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December 16, 2008

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Devil's Advocate

Randy,

I'm beginning (that may be too charitable) to sound like a broken record on this issue, but I don't believe that there can be a challenge to the secretary's actions as contrary to law.

Sec. 119 of HR 1424 (The Economic Stabilization Act of 2002 that includes the Troubled Asset Relief Program) giveth and then taketh that cause away:

SEC. 119. JUDICIAL REVIEW AND RELATED MATTERS.

(a) Judicial Review-

(1) STANDARD- Actions by the Secretary pursuant to the authority of this Act shall be subject to chapter 7 of title 5, United States Code, including that such final actions shall be held unlawful and set aside if found to be arbitrary, capricious, an abuse of discretion, or not in accordance with law.

(2) LIMITATIONS ON EQUITABLE RELIEF-

(A) INJUNCTION- No injunction or other form of equitable relief shall be issued against the Secretary for actions pursuant to section 101, 102, 106, and 109, other than to remedy a violation of the Constitution.

On the positive although underdiscussed side, this immense uncabined power seems to give rise to the most blatant violation of the non-delegation doctrine since the new deal. That seems to me to be the challenge waiting to happen, despite the semi-dormant back bench persona of that paradigm.

Brian

BTW - didn't mean to say I'm not interested in discussing the conformity of the secretary's actions to law as an academic matter and appreciate the cyber ink being expended in that department.

DWAnderson

The argument that the statutory language is not broad enough to cover sending funds to states assumes that the "established and regulated under the laws of the United States..." limitation applies to "any institution" and not just to those "includ[ed], but not limited to" those in the enumerated list of examples.

I am aware of no grammatical rul of construction that would favor that assumption.

I also note that if legal drafters were as inclined as computer programmers to include parentheses instead of commas, this sort of ambguity could be avoided!

Chris Roach

A TARP is what they cover dead bodies with on the Street.

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