The housing bailout being considered by Congress contains the following provision:
“Decisions by the Secretary pursuant to the authority of this Act are non-reviewable and committed to agency discretion, and may not be reviewed by any court of law or any administrative agency.”
Can Congress really pass a bill that prevents any court review whatsoever? Article III, Section 2 of the Constitution says “the judicial power [i.e. the Supreme Court] shall extend to all cases…arising under… the laws of the United States.”
Is this a Constitutional crisis in the making, or just another one of those things the government does that the ordinary citizen cannot hope to understand?
I’m not familiar with the details of US administrative law, but in my experience in Canadian law, that type of privative clause is used in statutes where the legislature wants to confer significant administrative discretion on the statutory decision-maker, in the exercise of the powers given by the statute. The legislature doesn’t want the courts to be second-guessing every decision of the decision-maker in areas outside the courts’ expertise, such as managing the financial system to prevent a massive market failure.
But these type of clauses can’t and don’t exclude the courts’ power of judicial review under the Constitution. For instance, if the Secretary tried to seize assets from a private party, arguing that it was essential in the national interest to prevent a financial melt-down, the citizen could challenge that action under the takings clause. (For a similar situation, see the Steel-seizure case.)
Perhaps one of our US law Dopers can assist? I’m certainly open to correction.
IANAL, but **Northern Piper **has it. The “non-reviewable” clause only applies to correctness of the Secretary’s decisions in implementing his authorities under the law. So you could not appeal a decision on the basis that the Secretary misinterpreted that statute. In this case, the Treasury Department will have to issue guidelines as to what qualifies as a “bad loan” and what institutions should receive a bailout. The law simply says that the Secretary of the Treasury has sole discretion in making those decisions.
However, the law and the Secretary’s actions can still be challenged on any other relevant grounds under the Constitution or federal statute.