Reviewability….Denied!

So, as part of the bailout we get this spiffy part of the package,

Sec. 8. Review.

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.

Uhhhhmmm, thank you but I’d rather go with option B, a complete and unmitigated meltdown of the financial markets than give such power to any administration.

Via Radley Balko.

FILED UNDER: Economics and Business, Government
Steve Verdon
About Steve Verdon
Steve has a B.A. in Economics from the University of California, Los Angeles and attended graduate school at The George Washington University, leaving school shortly before staring work on his dissertation when his first child was born. He works in the energy industry and prior to that worked at the Bureau of Labor Statistics in the Division of Price Index and Number Research. He joined the staff at OTB in November 2004.

Comments

  1. Come on Steve, they’re from the government and they’re here to help.

  2. just me says:

    You will get no disagreement from me on that one.

    Writing a blank check to various financial institutions without any kind of review should not be on the table. At the very least congress should have some method of oversight since congress will essentially be the body to hand over the taxpayer’s cash.

  3. anjin-san says:

    Par for the course for this administration. Give us a blank check and unlimited power…

  4. PD Shaw says:

    Well, (A) Secretarial actions that are not pursuant to the act are reviewable;

    (B) As some have noticed, the political branches asked the court to butt out of the detainee compromise legislation and the courts ignored the mandate when they felt higher Constitutional demands beckoned; and

    (C) why would anybody want the courts to decide the appropriate response to a financial crisis?

  5. Mithras says:

    The Dodd plan is out, and it’s a markedly better bill. On the instant question, it establishes an abuse of discretion standard for Paulson’s actions.

  6. Steve Verdon says:

    PD,

    This isn’t like the White House implementing a policy via various agencies, it is, unless I’m mistaken, something they are asking Congress to pass. As such it would be a law. A bit different than you are making it out to be.

    (C) why would anybody want the courts to decide the appropriate response to a financial crisis?

    Accountability is a good thing. If there is something shady going on I’d like at least some entity to have powers of review.

  7. sam says:

    may not be reviewed by any court of law

    I’d like to see a constitutional lawyer weigh in on this, at least as far as the Supreme Court goes. Sounds like they don’t want a replay of FDR’s problems with SCOTUS,

  8. The Dodd Plan is out. Alright! Oh, shoot, I thought you meant the Dodd Harris Plan. I could be happy about that. The Christopher Dodd Plan, not so much.

  9. anjin-san says:

    The Christopher Dodd Plan, not so much

    I can see why you feel that way. After all, Dodd thinks the constitution actually matters…

  10. Fox, henhouse.

  11. James says:

    Funny. I asked on a thread last night whether Republicans thought that the proposed bailout was a good idea. The consensus on that thread was, yeah, it needs to happen and happen this way. With Section 8 – the non-reviewability section.

    Hmm. What changed? You got different marching orders?

  12. Crust says:

    Hear, hear. Shades of the “all necessary means” language in the AUMF for Afghanistan, except more explicit. (That language was used to justify warrantless surveillance that was/had been illegal even in wartime under FISA.) No idea how this language would be abused by Paulson and/or his successors, but I hope they don’t get a chance.

  13. PD Shaw says:

    I’d like to see a constitutional lawyer weigh in on this, at least as far as the Supreme Court goes.

    You can google the wikipedia entry for “jurisdiction stripping.” Congress has the power to create federal courts and define the cases they hear.

  14. Crust says:

    Pd Shaw:

    [W]hy would anybody want the courts to decide the appropriate response to a financial crisis?

    No one wants the courts to run this thing. But some of us do believe in the rule of law. There may be some reasonable limits to put to prevent some kinds of litigation, but blanket immunity is just crazy. To take an admittedly extreme example, if Paulson or his successor decided to take a billion and wire it to his Swiss bank account, don’t you think that should be reviewable?

  15. JT says:

    Wow, how many businessmen would like to have that clause written into contracts.

  16. PD Shaw says:

    No one wants the courts to run this thing. But some of us do believe in the rule of law.

    Does the Constitution count as the rule of law? One of the few checks and balances that the political branches have from judicial overreach is to define the cases that the courts can hear.

    There may be some reasonable limits to put to prevent some kinds of litigation, but blanket immunity is just crazy. To take an admittedly extreme example, if Paulson or his successor decided to take a billion and wire it to his Swiss bank account, don’t you think that should be reviewable?

    Yes, it would be reviewable. The only things that are not reviewable are “[d]ecisions by the Secretary pursuant to the authority of this Act.” So, if someone filed a lawsuit to stop Paulson from taking the money or to require him to give it back, the courts would be faced with an initial question, were the wire transfers authorized by Congress? If the answer is no, then jurisdiction has not been stripped and the courts could review the case to determine whether Paulson exceeded his authority and what to do about it. If the answer is yes, then what is there to review anyway? If Congress authorized Paulson to give himself a billion dollars, what judicial issue is raised?

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