From Louis XIV to George W. Bush

Here, in just 32 words, is a summation of the state of American democracy in our time: “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.”

Translation: Congress will take $700 billion from the pockets of ordinary Americans, and hand it to Henry Paulson. Paulson then has absolute, unreviewable authority to do with this money what he thinks best.

Many people have pointed out in the past day or so that this is bad. What no one seems to be raising is the question of whether it’s even legal. Of course after eight years of George W. L’etat, C’est Moi Bush, the question of whether the biggest financial rescue operation in American history is actually legal is considered nothing more than a bothersome technicality, if that, to be dealt with by the administration’s lawyers to the satisfaction of Very Serious People everywhere.

I’m not an expert in administrative law, but I would be curious to learn what in the Administrative Procedure Act authorizes Congress to delegate this kind of completely unreviewable spending power to an executive branch agency. [Update: An administrative law expert tells me that as a formal matter it won’t be difficult to work around the APA itself, but that “if the non-delegation doctrine still means anything at all then this proposal pushes it to or past the breaking point.” On non-delegation, see below].

Furthermore, even if Congress authorizes itself to do something like this, there’s another act, the Constitution of the United States, which requires something called “due process.” When it comes to making laws, due process has been interpreted by our courts to include the basic principle that while Congress can delegate substantial rulemaking authority to executive branch agencies, it can’t simply hand the executive a blank check and beg our leaders to spend the money wisely, while promising not to interfere in any way, and moreover barring the courts from inquiring into any aspect of the matter.

This legislation as written is the equivalent of taking the view that it’s legal for Congress to give the president an enormous army equipped with lots of shiny weapons and big beautiful bombs, while leaving it to his complete discretion to start wars against any country he believes might come to pose a threat to the United States at some point in the future.

And speaking of the Bush doctrine, when considering just how questionable all this is, let’s not forget there’s a good chance that the man who thought Sarah Palin was a good choice to succeed him as president will in a few months be appointing Paulson’s successor.

A further point: The legality of this sort of completely unregulated executive branch discretion isn’t merely a formal matter. One reason careful oversight is crucial in this situation is that the most basic question of whether this is a good proposal can’t even begin to be answered until Congress and the American people know what exactly the government is proposing to pay for all this bad debt.

In the legislation’s present form, we have absolutely no idea. Being asked to sign off on it is equivalent to being asked to buy a bunch of condemned properties on the condition that you’ll only find out later what you paid for them. On second thought, I guess that’s not actually a metaphor.