Senior creditors: Chrysler deal violates 5th Amendment

posted at 1:36 pm on May 4, 2009 by Ed Morrissey

If the Obama administration expected the senior creditors of Chrysler to fold their tents under political pressure, they may have gotten a rude shock today.  Thomas Lauria, who accused the White House of threatening the creditors withn humiliation at the hands of the White House press corps, has filed a motion to halt the administration’s machinations on behalf of the UAW in the Chrysler bankruptcy.  Lauria and his allies claim that the Obama administration has violated the Constitution in their bid to devalue the senior creditors’ holdings on behalf of junior creditors, and have some precedent to support the allegation.

The heart of the argument starts on page 8 (via HA commenter Outlander):

III. The Taking of Collateral through a Direct or Indirect Use of TARP Authority is Unconstitutional.

13. The Treasury Department relies on TARP as the purported authority to justify the disparate treatment under the 363 Sale, even though TARP was enacted after the Senior Lenders’ liens on the Debtors’ property were already in place. The Supreme Court long ago recognized, however, that a secured creditor’s interest in specific property is protected in bankruptcy under the Fifth Amendment. Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 594 (1935). That case involved a Depression-era statute that was intended to help bankrupt farmers avoid losing their land in mortgage foreclosure. The statute in Radford provided that the bankrupt debtor could achieve a release of the security interests either (i) with the lender’s consent, purchasing the property at its then appraised value by making deferred payments for two to six years at statutorily-set interest rates; or (ii) by seeking from the bankruptcy court a stay of the proceedings for up to five years during which time the debtor could use the property by paying a rent set by the court, which payments would be for the benefit of all creditors, with a purchase option at the end of that period. Id. at 856-57.

14. Justice Brandeis noted that the “essence of a mortgage” is the right of the secured party “to insist upon full payment before giving up his security [i.e., the property pledged].” Radford, 295 U.S. at 580. In invalidating the statute, the Court stated that “[t]he bankruptcy power . . . is subject to the Fifth Amendment,” and that the pernicious aspect of this law was its “taking of substantive rights in specific property acquired by the bank prior to the act.” Id. at 589-90 (emphasis added). Thus, Congress could not pass a law that could be used to deny to secured creditors their rights to realize upon the specific property pledged to them or “the right to control meanwhile the property during the period of default.” Id. at 594. That is precisely what the Treasury Department would have Chrysler do here, with respect to the Chrysler Non-TARP Lenders’ property rights that were acquired prior to the enactment of TARP.

15. Relying on purported authority provided by TARP, the Treasury Department is demanding that Chrysler’s assets be stripped away from the coverage of the Senior Lenders’ liens – thereby impairing the rights of the Senior Lenders to realize upon those assets – so that those assets may be put in New Chrysler and used to the benefit of unsecured creditors in this proceeding, who will then be paid much more than the Senior Lenders. But, even assuming that TARP provides the Treasury Department with authority to provide funding to the Debtors and impose the transfer of collateral away from the Senior Lenders, TARP was enacted long after the Senior Lenders contracted with the Debtors and received senior liens on the Debtors’ property. Radford specifically disallowed the use of a law to retroactively alter existing liens on property.

16. Here, the proposed sale of the Debtors’ assets will leave the Senior Lenders with a diluted pool of assets and no further interests in the operating assets covered by their specific liens. The Constitution forbids this application of a law retroactively to undercut the Senior Lenders’ pre-existing property rights in favor or inferior creditors.

17. Finally, that the Treasury Department would take these unconstitutional actions to help the United States address difficult economic times is not an answer. Indeed, the same justification was expressly rejected in Radford, where Justice Brandeis noted that a statute which violated secured creditors’ rights, but which was passed for sound public purposes relating to the Great Depression, could not be saved because “the Fifth Amendment commands that, however great the nation’s need, private property shall not be thus taken even for a wholly public use without just compensation.” Id. at 602.

18. What is really striking here is that what is being proposed by the Sale Motion would strip the Collateral away and allow it to be put to use as new capital in New Chrysler for the benefit of existing and other creditors – even though the Chrysler Non-TARP Lenders have been given no opportunity to realize upon that Collateral to the point of full repayment ahead of at least $14 billion of selectively identified unsecured creditors.

One might think that a Constitutional scholar like Barack Obama would have already known that, but either this precedent escaped him or he doesn’t care about it at all.  Brandeis acted to uphold contract law, especially in the face of a government interest in paying off politically-connected unsecured creditors ahead of the senior creditors.  There is no other reason for Brandeis to make that decision, as only government could insert itself into the contractual relationship during a bankruptcy proceeding — just as Obama has done with Chrysler.

Lauria’s argument seems very compelling here, especially given Brandeis’ rather clear assertion that bankruptcy proceedings have to fall within the 5th Amendment — and that government can’t implement a taking to satisfy its own arbitrary aims by ignoring the relationship of the creditors to the default.  We’ll see whether the court rebukes Obama.


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F.Y.I. – Thomas Lauria will be a guest of Fox’s Megyn Kelly & Bill Hemmer this morning and on Cavuto this afternoon…

Buy Danish on May 5, 2009 at 7:32 AM

The Whitehouse is being triangulated. If this goes to court, all the details on the alleged ‘threat’ to use the Press Corp against a debt holder, as well as many other things, will be subject to disclosure. Look for an out of court settlement on this one, using taxpayer TARP funds, of course.

percysunshine on May 5, 2009 at 7:52 AM

out of court settlement is not a bad thing, but what we don’t want is one that “gags” the parties where the truth doesn’t come out.

kelley in virginia on May 5, 2009 at 8:04 AM

Why should Oslime-a care about the constitution? He was elected by ignorant Americans that would rather practice feel good politics than follow the rule of law.

csdeven on May 5, 2009 at 9:02 AM

F.Y.I. – Thomas Lauria will be a guest of Fox’s Megyn Kelly & Bill Hemmer this morning and on Cavuto this afternoon…

Buy Danish on May 5, 2009 at 7:32 AM

Good. I hope we have video clips here.

INC on May 5, 2009 at 9:16 AM

Why should Oslime-a care about the constitution? He was elected by ignorant Americans that would rather practice feel good politics than follow the rule of law.

csdeven on May 5, 2009 at 9:02 AM

Obama even re-took the oath of office. A lot of good that did.

izoneguy on May 5, 2009 at 9:37 AM

Lauria siad he couldn’t comment on the lies of Obama but siad creditors had recieved death threats. HMMMM sounds suspiciously familiar……oh yeah, NAZI Germany, in 1935.

nelsonknows on May 5, 2009 at 9:51 AM

My vote is for the ‘escapes him’ part. Do you really think Dear Leader knows anything about the Constitution? It’s obvious from the way he drives this bus that he views that document as just a piece of paper and crosses the lines whenver it suits his purposes.

Kissmygrits on May 5, 2009 at 9:51 AM

Because his clients are not happy, Tom Lauria is no longer commenting on the specific threats he alleges the White House made. But when asked by Megyn Kelly at the end of the interview if anything he said was untrue he said (I paraphrase):

I can’t comment. But if people keep pursuing this, which I hope they will, the truth will eventually come out.

Earlier in the interview he said (again, I paraphrase):

We were asked to submit a proposal to the “task force” which we did. Weeks went by and we got received no response. We began to see wire stories about the deal, but they wouldn’t communicate with us. We got a Congressman involved. No response. Finally we received an email that said:

We don’t negotiate with anyone who is not an official representative and we won’t talk to you.

Buy Danish on May 5, 2009 at 10:20 AM

Lauria siad he couldn’t comment on the lies of Obama but siad creditors had recieved death threats. HMMMM sounds suspiciously familiar……oh yeah, NAZI Germany, in 1935.
nelsonknows on May 5, 2009 at 9:51 AM

More like suburban Connecticut.

Buy Danish on May 5, 2009 at 10:24 AM

All anyone needs to know it the “Taking Clause” again, “The One” shows he hasn’t a clue about the constitution!

xler8bmw on May 5, 2009 at 11:01 AM

out of court settlement is not a bad thing, but what we don’t want is one that “gags” the parties where the truth doesn’t come out.

kelley in virginia on May 5, 2009 at 8:04 AM

A friend of the court should file a freedom of information thingy to go along with the case.

A President strong arming private citizens should not be covered up.

petunia on May 5, 2009 at 11:13 AM

This will be interesting, especially if other disgruntled shareholders who have seen their equity wiped out by administrative fiat join the battle:

Challenges to TARP, which gives vague powers to the executive branch, may unfold soon. If banks are nationalized, shareholders may assert they have been unfairly deprived of the value of their investments. [...]

As law professor Jeffrey Rosen points out, of 14 antitrust cases heard by the court over the past two terms, business won every time. Conservatives increasingly cite the limits of the Constitution’s “commerce clause,” or states rights, to blunt federal action.

Paul_in_NJ on May 5, 2009 at 12:26 PM

File suit? But wait, Obama hasn’t been able to pack the courts yet. Nevermind, the burning of the Reichstag worked once, maybe something can be engineered . . .

kens on May 5, 2009 at 2:09 PM

Why does he hire tax cheats? he obtains leverage and control over them.

Let’s not forget Chicago. rezco is singing about obama to the investigation. Blagojevech tols us how they think and speak. Obama has rahm, Jarrett and others that passed ‘tween Blago, Daley and the same chicago thugs. As we speak, the investigort in chicago has tapes that would indict obama. Others do also. This physical intimidation is dangerous. In chicago when obama ran for office, he eliminated his competition. scorched earth policy.
2 gays that were friends of Obama were killed at obama’s church. The lad that investigated his passports is dead.

seven on May 5, 2009 at 2:26 PM

Check out today’s WSJ letters page — the jig is up. The courts may or may not side with The One, but the people who are gonna get screwed by this taking surely won’t.

Sample comment:

Many of the Chrysler bondholders are investing on behalf of others (e.g., individuals and pension funds) and have a fiduciary obligation to those investors to maximize the value of their holdings. If they accept a settlement that is far less than fair value, they are breaching their fiduciary duty and ought to be subject to lawsuits.

Think of it as an added incentive for bondholders to not roll over.

Paul_in_NJ on May 5, 2009 at 4:41 PM

Constitution? Get a grip. These are the Obama times and the Constitution has been replaced by Teh Empathy.

DaMav on May 6, 2009 at 1:22 AM

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