An expanding majority of Americans are expressing a growing unease with the whole concept of the Emergency Economic Stabilization Act of 2008 (herein known as 'The Bailout'). They have good reason to trust their intuition; The Bailout is most likely unconstitutional.
By enacting it, Congress did not, in any meaningful sense, make law. Rather it made hash out of the law making process by making executive branch officials into legislators. Congress, in effect, said to the executive branch: "Here is $700 billion. You say you will use it to buy up banks' 'troubled assets.' But you can use it for something else if you wish -- say subsidizing automobile companies.'
The Washington-based libertarian advocacy organization, Freedom Works, argues that The Bailout violates "the non-delegation doctrine." Although the text of the Constitution does not spell it out, its logic and structure, particularly the separation of powers, implies 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.
The Supreme Court has said: "That Congress cannot delegate legislative power to the president (executive branch) is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution." And the court has said that properly delegated discretion must come with "an intelligible principle" and must "clearly delineate" a policy that limits the discretion. The Bailout flunks that test.
Author of "Liberty and Tyranny", Mark Levin sums it up nicely, "If the Constitution's meaning can be erased or rewritten, and the Framers' intentions ignored, it ceases to be a constitution but is instead a concoction of political expedients that serve the contemporary agendas of the few who are entrusted with public authority to preserve it."
