Speed Bump: Supreme Court Puts Hold on Chrysler/Fiat Merger

It seems the marriage of Fiat and Chrysler has hit a speed bump (NYT):

Justice Ruth Bader Ginsburg, who handles emergency matters arising from the United States Appeals Court for the Second Circuit, issued a stay of the sale, preventing Chrysler and Fiat from completing the transaction immediately.

There’s a slim possibility this could become a serious roadblock to the merger, which was set to conclude at 4 p.m. today after the Second Circuit denied the stay and allowed the expedited path to merger to proceed.  Now, instead, there could be a delay of weeks, as Ginsburg and possibly the full Court decide what to do.

The arguments being made by the pension funds — the Indiana State Teachers’ Retirement Fund, the Indiana State Pension Trust, and the Indiana Major Moves Construction Fund — are pretty interesting and could have wide-ranging consequences, should Ginsburg choose to pass the issue up to the full Court.  The mostly likely argument to get them anywhere, as the Wall Street Journal’s law blog summarizes, is that they’ve had their constitutional rights violated by this deal, because junior creditors were privileged over senior lenders in Treasury’s deal.  The funds might have standing to argue that, but will need to prove existing, specific harm.

The trickier charge, and the one that makes me more uneasy, is this:

The United States Department of the Treasury (“Treasury”), purporting to  utilize powers conferred upon it by the Troubled Asset Relief Program (“TARP”) established under the Emergency Economic Stabilization Act of 2008, 12 U.S.C. 5201 (“EESA”), will have been permitted to structure and finance the reorganization of Chrysler without any judicial review of its authority to do so (the Bankruptcy Court incorrectly disposed of the issues by deciding that Appellants lacked standing);

Full text of the Pensioners’ Application is here, in PDF.  I’m not uneasy because I think that’s a bad charge — rather, it certainly seems like it’s true.  TARP hasn’t undergone any significant judicial review, and it seems like, if challenged, the authority of Treasury and the Fed to intervene in rescuing companies like G.M. and Chrysler, particularly when their decisions have involved the kind of leverage that comes close to outright threats, could crumble.  Beyond that, my faith in the lawyers at Treasury in particular is pretty thin, so I’m not sure I believe that they drew this up in an unassailable way.

I don’t think the Constitution prohibits the government from intervening in business in the U.S.  But I can certainly see how the current methods, which have at times felt slap-dash, might be unraveled by the Court.  Is that for the better?  I don’t know.  I don’t completely buy anymore the argument that Chrysler needs to be turned around in 30 days to survive, though I do believe that its workers will suffer more and harder for each day that the merger is delayed.

I’m actually hoping Eric Holder will have to issue a statement about this.  In fact, I find myself suddenly wishing that Holder was part of that Auto Task Force surrounding the president last week.

Better Angel or Bushian Demon? Is Obama Another Bush?

I’ve left the detainee abuse photo scandal alone this week, because my basic rule of blogging has been if you don’t have anything new to say, don’t say anything at all.  I’ve now reached a limit, though, of how many posts I can read that are taking this presidential decision as a sign of the coming Obamapocalypse, where, apparently, the Better Angels that Obama appealed to in his speech in Chicago have, instead, turned to hidden conservative Demons, bent on hiding information from the public, concealing torture, supporting evil regimes, and generally being as Bushian as possible.

To everyone making that argument, I say: Knock it off.

At least ten times in the past week I’ve read declarations by liberal bloggers about how they’ve lost faith in the president, how they’ve been deeply disappointed, how they’re disillusioned by his conduct, because he’s turned out to be just like his predecessor.

Seriously?  It’s taken fewer than 120 days to forget how bad things were?  Is the GOP that slick?

Let me remind you:

Barack Obama is nothing like George W. Bush.  Nothing.  Argue this any way you want, but his 120 days so far have so widely diverged from what we’ve seen in the last eight years that it’s almost a new country.  Take the photo scandal: We have a president who, having seen these photos, says releasing them into the world would only enflame anti-American sentiment.  That, my friends, is a debatable point — but what it isn’t is an endorsement of what’s in the photos.  Instead, it’s an admission that what’s in the photos is terrible, horrible stuff — not just embarassing stuff, as seemed to be the position at times of the last administration, but stuff that would make other people want to kill Americans.

That’s a leap forward from the previous president’s position that everything we did in Iraq and Afghanistan made America safer.  Bush left office still smiling, still saying that Operation Iraqi Freedom had helped not just Iraq but America and the entire world to become a safer place.  Our new president — the guy some would like to brand “Bush-lite” — has a pretty firm grasp on how unsafe things are for Americans in the world.  He understands there’s a balance to be struck.  He seems to also understand, if the switch of military personnel in Afghanistan this week is any sign, that our two on-going wars may not be winnable in conventional terms.

Think back to those shocking days in 2004 when the photos from Abu Ghraib were first released.  Think back to the administration’s reaction.  Donald Rumsfeld eventually testified before Congress that he took “full responsibility” for the events at that prison… and then continued to serve in the same job for another two years, during which he was frequently congratulated and celebrated by the president for the good job he was doing.

This president asked for the resignation of a guy who missed an e-mail about a plane making a photo-shoot pass by the Statue of Liberty.

We have an administration that is committed to greater accountability.  We have a president who comes out and explains his decisions, who takes responsibility, who seems focused on not just results but on the nuances of world diplomatic opinion.

Every time someone starts down the “just like Bush” path, it minimizes the tangible harm that Bush and his administration did to our country, by suggesting that the differences of opinion we have over how Obama is treating the clean-up are of similar magnitude to the differences of opinion we had over the things George W. Bush decided were OK: invasion of other countries without cause; abuse of the environment; rampant restriction on personal liberty; and an almost isolationist stance with friends and enemies alike that reduced America’s influence diplomatically worldwide.

Barack Obama is nothing like George W. Bush, except that he must now deal with issues that George W. Bush left behind.  The left is likely to disagree with his tactics for dealing with these things, but to say that the clean-up crew is in any way as responsible or reprehensible as the parties who made the mess in the first place is despicable and damaging.  Is it the maid’s fault that you didn’t make your bed?

I’m not saying Obama is above criticism.  I think many of his early moves have been questionable, particularly in the area of civil liberties.  But I’m tired of seeing the debate continue without context.  You can’t say, like the New York Times did, that Obama is acting like George W. Bush if you’re accurately remembering Bush’s positions at all.  When the Bush administration pushed to limit civil liberties, they did it to protect themselves; so far, the arguments that the Obama administration has made in court and in public have seemed more focused on actual points of security.

Criticism of the president is welcome.  But comparison to Bush, though tempting, is so far undeserved.