Law and Justice

Posts Tagged ‘Constitutional’

Overview

Every saint has a past and every sinner a future. Criminal law takes cognizance of this universal truth and every accused is provided with ample rights while deciding whether he/she has committed any offence. Prosecution guidelines provide for certain procedural niceties to be extended to a person accused of crime. After all, the law intends to punish the crime, not the criminal. Adversarial system views crime as a wrongdoing against the state and not against a particular person. The interests of the state are represented by the prosecuting attorney. As such, law views the offender sympathetically and treats him/her as innocent until proved guilty and passes the burden of proving the case to the prosecution. The defendant has a right to be presumed innocent unless and until the State has proven each and every element of the crime beyond a reasonable doubt. Thus, for instance, if a culpable mental state is required to prove a crime, the prosecution must prove that it existed at the time of commission of the offence.

Constitutional Rights

The United States Constitution guarantees a wide array of rights to the criminal defendant from the time of arrest through the trial proceedings. These include: the right to be free from any unreasonable search and seizure, to remain silent, to be tried before a judge or a jury, to summon witnesses and compel their attendance to testify on behalf of the defendant, and to confront and cross-examine any witness the State may call. The defendant in a criminal case has a right to a speedy trial and to be represented by an attorney and is entitled to have an attorney appointed by the court, if the defendant is unable to afford one. The defendant also has a right to consult an attorney or family members before pleading guilty or not guilty before the court.

The criminal proceedings begin by the initiation of a complaint by the purportedly injured person, the complainant. The police investigate about the complaint. A formal charging document called a complaint or an indictment brought by a grand jury is filed with a court in the proper jurisdiction.

The Right to Speedy Trial

The Sixth Amendment of the Constitution guarantees a criminal defendant the right to a speedy and public trial, in both state and federal courts, which means that the proceedings are to be completed within a reasonable time after the person being arrested. The defendant has a right to be informed of the nature and cause of the accusation. The Sixth Amendment also guarantees a criminal defendant the right to be tried before an “impartial jury,” which will consider the evidence against the defendant and decide whether to find him/her guilty. In almost all states, the concurrence of twelve jurors is necessary in order to find a defendant “guilty or not guilty.”

Right to be Free from Unreasonable Search and Seizure

Fourth Amendment to the U.S. Constitution guarantees the defendant the right to be free from any unreasonable search and seizure. The quintessence of the Amendment is that “every man’s house is his castle” and the rights to be secured in their persons, houses, papers, and other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause.”

Privilege against Self-incrimination

The defendant is entitled to a right under the Fifth Amendment to the U.S. Constitution to remain silent during the trial. In other words, the accused person can refuse to answer any questions or make any statements, if such answers or statements establish that the person committed a crime or is in any way connected to some criminal activity. As already mentioned above, the burden of proof of a crime is on the prosecution. However, no one including the prosecutor, the judge, and even the defendant’s lawyer can force the defendant to be a witness against himself/ herself if the person declines to do so. Furthermore, when a defendant exercises his or her right not to testify, the jury is not permitted to take such denial into consideration when deciding the question of liability. Thus, this is a prominent privilege to the criminal defendant. Nevertheless, the defendant cannot selectively answer questions that go against him/her. Once a defendant decides to testify at trial, he/she cannot ordinarily choose to answer some questions but not others. It is to be noted that the Fifth Amendment privilege does not apply when a defendant is fingerprinted, or made to provide a DNA sample in connection with a criminal accusation. Like a criminal defendant, witnesses are also entitled to refuse to answer certain questions by asserting their Fifth Amendment rights. However, this right is not extensive as that of the criminal defendants.

Conclusion

A criminal defendant is presumed to be innocent and accorded all humane considerations during the trial. Justice is not a one sided notion favoring the victim, but it looks at the accused person from a reformative angle. The punishments accorded to the criminal defendant are meant to reform the person and not a retributive measure. As such, in the pursuit of justice, law takes in to consideration, the rights of the accused.

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Overview

Every saint has a past and every sinner a future.  Criminal law takes cognizance of this universal truth and every accused is provided with ample rights while deciding whether he/she has committed any offence.  Prosecution guidelines provide for certain procedural niceties to be extended to a person accused of crime.  After all, the law intends to punish the crime, not the criminal.  Adversarial system views crime as a wrongdoing against the state and not against a particular person.  The interests of the state are represented by the prosecuting attorney.  As such, law views the offender sympathetically and treats him/her as innocent until proved guilty and passes the burden of proving the case to the prosecution.  The defendant has a right to be presumed innocent unless and until the State has proven each and every element of the crime beyond a reasonable doubt.  Thus, for instance, if a culpable mental state is required to prove a crime, the prosecution must prove that it existed at the time of commission of the offence.

Constitutional Rights

The United States Constitution guarantees a wide array of rights to the criminal defendant from the time of arrest through the trial proceedings.  These include:  the right to be free from any unreasonable search and seizure, to remain silent, to be tried before a judge or a jury, to summon witnesses and compel their attendance to testify on behalf of the defendant, and to confront and cross-examine any witness the State may call.  The defendant in a criminal case has a right to a speedy trial and to be represented by an attorney and is entitled to have an attorney appointed by the court, if the defendant is unable to afford one.  The defendant also has a right to consult an attorney or family members before pleading guilty or not guilty before the court.

The criminal proceedings begin by the initiation of a complaint by the purportedly injured person, the complainant.  The police investigate about the complaint.  A formal charging document called a complaint or an indictment brought by a grand jury is filed with a court in the proper jurisdiction.

The Right to Speedy Trial

The Sixth Amendment of the Constitution guarantees a criminal defendant the right to a speedy and public trial, in both state and federal courts, which means that the proceedings are to be completed within a reasonable time after the person being arrested.  The defendant has a right to be informed of the nature and cause of the accusation.  The Sixth Amendment also guarantees a criminal defendant the right to be tried before an “impartial jury,” which will consider the evidence against the defendant and decide whether to find him/her guilty.  In almost all states, the concurrence of twelve jurors is necessary in order to find a defendant “guilty or not guilty.”

Right to be Free from Unreasonable Search and Seizure

Fourth Amendment to the U.S. Constitution guarantees the defendant the right to be free from any unreasonable search and seizure.  The quintessence of the Amendment is that “every man’s house is his castle” and the rights to be secured in their persons, houses, papers, and other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause.”

Privilege against Self-incrimination

The defendant is entitled to a right under the Fifth Amendment to the U.S. Constitution to remain silent during the trial.  In other words, the accused person can refuse to answer any questions or make any statements, if such answers or statements establish that the person committed a crime or is in any way connected to some criminal activity.  As already mentioned above, the burden of proof of a crime is on the prosecution.  However, no one including the prosecutor, the judge, and even the defendant’s lawyer can force the defendant to be a witness against himself/ herself if the person declines to do so.  Furthermore, when a defendant exercises his or her right not to testify, the jury is not permitted to take such denial into consideration when deciding the question of liability.  Thus, this is a prominent privilege to the criminal defendant.  Nevertheless, the defendant cannot selectively answer questions that go against him/her. Once a defendant decides to testify at trial, he/she cannot ordinarily choose to answer some questions but not others.  It is to be noted that the Fifth Amendment privilege does not apply when a defendant is fingerprinted, or made to provide a DNA sample in connection with a criminal accusation.  Like a criminal defendant, witnesses are also entitled to refuse to answer certain questions by asserting their Fifth Amendment rights. However, this right is not extensive as that of the criminal defendants.

Conclusion

A criminal defendant is presumed to be innocent and accorded all humane considerations during the trial.  Justice is not a one sided notion favoring the victim, but it looks at the accused person from a reformative angle.  The punishments accorded to the criminal defendant are meant to reform the person and not a retributive measure.  As such, in the pursuit of justice, law takes in to consideration, the rights of the accused.

Introduction:

 

The passing of the Forty Second Amendment to the Constitution of India in 1976, tribunals became key dramatis personae in the justice delivery system. In order to achieve the objectives of the amendment, which was to ensure speedy disposal of cases, an array of tribunals were set up. These included the Administrative Tribunals, the Rent Control Tribunals and also Tax Tribunals. The constitution and functioning of these tribunals have been controversial and intensely debated. The Constitution of the National Tax Tribunals, through the passing of the National Tax Tribunal Act, 2005 in pursuance of Article 323-B (1) (a). The Act provides a machinery for the adjudication by the National Tax Tribunal of disputes with respect to levy, assessment, collection and enforcement of direct taxes and also to provide for the adjudication by that Tribunal of disputes with respect to the determination of the rates of duties of customs and central excise on goods and the valuation of goods for the purposes of assessment of such duties as well as in matters relating to levy of tax on service. The Act is bound to raise constitutional issues of immense significance as to validity of conferral of the power and functions of the Tribunal, the exercise of such powers and functions, and the concept of judicial review under the Constitution.

 

The Edict Machinery of Tribunals in India:

 

The concept and the constitution and functioning of the Tribunals established under Administrative Tribunals Act. The exclusive jurisdiction hitherto have the benefit of by the Tribunals in service matter and distinguish the High Courts was put at stop partially by the Supreme Court of India in its landmark judgment in ‘L.Chandra Kumar Vs.Union of India and others. The Supreme Court diversified and re-distributed the jurisdiction of service matters etc in between these Tribunals for which purpose they have been established and High Courts as per the spirit of the Constitutional mandate enunciated by the framers of the Constitution, keeping in

view the ‘Basic Structure Theory’ and the provisions contained under Article 226,227, 32 and Articles 323 A and 323 B of the Constitution of India.

The salient feature of our Constitutional system that whenever new legislations or enactments are passed, either by Parliament or Legislative Assemblies, it is generally found that, they, being tested in courts of law, either on their validity as a whole or certain provisions of such acts if they are offending any provisions of Constitution, any public policy or established legal principles. Therefore, no exception was shown to the ‘Administrative Tribunals Act, 1985, enacted in terms of Article 323 –A of the Constitution of India. Consequent upon the establishment of service Tribunals in the country ‘under the Administrative Tribunals Act, 1985, a string of litigation had erupted before the High Courts of several States and also in Supreme Court, questioning the validity of certain provisions of the Act and also ultra vires of Articles 323-A and 323-B. Firstly, the ‘Apex Court’ by a Five Judge Constitution Bench, headed by the then Hon’ble Chief Justice, Justice P.N. Bhagwati, examined the constitutional validity of Article 323-A and its provisions in S.P. Sampath Kumar Vs. Union of India and others3 said Bench while upholding the validity of Article 323-A, held that the Service Tribunals created under Article 323-A are substitutes to the High Courts and the exclusion of the jurisdiction of High Courts is legal. Thereafter, a seven Judge Constitution Bench of the Supreme Court in ‘L. Chandra Kumar case’ while dealing with power of judicial review vested in High Courts and Supreme Court under Articles 226,227 and 32 respectively vis-a-vis Articles 323-A and 323-B not only deviated from the earlier discussion of the Supreme Court in ‘S.P. Sampath Kumar’s case’, but also held that, the Tribunals are supplementary in their role and the power of ‘Judicial Review’ vested in High Courts and Supreme Court under Articles 226, 227 and 32 is an inviolable basic structure of the Constitution and struck down clause 2(d) of Article 323-A and clause 3(d) of Article 323-B of the Constitution of India to the extent they exclude the jurisdiction of High Courts and Supreme Court under Articles 226/227 and 32 as unconstitutional and also Section 28 of the

‘Administrative Tribunals Act, 1985′ which excludes the jurisdiction of High Courts. The Supreme Court in the above case further held that: “The Tribunals created under Article 323-A and 323-B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a ‘Division Bench’ of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunal will, nevertheless, continue to act like Courts of ‘first instance’ in respect of the areas of law for which they have been constituted. It will not, therefore, be open or litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal.” In the same case, when an argument was advanced for the superintendence over the Tribunals by the concerned High Courts, the Supreme Court categorically held as follows: “To this end, it is suggested that the Tribunals be made subject to the supervisory jurisdiction of the High Court within whose territorial jurisdiction they fall. We are, however, of the view that this may not be the best way of solving the problem. We do not think that our Constitutional scheme requires that all adjudicating bodies which fall within the territorial jurisdiction of the High Courts should be subject to their supervisory jurisdiction. If the idea is to divest the High Courts of their onerous burdens, then adding to their supervisory functions cannot in any manner, be of assistance to them”. Therefore, in view of the law laid down by the Supreme Court in ‘Chandra Kumar’s case’(emphasis furnished supra) this Tribunal is now functioning as a ‘Court of first instance’ like any other Tribunal in the country established under Article 323-A of the Constitution of India. It is also to be noted that the ‘Judicial Review’ propounded by the Supreme court in ‘Chandra Kumar’s case cannot be treated/equated with an ‘Appeal’ in as much as the constitutional exercise by way of ‘Judicial Review’ displayed by the High Courts originated from the ‘Basic Structure Theory’ read with Articles 226 and 227 of the Constitution of India.

 

Appellate provisions under the direct and indirect tax enactments

 

Aforementioned to National Tax Tribunal, under the direct and indirect tax enactments, appeals on substantial questions of law from the decisions of tribunals such as the Income Tax Appellate Tribunal and the Customs, Excise and Service Tax Appellate Tribunal lies to the High Court.

The Income Tax Appellate Tribunal Under Section 252 of the Income Tax Act, 1961 an appellate tribunal known as Income Tax Appellate Tribunal has been set up which consists of both judicial members as well as Accountant members. This tribunal hears appeals against orders passed by the Deputy Commissioner of Appeals or the Commissioner of Appeals, as specified in Section 253 of the Act on questions of law as well as questions of fact. Under the direct tax regime, Income Tax Appellate Tribunal is the final authority as regards determination of questions of fact. Under Section 260 A of the same Act, an appeal lies to the High Court, from every order passed by the Income Tax Appellate Tribunal if the High court is satisfied that the case involves a substantial question of law. However, there is also a provision for filing further appeals to the Supreme Court from any judgment of the High Court as specified under Section 261, only if the High Court certifies that the case is fit for appeal to the Supreme Court. In cases where High Court refuses to give such certificate, the aggrieved party has an option to invoke extraordinary jurisdiction of Supreme Court through special leave petition under Article 136 of the Constitution of India. Income Tax Appellate Tribunal, High Courts and the Supreme Court have been given similar powers of hearing appeals in respect of disputes concerning wealth tax under the Wealth Tax Act, 1957. The Customs, Excise and Service Tax Appellate Tribunal Under Section 129 of the Customs Act, 1962 the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has been constituted which consists of Judicial as well as Technical Members. The Tribunal hears appeals against orders passed by the authorities mentioned in Section 129 A of the Customs Act. It also hears appeals against orders passed by the excise authorities as specified in Section 35 B of the Central Excise Act, 1944. Earlier, instead of appeal a reference used to lie regarding questions of law. An appeal lies to the High Court on a substantial question of law against an order passed by the Customs, Excise and Service Tax Appellate Tribunal, under Section 130 of the Customs Act, as substituted by the Finance Bill, 2003. Similar provision has been incorporated in respect of appeals to High Courts under the Central Excise Act, 1944. The tribunal also has appellate jurisdiction in anti-dumping matters and the Special Bench headed by the President of the tribunal hears appeals against orders passed by the designated authority in the Ministry of Commerce. The appeals under the Service Tax are also heard by the tribunal. This tribunal is the appellate authority on matters relating to classification and valuation, with the appeals lying to the Supreme Court in these matters.

 

The Need for Establishment of National Tax Tribunal in India:

 

The necessity for uniformity and certainty in the administration of tax laws (both direct and indirect tax laws), appeals or references from the orders of the Income Tax Appellate Tribunal and the Customs, Excise and Service Tax Appellate Tribunal lie with the High Courts, these Courts get flooded with such cases which need considerable time to dispose them. Due to the heavy workload of the High Courts, there is a huge backlog of tax related cases as a result of which huge revenue is blocked in such litigations. This is adversely affecting the national economy. Hence, urgent measures are required to be taken to speed up taxation matters pending

before the High Courts. It may also be noted that there are at present 21 High Courts. Many a time, decisions of the High Courts vary from each other which create uncertainty, delays and problems in the administration of tax matters. Conflict of decisions amongst various High Courts

on the same point of law have the effect of distorting uniformity and give rise to unnecessary appeals to the Supreme Court which results in further delay.

National Tax Tribunal will help in clearing the backlog and mitigating the burden that lie at the doors of High Courts. The constitution of the National Tax Tribunal would relieve the taxpayers from the burden of pursuing the tax disputes for a long period and substantially reduce the workload of different High Courts which could not concentrate and devote as much focus which the complex tax laws presently demand.

 

Judicial Sovereignty and the National Tax Tribunal

 

In the Landmark Judgments of the Court in L Chandra Kumar and Sampath Kumar that even if the Tribunals have to play a supplemental role, given the powers that they enjoy, including the power to strike down legislation as ultra vires the constitution, the NTT will have to enjoy Judicial Sovereignty as understood in the Indian constitutional context. Judicial Sovereignty in India always has been a very controversial subject. The judicial pronouncements and the scholastic opinion in this regard, point out different stages at which the independence of the judiciary will have to be assessed. Judicial Sovereignty will include the collective independence of the judiciary from the other branches of the State and also the independence of the individual judges. The first aspect relates to appointment, removal etc whereas, the second aspect relates to matters concerned with security of tenure, salaries and allowance etc. Let us take up these issues in relation to the National Tax Tribunal. The Members and the Chairperson of the National Tax Tribunal are appointed by the Central Government in accordance with the recommendation of a selection committee consisting of the Chief Justice of India or his nominee. Though the other two members in the committee are not from the judiciary, it is submitted that this is sufficient safeguard against executive fiat. In terms of the qualification also sufficient safeguards seem to have been provided. The legislation provides that all members including the Chairperson have sufficient legal qualifications and adequate experience to handle complex matters relating to tax as also maters relating to the vires or otherwise of legislations and administrative actions. More importantly, the method of removal of the member and the Chairperson also has been made sufficiently elaborate to minimize executive interference. Section 11 provides that removal and suspension can take place only in consultation with the Chief Justice and on completion of a formal enquiry. The Chairperson also has been given enough discretion to constitute the benches of the National Tax Tribunal. In terms of salaries and other benefits, the members and the Chairperson have been accorded the same status as that of High Court judges. Also of significance is the fact that these Tribunals have been vested with contempt powers under section 12 of the NTTA, 2005 in addition to certain powers of the Civil Court granted to it in section 16. The legislation also protects actions taken in good faith in the course of discharge of duties by any member, Chairperson or other employee, which also helps in maintaining judicial independence. In all it is submitted that the provisions of the enactment do indeed secure judicial sovereignty.

 

The Differentiation of National Tax Tribunal and High Courts in India

 

There is a provision in the Act that may cause adversity to tax-payers. The Act stipulates that an appeal before the NTT can be preferred only if the appellant deposits at least 25 per cent of the tax or duty payable on the basis of the order appealed against. The NTT is also given the discretion to condone this requirement. There is no such stipulation in cases that go before the

high court. Yet another distinction is that no interim order can be passed by the NTT without hearing the other party. No Tribunal constituted under 323A or 323B of the Constitution can ever

oust the jurisdiction of the high court under Articles 226/227 of the Constitution. The writ jurisdiction of the high court will continue, despite the provision that appeals from the NTT will go to the Supreme Court. The NTT will, therefore, be one more forum working along with the

High court.

The Government makes it appear that there is huge pendency before the various high courts involving fiscal disputes. The truth seems to be that the overall pendency does not exceed 30,000 cases, the maximum being around 10,000 in Mumbai and an equal number in Delhi. Probably, constitution of permanent tax benches in these two High Courts will solve the problem for revenue. The NTT will not be governed by the Civil Procedure Code, though rules of natural justice will apply.

 

Conclusion

 

There cannot be fault with the intention of the Government, to reduce the backlog of cases, in proposing the National Tax Tribunal, but the way in which the NTT has been setup raises a lot of concern. Apart from creating multiple and simultaneous structure for the resolution of tax disputes, which will obviously lead to a lot of turmoil, the NTT also faces challenges in the form of allowing Chartered Accounts to appear before it. The enactment seems to fair well in terms of securing the independence of the judiciary but fails the Constitution on account of abridging the writ jurisdiction of the High Courts in relation to the transfer of cases. This is a grave blemish that will have to be rectified. Efficiency arguments for and against the Tribunal can be analyzed or answered only if a systematic and scientific study happens in that regard. The Law Commission must come out with official statistics in this regard. More importantly, we will have to decide whether Tribunals are the best way to deliver justice in relation to tax matters or whether mere creation of exclusive tax benches in the High courts would solve the problem. Vacancies in the High Courts are not filled regularly nor is there a concerted effort at the national level to streamline procedures relating to dispose off pending disputes. The Government has not been able to come up with any realistic presentation statistics of existing tribunals nor has it explained tribunalize the tax administration for the justice further. At least in future, efforts like this, to create an alternative forum and working substitute for the Court must be backed with methodical study, more debates and comprehensive planning, in order to guarantee that they do not end up as unproductive outlay at the hands of the exchequer.

 

Bibliography:

1) Durga Das Basu- Shorter Constitution of India- Thirteenth Edition 2001 Wadhwa Nagpur.

2) H.M.Seervai-Constitutional Law of India: A Critical Commentary- Universal Law Publishers

3) Walter W. Brudno- Taxation in India-Harvard Law School International Program in Taxation.

4) The National Tax Tribunal Act, 2005- Bharatgazette Government of India.

5) The National Tax Tribunal (Amendment) Act, 2007- Manupatra Bare Act.

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No matter where you live, whether it is in San Diego, Orange County, Los Angeles, La Jolla, Del Mar, Pacific Beach, Carlsbad, Oceanside, San Marcos, Mission Beach and Escondido or the cities of Huntington Beach, Anaheim Hills, Yorba Linda, Buena Park, Anaheim, Santa Ana, Irvine, Costa Mesa, Irvine, Newport Beach, Corona del Mar, Laguna Beach, and Laguna Hills, Buena Park, Temecula, Indian Wells, La Quinta, or Palm Springs, unless you haven’t turned on the television or read a newspaper during the 2008 Presidential election, or looked at the internet, you have seen claims by the Republican campaign that the publishing media is biased.

Attacking the media has long been a tactic of national candidates. In this election, once again, we have seen this tactic employed, yet with little of the success it enjoyed in previous Presidential campaigns.  As an election and  constituitonal lawyer, one can only applaud this lack of success in the use of this tactic in this election.

For the most part in this Presidential campaign, one candidate has been leveling these attacks on the press with regularity and with increasing anger, John McCain. While newspapers expect this to some extent, the public that is not wedded to one side of the fence or the other appears to be tiring of the attacks.

Recently, John McCain denounced the New York times in the strongest words, following a Times report that McCain’s campaign manager, Rick Davis, had been pain nearly $2 million by mortgage entities Fannie Mae and Freddie Mac. McCain’s chief strategist, Steve Schmidt said the New York Times is no longer a journalistic organization but is 150 percent in the tank for Barack Obama. Schmidt earlier attacked MSNBC as being an organ of the Democratic National Committee, and said the news media are on a mission to destroy Sarah Palin.

Unfortunately for John McCain, it has since been reported in the press that McCain’s campaign manager’s lobbying firm owned by his campaign manager has received $15,000/month for nearly three years and that and that the campaign manager was paid $30,000/month for nearly five years by an advocacy organization that he headed and which was financed by Fannie Mae and Freddie Mac to fight regulation. It has further been reported that McCain’s senior advisor, his campaign’s vice chairman, and his Congressional liaison, also made large sums of money from Fannie and Freddie lobbying or were in firms that did.

In an apparent attempt to deflect attention away from his mistaken attack on the New York Times story, McCain then announced he was suspending his campaign to immediately fly to Washington after awaking that morning to find a report in the Washington Post that he was behind in the polls by nine points. Soon after attempting to criticize that finding, and knowing what the disaster Sarah Palin’s interview with Katie Couric would be aired that night, McCain chose to dump his appearance on the David Letterman show, upstage the Couric interview with his own interview on the CBS News, and announce the suspension of his campaign that was in reality, never a suspension.

In hindsight of course, McCain’s actions were a huge error in judgment. His dilly-dallying around New York after ditching Letterman were picked up on and hammered at him unmercifully for two nights on the David Letterman show and later on the Daily Show, other news shows, on the internet and in the press. By the time he arrived the next day in Washington, it had already been announced that there was bipartisan support for the bailout bill, that just as quickly dissipated upon his arrival. It was reported that his campaign had not been suspended and Letterman, among others joked at his expense why he must have felt he could not leave his campaign in the hands of Sarah Palin, when she was seen incapable of answering simple questions put to her by Katie Couric. And after announcing he would not take part in the debate until there was either a bailout bill or great progress toward one, he had to fly back from Washington for the debate with no bailout bill in hand and Congress much less united than when he had arrived.

In the past, attacking the press has proved fruitful for Presidential candidates. This time the attack is falling on deaf ears and has either been the exception to the rule that it will help a candidate, or there is a change taking place in what a candidate risks if he is wrong.  As an election, campaign, publishing, marketing, media and constitutional law attorney, one can only conclude that negative attacks by the candidates are not working as they used to, whether it is against the media or against the other candidate.  The public has become weary of such tactics and it is showing in the polls.

Visit the Sebastian Gibson Law website at http://www.SebastianGibsonLaw.com . If you have a publishing, literary, first amendment, media, marketing or constitutional law issue, come to an experienced law firm who can represent you as your California Publishing Lawyer, your San Diego Constitutional Attorney and your attorney throughout Southern California. We have the resources and knowledge to represent you from San Diego to Orange County, from Huntington Beach and Newport Beach to Long Beach, Santa Monica, Ventura, Santa Barbara and San Luis Obispo. We also represent clients inland from Anaheim to Temecula, from Rancho Cucamonga to Palm Springs and Indian Wells.

Unless you are in a coma, it doesn’t matter where you live in California, in Corona del Mar, San Diego, Orange County, CA, Palm Springs, Palm Desert, Long Beach, Santa Ana, Anaheim, Riverside, Chula Vista, Irvine, San Bernardino, Huntington Beach, Fontana, Moreno Valley, Oceanside, Rancho Cucamonga, Ontario, Garden Grove, Palmdale, Corona, Escondido, Orange, Fullerton, Costa Mesa, Victorville, Carlsbad, Temecula, Murrieta, Mission Viejo, El Cajon, Vista, Westminster, Santa Monica, Santa Barbara, Hesperia, Newport Beach, Buena Park, Indio, Rancho Mirage, Indian Wells or Coachella, you will have somehow heard there is an economic crisis going on, and that Congress passed a whopping $700 billion bailout plan.

 

What you may not know, is that Treasury Secretary Henry Paulson’s draft proposal for the bailout of financial service firms on Wall Street as it was presented to Congress was an unconstitutional power grab of monumental proportions.

 

Under Paulson’s plan, no oversight, no review and no challenges would have been allowed by the courts, by Congress or by individuals. Henry Paulson had proposed that he effectively be appointed economic czar.

 

Under Section 8 of his initial proposal, which for years to come, will undoubtedly form the basis for questions on bar exams for law students, “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.”

 

Under Section 8 of this Act, the Treasury Secretary would arguably have become a more powerful figure than our largely missing-in-action President, more powerful than the head of the Federal Reserve, the SEC and Congress combined, and as such in violation of the Constitution of the United States of America.

 

The draft proposal was in conflict with the Constitution for the simple reason that our nation’s most important document provides that every member of the executive branch, including the Treasury Secretary, is subject to legislative and executive review. Neither Congress nor the executive may delegate its authority to a cabinet member. It would have been like Congress delegating all its power to Sarah Palin, or to a single congressman, or to Superdog for that matter.

 

As hard as it is to violate the nondelegation clause in the Constitution, if there has ever been a proposal to come out of the executive branch which does a good job of it, it has been argued that this is probably the one.

 

The question is, did the President tell Paulson to get a blank check from Congress and to heck with the Constitution or did Paulson come up with this on his own? Did the President and Paulson really believe that if they told Congress they needed this power in 24 hours like the TV show, that Congress, even the Republicans in Congress, would give it to him?

 

In bad times even more so than in good times, we expect the leaders of this country to protect the Constitution of the United States, not to usurp the powers it conveys on other branches of government. Let us hope that in the coming days and months as this country tries to mend itself from this economic crisis, that Congress remembers what the executive branch seems to have forgotten – the Constitution.  

 

If you have a constitutional, or first amendment law issue in San Diego, Newport Beach, Irvine, Orange County, La Jolla, in the Inland Empire, Los Angeles, Palm Springs or anywhere in Southern California, we have the knowledge and resources to be your California Constitutional Lawyer and your Palm Springs and San Diego Business Attorney. Be sure to hire a California law firm with business and constitutional law experience who can serve areas such as Los Angeles, Palm Springs, Palm Desert, Anaheim, Irvine, Newport Beach, Carlsbad, Corona del Mar, Laguna Beach, Huntington Beach, Santa Ana, Rancho Cucamonga, Ontario, Fullerton, Del Mar, San Diego, Orange County, San Luis Obispo, Buena Park, La Jolla, Oxnard, Ventura, La Quinta, and Santa Barbara so you are properly represented.

 

If you have a constitutional, first amendment or business law issue of any kind, call the Law Offices of R. Sebastian Gibson, or visit our website at http://www.sebastiangibsonlaw.com  and learn how we can assist you.