section 8

[Robert Sheridan]

Part of this issue is the definition of what is a financial  
institution.  For example, is the City of Stockton, where so many  
homes are in foreclosure, a financial institution?  Suppose the home- 
owners who are in foreclosure associate themselves into some sort of a  
vehicle for applying to qualify as an FI?

I'd been puzzled by the jurisdiction stripping clause, based on the  
news reports, too, because I was unable to imagine what lawsuits it  
was trying to protect against.  Based on a report that seemed to state  
that Treasury was being handed a blank check to spend however much it  
wanted, and further reports that we haven't seen the last of the very  
pricey bad news, I did imagine that the legal objection might be that  
Congress was handing "the appropriation power" whatever that is, to  
Treasury.  I'm assuming that this must be the spending power.   On  
further checking the document (the Constitution, Art. I, Sec. 7,  
Powers Forbidden to Congress," according to my little popular  
handbook) I note this:

"No money shall be drawn from the Treasury, but in Consequence of  
Appropriations made by law; and a regular Statement and Account of the  
Receipts and Expenditures of all public Money shall be published from  
time to time."

If Congress hands Treasury a blank check to buy up all of what critics  
are calling "cash for trash," i.e. bad loans, doesn't this delegation  
implicate, not to say violate, this clause?

rs
sfls


On Sep 23, 2008, at 9:00 AM, Frank Cross wrote:

>
> 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:
>> Content-class: urn:content-classes:message
>> Content-Type: multipart/alternative;
>>          boundary="----_=_NextPart_001_01C91D91.CCEB04EC"
>>
>> 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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>> _______________________________________________
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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
>
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> Please note that messages sent to this large list cannot be viewed  
> as private.  Anyone can subscribe to the list and read messages that  
> are posted; people can read the Web archives; and list members can  
> (rightly or wrongly) forward the messages to others.

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