United Liberty

George Will makes the case against the constitutionality of TARP:

Since the New Deal era, few laws have been invalidated on the ground that they improperly delegated legislative powers. And Chief Justice John Marshall did say that the “precise boundary” of the power to “make” or the power to “execute” the law “is a subject of delicate and difficult inquiry.” Still, surely sometimes the judiciary must adjudicate such boundary disputes.

The Supreme Court has said: “That Congress cannot delegate legislative power to the president 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. [Emergency Economic Stabilization Act of 2008] flunks that test.

With EESA, Congress forces the country to ponder the paradox of sovereignty: If sovereign people freely choose to surrender their sovereignty, is this willed subordination really subordination?

It is. Congress has done that. A court should hear the argument that Congress cannot so divest itself of powers vested in it.

I agree with Will and as far as the history of the court goes, they have shot down legislation in the past that violates the Separation of Powers. In 1935, the National Industrial Recovery Act (NIRA), which created the National Recovery Administration (NRA), was overturned because the NIRA gave legislating authority to the Executive Branch of government. This was before the the switch in time that saved nine. Who knows what they’d do now.