section 8

[Frank Cross]

I think there's good reason for this provision.  With this much money 
at stake, every financial institution in the country is going to be 
fighting (and suing) for a bigger share.  Those lawsuits will be of 
enormous number and could tie up, potentially even destroy, the 
recovery plan.  And it's not at all clear that judges will be 
accurate in determining whether a particular allocation is "arbitrary 
and capricious."


At 10:34 AM 9/23/2008, Jonathan Miller wrote:
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>
>What I find incredible is that the provision was included at 
>all.  What has changed in this country since the 1930's that would 
>lead Congress to include a provision like this?  I don't recall that 
>Roosevelt ever attempted to insulate New Deal legislation from a 
>much more hostile judiciary.  Quick review procedures have been used 
>in the past, but why the desire today to completely eliminate the courts?
>
>Jonathan Miller
>Southwestern Law School
>
>
>----------
>From: conlawprof-bounces at lists.ucla.edu 
>[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Scarberry, Mark
>Sent: Tuesday, September 23, 2008 8:19 AM
>To: Howard Schweber; CONLAWPROF
>Subject: RE: section 8
>
>My initial reaction is that in this area of economic regulation and 
>use of the spending power, in the absence of a serious claim of 
>unconstitutionality the provision would be upheld. There is nothing 
>I can see that is like the constitutional prohibition on suspension 
>of the writ of habeas corpus. That is, unless the Court decides that 
>it wants to revisit nondelegation. But I don't see a prohibition on 
>court review having anything to do with whether a delegation of 
>power by Congress is excessive. Congress created independent 
>agencies as well, and I don't see a problem with Congress limiting 
>their involvement. But maybe I'm missing something.
>
>Mark S. Scarberry
>Pepperdine Univ. School of Law
>
>
>----------
>From: conlawprof-bounces at lists.ucla.edu on behalf of Howard Schweber
>Sent: Tue 9/23/2008 6:26 AM
>To: CONLAWPROF
>Subject: section 8
>
>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
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Frank B. Cross
Herbert D. Kelleher Centennial Professor of Business Law
McCombs School of Business
University of Texas
CBA 5.202 (B6500)
Austin, TX 78712-0212
512.471.5250  
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