Convictions: Slate's blog on legal issues

Wall Street, meet the unitary executive

On Monday, Treasury Secretary Hank Paulson unveiled the Bush administration's "Blueprint for Stronger Regulatory Structure," its latest response to the sub-prime mortgage crisis and severe case of influenza affecting America's financial markets.  No surprise, the plan calls for some fairly sweeping changes in the way the SEC, Federal Reserve, and other agencies regulate America's financial markets.  According to the Post:

. . . Treasury Secretary Henry M. Paulson Jr. said he also plans to ask Congress this year to set up a new agency to oversee mortgage lending and take action to enhance his department's role as the chief regulator of financial markets.

The Treasury's initiatives seek to sweep away the current patchwork of regulation over the coming decade in favor of three more powerful agencies to oversee banking, market stability, and consumer and investor protection. The plan's authors have argued that such changes are needed because government oversight has not kept up with the pace of financial innovation.

Paulson acknowledged that the recommendations would not prevent future crises but said that they would make government more nimble in addressing them. "We should and can have a structure that is designed for the world we live in," he said in a speech at the Treasury.

Uh huh.  So, let me make sure I have this right.  The administration embraced deregulation and free market theory as if it were handed down from Mt. Sinai.  It then sat idly by while the sub-prime mortgage market imploded, and watched as that market's failure trickled up into other sectors of the economy.  All the while, this admistration spent taxpayer money like a drunken sailor (to use Sen. John McCain's memorable phrase), running up the federal debt and mortgaging our grandchildren's future.  And the administration pursued wars in Iraq and Afghanistan likely to cost the country $3 trillion.  And now, they want the people trust the Bush administraiton by giving it more power over the American economy?

Wall Street, meet the unitary executive.  Another day, another crisis, another power grab.

A tectonic shift on Wall Street?

In an incredibly opaque speech to the U.S. Chamber of Commerce yesterday, Treasury Secretary Henry Paulson implied that he would seek "the same type of regulation and supervision" for investment banks as that which exists for commercial banks.  He made the comment while defending the Fed's moves to front $30 billion to support the rescue of the ailing Bear Stearns investment bank. But, Paulson stopped short of encouraging a massive regulatory push -- saying that "recent market conditions are an exception from the norm" and that "bank regulation . . . is fundamentally different from non-bank regulation." 

It's not clear yet how much legal or regulatory change is coming to emerge from the Bear Stearns crisis, or the sub-prime mortgage meltdown.  But a front-page article ($) in Monday's Wall Street Journal speculated these crises would bring a tectonic shift in the way American law treats business:

The idea that less regulation is better for the economy has held sway in Washington since the Reagan administration. Now that consensus is crumbling, posing a potentially costly challenge to business no matter who wins the White House in November.

The crisis in the nation's housing market, the recent turmoil on Wall Street and a series of safety scares involving food, drugs and toys are driving both political parties to reconsider how much companies and markets should be relied upon to police themselves.

Even under the pro-business Bush administration, it appears the question isn't whether the government will enact tougher rules for various parts of the economy, but just how much stricter those rules will be. The new climate has some business groups girding for battle against what they fear could be onerous new requirements.

"We're in for a potentially significant regulatory response," said Glenn Hubbard, dean of Columbia University's business school and a former chief economist for the Bush White House, referring to the credit crunch and its impact on financial markets. "The hope is we won't overreact."

Today's reactions ($) to Paulson's speech seem to confirm that such a tectonic shift is underway.  I think some regulatory improvements are in order, but like Prof. Hubbard, I think there's also a significant risk of overreaction here.  And more broadly, I worry that we might be looking to law as a false panacea for all that ails American capitalism today -- and specifically, what afflicts the mortgage market.  There are limits to what the law can accomplish, and I don't know that re-regulation or toughened financial laws will do what we want here.  What do you think -- is this tectonic shift away from deregulation a good idea?  What is the proper role for law in America's financial markets?