Socialism!

http://www.thenation.com/doc/20091221/greider

Not quite socialism or fascism. There are movements to audit the Federal Reserve Bank and to abolish it. I'm in favor of the former at least.

'Not quite socialism or fascism."

That's why they call it communitarianism.

Can you call TARP or the like communitarian?

TARP is just a violation of the constitution.

It seems as if such US Treasury purchase authorization is outside the designated power of Congress, yet I'd like to see what would the Supreme Court make of it if anyone had standing to contest it.

Fixed that for ya.

Conservatives feel that TARP is just a violation of the constitution. But until a court test, it's merely the opinion predominantly of people with little or no understanding of constitutional law.

Can you provide any documentation for that assertion? To refute it, one may merely name a critical number of conservatives with good understanding of constitutional law.
Perhaps you cite the constitutional clause that authorizes Congress to enable TARP.

This was the question I would would have like Alice to answer more specificly than simply saying the Constitution. Seriously!

Actually aren

1) Google <TARP is a violation of the constitution> - you'll find sufficient hits on the first two pages, including analysis of a federal court case. You'll also find numerous hits at conservative blogs and news sites asserting the violation of the constitution - but not a lot of agreement on exactly what is violated.

2) The constitution is a document with far more verbiage that prevents things rather than expressly authorizing them.

Exactly Marc, the language of the Constitution is there to limit the powers of govt over the individual. That's why it goes up Obama's butt so much, because it doesn't say what the govt will do for the individual. It's a pretty tightly written document if you stop and read it carefully.

Read this from Heritage.org
http://www.heritage.org/Research/LegalIssues/lm0041.cfm

"As every schoolchild learns in civics class, the national government is one of limited powers, and any legislation that would exceed those powers is unconstitutional. Rather than attempt to place lim

Copy/paste bug yet again rears its ugly head....

Ah. The Heritage Foundation. There's a nice, neutral, unbiased source without an agenda.

1) Google <TARP is a violation of the constitution> - you'll find sufficient hits on the first two pages, including analysis of a federal court case. You'll also find numerous hits at conservative blogs and news sites asserting the violation of the constitution - but not a lot of agreement on exactly what is violated.

2) The constitution is a document with far more verbiage that prevents things rather than expressly authorizing them.

The Google string you suggested yields lots of hits, mainly from conservatives. Conservatism isn't evil. Strict adherence to a constitution is a conservative principle I wholeheartedly embrace.
Federal powers are enumerated in that document and the Tenth Amendment proclaims that there are no other federal powers.

Here is a verbatim excerpt from the enabling act:

TITLE I--TROUBLED ASSETS RELIEF PROGRAM

SEC. 101. <<NOTE: 12 USC 5211.>> PURCHASES OF TROUBLED ASSETS.

(a) Offices; Authority.--
(1) Authority.--The Secretary is authorized to establish the troubled Asset Relief Program (or ''TARP'') to purchase, and to make and fund commitments to purchase, troubled assets from any financial institution, on such terms and conditions as are determined by the Secretary, and in accordance with this Act and the policies and procedures developed and published by the Secretary.

Can anyone show me the constitutional clause that enables this?

I suggest someone with sufficiently strong constitutional law credentials, otherwise it's merely layman's opinion.

Do you think most members of Congress have sufficiently strong constitutional law credentials? And they make the *&(%$#@$ laws!
Don't you think you're more intelligent than the majority of them?

No, particularly since there's no requirement to have any legal training to become a congresscritter. I mean, dude, I live in Utah, where the constitution is often viewed as a petty annoyance.

Interstate Commerce Clause, art I sec 8: "To regulate commerce...among the several states..."). Congress has required financial entities to comply with plenty of laws and regulations: minimum capital requirements, reporting requirements, transactional requirements. There hasn't been any question that those laws and regulations were and are constitutional. (The Commerce Clause has been interpreted very broadly since the New Deal; just about anything affecting interstate commerce has gotten the judicial OK.)

Some critics have argued that Congress can't delegate its authority to the executive branch without more guidelines to constrain the administration's decisionmaking process, known as the "nondelegation principle" or "nondelegation doctrine." But according to this New York Times article, which has a good intro to the subject, some prominent legal scholars think such a challenge is unlikely to succeed under existing Supreme Court precedent. (And even if it did succeed, it's unclear to me what the remedy would be at this point. Plus it's unclear who would have standing to challenge the law in the first place.)

To repeat the enabling part of the Act:

(1) Authority.--The Secretary is authorized to establish the troubled Asset Relief Program (or ''TARP'') to purchase, and to make and fund commitments to purchase, troubled assets from any financial institution, on such terms and conditions as are determined by the Secretary, and in accordance with this Act and the policies and procedures developed and published by the Secretary.

To claim that this regulates interstate commerce is more than an extreme stretch as I see it. Then again, a Supreme Court that can produce Wickard v Filburn can produce any sort of abomination like that.

Wickard has been established law for a long time. It makes some sense that the Court doesn't want to get involved in drawing fine distinctions as to what is "interstate commerce" and what is not. It's far easier to manage a rule that says as long as something has some reasonable effect on interstate commerce, then it falls within congressional power. Most people don't know that the 1964 Civil Rights Act, which banned racial discrimination in places of public accommodation, was largely based on Congress's Commerce Clause power (upheld in Heart of Atlanta Motel v. United States).

Only in 1995 did the Supreme Court strike down a law as outside Congress's Commerce Clause power for the first time since the New Deal. In United States v. Lopez Congress claimed that it could regulate guns in public schools because violent crime causes damage which has costs and increases insurance rates, people would be less likely to travel in unsafe areas, and firearms in schools would make student scared which would affect their eduction which would affect the economy. This was too attenuated even for the Court, which found that the mere possession of a gun was not a commercial activity.

But TARP is clearly a commercial activity and has a substantial connection to interstate commerce (banks lend to out-of-state businesses which then buy and sell items across state lines, for example) and would seem to me to fall well within Supreme Court precedent.

But TARP is clearly a commercial activity and has a substantial connection to interstate commerce (banks lend to out-of-state businesses which then buy and sell items across state lines, for example) and would seem to me to fall well within Supreme Court precedent.

How is TARP enablement a regulatory act?
Although I'm greatly tempted, I won't bore readers by ranting about the damage done to constitutional rule of law during the FDR administration.

How is non-discrimination under the Civil Rights Act a "regulatory act"?

Yes, some people argue that the Supreme Court's interpretation of the Commerce Clause has gone way beyond constitutional parameters. I'm just saying that TARP would seem to me to fall well within that current Supreme Court interpretation, whether one agrees with that interpretation or not. (And I won't bore readers as to why the Court doesn't want to get into deciding finer points of what is and is not "interstate commerce.")

Ok Daniel, could there be anyone with sufficient standing to legally challenge TARP?

That is a very good question, and I don't pretend to have a good handle on the answer.

For anyone else who may be reading (since oneo obviously knows about the issue), only parties with a direct stake in a controversy are allowed to sue; this is known as "standing." The idea is that those who have an individualized harm are the best people to represent the interests involved, and those with only tangential interests may not vigorously prosecute their cases which can lead to bad law or unjust results. In almost all cases, a "generalized grievance" isn't enough to get you into court; you have to show how you have been harmed and how the court can remedy that harm.

So who has suffered an individualized harm from TARP? The courts have, with a few exceptions, rejected the idea that misuse of taxpayer funds gives all taxpayers a right to sue ("taxpayer standing"). It seems doubtful that objecting members of Congress would have standing either, first of all because it would be hard for them to show how they have been harmed and second because they were deemed not to have standing even to challenge a statute that gave the president line-item veto authority. (Organizations and municipalities that lost funding due to the use of the line-item veto did have standing and won the case.) If members of Congress can't challenge the line-item veto, I think it's unlikely they could challenge TARP.

The Second Circuit found that a state pension fund lacked standing to challenge the use of TARP funds to finance the sale of Chrysler assets (p.33-40). The standing issue is mixed in with bankruptcy issues which complicates things, and the whole thing was vacated as moot by the Supreme Court so there's technically no precedent, but I think it does give an idea that finding someone with standing to challenge TARP would be difficult.

But again, this is just an armchair analysis from someone with just enough knowledge on the topic to be wrong about it.

But again, this is just an armchair analysis from someone with just enough knowledge on the topic to be wrong about it.

Thanks; I guess this is the most we could get out of you without being sent a bill. I recall reading of someone trying to sue the federal govt. on the basis of this constitutional clause:

No money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of receipts and expenditures of all public money shall be published from time to time.

He claimed that this was violated by so-called black budgets for intelligence agencies. After years of working his way up the judicial line, the Supreme Court ruled that he didn't have standing to sue. So it seems that Congress and the president can pass unconstitutional statutes immune from judicial review.

What about the individual Chrysler dealership franchise owners that lost their dealerships due to the TARP monies?

They might have a problem showing causality. I'm not that knowledgeable on bankruptcy stuff (not really knowledgeable at all, actually), but if Chrysler goes under then wouldn't they all lose their dealerships and so be no worse off?

In the Second Circuit case (again, which technically has no precedential value), the court concluded that because the plaintiff couldn't show that they were worse off with the TARP intervention than they would have been otherwise, they hadn't suffered harm:

"At oral argument, the Pensioners touted the value of the collateral at 'around $25 billion' and complained that the value received pursuant to the Sale was a tithe of the actual asset value and an inadequate return on their investment. However, the Indiana Pensioners' argument ignores the bankruptcy court's finding that, in the absence of another buyer, the only viable alternative--liquidation--would yield an even lower return than the one achieved through the sale funded by TARP money....

"Since 'the Indiana [Pensioners] will receive [their] pro-rata distribution of the value of the collateral,' they simply 'cannot allege injury in fact.' Id. The release of collateral for fair (but less-than-hoped-for) value is not injury in fact sufficient to support standing." (pp.39-40 from the link in my prior post)

If the dealers would have lost their dealerships anyway, then it's hard to see how there would be any remedy from declaring TARP unconstitutional. But again, I don't place a whole lot of confidence in my analysis; I'm just thinking off the cuff here.

It looks like the case was United States v. Richardson, where the Court rejected taxpayer standing. That doesn't mean that no one has standing, even if I don't know who would qualify. But once one got past the standing issue, there would be the state secrets issue to contend with.

It's been a long time since law school, but I hazily recall that the problem of no one having standing could happen in certain private sector disputes, not just challenging various statutes. And there are many people who think that the Court's standing rules are too strict--that if there's a good argument that some government action is unconstitutional, then it's perverse to claim that no one has standing to bring the challenge, and there are people with a sufficient (if tenuous) interest to vigorously litigate the case.

In the above link (United States v. Richardson,) one reads, "In dissent, Justices Potter Stewart and Thurgood Marshall insisted that a citizen ought to be able to challenge the failure of the government to carry out an affirmative constitutional duty without any showing of personal harm."
One of the flaws of the US Constitution is its brevity, allowing doctrine to shape many a judicial decision pertaining to it. Doctrine is purely up to the justices and changes as they are changed. I, for one, can live with that as long as the doctrine isn't "anything goes."

When it comes to following constitutional law, one thing puzzles me. Timothy McVeigh committed his crime in Oklahoma and was tried in Colorado. But a clause in Article III section 2 of the US Constitution states:

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

If this were a right that may be waived by the defendant, the venue would be okay. But it's not. It seems that the clause states that the trial must be held in the state of the alleged crime whether the defense and/or prosecution like it or not. Since this deviation was approved by both sides, no one has standing to challenge this.

I don't think there is a general standing problem with subjecting Article III's venue provision to litigation. Certainly there have been cases where the defendant requested an out-of-state transfer and the government opposed it. So the venue provision is not one of those issues that could never get challenged because of standing problems.

In the Oklahoma City case itself, I don't think the transfer was "approved by both sides." The government wanted the transfer to go in-state to Tulsa, but the trial judge found that the defendant could not obtain a fair and impartial trial anywhere in the state (decision linked below).

And as to the merits of the issue--whether it's constitutional to ever transfer a criminal case out of state--the reasoning seems to be that the Sixth Amendment's guarantee of an impartial jury and the Fifth Amendment's Due Process clause can conflict with Article III's venue provision in certain cases, in which case Article III has to give way.

The trial court in the Oklahoma City case wrote: "The Due Process Clause of the Fifth Amendment of the United States Constitution requires fundamental fairness in the prosecution of federal crimes. The right to an impartial jury in the Sixth Amendment and the fundamental fairness requirement of the Due Process clause will override the place of trial provisions in both Article III and the Sixth Amendment in extraordinary cases. That is the foundation for Fed. R. Crim P. 21 (a) providing for a change of venue to protect from prejudice."

It's also not clear to me whether venue provisions are not subject to waiver. Appellate courts seem to have decided that the right to venue is a personal privilege and can be waived. But regardless of whether one agrees with that conclusion, standing didn't pose a problem in litigating it (since the courts have obviously gotten around to deciding it).

The trial court in the Oklahoma City case wrote: "The Due Process Clause of the Fifth Amendment of the United States Constitution requires fundamental fairness in the prosecution of federal crimes. The right to an impartial jury in the Sixth Amendment and the fundamental fairness requirement of the Due Process clause will override the place of trial provisions in both Article III and the Sixth Amendment in extraordinary cases. That is the foundation for Fed. R. Crim P. 21 (a) providing for a change of venue to protect from prejudice."

Thanks for supplementing my knowledge of this case. The US attorney would have done well to appeal this up to Supreme just for the purpose of establishing a precedent. Needless to say, the change of venue didn't change the trial's probable outcome.

Not that my research has been exhaustive on the matter, but I didn't come up with a Supreme Court case on the topic. So the issue may still be open.



Yup. But process counts. And if it applies to the worst of us, then we know it will apply to ourselves as well--which is why we should be wary when we start making exceptions.

I have no idea what this thread is about because i refuse to go to another link to find out what the poster is talking about. Chris......read it and sum it up for us dude!!!

RR

Apologies to you Rob; pursuant to a relevant comment by Alice about the constitutionality of the subject at hand, we went off on a tangent about another constitutional issue.
I share a vice with other Gunks.commies; verbally touch a button of ours and out comes a pet rant or something quite tangential that interests the poster. The temptation is overwhelming.