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September 21, 2008
HERE'S THE PROPOSED BAILOUT LEGISLATION, and Fabius Maximus isn't that happy with this provision:
Sec. 8. Review.
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.
Such provisions aren't unprecedented, and have long been included in federal legislation where there's concern that litigation might gum things up. They're generally upheld by courts, though not so much where the claims are constitutional in nature. That's not to say that it's a good idea here, necessarily, just that it's not some sort of unprecedented power-grab in and of itself.
UPDATE: Comments from David Zaring.
Has Treasury been delegated an unconstitutionally broad amount of power? This question always gets asked, and the answer to it is always no. . . . It's that "without limitation" language - suggesting that the powers granted to Treasury are examples, rather than limited authorizations, that might give a nondelegation afficianado a little pause. You know, can Treasury take this new sovereign wealth fund and buy anything it likes? Isn't that unconstitutionally broad? Maybe so .... but your first presumption is that broad grants of power haven't been held to be unconstitutionally broad since 1935. I think this easily passes muster.
I agree, though I wish I didn't. But read the whole thing.