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It’s kind of a buzz phrase for conservatives and libertarians when responding to any federal legislation which does not involve military spending, freeway building, or standardized testing in schools. Pretty much all else is “unConstitutional,” forgetting that in this common law based legal system that the old umpire’s saying applies = “somes is balls, and somes is strikes, but until I calls them, they ain’t nothin.”
The debate was decided decades ago when the Supreme Court adopted a broad interpretation of the Commerce Clause and the power to tax and spend for the general welfare. In fact the issue was really decided a couple of centuries ago by Justice Joseph Story (when I have some time later I’ll post more details) who resolved an old debate between Alexander Hamilton and James Madison in favor of the former, and a broad interpretation of these powers, meaning that spending is not limited to those powers listed in Article 2, but may actually be spent on matters otherwise reserved to the states. The 10th Amendment is so interpreted that it does not prohibit spending per se, but only the Federal Government’s ability to override state laws (except as later decided when the Commerce Clause can be invoked). Cato Institute types don’t like it, but the rulings long predate modern liberalism and phrases like “living document” and “strict construction.”
Sometimes it is borderline comical as you hear some of the fringe say things like “the 14th Amendment is unconstitutional.” The 14th Amendment actually fundamentally altered the Constitution profoundly, and you often hear people calling for its repeal (not just on the immigration/”anchor baby” issue). Some conservatives are in denial about it. Others understand it well, but realize that repeal is an untenable political position. The fringe expressing itself through the Tea Parties have no such sense of restraint. They want legislation which will somehow override the judiciary and impose their interpretation of the Constitution, overturning 200 years of case law on the subject.
It is now a campaign issue in some races, and TPM has listed “the top 6 established laws that are deemed unconstitutional” by the Tea Partiers.
Alan Grayson and Republican Rep. Paul Broun discuss the question during yesterday’s hearing on legislation aimed at ACORN.
I had an exchange with a Dutch friend about the drones being used in the Netherlands to eradicate marijuana and commented that we had certain ideas about Europe, particularly her country. She responded:
No, not “anything goes”. possessing it for your own use is legal, but possession for sale is illegal and so is growing it for sale. I think growing under 5 plants is legal. My neighbor was in jail for a year and had rented his house via-via, and his renters were growing. They were discovered and evicted, leaving an enormous electricity bill and much destruction. But at the other end of the street there is a house that smells very funny at certain months of the year, hardly ever see any signs of life there except an occasional brand new expensive red sports car parked in the garden once a year, never bothers anyone so nothing happens there. Not sure if the police don’t know or the neighbours just don’t complain.
It’s all pretty familiar to me.
Meanwhile there are two marijuana stories out today. The US Supreme Court refused to hear and thus let stand the rejection of the challenge of San Diego and San Bernadino Counties who had argued that the law could not require them to honor Prop. 215 because it put them at odds with federal law. We have yet to see a case in which federal laws are challenged as a violation of the 10th Amendment as they pertain to privately cultivated and used medical marijuana – ie. marijuana arguably outside the “stream of commerce.” I think both sides have avoided pressing the issue.
On the downside for medical marijuana advocates, Charles “Eddy” Lepp of Lake County was sentenced to 10 years in federal prison for cultivating with intent to distribute 1000 plants. Judge Marilyn Patel, a very liberal judge, was sorry about the sentence which she believes is excessive, but states that she had no discretion under the federal sentencing mandates. We’ve seen this before.
You think I’m being melodramatic? I just read the bill. This establishes power in the executive which is unreviewable by either of the other two branches of government (meaning no recourse for any institution aggrieved).
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.
No meaningful oversight. Two reports to certain congressional committees per year. No guarantees as to what would even be presented at those meetings except that they will have to report on how they’re stabilizing the financial markets and to “protect the taxpayer,” whatever the f— that means.
Basically the Secretary of Treasury would be given full broad power to buy mortgage related assets from any US based financial institutions, on terms the Secretary of Treasury deem warranted. This means the financial institutions could be strong-armed. It also leaves open the possibility of sweet deals.
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.
Oh, and it gets better. The Treasury Secretary can write whatever regulations it needs to guide the activity of financial institutions it declares to be “agents of the Government.” And you’ll be comforted to know that the Secretary of Treasury can’t spend any more than 700 billion dollars on these purchases.
Oh, and we would now be limited to just over 11 trillion dollars in debt, up from the current 8 trillion. Oh, but we aren’t supposed to worry about debt, only the debt to GDP ratio, right?
Right. Pay no attention to the man behind the curtain.
Just as we thought the Bush administration would go quietly into the night. Figures he’d see a financial crisis created largely by Reagan’s deregulation as one more opportunity to move us towards a banana republic.
It’s a very short and to-the-point bill. No sunset clause. Any Constitution lawyers out there ready to comment on whether this law would even be revocable under the terms stated?
Paul Krugman says no deal.
I hate to say this, but looking at the plan as leaked, I have to say no deal. Not unless Treasury explains, very clearly, why this is supposed to work, other than through having taxpayers pay premium prices for lousy assets. As I posted earlier today, it seems all too likely that a “fair price” for mortgage-related assets will still leave much of the financial sector in trouble. And there’s nothing at all in the draft that says what happens next; although I do notice that there’s nothing in the plan requiring Treasury to pay a fair market price. So is the plan to pay premium prices to the most troubled institutions? Or is the hope that restoring liquidity will magically make the problem go away?
Addendum: Meanwhile, Bernie Sanders has some other ideas.
Third addendum: For the moment, Pelosi’s showing some spine.