By now my fellow bloggers have spilled plenty of bytes on the serious problems with the Administration’s bailout proposal. I have nothing new to add to that discussion, but I do want to some thoughts on one provision of the bill that many people have overlooked.
If the current bailout proposal passes unamended, Congress will have just given Henry Paulson a degree of power that no Cabinet Secretary — or President for that matter — has ever had. This is Section 8 of the bill as it now stands:
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.
This language represents nothing less than the institutionalization of the Cheney-Addington concept of an all-powerful, unitary executive that cannot be checked by either Congress or the courts. It would represent the single greatest expansion of Presidential power in American history. As written, not even the Supreme Court would have the authority to overturn it as unconstitutional:
As Congress prepares to act speedily on the grant of power to the Treasury Secretary to buy up $700 billion worth of bundles of bad mortage loans, the Supreme Court may watch in fascination, but it would have no power to second-guess the “bailout,” if enacted. Given the sweep of the authority that would go to the Secretary, it might raise some constitutional questions. But there would be no way to test those in court.
According to press accounts, when Barnake and Paulson went up to Capitol Hill to brief Congressional leaders last week, they painted a terrifying portrait of economic collapse. They warned lawmakers warned that we are teetering on the edge of a precipice, and that Congress needed to take urgent action to prevent a disaster. Congressional leaders emerged from the meeting looking like they had been hit by a bus.
Sound familiar? The Bush Administration used similar language to convince Congress to pass post-9/11 restrictions on civil liberties (most notably the Patriot Act); to authorize the invasion of Iraq; and to adopt both the Military Commissions Act (including the provision exempting CIA agents from laws banning torture) and the recent FISA bill.
To put it another way, every time this Administration has convinced Congress to adopt laws that expand executive power or erode civil liberties, it has scared Congress into going along it. This time the threat is not terrorism but economic collapse. But don’t kid yourself: Section 8 could mark the beginning of the end of the separation of powers and the rule of law.
To me, all the other questions about this highly problematic bill pale in comparison. Congress must not agree to this bill as long as Section 8 remains. If it does, it might as well pack up and go home.