Boiling mad

by Chris Markham. 0 Comments

This week, Im ticked. Its not the supernova kind of ticked where everyone around me should watch their back, if you know what Im saying, lest they get swept up in the boiling heat that is my rage.

No, its the kind of ticked thats been on a slow burn for a couple of months and I dont really think I can hold it in any more.

Why am I so mad? Well, Im having some issues with the current federal governments complete and total abuse and disregard for the notion of ex post facto laws.

Thats it? Thats what makes you so mad? You should get some sort of hobby. Try fishing, or build a fence or get into fantasy baseball something.

Yes, while its true that I could attempt to have a little more of a well-rounded lifestyle, there are a few things that really set me off, and a complete ignorance of the Constitution happens to be one of them.

The best way I can explain what an ex post facto law is by example. Lets say youre upset that people, a few in particular, walk across your lawn. You have some juice and some connections, so you get a law passed that makes it illegal for people for walk on your lawn.


Now, lets say that, even though those people havent walked on your lawn since the law passed, you attempt to charge them with your new No Walking On The Grass law. Per the constitution and the ex post facto laws, this suit is a non-starter; theres nothing to charge them with, as they havent broken the law. People that have historically have walked on your lawn are safe; ones that walk on your lawn after the bill is passed are the ones breaking the law.

However, it appears that some are not paying attention to the little old Constitution these days, especially when it comes to employment contracts with institutions that received bailout money.

I know, this issue has been played out and hacked to death on the intertubes, the news shows, the talk shows and talk radio.

As a taxpayer, Im not in favor of using public money our money to bail out businesses that got far too greedy, made risky decisions and lost all of their chips. The invisible hand of economics and the rules of capitalism should weed those bad actors out of the business pool.

As an attorney, however, I cant help but fear that the governments overstepping in this area specifically regarding employee pay and bonuses based on contracts that were in place prior to the TARP legislation is way out of bounds and creates a very dangerous legal precedent.

Like the Fourth Amendment, which prevents jackbooted policemen from breaking into your house with no reason whatsoever, Congress should not be able to re-negotiate on the fly, and for political purposes, contracts made between private citizens and private companies.

Imagine what precedent this sets for you and I.

I have a job with a private company. One of the reasons I took the job and work so hard, is the fact that this company is going to pay me a certain amount of money. Imagine if, at the end of the year when I get paid, my superiors come to me and tell me that there is no way they can honor our agreement because politicians (who knew about this all along, by the way) think its a waste of money to pay me what weve agreed to.

I wouldnt be very happy; in fact, I would likely quit. I would also have to explore any and all legal avenues to determine whether I had a case against my employer for an ex post facto action.

See, this situation has the potential to get really ugly, really fast. All because there was some heat on Congress to reinvestigate the bonuses paid to employees of TARP companies. Again, I am not a big fan of using taxpayer money our money to bailing out businesses that were unable to manage themselves. However, I am even less of a fan of the government getting involved with private companies and already-contracted-upon pay, thus violating the protection against ex post facto laws.

So remember, the next time you enter into an employment contract with a private company, the government may try to change it on you. Do I think it will? No. But just the fact that it is a thought in your mind should make you concerned about the direction this government is heading into, and the overall theory behind ex post facto laws.

Sign at your own risk.

Christopher L. Markham is a general practice attorney based in Frederick. He can be reached at

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