Andrew and I discussed many of the Constitutional questions affecting this legislation, which aims to solve the present liquidity crisis.
Among them, oversight, meaningful standards, whether the standards are capricious, who are the people on the 5-person board reviewing the Secretary of the Treasury, and the aspects of due process involving any actions.
You must listen to this podcast and read Andrew’s papers; the issues raised will affect us for generations. The podcast is here
The Heritage Foundation elucidates:
p>However, there are still two major constitutional problems that need to be addressed. First, the latest text does not sufficiently narrow the scope of authority delegated to the Treasury secretary; i.e.,  the law provides no “intelligible principle” to guide and direct the secretary’s actions.  Our Constitution allows no czar, with standardless discretion to prop up or manage various industry sectors.  Language does exist that can both provide Treasury with the tools it needs while protecting liberty. Hopefully, conservatives in Congress will fight for such measures.
The second constitutional problem arose only after Congress tried to fix the first. Instead of finding language that properly directed executive action, Congress punted by creating a new “power-sharing” arrangement: the Financial Stability Oversight Board. Composed of the chairman of the Federal Reserve, the Treasury secretary, the director of the Federal Home Finance Agency, the Securities and Exchange Commission chairman, and the Department of Housing and Urban Development (HUD) secretary, this quasi-executive entity would have unprecedented structure and power. A majority of these board members are not removable by the president except for cause.
Congress has never attempted to give the discretion and responsibility to one cabinet official who is directly answerable to the president, and then subject his actions to the direction, modification and veto of another board – especially one not wholly subject to the president’s direction and control. This oversight “fix&” makes it harder for the American people to hold their elected leaders accountable. It remains dubious whether such an entity would pass muster in the courts, as it clearly offends Article II and the lines of democratic accountability that it established.
In today’s podcast at 10AM Eastern, Andrew Grossman of the Heritage Foundation talks about how Constitutional Fidelity and Prudent Policy Go Hand in Hand in Fixing the Credit Crisis
Some Republicans are grudgingly saying they’ll vote for the bill while Kucinich says there aren’t enough votes for the bill to pass; President Bush will speak later this morning. We’ll go over these items in the podcast.
Chat’s open at 9:45AM and the call-in number is 646 652-2639. Join us!