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Supreme Court Vacates Stay Order in Chrysler Case, Refuses to Rule on Legal Challenges At This Time

The full Supreme Court just vacated the stay that Justice Ginsburg earlier entered that had temporarily blocked the government's plan for Chrysler. Why it did so is mysterious, since it noted that it was not ruling on the merits of the legal and constitutional challenges to the government's actions, and cautioned that "a denial of a stay is not a decision on the merits of the underlying legal issues." Justice Ginsburg yesterday granted a stay temporarily blocking the government's plan for Chrysler, which would give effectively give most of the company to the UAW union, while paving the way for a dubious merger with Fiat. The stay was sought by pension funds that were (along with taxpayers) ripped off by the government's plan. The government's handling of Chrysler trampled on federal bankruptcy laws, the federal TARP bailout statute, and the Constitution. The federal government has said that even if it is acting illegally, the courts are powerless to do anything about it, since the pension funds challenging its actions have no legal standing to complain. A federal bankruptcy judge bought this argument. But that is false, as I explained yesterday. Now, the government may argue that once the giveaway of Chrysler to the UAW and merger with Fiat goes through, that the legal challenges have become moot, preventing the courts from reviewing any legal violations that led to that merger. (I doubt the validity of that argument, since the giveaway will have lasting adverse consequences for the pension funds, above and beyond the dangerous precedent it sets for them and other secured creditors and capital markets, and the courts could still fashion relief to address some of the pension funds' injuries; but the government's argument may well be accepted, just as its standing argument earlier was accepted by the bankruptcy court. There is enormous political pressure on the courts to make the whole challenge go away). The bailouts have been economically destructive. The Washington Post today notes that as a result of being bailed out, General Motors is now even more subject to "political pressures," and as a result plans to build a money-losing politically-correct car "even if it loses money, taxpayer money." Obama recently pressured General Motors to keep its headquarters in high-tax, crime-ridden, racist, economically-collapsing Detroit. General Motors and Chrysler would have been better off if they had filed for bankruptcy last year, rather than taking federal money, since the bailouts have come with costly political strings attached, such as dropping opposition to costly CAFE regulations and other federal mandates, and bowing to political meddling in fundamental corporate decisionmaking, and have left the automakers with higher labor costs than if they had just ripped up their collective bargaining agreements in a standard bankruptcy. That endangers their long-run competitiveness. Indeed, the politicized auto bailouts resemble the failed British auto bailouts of the 1970s. If the automakers had ripped up their collective bargaining agreements in a regular bankruptcy, they would now be in a position to recover without taxpayer funds, since it was rising gas prices last year that pummeled their ability to sell the big cars that are their profit center, and gas prices have fallen enormously since their peak last year. The Obama and Bush Administrations used money from the $700 billion financial system bailout for an auto industry bailout. Legal scholars at the Heritage Foundation, Clinton Administration Labor Secretary Robert Reich and many other commentators have argued that using the bank-bailout money for auto bailouts violates the bank-bailout statute. The federal government is effectively giving Chrysler to the UAW union, while giving the shaft to other Chrysler stakeholders, like the Indiana state pension funds that invested in loans to Chrysler. As law professors like Todd Zywicki have noted, that violates federal bankruptcy laws. Indiana Treasurer Richard Mourdock was right to challenge it in court. Mourdock correctly notes that the unfair plan for Chrysler pushed by the Administration violates the bankruptcy laws and rips off Indiana residents by leaving state employee pension funds and construction funds with a small fraction of what they are owed by Chrysler, far less than the UAW is getting, even though the pension funds are secured lenders and the UAW is not. By cheating Chrysler's lenders, the government's plan discourages lending, and sets a dangerous precedent that makes it harder for companies like Chrysler to raise money to create jobs in the future, as newspapers like USA Today have noted.