I've been wondering and maybe you have been too. Here is one opinion:
I imagine that the legal answer to that question depends on a nice distinction between practice and plain language. Under the plain language of the statute, interpreted imaginatively, the Fed can extend credit, upon the right showing, to any company or individual, and so why not insist on conditions on the loan? Heck, why couldn't EPA, in the name of fishable swimmable rivers (that's Clean Water Act language), ban all pesticides, including dishwasher detergent, or nationalize water users like the steel industry? Maybe it can! Which might be good news for environmental activists.
I thank David Zaring for the pointer to this very interesting analysis (there is a related version of this post up at www.marginalrevolution.com). Do you know more?
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- The Bailout and Oversight.
- The Dodd Plan: A Contract Clause Problem?...
- Four Ways to Rationalize the AIG Deal --
- The AIG Deal.
- What is the legal status of the AIG takeover?
In unusual and exigent circumstances, the Board of Governors of the Federal Reserve System, by the affirmative vote of not less than five members, may authorize any Federal reserve bank, during such periods as the said board may determine, at rates established in accordance with the provisions of section 14, subdivision (d), of this Act, to discount for any individual, partnership, or corporation, notes, drafts, and bills of exchange when such notes, drafts, and bills of exchange are indorsed or otherwise secured to the satisfaction of the Federal Reserve bank: Provided, That before discounting any such note, draft, or bill of exchange for an individual, partnership, or corporation the Federal reserve bank shall obtain evidence that such individual, partnership, or corporation is unable to secure adequate credit accommodations from other banking institutions. All such discounts for individuals, partnerships, or corporations shall be subject to such limitations, restrictions, and regulations as the Board of Governors of the Federal Reserve System may prescribe.
It seems rather straight forward, and not imaginative, to say that this allows the Fed to open the discount window to any corporation based on security that meets the satisfaction of the Fed. In this case, the security was equity in AIG.
In the EPA example, however, the steel industry wouldn't have put themselves into the mess. In other words, the Fed's statute doesn't involve the Fed forcing terms on AIG, quite unlike your EPA scenario.
As for the legality of the loan, it would be absurd to suggest that the Fed is not allowed to place conditions on the payment on the loan. Absent conditions, how could it even properly be termed "a loan?" Wouldn't that simply be a gift?
And Commentor is absolutely right about the legal basis.
Sure, the Fed could have gone to Congress for more authority, but, gee, I betcha that would open a political can of tapeworms.
Well, I suppose when Wamu starts to go belly up, the feds could invoke The Marine Mammal Protection Act.
Who will buy these treasury bills? Would they have bought the amount necessary to bail out all the companies that would have fallen after AIG failed?
The Fed bailed out AIG by giving $85 billion in exchange for warrants. So if the Fed owns the warrants then the Fed has control of AIG and not Treasury. Any profits or losses are passed through to Treasury. The Fed is owned by member banks, so unless I'm missing something the member banks are in control not the US government. In any case, the loan is in the nature of a bridging loan, which is temporary, and the warrants are the collateral. So I'm not sure the legal status has changed.
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