Monday, September 22, 2008

Bailout plan hit as unconstitutional

by Frank James

It's a safe bet that the legislative proposal by Treasury Secretary Henry Paulson Jr. to buy up bad Wall Street assets is going to undergo some fundamental revision.

Troubling to many critics is the breathtaking extraconstitutionality of the proposal which would give the Treasury secretary unusual powers that couldn't be countermanded by Congress or the courts.

That appears on its face to violate the Constitution's assertion of a balance of powers where no one branch is unchecked by the others.

On the Diane Rheem Show on public radio this morning, Alan Blinder, former Federal Reserve vice chair and normally a mild-mannered, live-and-let-live Princeton University economics professor, said Paulson should be fired for his proposal.

Here's Blinder from the program:

"I'm speaking now as one of the earliest advocates of creating an institution like this, many, many months ago. And it's a crying shame to see the way the Treasury has written this. I think the secretary of the Treasury should be dismissed, frankly. ... Asking for the authority to buy anything, with no review, with no court review, with no limits practically as to quantity or scope, with almost no congressional oversight. We have something more precious at stake than our precious financial system and that's our precious Constitution. And frankly, if I were a member of Congress, having advocated for this for nine or ten months, I would vote against this unless it's changed, dramatically..."

The administration should know its proposal is in deep trouble when both Paul Krugman and William Kristol agree the plan goes too far.

Here's an ">excerpt from Krugman:

Some skeptics are calling Henry Paulson's $700 billion rescue plan for the U.S. financial system "cash for trash." Others are calling the proposed legislation the Authorization for Use of Financial Force, after the Authorization for Use of Military Force, the infamous bill that gave the Bush administration the green light to invade Iraq.

There's justice in the gibes. Everyone agrees that something major must be done. But Mr. Paulson is demanding extraordinary power for himself -- and for his successor -- to deploy taxpayers' money on behalf of a plan that, as far as I can see, doesn't make sense.

Some are saying that we should simply trust Mr. Paulson, because he's a smart guy who knows what he's doing. But that's only half true: he is a smart guy, but what, exactly, in the experience of the past year and a half -- a period during which Mr. Paulson repeatedly declared the financial crisis "contained," and then offered a series of unsuccessful fixes -- justifies the belief that he knows what he's doing? He's making it up as he goes along, just like the rest of us.

And here's an excerpt from Kristol:

But is the administration's proposal the right way to do this? It would enable the Treasury, without Congressionally approved guidelines as to pricing or procedure, to purchase hundreds of billions of dollars of financial assets, and hire private firms to manage and sell them, presumably at their discretion There are no provisions for -- or even promises of -- disclosure, accountability or transparency. Surely Congress can at least ask some hard questions about such an open-ended commitment.

And I've been shocked by the number of (mostly conservative) experts I've spoken with who aren't at all confident that the Bush administration has even the basics right -- or who think that the plan, though it looks simple on paper, will prove to be a nightmare in practice.

But will political leaders dare oppose it?...

There's much stronger stuff on the blogs.

For instance, the blog Naked Capitalism had a posting Saturday titled "Why you should hate Treasury bailout." Here's an excerpt:

But here is the truly offensive section of an overreaching piece of legislation:

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 puts the Treasury's actions beyond the rule of law. This is a financial coup d'etat, with the only limitation the $700 billion balance sheet figure. The measure already gives the Treasury the authority not simply to buy dud mortgage paper but other assets as it deems fit. There is no accountability beyond a report (contents undefined) to Congress three months into the program and semiannually thereafter. The Treasury could via incompetence or venality grossly overpay for assets and advisory services, and fail to exclude consultants with conflicts of interest, and there would be no recourse. Given the truly appalling track record of this Administration in its outsourcing, this is not an idle worry.

But far worse is the precedent it sets. This Administration has worked hard to escape any constraints on its actions, not to pursue noble causes, but to curtail civil liberties: Guantanamo, rendition, torture, warrantless wiretaps. It has used the threat of unseen terrorists and a seemingly perpetual war on radical Muslim to justify gutting the Constitution. The Supreme Court, which has been supine on many fronts, has finally started to push back, but would it challenge a bill that sweeps aside judicial review? Informed readers are encouraged to speak up.

Nouriel Roubini does not think it passes the smell test:

"He's asking for a huge amount of power,'' said Nouriel Roubini, an economist at New York University. ``He's saying, `Trust me, I'm going to do it right if you give me absolute control.' This is not a monarchy.''

An even tougher opinion comes from the "Fabius Maximus" blog which suggests that maybe Paulson is a dictator along Roman lines, then ways this:

Of course Secretary of the Treasury Paulson will not become a dictator. The term has little utility, weighted down by a millenium of baggage. Nor does history repeat; it just rhymes. Still, the discretionary scope of power and freedom from judicial review to be granted Paulson are without precedent in American history, even in wartime.

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