Can Conservatives Prove the Bailout Unconstitutional?

The last few months have been a nightmare for American libertarians, with Congress and the president lining up to pass massive bailouts and stimulus packages–the Leviathan state of their darkest fantasies. But, having failed in the political arena, defenders of small government have begun to regroup and wage their insurgency in the courts. Last month, FreedomWorks, an organization chaired by former Republican House majority leader Dick Armey and founded in 1984 to promote “lower taxes, less government, and more freedom,” declared that Congress has unconstitutionally delegated lawmaking power to the president. FreedomWorks plans to file a lawsuit alleging that the Troubled Assets Relief Program (TARP) violates the “non-delegation principle,” recognized in cases before the New Deal, which holds that Congress can’t delegate legislative authority to the executive branch without “intelligible principles” to guide its discretion.