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View Diary: Harvard Law Professor Laurence Tribe: The coin would be perfectly legal (74 comments)

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  •  Tribe's argument's weak (2+ / 0-)
    Recommended by:
    blue aardvark, Armando

    it's possible to make a stronger one, I suppose, but repeated use of the word "clearly" doesn't address the objection.  Nobody disputes that minting of the coin is a possible reading of the literal text (though I have my doubts as to whether "denomination" can be so broad in the context of the rest of the statute), the question is a deeper one regarding the role of literalism in the face of unintended consequences that the executive knows to be unintended but yet finds delegation to interpret it that way, regardless.  Speaking of the problems with collective mind prove too much -- there is legislative history, there is evidence from surrounding statutes.  His is an argument for textualism and only textualism, which is a method Tribe wouldn't ordinarily embrace.

    Tribe's taking too many shortcuts with a much more interesting question of administrative law by basically pointing his finger.  His analysis rejecting the 14th amendment "solution" was far more robust, precisely because he raised the same separation of powers concerns he glosses over.

    Assuming the statute authorizes it, it's constitutional - that argument is quickly put to bed.  Nevertheless, I'll take this as a signal to, you know, not do that.  If this is the best Tribe can do, I feel pretty good that it's not really authorized, which is separate from whether the Treasury could authorize it and get away with it (raising again the economic objections as well as where to get that much platinum -- someone can arbitrage that shit such that it isn't even possible to mint the coin without an increase in the debt ceiling before the fact.)

    Difficult, difficult, lemon difficult.

    by Loge on Wed Jan 09, 2013 at 09:30:38 AM PST

    [ Parent ]

    •  if Congress wanted it to be less broad (4+ / 0-)

      they were and are free to make it so.

      There are all sorts of laws and cases that had unintended consequences that were nevertheless allowed under a plain reading of the law that Congress had to then go back and change to correct that loophole.

      So while I don't know if it's a good idea or not, it could be, but I can also see downsides, I think if a plain reading of the law allows it, and there is no evidence that Congress specifically intended this not to happen, and I think we have both of those here, then it's legal.

      •  raises a separate concern (2+ / 0-)
        Recommended by:
        blue aardvark, George Hier

        i think i was too quick to dismiss the constitutional concerns.  They factor into whether or not this is a reasonable interpretation of the Constitution.  We're assuming a backdrop of using this to pay obligations Congress has already authorized.  But if the treasury indeed has this power, than Congress can only ever inhibit spending rather than being required to authorize it, and that by the 2/3ds necessary to overcome a veto.  (Why couldn't John Snow have paid for a war with Iran this way?)  That's a compelling reason to think beyond mere literal text, and a related but deeper objection to the notion that even entertaining this poisons relations with Congress, and indeed, excuses their obligation to raise the debt ceiling (which they're going to do! -- the only reason to care about this debate is to head off all of the arguments about why Obama shouldn't have agreed to what ever spending cut or some shit because of the coin blah blah blah).

        I think in most cases, policy concerns should mean that the executive branch can choose a second-best interpretation of a statute, but obligations of fidelity to law and underlying constitutional principles mean the bar has to be set a little higher than what we can get away with.  

        Difficult, difficult, lemon difficult.

        by Loge on Wed Jan 09, 2013 at 10:23:22 AM PST

        [ Parent ]

        •  reasonable interpretation of statute, i mean (0+ / 0-)

          (sentence 2).

          Difficult, difficult, lemon difficult.

          by Loge on Wed Jan 09, 2013 at 10:35:25 AM PST

          [ Parent ]

        •  that's a different analysis though (2+ / 0-)
          Recommended by:
          Miggles, MPociask

          because effectively you would be analyzing whether the statute as a whole is unconstitutional, but again, it's hard to see that argument simply because it's possible to see path whereby someone might maybe be able to use it in a way that's unconstitutional.

          Here, this is about minting coins, which the government does all of the time. We also print new money to replace old money, and engage in all sorts of things that laws have been set up to allow (e.g. the "extraordinary accounting tricks" being used right now to forestall the debt limit barrier).

          I'm not advocating the coin plan, as I am not as convinced as some that we wouldn't take a pounding in public opinion if we did it.

          But it seems to me that because it isn't new spending, and because it is no different than issuing bonds to pay obligations (which isn't in and of itself unconstitutional either) that it is constitutional, if possibly unwise.

          •  no, it isn't (0+ / 0-)

            i'm suggesting the lines aren't mechanical.  If an interpretation of a statute threatens to alter the balance of power between the branches, that's a check against that interpretation.  Constitutional concerns bleed into statutory construction, in other words.  The point about printing money is an interesting one, and it means that this statute should probably be read in conjunction with the practice of having the money supply under the control of the Fed.  The question isn't just what does this provision say, but how it fits in the overall legal matrix.

            Difficult, difficult, lemon difficult.

            by Loge on Wed Jan 09, 2013 at 10:59:02 AM PST

            [ Parent ]

            •  Any concern of balance of power (2+ / 0-)
              Recommended by:
              Miggles, MPociask

              between branches is likely to be a political question in this case, which won't be touched by the Court.

              Even if not, such a concern is pretty nebulous and would only be seized on IMO by "activist" judges who want to rule against it and want to grab onto something to justify it.

              Of course, that wouldn't be the first or the 21st time that's happened.

              The other question is, who would have standing? Congress? Taxpayers? It's not a tax so I don't think it would be taxpayers. I don't think Congress would have standing either, but if they did, it gets back to the political question.

              •  that again confuses (0+ / 0-)

                getting away with, versus being legal, which is a point i largely conceded.  

                i saw Krugman's post re the economics, and I think I understand what he's saying a little bit better  - there shouldn't be too much of a difference between the fed selling bonds it holds to shrink its balance sheet to cover the $1T and the Treasury issuing new ones (better than all the MMT jargon, treating these concepts as 'inherently' alike).  I can see that this is what "should happen," but the political failure and bad precedent this sets would itself have economic, not just political consequences.  The fact that there might not be standing to sue -- though I would imagine Congress could, or even the fed chair if he were willing -- supports the idea that this is a pandora's box, not takes away from it.  I think a lot of assumptions about the dollar being a "safe" investment might cease to apply.  And the point is this should be factored into the statutory analysis, not regarded as something separate.  As the executors of the law, the administration thus has a duty to take into account both the economics and politics in reaching a legal decision.  The economic case pro or con can't be confined to the short term, or even these precise facts.

                Difficult, difficult, lemon difficult.

                by Loge on Wed Jan 09, 2013 at 12:31:56 PM PST

                [ Parent ]

                •  I see no reason why it isn't legal (2+ / 0-)
                  Recommended by:
                  Miggles, MPociask

                  you've listed reasons why folks might be concerned it could be used illegally under certain circumstances, and I can see why an activist conservative judge might pick a way against it, but otherwise, my response is the link to it not being constitutional is extremely nebulous.

                  •  it's a fine line, (0+ / 0-)

                    but if the question is characterized as does the statute really do what it appears to do, then concerns about the application both now and down the road are one and the same as what does the statute say.  Assuming that the only potential objectors are conservative activist judges is a bit unfair and also circular -- i'd just go back to the argument that executive branch lawyers have an independent duty to statutory fidelity, not just the political wishes of their bosses (although these are not their political wishes), and I think a point worth going back to is that the "clarity" of the statute is really a conclusion and a product of judgment that these terms are unbounded and not inherently limiting, and that other statutes don't themselves impose a limitation.  It has to be argued for, beyond what Tribe did, which is read it the way, admittedly is the most natural.  (Of course, "natural" reading is a product of judgment, and a product of education and culture.)  Tribe, himself, would usually counsel a broader scope than in his e-mail, though my approach is admittedly more Dworkin.  Dworkin the person might agree with Tribe, but that's not terribly relevant.  Either way, the diary is citing Tribe for the name, not the type of analysis that made the name, so the counter-arguments aren't any less valid for that.  

                    Difficult, difficult, lemon difficult.

                    by Loge on Wed Jan 09, 2013 at 02:40:29 PM PST

                    [ Parent ]

                    •  Why don't y'all discuss the constitutionality of (0+ / 0-)

                      the debt ceiling. It seems to me it is contrary to the 14th Amendment. Also, you stated earlier that they wouldn't be able to find enough platinum. The coin doesn't have to equal $1T. It only has to represent $1T.

                      •  Ironically (0+ / 0-)

                        The best counter argument to that comes from Tribe: http://www.nytimes.com/...

                        Congress would violate the Const by not raising it, but that's not a delegation of power tomthe treasury to raise debt unilaterally, and I think the coin thing, while one might get away with it, is also not a good interpretation of the statute.  The purely literal reading only works in isolation of both other laws and rule of law ideals.  It, like anything else, still requires a theory of interpretation and a "story," so "don't like it, wrote a better statue," just can't be sustainable as a general maxim, not when there is such strong evidence the statute wasn't meant for this purpose (creating, in my view, implicit limitations from surrounding code sections).  It's a tactic of not asking questions because you don't like the answers.  Just look at the contrast in method between the op-Ed and the email above.  In brief, "it's unseemly" is actually a legal argument, not just a political one, an I'm actuallt coming around on the economics, IF one believes this can only be used once.

                        To the other point, you still need enough platinum to make it bullion.  At minimum, requires advanced planning.  I know perfectly well it doesn't have to be $1T worth.

                        Appreciate slow news cycles, but I just hope when this doesn't happen, and the next fiscal cliff deal isn't perfect, we can be spared the second guessing about why he didnt mint the coin.  That's the real concern.

                        Difficult, difficult, lemon difficult.

                        by Loge on Wed Jan 09, 2013 at 09:18:32 PM PST

                        [ Parent ]

                    •  I guess I'm confused (0+ / 0-)

                      because there are almost hundreds of cases where congress writes a law, the law is interpreted by its plain meaning, congress goes, well crap that isnt what we intended.

                      What follows is not, ah well, congress didn't intend that so it's unconstitutional, instead what follows is the courts effectively saying well congress, you need to write the law better/differently, followed by congress writing the law differently/better.

                      But you seem to want to say, no those cases the courts should have tried and figured out if congress really intended this result, even if a simple plain reading of the law leads to that result, and even if there is no legislative history to suggest they didn't want that result.

                      It's all a "conclusion." There's nothing special about that word in this context.

                      •  how many of those cases (0+ / 0-)

                        involve efforts to get around other recently enacted legislation?  Or are prima facie ridiculous? The circumstance you describe works when Tribe's comments about the collective mind being hard to discren, text the best evidence, etc., really do apply, and the correction is easy.  The shift here, would require a veto override to get around.  (Not sure why you keep bringing up courts, or constitutionality as neither have anything to do with the argument.)

                        What i'm suggesting that given that what we already know about what Congress intended, it calls into question whether it's really as plain as it initially appears. (I think, as a result, "denomination" has to  be bracketed by surrounding code provisions, so it's akin to the way it's used when spelled out -- has to be something like the denominations specified for gold coins.  Getting to the best meaning isn't the same as getting to the meaning with which natural language makes us the most comfortable).  

                        In most cases, of course there isn't an obligation to second guess oneself as long as there is textual support, but that's only because most cases don't involve absurdities.  There is an obligation, and it's an obligation that lawyers representing the United States have to the rule of law, when the implications involve massive transfers of power from one branch to another.  At that point, it's a deliberate policy choice not to examine whether there are plausible textual interpretations of the statute that don't create fiscal black holes.  That's what i mean by "conclusion."

                        Treating the analysis the way you are, as a somewhat mechanical process, is too glib.

                        Difficult, difficult, lemon difficult.

                        by Loge on Wed Jan 09, 2013 at 11:09:09 PM PST

                        [ Parent ]

                        •  they arent getting around anything (0+ / 0-)

                          they are following a different law.

                          Nor is it prima facie ridiculous. It's a plain reading of a law...it's the law of unintended consequences, which is something judges talk about all of the time when laws are badly written.

                          This is not a "massive transfer of power" it's clearly a measure that could only be used in a limited way for a limited time.

                          Nothing glib about it. Its a fair reading of the statute, and that rarely gets overturned, because then you start having the court interject what they THINK the congress meant whenever they wanted to, even when it's clear on its face, and you really, really don't want to encourage that practice.

    •  I would dearly love to see this reasoning (4+ / 0-)
      Recommended by:
      katiec, Miggles, Just Bob, MPociask

      applied post-hoc to the last 20 years of IRS filings by large corporations and those with incomes above $1M. "Congress didn't intend for that loophole to be in the law, but your smart lawyers found it ... but since Congress didn't intend for it to be there, so you still owe large coin plus interest and penalties".

      Economics is a social *science*. Can we base future economic decisions on math?

      by blue aardvark on Wed Jan 09, 2013 at 10:23:37 AM PST

      [ Parent ]

      •  an aggressive (1+ / 0-)
        Recommended by:
        blue aardvark

        reading of a tax statute for tax purposes is at least apples-to-apples.  besides, which are you so sure is unintended?  let's not rule out the role the IRS plays in enforcement decisions, and the different statutory background for collecting penalties.

        still, point taken.

        Difficult, difficult, lemon difficult.

        by Loge on Wed Jan 09, 2013 at 10:34:54 AM PST

        [ Parent ]

    •  The coin doesn't (6+ / 0-)

      contain 1 trillion dollars worth of platinum.  Treasury would mint a 1 oz coin and say that it is worth 1 trillion not that it has 1 trillion dollars of platinum.

      It is denominated as being worth 1 trillion dollars.  We are long past any vestige of a hard currency system. (Ever since Nixon took us off the god standard in 1971 (?))

      •  no, it has to have enough (0+ / 0-)

        platinum to qualify as bullion or proof, and of the size and shape of a circulating coin, which is about 30 grams.  Maybe the treasury has this lying around, but probably not.  

        Difficult, difficult, lemon difficult.

        by Loge on Wed Jan 09, 2013 at 11:01:15 AM PST

        [ Parent ]

        •  Chances are they can find it between now (5+ / 0-)

          and when they would need to strike it.

          Actually, from a technical standpoint getting the dies made to strike the coin would likely be a bigger issue.  Although I guess they could just strike a blank, use a magic marker to draw a smiley face on one side and "USA - $1 x 10^12" on the other, and call it a day.

          :)

          •  i'm not terribly invested (0+ / 0-)

            in this point one way or the other.  I'm just dreading all of the second guessing of whatever legislation passes to resolve the fiscal mini-cliff on the basis that Obama's a semi-secret conservative for not going with the coin, like what we've seen since 2011 when he didn't invoke the 14th amdnemtn (something Tribe rejected in an NYT op-ed which was, among other things, longer than the e-mail linked above).  As long as there are plausible legal arguments against seeing the coin as a viable option, and i've raised a few as have others, that argument should be invalid.  I don't think Tribe goes so far as to say his is the only conceivable interpretation, just what he sees as the better one.  

            Difficult, difficult, lemon difficult.

            by Loge on Wed Jan 09, 2013 at 02:46:19 PM PST

            [ Parent ]

          •  They could just use a $1 coin die and (2+ / 0-)
            Recommended by:
            pdx kirk, PeterHug

            modify the denomination. They should have one ready for the Teddy Roosevelt $1 coin which will come out this year. (Ronald Reagan's face on the coin might make it even more difficult for the Republicans to object.)

            Of course they would have to be careful not to put the platinum coin in a vending machine by mistake.

        •  1 oz platinum (4+ / 0-)
          Recommended by:
          Miggles, cocinero, pdx kirk, Seneca Doane

          = 28.4 grams http://sio.midco.net/...

          If it is in troy oz that probably rounds up to about 30 gms.

          Todays platinum spot price $1601 vs $1663 gold price. http://www.monex.com/...

          Palladium is $691/oz.

          The coin option is very viable if congress refuses to honor its 14th amdt obligations to protect the full faith and credit of the US.

           

      •  Yup, Aug. 15, 1971 (1+ / 0-)
        Recommended by:
        pdx kirk

        I was in Madrid at the time and it was bedlam as hotels and restaurants refused to accept either US currency or US credit cards or travellers checks, afraid that the exchange rate would plummet before they could cash them in. So Americans mobbed the American Express office eager to change their money into pesetas. (American Express obliged, if you were their customer -- carrying their travellers checks or credit card.) Within a few days everything settled down and the exchange rates stabilized.

    •  One could instead mint 1000 billion dollar coins (1+ / 0-)
      Recommended by:
      cocinero

      and offer them for sale (at face value, I suppose).  Any coins remaining unsold after a week would be processed as the trillion dollar coin would be.  That should comport with what opponents of this idea are calling the original intent of the law - to make coins that could be sold to collectors.

      :)

    •  It's not just a "possible" reading of (0+ / 0-)

      "the literal text" of the statute.  There's no other possible reading.  To get something else, you'd have to go outside of the literal text.  That's why it's a strong argument.  This is the part of statutory where pretty much everyone agrees.

      There are exceptions, such as "scrivener's error" (a legislative typo.)  Or, it could be an absolutely absurd result.  This isn't that.  This is giving the President the ability to waive all or some of the debt ceiling at some possible political cost of looking ridiculous.  It's not absurd that Congress would allow such an emergency measure.

      Plaintiffs' Employment Law Attorney (harassment, discrimination, retaliation, whistleblowing, wage & hour, &c.) in North Orange County, CA.

      "I love this goddamn country, and we're going to take it back."
      -- Saul Alinsky

      by Seneca Doane on Thu Jan 10, 2013 at 02:26:53 PM PST

      [ Parent ]

      •  Sorry you feel that way (0+ / 0-)

        I'm not sure Tribe excludes other readings, he's just answering whether its "legal," which he construed to be whether the face of the text supports it.  I agree, but it's still not a faithful interpretation.  I can't tell without further research what proof and bullion are, let alone how theyre used in the statute (why named together?), and there are nontrivial arguments that these provisions only justify an coin of about $2K.  (In the first clause, mightnt proof platinum be read conjunctive with bullion - that is, I think "denomination" is oddly specific, and conditioned / limited by what values have been denominations in the past. (It says denominations, not "any" denominations, and these can be proper nouns, like "the $5 bill.") I think at minimum one is still required to look at the rest of the statute, not merely a subsection, and expressio unius doesn't get one as far as Tribe thinks.   Very similar language appears in the gold parts, and the overall structures are similar -- read in conjunction, each authorizes the issuance of coins at a markup from the value of the metals, except in the case of gold, where some issuances are mandatory, per subsection i.  This makes sense of the use of the term bullion, and why both bullion and proof would be specified' not just "coin."  It also makes policy sense, with less of a market for platinum coins, especially at what are quite high prices for a single coin, even without the $1T.

        The politics are absurd all around, but the idea of a trillion $ coin is indeed absurd, relative to the statute. And I take it you would see that an absurd result is prima facie an ambiguous one.  If the question is, can they get away with it, in light of this text, yes.  That's not the same question when (a) the headline distinguished between legal and "perfectly" legal, and (b) your attempt to bully dissenting views on this.  It's telling that the best defense is "suck it, loophole," or a claim that some other statute is absurd, rather than a tale to explain why Congress differentiated platinum from other metals to the point of ceding fiscal policy -- perhaps because it didn't, subjectively or objectively.  And I'd say the exec branch might not have to always pick the best interpretation of a statue, but they can't seize on technicalities to redo the separation of powers.   The aesthetic arguments influence the legal ones.

        The best work around is the IOU, as acknoweldgement of existing (not new) obligations to creditors, but Ezra Klein's argument that the whole debt ceiling had to be dealt with politically, anyway, has greater merit.

        Difficult, difficult, lemon difficult.

        by Loge on Fri Jan 11, 2013 at 01:49:14 PM PST

        [ Parent ]

        •  By all means do the research on "proof" and (0+ / 0-)

          "bullion" and the rest.  You won't find anything that changes the plain meaning of the words.  I've addressed your other comments worrying needlessly about "separation of powers" and such elsewhere.

          Plaintiffs' Employment Law Attorney (harassment, discrimination, retaliation, whistleblowing, wage & hour, &c.) in North Orange County, CA.

          "I love this goddamn country, and we're going to take it back."
          -- Saul Alinsky

          by Seneca Doane on Sun Jan 13, 2013 at 09:07:06 AM PST

          [ Parent ]

          •  I'm curious to see (0+ / 0-)

            If the treasury comes out with a bit more detail than their one sentence statement.  Their attorneys are many things, but not dullards.  As such, I don't yet feel empowered to gloat -- the "cannnot" could be they can't politically, or it could be a legal argument, though my argument is based on the notion that on big questions, the lines between politics and law are blurry.  As proof coins have historically been bullion, only shinier, there is historical practice which gets back to the purpose of the statute, which gets to non-authorization. ( Ejusdem generis?)

            Now the House doesn't have an out - this is good.  My interest, other than the notion that any argument any text is unambiguous is both a challenge and an affront, is in not listening to whining about the coin after Fiscal Cliff II is resolved with less than perfect legislation, thus proving Obama is the worst Democratic President since Clinton.

            Difficult, difficult, lemon difficult.

            by Loge on Mon Jan 14, 2013 at 08:32:31 AM PST

            [ Parent ]

            •  Obama is definitely the worst Democratic President (0+ / 0-)

              since Clinton.  He's also the best one.

              You know that we're not simply talking about "less than perfect" legislation.  We're talking about legislation that would in many ways that are hard to estimate likely be a political (and social) disaster.  Please don't minimize it -- or, if you want to, please say what it is you actually expect is the worst that might happen.

              Plaintiffs' Employment Law Attorney (harassment, discrimination, retaliation, whistleblowing, wage & hour, &c.) in North Orange County, CA.

              "I love this goddamn country, and we're going to take it back."
              -- Saul Alinsky

              by Seneca Doane on Tue Jan 15, 2013 at 03:00:26 PM PST

              [ Parent ]

              •  i didn't know that's what i was discussing, (0+ / 0-)

                and, indeed, such a worst case scenario wouldn't need to draw on a romanticized version of the politics of playing the coin to make said criticism.  besides, the debt ceiling is a red herring anyway.  we still have to find ways to get a budget through a republican congress in the midst of a fragile recovery.  that means very likely some things that are objectionable in isolation but less so in the aggregate.   or not.  the broader point is that a line of argument that assumes away a conflict or tradeoff, especially by reference to something that is not in the realistic range of options for a president, is a dodge.  If you're talking about social security, i don't share the assumption either that it will be cut or that such a cut is necessarily awful, depending on what else is there in return or what offsets there are.  Imagine chained-CPI is the law,  What percentage of discretionary spending would you give away to bargain payments up to their current rate?  That's a test, not whether Obama could strike a coin.  

                Difficult, difficult, lemon difficult.

                by Loge on Tue Jan 15, 2013 at 09:20:40 PM PST

                [ Parent ]

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