Is the Pork-A-Palooza unconstitutional?

Some say yes. We believe it is, but for a reason far simpler than the analysis presented by Matt Kibbe of The Politico offers. But we'll touch on his first because he has a much better case than we do:

When you get beyond the rhetoric of change, it is astonishing how close President Barack Obama is following his predecessor in economic policy. Just as George W. Bush attempted to jump-start the economy with a jolt of hundreds of billions of dollars, Obama is doubling down on the bailout bets. In the Troubled Assets Relief Program process, the legislative branch is authorizing nearly a trillion dollars in spending.

But isn’t this backward? Doesn’t Congress have the sole power to authorize executive branch spending, and the president, the power to veto congressional spending authorizations?

I opposed the $700 billion bailout legislation because, among other objections, I believed it to be an unconstitutional delegation of congressional authority to an unelected official in the executive branch. Both the short history of the legislation’s implementation and a new legal analysis published by FreedomWorks Foundation confirm my original fears. This dramatic role reversal, with the executive telling Congress what to do, is exactly why the bailout is unconstitutional and must be stopped.

The bailout legislation violates the bedrock constitutional principle of nondelegation by investing the treasury secretary — an unelected member of the executive branch — with too much discretionary authority to exercise too much power.

In a recent legal analysis prepared for FreedomWorks Foundation, attorneys note, “Rather than making the policy choices necessary to guide the secretary’s discretion, Congress has given the secretary far-reaching power to intervene in the nation’s economy and effectively to nationalize American businesses — upon the thinnest reed of statutory constraints. And in doing so, Congress has effectively chosen not to make law but, rather, to make the treasury secretary the lawmaker.”

The debate over the second half of the bailout being authorized continues this backward approach to lawmaking. It has members of the Congress asking the Treasury Department to make promises that it will do better this time than it did before. But it is Congress’ constitutional duty to tell Treasury what to do, not ask.

Critics may say government being bound by the Constitution is a quaint idea, and the current crisis allows no time for it. But the Constitution is as relevant as ever. Drawing on their firsthand experience with King George, the Constitution’s Framers made the exercise of power difficult by design to protect liberty, to force deliberation, and to ensure accountability — all of which are threatened by the continuation of the bailout.

It took the former secretary of treasury just three months to remind us of the timelessness of this wisdom. With the $700 billion bailout, Congress gave him the authority to spend up to a quarter of the government’s budget. With blank check in hand, then-Treasury Secretary Henry Paulson almost immediately began to spend our taxpayer dollars differently than he had said he would.

First, he funneled money to small and large banks, as well as to other institutions such as insurers and consumer lenders. Then he shifted the bailout’s entire approach from purchasing assets to purchasing equity ownership stakes in troubled institutions.

And in the most dramatic shift yet, and with unambiguous disregard for congressional intent, the Bush White House decided to use more than $17 billion of the funds to prop up failed Detroit automakers — after Congress voted against doing so. Talk of more bailouts, in more industries, not only continues apace but also is being detailed by members of the new president’s team as they ask for more money.

This is alarming, but it should not be a surprise. Paulson was allowed to abandon the original plan because Congress granted him enormous power with very few limits on his discretion. What Paulson has done, he has done with the broad power Congress granted him. As the secretary readily admitted, “While the purpose of [the bailout] is to stabilize our financial sector, the authority allows us to take this action [of bailing out the automakers and buying ownership stakes in businesses].”

This is precisely the sort of action the Framers intended to prevent when they so deliberately separated powers among the branches of government — so an executive would not be able to say he is going to do what he wants, whether or not the elected representatives of the people like it.

His contention is exactly correct. The Constitution doesn't give the power to an unelected official. Congress, and congress alone, has the authority to spend taxpayer's money, not the Executive branch. The Executive branch can only veto or sign the legislation proposed, and it is up to Congress to ensure that the money they propose to spend is spent int he way they enumerated under the legislation. It's called oversight. (Yes, we know that Congress does a terrible job of providing proper and common sense oversight on anything, but it's their job.)

The Treasury Secretary, no matter what Congress or the president says, doesn't have this authority. Therefore Mr. Kibbe is correct in his assessment that this "stimulus" package is unconstitutional.

Now, our take on this is much simpler. There is an amendment in the "stimulus" package that contains what we believe is a bill of Attainder. For those unaware of what this is, a bill of Attainder is a legislative act that singles out an individual or group for punishment without a trial. in US v. Brown (1965) the Supreme Court held that "The Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function or more simply - trial by legislature."

So what does this have to do with the "stimulus"? Section 1112 of the "stimulus" holds the answer:

SEC. 1112. ADDITIONAL ASSURANCE OF APPROPRIATE USE OF FUNDS. None of the funds provided by this Act may be made available to the State of Illinois, or any agency of the State, unless (1) the use of such funds by the State is approved in legislation enacted by the State after the date of the enactment of this Act, or (2) Rod R. Blagojevich no longer holds the office of Governor of the State of Illinois.

It is our contention that the last section of this amendment is a bill of Attainder. It assumes that former Illinois governor, Rod Blagojevich, is guilty of the crimes he is accused of. He hasn't been convicted of a single crime. As the high court observed in US v. Brown a trial via the legislature isn't an actual criminal trial. It is, in essence, a political trial.

If Rod Blagojevich had already had his criminal trial, and had been found guilty, then this part of the "stimulus" wouldn't be unconstitutional. Between this, and Mr. Kibbe's analysis, it's clear that the Congress -- Democrats specifically, up to this point -- are passing a piece of legislation that is definitely unconstitutional.

If Senator McConnell can't find a way to filibuster this bill, and it passes, it will fall to the Supreme Court to step in and put this massive pork spending bill, and seizure of power by the Congress, down for good. Will they? You had better hope they do.

Publius II