Is the Bailout Constitutional?

In the current crisis, bank runs and other forms of financial panic could lead to the collapse of the country's or even the world's economic edifice. Extraordinary measures might be in order. In extremis, it may seem quixotic to question the constitutionality of the federal bailout-but it's essential nonetheless.

Realists might say, "Save your ivory-tower doubts for the law journals." Supreme Court Justice Robert Jackson famously wrote, "The Constitution is not a suicide pact." Douse the flames first; then repair the bad wiring.

But a declaration of unconstitutionality, if justified, serves three vital purposes today. It imposes a heavy burden on proponents of the bailout to explain why the Constitution can be violated with impunity. It reinforces the case for abandoning the program once any true emergency has passed. And it helps establish a presumption against adopting similar measures that might be proposed to resolve future "emergencies."