Mark.Scarberry at pepperdine.edu
Tue Sep 23 10:45:11 PDT 2008
Not all ultra vires acts are subject to judicial review. That is one
implication of the severe restriction on taxpayer standing. Sometimes
the remedy for ultra vires acts of the executive is legislative action
(up to and including impeachment in proper cases). If enough members of
Congress object to the way the administration administers this program,
Congress could repeal it or subject it to tighter rules. At this point
Congress may choose not to impose tight regulation, which is to a very
great degree its prerogative, subject to whatever limits may still exist
under non-delegation principles.
Mark S. Scarberry
Pepperdine University School of Law
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Howard Schweber
Sent: Tuesday, September 23, 2008 9:20 AM
To: Steven Jamar
Subject: Re: section 8
I heartily agree that even in its current state, non-delegation doctrine
poses a serious challenge to this scheme; it seems the very model of a
standardless delegation. But Section 8 does not limit review of the
whole program, only of specific actions taken by the Secretary.
Nonetheless, there has to be the possibility of review to determine
*whether* an action taken pursuant to this federal law is ultra vires.
To say that there only needs to be review when an act is unauthorized is
like saying there only needs to be a trial if the person is guilty. And
that review can't take place in a congressional committee, that would
create a Chadha problem.
None of this matters, of course, as the final shape of the program is
being worked out as we speak, and Section 8 is unlikely to remain part
of the result at least in its current form. Still, I thought it was
worth raising if only because I was intrigued at the silence on this
list -- no one had posted anything having to do with the largest
government intervention in the economy since the Great Depression.
Steven Jamar wrote:
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.
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
this Act are non-reviewable and committed to agency
discretion, and may
not be reviewed by any court of law or any
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
Does anyone disagree?
Prof. Steven Jamar
Howard University School of Law
Associate Director, Institute of Intellectual Property and
Social Justice (IIPSJ) Inc.
To post, send message to Conlawprof at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
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.
-------------- next part --------------
An HTML attachment was scrubbed...
More information about the Conlawprof