Jack Balkin shouldn't have to remind us that giving the executive branch even more power is a bad idea. But in case there's anyone left out there who disagrees, here's the case:
In response to the crisis created in part by its own incompetence and ideological blinders, the Administration now asks for enormous new powers to run the economy in a form of state planning that would make Friedrich Hayek turn over in this grave but would surely bring a smile to Carl Schmitt's lips.
In the latest version of its plan, the Secretary of the Treasury is given authority to take 700 billion dollars (that's 700,000,000,000) from the federal budget and spend it pretty much however he likes, free from any oversight requirements or restrictions that apply to public contracts and especially free from any form of judicial review. (The technical term for this is "committed to agency discretion.").
I do not oppose emergency plans to preserve liquidity in markets and prevent a further crisis. What I do object to is plenary discretion in the executive in running the nation's financial markets, especially given the history of the past seven years, which has been a sorry parade of venality, incompetence, hubris and failure.
The modus operandi of the Bush Administration has been to use crisis to seize unreviewable power for the executive. Have we learned nothing from the last seven years? True, the face of our new Dear Leader is Mr. Paulson, and not Messrs. Bush and Cheney. But who, pray tell, do Mr. Paulson and his associates work for? If one truly credits the theory of the unitary executive so beloved by the Bush Administration, who, at the end of the day will these masters of the universe be taking orders from? And whose friends, business associates, and allies will stand to benefit from their deal making?
It is not enough, however, to revel in the irony or the hypocrisy of the Administration's current plans. Two things are central: one is solving the financial crisis, and the other is doing so in a way that preserves constitutional values of oversight, checks and balances, and accountability to the rule of law. The government must have the power to act, but only the powers it actually needs, and not those it would enjoy having for the foreseeable future. It must be able to make decisions, but not without any accountability or oversight. That is what the debate is and should be about, and even though it nominally concerns the passage of an emergency measure, it is ultimately a debate of constitutional proportions.
I don't think it can be overstated just how little credibility these people have to insist that they should have complete discretion to do anything they choose. The arrogance of even suggesting such a thing, considering their history, is breathtaking.
And Balkin is right. No president, even one we like, should have such powers. It's entirely possible, considering the scope of the problems he's facing, that our next president will only serve one term, and even if it's two, I would bet a wheelbarrow full of worthless dollars that the Republican who seeks to succeed him will be someone who wants to use those powers very, very badly.
There is a lot at stake, but it won't be worth a thing if we don't make sure that the people charged with ":fixing" the problem understand who it is they are working for and insist that they "show their work" and stand behind it.
FYI: The "plan", as currently written, bears a striking resemblance to the AUMF. Seriously.
H/t to bb