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

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  •  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.

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