Unconstitutional Bailout Plan?

[KingMerv00]

Linky:

http://www.huffingtonpost.com/2008/09/22/dirty-secret-of-the-bailo_n_128294.html

Section 8 of the Proposed Bill:

Decisions by the Secretary pursuant to the authority of this Act are non-reviewable and committed to agency discretion, and may not be reviewed by any court of law or any administrative agency.

Seems an awful lot of power consolidated into one branch. I can't seem to find the full text of the bill and the only people discussing this are the far left. Naturally this doesn't make the story wrong by default but maybe I'm missing something. Context...extra text....something?

[SezMe]

I don't have a current link but I believe Dodd's bill has no such provision. Also, Paulson testified today that he really wanted oversight. Riiiight. Nevertheless, Section 8 is history but the level and powers of any oversight board remain as important issues.

[KingMerv00]

Well according to Paulson's Wiki Page (http://en.wikipedia.org/wiki/Henry_Paulson) he has no formal education in Constitutional Law. "Only" and degree in English and a MBA. Makes sense in retrospect but still crazy that wording like that made it so far into the process.

[RadioactiveMan]

Let's be real honest here: when has the Constitution stood in the way of any massive government plan in the last seventy years?

[SezMe]

Let's be honest here: what changed seventy years ago regarding government plans relative to the Constitution?

[drkitten]

Let's be honest here: what changed seventy years ago regarding government plans relative to the Constitution?

The New Deal.

Which all wingnut conservatives and libertarians will tell you was the collapse of Civilization as We Knew It.

[RadioactiveMan]

The New Deal.

Which only a retard or a liar will tell you was a good thing.

[KingMerv00]

The New Deal.

Which only a retard or a liar will tell you was a good thing.

What a wonderful simple world you must live in.

[SezMe]

^^ What he said.

[RadioactiveMan]

edit: my biting sarcasm isn't in top form at the moment.

[Beerina]

Linky:

http://www.huffingtonpost.com/2008/09/22/dirty-secret-of-the-bailo_n_128294.html

Section 8 of the Proposed Bill:



Seems an awful lot of power consolidated into one branch. I can't seem to find the full text of the bill and the only people discussing this are the far left. Naturally this doesn't make the story wrong by default but maybe I'm missing something. Context...extra text....something?

Somewhere in the Constitution, Congress may set the domain of authority of the courts. I have no idea what that actually entails. The last time this came up was in the context of anti-abortionists wanting Congress to rule abortion stuff was not under the domain of courts, which, of course, went nowhere.

[KingMerv00]

Somewhere in the Constitution, Congress may set the domain of authority of the courts. I have no idea what that actually entails. The last time this came up was in the context of anti-abortionists wanting Congress to rule abortion stuff was not under the domain of courts, which, of course, went nowhere.

Article 3 section 2:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Bolding mine obviously.

Congress can limit the jurisdictions of lower courts and even certain Supreme Court jurisdictions. However, I'm almost certain Congress could not do it with respect to a single law while ignoring all others. A "jurisdiction" is a region of law not "when we feel like it".

Also, preventing oversight would contradict the founding purpose of...whatever agency would be responsible.

Finally, does the wording of Section 8 allow them to do anything they want, even if they distributed the money in a criminal manner?

[Drewbot]

Pretty much anything can pass constitutional muster these days. They simply cite 'the greater good' clause, and bingo! it's constitutional. I'm guessing that this Bailout will go to the Sup. Court before it goes through. Someone will say it's unconstitutional, a judge will agree, it will get a appealed, the Court of Appeals will overturn, and the Supreme Court will split 5-4 that it is constitutional due to the Greater Good clause. By then, we'll all be hoarding gold and bullets and heading for the hills.

[RadioactiveMan]

They simply cite 'the greater good' clause
The what now?

[KingMerv00]

The what now?

I think he means the "necessary and proper" clause (Article 1 §8, clause 18):

[The Congress shall have power] . . . To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

Perhaps the "general welfare clause" (Article 1, §8, clause 1):

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States

Or maybe even the "due process clause" (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.

Shrug.

I don't think Drewbot really understands that the Supreme Court doesn't just go around adding powers to the other two branches willy-nilly.

[RadioactiveMan]

I don't think Drewbot really understands that the Supreme Court doesn't just go around adding powers to the other two branches willy-nilly.
Well...

[KingMerv00]

Well...

...


Well?

[casebro]

My understanding is that the bailout will 'buy' FM and FM. And one clause is that it will "eliminate the dividends to preferred shareholders except with approval". Those dividends have been two billion per year lately- in businesses that were impending bankruptcy. Corruption? Not to mention that if we are 'buying' FM&FM, why are there still going to be 'preferred shares? Who will hold them?

[Drewbot]

Thanks for the correction, General Welfare is what I was trying to come up with.


I don't think Drewbot really understands that the Supreme Court doesn't just go around adding powers to the other two branches willy-nilly

1937 comes to mind.

[KingMerv00]

Thanks for the correction, General Welfare is what I was trying to come up with.

No prob.

1937 comes to mind.

I know the Supreme Court allows things now that it did not in the past (read the history of the Commerce Clause to see what I mean) but you implied this is something Congress gets without effort on a regular basis. This simply isn't true.

Besides, the general welfare allows Congress to do what is needed in the collection of taxes. Trying to avoid oversight is a whole different ball of wax.

[RadioactiveMan]

Besides, the general welfare allows Congress to do what is needed in the collection of taxes.
The general welfare clause was meant to be a limit on the power of the federal government, not a grant of further power. It was supposed to be an additional check on the things Congress does in furtherance of their enumerated powers in Article I, Section 8.

So says James Madison, the guy who wrote the thing.

[KingMerv00]

So says James Madison, the guy who wrote the thing.

I have a couple problems with that line of reasoning.

1) James Madison lived in a far different time...and now he doesn't live at all. His opinion about the modern era is less useful than mine...and for all you know, if he were alive today, he might have different ideas about the economy. I find the very idea of originalism weird because it strikes me as a combo of nostalgia and hero worship.

2) The opinions of the signers of the Constitution and the ratifying states are just as important as Madison's. When we come to an ambiguous phrase, it is a bad idea to allow one man to tell us what he "really meant" because that invalidates the entire the debate that took place during the Constitution Convention.

3) The Supreme Court has disagreed with you for the last 70 years. That's the only opinion (pun intended) that really matters.

4) This issue doesn't really involve the general welfare clause. It is really more of a Commerce Clause matter.

[ponderingturtle]

Pretty much anything can pass constitutional muster these days. They simply cite 'the greater good' clause, and bingo! it's constitutional. I'm guessing that this Bailout will go to the Sup. Court before it goes through. Someone will say it's unconstitutional, a judge will agree, it will get a appealed, the Court of Appeals will overturn, and the Supreme Court will split 5-4 that it is constitutional due to the Greater Good clause. By then, we'll all be hoarding gold and bullets and heading for the hills.

But how would it get to the court? It has been ruled that taxpayers can not challange the constitutionality of goverment spending, see the cases against faith based initiatives.

[KingMerv00]

But how would it get to the court? It has been ruled that taxpayers can not challange the constitutionality of goverment spending, see the cases against faith based initiatives.

I think you are referring to Hein v. FFRF (http://en.wikipedia.org/wiki/Hein_v._Freedom_From_Religion_Foundation). If so, your statement is too broad. The SCOTUS held (as it has before) that one does not have standing solely based on your status as a taxpayer because the harm is not direct enough.

We can debate over what the definition of "harm" but I don't think it is a good idea to allow every cititzen to file a suit over every executive action.

Edit: Fair warning. I only skimmed the case so I could me missing something or it might have been overruled by later decisions.

[Thunder]

well, if folks think it is unconstitutional, i suggest members of the House or Senate immediately file for an injunction and have it sent right to the Supreme Court.