section 8

[Edward A Hartnett]

I have very serious doubts about the wisdom and justice of Paulson's plan.
But as for constitutionality,  a famous judge in a famous case once wrote:

"The province of the court is . . . not to inquire how the executive,or
executive officers, perform duties in which they have a discretion.
Questions . . . which are, by the constitution and laws, submitted to the
executive, can never be made in this court."


Edward A. Hartnett
Richard J. Hughes Professor
     for Constitutional and Public Law and Service
Seton Hall University School of Law
One Newark Center
Newark, NJ 07102-5210
973-642-8842
hartneed at shu.edu
SSRN author page: http://ssrn.com/author=253335


                                                                           
             "Steven Jamar"                                                
             <stevenjamar at gmai                                             
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             09/23/2008 11:30          Re: section 8                       
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I would need to think about it quite a bit more, but I think this sort of
provision may indeed be constitutional unless a constitutional right is at
stake.  That is, if it is indeed just an executive action on enforcement of
a statutory right, and if Congress says it is a discretionary action by the
agency or secretary, then it seems to me to be a delegation problem, not a
jurisdiction problem.  And if the delegation has appropriate standards, it
seems that the discretionary exercise of that lawful delegation cannot be
challenged in court -- unless, again, the action is (a) ultra vires, or (b)
stomping on some constitutional right.

But, as I said, this is just a first, quick impression.  I'd need to work
it out a bit more.  I don't think the detainee cases should be read for the
proposition that Congress cannot ever keep certain things out of the courts
through limiting jurisdiction.

Steve


On Tue, Sep 23, 2008 at 9:26 AM, Howard Schweber <schweber at polisci.wisc.edu
>wrote:
Section 8 of Secretary Paulson's proposed bailout contains the following
provision:  "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."

Given the rulings in the detainee cases, I have been operating on the
assumption that this provision has approximately the same chance of
surviving Supreme Court review as I have of being elected Homecoming
Queen.

Does anyone disagree?

hs
_______________________________________________




--
Prof. Steven Jamar
Howard University School of Law
Associate Director, Institute of Intellectual Property and Social Justice
(IIPSJ) Inc.
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