section 8 and constitutional rights
schweber at polisci.wisc.edu
Tue Sep 23 09:56:29 PDT 2008
I apologize if this is a duplication -- for some reason my messages do
not seem to be getting through.
All true. But I can't get my head around a certain element of
circularity here: various people have suggested that there is no
problem in cutting off judicial review so long as no constitutional
rights are being infringed upon. I had thought that the purpose of
judicial review was to determine *whether* constitutional rights are
being infringed upon. Under this scheme, if the Secretary violates
someone's constitutional rights, what is the remedy?
Frank Cross is undoubtedly correct that there is reason to doubt courts'
ability to judge what constitutes "arbitrary and capricious" action, but
the provision is not so limited. That is, Section 8 does not say "the
Secretary's discretion is not reviewable by any court on the basis of a
claim that it is arbitrary or capricious," it says that any action taken
by the Secretary cannot be reviewed by anyone for any reason. Can there
be an administrative agency whose actions are not subject to review to
determine whether they fall within the scope of the agency's authority
in the first place? For /anything/?
I am reproducing the original proposal below: take a look at the
incredible range of actions the Secretary is authorized to undertake.
See, especially, 2b, 2b(3), and 5(c). Note, to take just one example,
that the "agent of the government" language means that gag rules could
be imposed without the possibility of judicial review of First Amendment
Rust/Velazquez issues. I have taken the liberty of putting some of the
key phrases in bold.
LEGISLATIVE PROPOSAL FOR TREASURY AUTHORITY
TO PURCHASE MORTGAGE-RELATED ASSETS
Section 1. Short Title.
This Act may be cited as ____________________.
Sec. 2. Purchases of Mortgage-Related Assets.
(a) Authority to Purchase.--The Secretary is authorized to purchase, and
to make and fund commitments to purchase, on such terms and conditions
as determined by the Secretary, mortgage-related assets from any
financial institution having its headquarters in the United States.
(b) Necessary Actions.--The Secretary is authorized to take *such
actions as the Secretary deems necessary* to carry out the authorities
in this Act, *including, without limitation*:
(1) appointing such employees as may be required to carry out the
authorities in this Act and defining their duties;
(2) entering into contracts, including contracts for services authorized
by section 3109 of title 5, United States Code, without regard to any
other provision of law regarding public contracts;
(3) designating financial institutions as financial *agents of the
Government*, and they shall perform all such reasonable duties related
to this Act as financial agents of the Government as may be required of
(4) establishing vehicles that are authorized, subject to supervision by
the Secretary, to purchase mortgage-related assets and issue
(5) issuing such regulations and other guidance as may be necessary or
appropriate to define terms or carry out the authorities of this Act.
Sec. 3. Considerations.
In exercising the authorities granted in this Act, the Secretary shall
take into consideration means for--
(1) providing stability or preventing disruption to the financial
markets or banking system; and
(2) protecting the taxpayer.
Sec. 4. Reports to Congress.
Within three months of the first exercise of the authority granted in
section 2(a), and semiannually thereafter, the Secretary shall report to
the Committees on the Budget, Financial Services, and Ways and Means of
the House of Representatives and the Committees on the Budget, Finance,
and Banking, Housing, and Urban Affairs of the Senate with respect to
the authorities exercised under this Act and the considerations required
by section 3.
Sec. 5. Rights; Management; Sale of Mortgage-Related Assets.
(a) Exercise of Rights.--The Secretary may, at any time, exercise any
rights received in connection with mortgage-related assets purchased
under this Act.
(b) Management of Mortgage-Related Assets.--The Secretary shall have
authority to manage mortgage-related assets purchased under this Act,
including revenues and portfolio risks therefrom.
(c) Sale of Mortgage-Related Assets.--The Secretary may, at any time,
*upon terms and conditions and at prices determined by the Secretary*,
sell, or enter into securities loans, repurchase transactions or other
financial transactions in regard to, any mortgage-related asset
purchased under this Act.
(d) Application of Sunset to Mortgage-Related Assets.--The authority of
the Secretary to hold any mortgage-related asset purchased under this
Act before the termination date in section 9, or to purchase or fund the
purchase of a mortgage-related asset under a commitment entered into
before the termination date in section 9, is not subject to the
provisions of section 9.
Sec. 6. Maximum Amount of Authorized Purchases.
The Secretary's authority to purchase mortgage-related assets under this
Act shall be limited to $700,000,000,000 outstanding at any one time
Sec. 7. Funding.
For the purpose of the authorities granted in this Act, and for the
costs of administering those authorities, the Secretary may use the
proceeds of the sale of any securities issued under chapter 31 of title
31, United States Code, and the purposes for which securities may be
issued under chapter 31 of title 31, United States Code, are extended to
include actions authorized by this Act, including the payment of
administrative expenses. Any funds expended for actions authorized by
this Act, including the payment of administrative expenses, shall be
deemed appropriated at the time of such expenditure.
*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.
Sec. 9. Termination of Authority.
The authorities under this Act, with the exception of authorities
granted in sections 2(b)(5), 5 and 7, shall terminate two years from the
date of enactment of this Act.
Sec. 10. Increase in Statutory Limit on the Public Debt.
Subsection (b) of section 3101 of title 31, United States Code, is
amended by striking out the dollar limitation contained in such
subsection and inserting in lieu thereof $11,315,000,000,000.
Sec. 11. Credit Reform.
The costs of purchases of mortgage-related assets made under section
2(a) of this Act shall be determined as provided under the Federal
Credit Reform Act of 1990, as applicable.
Sec. 12. Definitions.
For purposes of this section, the following definitions shall apply:
(1) Mortgage-Related Assets.--The term "mortgage-related assets" means
residential or commercial mortgages and any securities, obligations, or
other instruments that are based on or related to such mortgages, that
in each case was originated or issued on or before September 17, 2008.
(2) Secretary.--The term "Secretary" means the Secretary of the Treasury.
(3) United States.--The term "United States" means the States,
territories, and possessions of the United States and the District of
-------------- next part --------------
An HTML attachment was scrubbed...
More information about the Conlawprof