agency that wants bigger budget cuts.

  • Actually the limit is that tax laws that increase tax burden can only be passed up until Dec 31 of the affected year. Congress can not come back in January and retroactive raise tax rates for the previous year. Because it would then be ex post facto. But since taxes are not officially collected until after Jan 1 of the next year the law does not take effect until then anyway. Aug 25, 2013 at 4:18
  • @Chad, Does the IRS collect taxes in April or December? "In December 1986, respondent Carlton, acting as an executor, purchased shares in a corporation, sold them to that company's ESOP at a loss, and claimed a large §2057 deduction on his estate tax return. In December 1987, §2057 was amended"
    – user1873
    Aug 25, 2013 at 14:19
  • @Chad, what about 8 years after the fact?
    – user1873
    Aug 25, 2013 at 14:35
  • And that instance is being challenged in court. Your taxes are not due until April 15. When it collects the money is irrelevant to that fact. The 1987 issue was because someone attempting to evade taxes. Personally I feel this was bs but I also see the governments point that the loss was only taken so that the individual could avoid paying taxes that were due. It also did not increase taxes just eliminated a deduction to taxes that were owed. I realize that it is a distinction with no real difference but it matters here where if it were new or increase tax rates it would not fly. Aug 25, 2013 at 22:29

At the time the constitution was adopted this was how it was defined. An ex post facto law is any law that changes a person's legal standing or obligations to their disadvantage after the fact.

That means anything, not just criminal law. The obligations part was due to indentured servitude and slavery.

The supreme court has since eroded this protection, and narrowed the meaning to limit it to specific, narrowly defined forms of court imposed criminal punishment. A retroactive law in Kansas, upheld by the supreme court, allowed a sex offender to be incarcerated indefinitely, without right to trial, to face his accusers, have counsel for his defense, call witnesses for his defense, have a jury or speak on his own behalf. Because it was a civil law, he wasn't facing "punishment," reasoned the supreme court, the ex post facto prohibition as well as the 4th, 5th, 6th and 8th amendments did not apply. The supreme court ruled that involuntary incarceration, a universally recognized and previously indisputable form of punishment, was not punishment. As long as you call it civil law, it is exempt from all constitutional restrictions. Call it civil and the accused is stripped of all rights. The precedent is appalling! Please note: the defendent in this case faced no criminal charges. He had served 100% of his sentence for crimes previously committed and, by law and thousands of years of legal precedents, had earned his release. Instead He was sentenced to be indefinitely incarcerated because of something he might do in the future. If you feel this is a good idea, consider this:


This is why we require trials. That man was facing life in prison for a rape he didn't commit! He spent nearly 30 years in prison. Under the supreme court ruling, he could have been in another 30, with no recourse.


IMO Scotus might someday grant a writ to hear this case.

This fiscal cliff deal indeed seems to be unconstitutional IMO. Nobody is discussing it, but the Constitution prohibits Congress from passing ex post facto laws (Article I, Section 9, Clause 3). These provisions bar Congress from passing laws that penalize a category of individuals (albeit mostly wealthy ones) without legal due process and imposing punishments retroactively. Essentially, even if this cliff deal is instant, wealthy insiders with more knowledge of what might happen tax-wise had an unfair advantage to manage assets before midnight last night to reduce tax 2012 obligations. Also, how can one change tax law regarding 2012 after some people (Jan. 1st 2013 super early filers) already paid them? They need to give citizens advance notice. It’s analogous to convicting someone of a crime from a previously-innocent action (when it wasn’t a crime), without a grandfather clause. Hopefully, someone will write on this topic and explain what’s going on, as I’m totally lost why this isn’t headlines. [I did a google search with https://www.google.com/search?num=40&hl=en&safe=off&tbo=d&tbs=sbd%3A1%2Cqdr%3Am&q=%22ex+post+facto+laws%22+%22fiscal+cliff%22&oq=%22ex+post+facto+laws%22+%22fiscal+cliff%22 but there’s almost nothing. (Only 40 hits).]

  • You might want to see US v Carlton in my answer. Congress can indeed change laws after the fact, and make you owe taxes that you didn't previously.
    – user1873
    Jan 1, 2013 at 16:05

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