Politicians, Economists and the Supreme Court at Work
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Politicians, Economists and the Supreme Court at Work

The Founders Betrayed

Timothy P. Roth

Presented as an engaging thought experiment, Politicians, Economists and the Supreme Court at Work examines the metastasizing federal role through two different means: first, as it relates to the increasing concerns of a contemporary nation, and second, the depth to which that nation’s Founders would be appalled by the actions of their successors. Additionally, the book provides a critical appraisal of the burgeoning federal enterprise and the federal government’s ‘on-, off-, and off-off’ budget activities – ultimately answering the question, ‘What would the Founders do?’
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Chapter 1: The Federal Enterprise

Timothy P. Roth


BAILOUTS, STIMULUS AND ALL THAT On 3 October 2008, President George W. Bush signed a three-part bill (US Congress, House Resolution 1424, 2008). Division A of the bill styled the Emergency Economic Stabilization Act of 2008 subsumes three ‘Titles’, the first of which is the Troubled Asset Relief Program (TARP). The second Title codifies reporting requirements imposed upon the Secretary of the Treasury, the Office of Management and Budget and the Congressional Budget Office, along with an adumbration of required TARP-related federal budgetary analyses. The third Title sets out TARP-related tax provisions including Special Rules for [the] Tax Treatment of Executive Compensation of Employers Participating in [TARP]. While they have received relatively less attention, the Energy Improvement and Extension Act of 2008 (Division B) and Division C, the Tax Extenders and Alternative Minimum Tax Relief Act of 2008, are important for their own sake. On the one hand, because they are non-germane – they are unrelated to TARP – they say much about the modern legislative process. On the other hand, the bulk of Divisions B and C consists in the institutionalization, extension or modification of discriminatory tax provisions targeting well-defined group and individual beneficiaries. If Divisions B and C are, as I shall argue, a metaphor for the discriminatory post-constitutional politics that the United States’ Founders abhorred, my immediate interest centers on TARP (Division A). Section 2 of the Emergency Economic Stabilization Act of 2008 sets out TARP’s ‘Purpose’: The purposes of this Act are – (1) to immediately provide authority and...

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