The Clear Legality of the Platinum-Coin Solution

It's likely that early this year we will once again see another debt ceiling crisis, with Republicans in Congress threatening the credit of the United States in order to win unpopular policy concessions. One increasingly popular idea for getting out of this cycle of hostage-taking is for the president to mint a trillion-dollar platinum coin that would allow the federal government to meet its outlays even if Congress refuses to lift the debt ceiling to allow the executive branch to cover the expenditures is has already required. Support for the idea, however, is far from unanimous. Mother Jones's Kevin Drum has argued and reiterated that progressives are wrong to support the idea. The platinum-coin idea, Drum argues, is "not legal," and a legal challenge "would go against Obama 9-0 if it ever made it to the Supreme Court." Drum's objections, however, are erroneous. The platinum coin would be legal, and if the Republicans were to shoot their metaphorical hostage (i.e. the American people and the world economy) minting the coin could be the best of a series of bad options.

The most obvious problem with the "platinum coin is illegal" argument is that the relevant statue unambiguously authorizes the executive branch to mint platinum coins. As Laurence Tribe, perhaps the country's foremost scholar of constitutional law, puts it: "Using the statute this way doesn’t entail exploiting a loophole; it entails just reading the plain language that Congress used." Drum does not dispute this point. Rather, he argues that whatever the text of the statute says, the subjective intent of members of Congress was to just allow for platinum coins to be produced for collectors. But this evidence cannot show what Drum thinks it does.

We are bound by the text of statutes enacted by Congress, not by what individual members of Congress wanted the legislation to accomplish. The purpose of the statute and the intent of members of Congress are important evidence when courts are resolving statutory ambiguities, but here there are no ambiguities to be resolved. The courts might be willing to overlook the plain text of a statute if it produced an absurd result that interfered with the central purpose of a statute or made it unworkable, but that's not the case here. The goal of some members of Congress to ensure platinum coins could still be minted for collectors would not be obstructed if the statute is read literally.

It's not clear to me, therefore, why Drum is so confident that the Supreme Court would unanimously hold that a trillion-dollar platinum coin is illegal. Antonin Scalia, for example, has written two books arguing against Drum's theory that the subjective intent of legislators should trump the plain language of statutes enacted by Congress. Granted, Scalia has been known to ignore his preferred legal theories when they clash with his strongly held policy preferences, but it's not obvious to me that "making the Supreme Court responsible for a massive economic catastrophe" is one of those preferences. My guess is that the Supreme Court wouldn't even consider this case to be justiciable; it usually prefers to stay out of this kind of interbranch squabble.

The argument that the platinum coin is illegal, then, must rely not on technical legal arguments but on arguments that the coin would violate settled norms of presidential behavior. But Congress using the debt ceiling for blackmail also violates long-established norms. When choosing between unprecedented innovations, it seems obvious that the one that ends a constitutional crisis is infinitely preferable to the one that would make constitutional crises an entrenched institutional feature that may result in economic disaster. I agree that norms are important, and that we should not always rely on hyperformalist readings of the law when they violate settled norms of behavior. But in the context of a minority party transforming what has always been a symbolic vote into a yearly threat to destroy the functioning of the American government, it's difficult to take the argument that norms should preclude a lawful but unprecedented response from the Obama administration seriously.

There's an even bigger problem with Drum's argument. The Obama administration minting a trillion-dollar platinum coin would not violate the law. Complying with a refusal to lift the debt ceiling, however, would require Obama to violate the law. Drum is of course correct that "the debt ceiling is legal," and President Obama cannot directly refuse to obey it. But the problem is that Congress has also instructed the president to spend more than the debt limit in its appropriations bills. Not only that, but allowing a default based on the debt ceiling would conflict with the 14th Amendment, which states that "[t]he validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned." If Congress refused to raise the debt limit, then, Obama would be forced to violate federal law either way. Minting the trillion-dollar coin wouldn't merely be a legal solution to the crisis, it would be the only legal solution to the crisis, unless Obama were to simply give the congressional Republicans everything they want and ensure that this crisis become an annual event.

Minting a platinum coin should, of course, be a last resort, rather than being a desirable action in itself. Felix Salmon argues that the coin would "torpedo the international credibility of the United States." But compared to what? Rewarding blackmail? Allowing the Republicans to shut down the American government for an indefinite period and possibly crash the world economy? It's entirely possible that the platinum coin would be the least bad option. And even if it wouldn't be a prudent response on the part of the Obama administration, it would be perfectly legal.

Comments

For those who don't think that courts feel bound by the plain meaning of the statute even if it's tough, take a look at the recent case where a rapist's case had to be dismissed in California because the woman he frauded into sex wasn't married. Obviously, it's a terrible law, but there it is.

If it does turn out to be the "only" legal solution to the debt ceiling crisis come February, does it then become legally required?

Does anyone remember, just last summer, every liberal law prof in the country said that the SCOTUS would find ACA legal on interstate commerce grounds - a slam dunk
And all the profs were wrong.
Are any of em chastened ? not that i can see
All it takes is one judge to say someone has standing, and 31 USC 5112 (k) is whatever 5 of the SCOTUS say it is

Any way, this is all liberal hypocrisy: what would liberals say if R Reagan tried to fund the contras this way ? They would be screaming patently un lawful un constitutional endrun around congress's pwer of the purse faster then you could say holy smoke

Well, you are sure right about THAT! - which only points out one of the many flaws that have arisen in the "system" over the years as any sense of decorum, fairness, respect, integrity, justice, etc, has leaked out of it. One might argue that since the idea of "precedent" has practically been deconstructed out of existence that we don´t have to worry about such things anymore (that´s obviously what the Tea-partyers are thinking).

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