George Will on whether the "Stimulus" package is unconstitutional

Will's piece at the Washington Post is available here.

It is high time Americans heard an argument that might turn a vague national uneasiness into a vivid awareness of something going very wrong. The argument is that the Emergency Economic Stabilization Act of 2008 (EESA) is unconstitutional.

By enacting it, Congress did not in any meaningful sense make a law. Rather, it made executive branch officials into legislators. Congress said to the executive branch, in effect: "Here is $700 billion. You say you will use some of it to buy up banks' 'troubled assets.' But if you prefer to do anything else with the money -- even, say, subsidize automobile companies -- well, whatever."

FreedomWorks, a Washington-based libertarian advocacy organization, argues that EESA violates "the nondelegation doctrine." Although the text does not spell it out, the Constitution's logic and structure -- particularly the separation of powers -- imply limits on the size and kind of discretion that Congress may confer on the executive branch.

The Vesting Clause of Article I says, "All legislative powers herein granted shall be vested in" Congress. All. Therefore, none shall be vested elsewhere. Gary Lawson of Boston University's School of Law suggests a thought experiment:

Suppose Congress passes the Goodness and Niceness Act. Section 1 outlaws all transactions involving, no matter how tangentially, interstate commerce that do not promote goodness and niceness. Section 2 says that the president shall define the statute's meaning with regulations that define and promote goodness and niceness and specify penalties for violations.

Surely this would be incompatible with the Vesting Clause. . . . .

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Blogger Angie said...

Unfortunately the courts have evolved to the point of serving the elite: nobody has standing to sue.

3/29/2009 2:54 PM  
Blogger Martin G. Schalz said...

Will it ever occur that Congress gives the power to the POTUS to disband the SCOTUS?

If, as we have now, elected offals ignore the Constitution, what is to stop them from ignoring the Supreme Court?

If we the people do our duty and throw the bums out by whatever means necessary, will this lead to the Posse Comitatus Act being ignored as well? Oh, wait a minute. That has already occured...

3/29/2009 2:58 PM  
Blogger Martin G. Schalz said...

I concur with you Angela.

However, even if the Courts were above reproach, how long does it take for a wrong to be righted in the Judicial System?

Or put another way, is there any means by which SCOTUS can step in before a law is passed, and prevent it from being signed into law?

Marbury v Madison (1803) was quite clear that any law which is repugnant to the Constitution is null and void, yet that has failed to be grounds for SCOTUS interference with pending legislation, even though the Marbury v Madison decision is the one that defined the SCOTUS powers...

3/29/2009 10:20 PM  
Blogger Mike Gallo said...

Not to mention the problem with getting SCOTUS to dismember the multitude of federal offices whose agents "harrass our people and eat out their substance..."

3/30/2009 1:20 PM  
Blogger TrickyZerg said...

This article is all but incoherent. Will cites TARP -- Bush and Paulson's bill, pushed on Congress with threats of martial law if it didn't pass -- to claim EESA is unconstitutional.

4/21/2009 11:45 AM  
Blogger Martin G. Schalz said...

"Anders said...

This article is all but incoherent. Will cites TARP -- Bush and Paulson's bill, pushed on Congress with threats of martial law if it didn't pass -- to claim EESA is unconstitutional."

I concur. The article is not incoherent, if it is everything but incoherent.

Martial Law? Please be so kind as to cite your sources, and or support your theory in some fashion other than wild rhetoric.

If I were you, Anders, I would look long and hard at the F. Roosevelt administration and understand the relationship between FDR and the Constitution...

4/21/2009 10:40 PM  

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