Monday, March 17, 2008
The World Financial Crisis and the Unitary Executive
While everyone seems to be focused on which sermons Barack Obama heard from his minister and what the Second Amendment means, the United States, and by extension the world, is on the brink of a financial melt-down, which the Federal Reserve Board is doing its best to prevent.
Having just watched The Princess Bride last night, I feel it appropriate to say at this time,
"Dictator. You keep using that word. I do not think it means, what you think it means."
There must be a way to let the free market govern monetary systems. But politics figures in. The minister is not important. But Barack Obama cannot afford to have a spotlight placed on his THEOLOGY. See:
I don't really imagine that the Bush Administration is full of Humphrey's Executor fans. Yoo's memo here, for instance, seems to give it only grudging respect.
Do you have any thoughts on Nash's recent work on "Ideal Money and Asymptotically Ideal Money?"
You are making a policy argument which has no basis in the Constitution.
Article II expressly grants all executive power to the President. This is the basis of the unitary exective theory.
There is no provision in Article I allowing Congress to unilaterally amend the Constitution to create an executive dictatorship independent of the President. The Fed's authority is based entirely on a rewriting of the Constitution by the Court.
If there is an embarrassment to the Constitution, it is the case law upholding the Fed rather than the Unitary Executive theory which is written in Article II.
"There is no provision in Article I allowing Congress to unilaterally amend the Constitution to create an executive dictatorship independent of the President."
Actually, the fact is the opposite. And its hardly unilateral when all three branches agree.
Article I, Sec. 8 grants expressly to Congress the power "to coin Money, regulate the Value thereof...". Unlike other Sec. 8 powers, Congress power is not "to establish coinage" or "to provide coinage" or "to regulate coinage" or "to promote coinage." It is "to coin." That's a direct power for the Congress to keep.
One may argue that Congress should not be delegating this power to the Federal Reserve under the 'necessary and proper clause.' (The Supreme Court thought they could in McCullock v. Maryland in 1819 when they found it constitutional to establish a Fed-like Bank of the United States.) But one cannot argue that Congress has taken anything FROM the Executive by doing so. Monetary policy has always resided with Congress. There is no direct constitutional role for the Executive in monetary policy.
Jack's point though fits. Multiple powers - to coin money, to declare war, to regulate the military, etc. - are primarily or exclusively executive-type powers granted to Congress NOT the President. And that's a fact that undermines any strong 'unitary executive' theory.
I agree with the basic point of this post. I do disagree with one point though:
In essence, the Fed's policies are bailing out people who preached a particularly aggressive form of free market ideology, made particularly stupid decisions, and now have come hat in hand to the government seeking a handout.
What has "a particularly aggressive form of free market ideology" got to do with the poor investment decisions made by subprime mortgage issuers and holders of subprime-mortgage-backed securities? Do you have any evidence that only Republicans invested in these things?
Of course I agree with you about "stupid decisions" and "seeking a handout."
Bart's post is reminiscent of the line conservatives love to quote from Justice Jackson about our Constitution not being a suicide pact.
If the Constitution requires political branches directly control the money supply, it would certainly be one.
In response to Elliot's post, I would argue that Republicans are staunch proponents of aggressive free market ideology. This ideology opposes government intervention which and is particularly hostile to regulation. The lack of appropriate regulation was certainly a contributing factor to the ability to make the unwise investments and work the system. The situation is similar to the S&L debacle that occurred in the 1980's as a result of the deregulation of the thrift industry. Since Republicans are typically proponents of deregulation and resistance to new regulations, they are at least partially to blame.
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