Refresh my memory: how is the platinum coin option different than simply printing money to erase the debt? In both cases the government is simply announcing that it will invent the money necessary to pay bond holders. The actual physical coin seems unnecessary.

Treasury can mint the platinum coin without permission from anyone -- that is, Obama can just go ahead and do it. Ordinary money, the administration doesn't, by law, control the printing press: the money supply is controlled by the Fed which is independent.

2:Law. Treasury can only "print" money as authorized by Congress, specifically according to the "debt limit."
The platinum coin is an exception, intended to allow commemorative coinage of insignificant but real value.

3 is close, but wrong (I'm pretty sure. I get lost in this stuff fast). The debt limit applies to actual debt, not printing money without borrowing it from anyone by the power of fiat. The administration doesn't have the power to print money at all, other than through the platinum coin loophole; that's reserved by law to the Fed. The administration can borrow money, but only up to the debt limit.

Yes, 4 is correct. The Fed prints money and buys US government debt with it.

I would like to think that the Italian version of He-Man ("Il-Uomo") does things "By the Power of Fiat!"

(Or, actually, the Treasury does print currency of course, but as authorized by the Fed. Someone who's confident on the details here confirm?)

Krugman Wednesday on the platinum coin.

First, as a legal matter the Federal government can't just print money to pay its bills, with one peculiar exception. Instead, money has to be created by the Federal Reserve, which then puts it into circulation by buying Federal debt*. You may say that this is an artificial distinction, because the Fed is effectively part of the government; but legally, the distinction matters, and the debt bought by the Fed counts against the debt ceiling.

*Which is up to Geithner, Treasury, and Congress with the debt ceiling. Basically, I think, when Congress raises the debt ceiling, Treasury is electronically credited with billions at Fed accounts, and the Fed then sells...wait, its Treasury that holds T-Bill auctions. Isn't it?

It is complicated, and partly depends on definition of "money."

Around here, we say the court must give effect to the legislative intent and that the best means of determining legislative intent is the plain language of the statute.

1) The Fed does not "print money" if we are talking about greenbacks. That is the US Mint, division of Treasury. Nor does the Fed print T-Bills.

2) The Fed can buy and sell assets, from Treasury bills to any financial asset (MBS, Greek bonds) or anything at all with emergency powers rarely invoked. This is how it "creates money," it creates credit like every other bank. It creates money by loaning to Treasury.

6: yes, good point.

9: Everything you're saying is true, but not quite what we're talking about. All the means of creating money by lending and creating credit and so on start with a basis of currency, that comes from somewhere -- you need a starter money supply to begin with all the lending. That used to be gold, but now it's fiat currency, made by Treasury printing green engravings on little paper rectangles (I'm using baby talk because that's my level of understanding, not because I'm implying that it's yours. And again, my baby-talk level understanding may be messed up, so more sophisticated people should correct me.)

Because when a government can whimsically increase the size of the money supply whenever it wants to, bad things happen, the US Government has tied its hands and said that the Treasury isn't allowed to run the printing presses without permission from an independent central bank, the Fed, which in addition to doing all the buying debt and so forth stuff you were talking about, also controls the literal amount of currency the whole process starts with.

The platinum coin loophole is a run around the whole concept of there being a central bank that apolitically controls the supply of currency (and one that I generally wouldn't approve of. Ideally, I'd see the loophole used, and then a legislative fix that closes it and abolishes the stupid debt limit entirely.). It hands control of the printing press that creates currency back to the Administration, rather than to the central bank that by law has it now.

The platinum coin, if minted, would increase the financial assets of the US Government by the face value of the coin without being borrowed from anyone -- that financial value would be created from nothing, by fiat.

Does it have to be platinum? One of those giant Yap Island-style stone coins would be great.

Statute says platinum.

Can it at least have a hole in the middle?

I don't think this is as clear cut as you're presenting. Would you feel as confident that it was perfectly legal if it were being proposed by a Republican administration, not to avoid the debt limit but just to create a massive fiscal stimulus in an election year? If not, what's the difference?

The statute is unambigious only when read totally in isolation and out of context. Your interpretation of it is inconsistent with the Federal Reserve Act of 1913. So, we need to reconcile those two statutes. Was this statute intended to override that one? I think clearly not.

So, what is the dollar limit on the value of platinum coins that Treasury can mint? I don't know, and my guess is that a court wouldn't try to specify--but they could say, well, whatever it is, it's below $1,000,000,000,000. (So maybe Treasury could mint a million $1,000,000 platinum coins instead? That's not the issue presented to the court today.)

The Federal Reserve is a bank. It has a balance sheet made up of assets and liabilities, that are always equal. Currency notes are liabilities of the Federal Reserve, so are bank reserve balances held with the Fed. When the Federal Reserve buys an asset it expands its balance sheet by making a notation on the liability side (adding money to the bank's reserve balance), and adding the asset to the asset side of its balance sheet. The 'magic power' of the Fed is that it can expand its balance sheet without limit, and it cannot go insolvent unless people have totally lost faith in its liabilities (which are currency/money, i.e. the dollar). An interesting way to track this crisis is to look at the growth in the Fed balance sheet since 2008 .

Technically money is created as the Federal Reserve expands its liabilities. However this money may not create inflation if it does not get out into the economy by banks actually using their reserve assets to fuel economic activity. The Federal Reserve has been paying interest on bank reserves to help avoid inflationary expansion of the money supply. There will be a complicated 'exit strategy' when the economy recovers and QE stops and the Fed tries to shrink its balance sheet by selling assets.

Treasury is just a borrower that auctions debt like anyone else. When the Treasury sells debt this may absorb money resources from the economy and in a situation of full economic capacity usage it may interfere with the supply of funds for other investments. (Although insofar as treasury bonds/bills are fairly liquid themselves then they can be used as a base for private money creation...this gets very complicated). The Federal Reserve can address this by buying debt so that the original buyer now has money instead of treasury bills. More radically, the Fed can simply show up at the Treasury auction and buy the debt directly, that is the most direct way to 'print money'. This is what was done during WWII, and it is the reason why we do not in fact depend on the Chinese or anyone else to 'fund our deficit'. However, directly monetizing the debt like that tends to cause people to lose faith in your currency.

I'd feel confident that it wasn't the business of the courts to stop it -- I'd be looking to Congress. And a later law that's plainly inconsistent with an earlier law overrides it, no?

I don't see why there would be any dollar limit on the value of such platinum coins (which is a very good reason that the loophole should be closed), and a court that said there was would be making law out of thin air.

Surely if the mandate of the fed is to stabilize macroeconomic conditions, they'll just "print" (buy back Treasury bills and re-sell them) enough money to avoid default. They may be independent but they're not stupid.

And a later law that's plainly inconsistent with an earlier law overrides it, no?

Not necessarily, no, when the later law's inconsistency was clearly unintentional.

18: that's not how it works--the fed "printing" money is "debt" for the US treasury.

A series of platinum "coins" which are actually the platinum bits from catalytic converters from mid-80's K-cars bearing a US gov't barcode would be great. They could be rubberstamped with the likenesses of great US right-wing crackpots and decayed US cities. J. Edgar Hoover and the ninth ward to start with.

They should be denominated in SI units, starting with the teradollar we're talking about now, but including a petadollar and exadollar issue to allow for the Weimar inflation that would be so invited.

18: the issue is that Federal debt held by the Fed still counts against the debt limit. The Fed cannot simply cancel Federal debt that it holds without unbalancing its balance sheet (making liabilities exceed assets). Yes, this is all a set of accounting fictions.

Again, we're getting into plain meaning -- by the plain meaning of the statute, it is inconsistent with the earlier law; it's just as inconsistent for insignificant platinum coins as it is for significant ones, it's just that no one cares much. For the law to allow the minting of platinum coins that count as currency at all, it's inconsistent: either you can mint a trillion dollar coin, or you can't mint a twenty-five cent coin. Both increase the money supply in a way inconsistent with prior law.

Now, you're right that this is an edge case -- the result is so ridiculous, and so clearly unintentional, that if a court is ever going to disregard the plain meaning canon, this is a very attractive time to do it. But I would still argue that that would be a court usurping authority that it does not properly have; if Congress plainly does something within its powers, it's not the courts' job to keep it from screwing up. The elected branches are supposed to do that for themselves.

23 to 19, and to urple generally.

I'm not actually even suggesting the platinum coin is a bad idea--it's crazy, but so are Republicans in congress. And there's a very good chance the courts wouldn't stop it. If the question first arose in a different context (an election year spending spree), I would think a court might be fairly likely to strike it down, and I wouldn't think they were acting unusually politically in doing so. But even a court inclined to rule against this would realize their doing so in this context would mean default by the US government, which should give them pause. Most likely, I think they would just find some way to deny standing.

It's really a Church of the Holy Trinity[1] situation -- is this a sufficiently absurd result that a court should conclude that Congress couldn't possibly have meant the literal meaning of the statutory words to apply?[2]

I'd construe the OP to be arguing (implicitly) that there are few if any cases in which a court will do that nowadays -- which is certainly true. But this is really a pretty absurd result, and if the issue were to come before a court I think the Administration would have some risk of losing. That said, it's not immediately obvious to me who (if anyone) would have standing to bring the suit.

I do wonder whether the House would try for impeachment. I bet it would be at least argued.

[1] "It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers." 143 U.S. 457, 459 (1892).

[2] On preview, I don't know anything about the Federal Reserve Act of 1913 and whether it is inconsistent with the platinum-coin rule.

... If they're allowed to disregard the plain meaning of a statute because it's idiotic and unintentional (as the platinum coin statute obviously is), it's a very plausible slippery slope to disregarding the plain meaning of a statute because the judge on the case thinks it's a bad idea. ...

I am far from convinced. Suppose the statute idiotically and unintentionally made rape legal, would you really have the courts enforce the plain meaning? Actually there must be bunch of precedents about poorly drafted statutes with idiotic and unintentional effects if taken at their plain meaning in isolation. I doubt they have been uniformly upheld.

I want to live in urple's alternate universe where Republicans launch a giant fiscal stimulus program in order to get elected.

I do wonder whether the House would try for impeachment. I bet it would be at least argued.

That would, I think, be legit -- I could see a fair argument that using the platinum coin loophole would be both legal, in the sense that a court wouldn't stop it, and an impeachable offense, in that it was doing something wildly significant that Congress had never meant to authorize but wasn't in a procedural position to stop in a timely fashion. That is, I'd think that impeaching Obama after the fact for using the loophole would be a reasonable way for Congress to tell future Presidents not to get tricky about this kind of thing.

I'm just thinking that reaction belongs to Congress, not to the courts.

28: you already do. Did you see what happened to deficits under Bush? Republican stimulus = tax cuts for the rich, Keynesian defense spending increases, and financial deregulation to increase the velocity of money.

23

Again, we're getting into plain meaning -- by the plain meaning of the statute, it is inconsistent with the earlier law; it's just as inconsistent for insignificant platinum coins as it is for significant ones, it's just that no one cares much. For the law to allow the minting of platinum coins that count as currency at all, it's inconsistent: either you can mint a trillion dollar coin, or you can't mint a twenty-five cent coin. Both increase the money supply in a way inconsistent with prior law.

I think you could argue the clear intent was to allow coins whose face value was roughly comparable to the value of the platinum used. Which would allow low value coins.

31: Sure could, if you're going to let the courts write laws that are probably what the legislature really meant. But if you're sticking to what they said, the law is inconsistent regardless of the value of the coins - either you're going to regard it as overriding the 1913 Act, or you're going to hold that it has no force at all.

Not to mention the stimulus under Reagan, which worked similarly.

Re the actual platinum coin option: I think that constitutionallly Obama can already stop Federal government default using his 14th amendment authority. (I.e. keep borrowing to make sure the debt of the U.S. is not brought into question by failing to pay bondholders). So the issue is whether to shut down the rest of government. This is pretty clearly a power that the Constitution grants to Congress, not the President, unless he avoids it by manipulating this coining loophole. So I think that the platinum coin thing confllicts with the spirit of the Constitution if not the letter of the law.

With that said, I love the concept generally because I think we need to reconceptualize how we talk/think about the way government funds itself. Holding to the 'borrowing' analogy distorts the public discussion tremendously.

And I'm being aggressive about what courts should do, not what I think they're likely to do -- I think there's a good chance that a court would actually shut down the platinum coin loophole as absurd. But the way Drum's talking about it is wrong: he's talking as though a court should be starting from the legislature's obvious intent rather than from the plain language of the statute, and that's just not right. Things have to get either ambiguous, or pretty extraordinarily ridiculous, before anything other than the language of the statute matters at all.

it's just as inconsistent for insignificant platinum coins as it is for significant ones, it's just that no one cares much.

But this just isn't true, except in a hypertechnical sense. The treasury can print limited quantities of reasonable-denomination platinum coins for collectors without meaningfully altering the ability of the federal reserve to control the US money supply. Trillion dollar coins aren't that. And it's clear that congress wasn't trying to hand control of the money supply back to the treasury.

Someone here must be more familiar than I am with the jurisprudence that's developed in administrative law surrounding abuse of executive discretion. That's what I would consider a trillion dollar platinum coin. Sure, the secretary has discretion, and has wide latitude to exercise it, but within some broad parameters of reason.

The Treasury mints coins. I thought the statute regulated how many coins of each type the Treasury could make, and the loophole was that the statute didn't specify the value of platinum coins.

Most of these institutional details are accidental. There's no reason -- other than convenience -- the entire economy couldn't run on coins. Even the distinction between the government and the central bank isn't necessary, though it's now hallowed in the minds of policy makers.

Taking it a step further (though really I think I may just be elaborating on 23.1) I think this is very likely a situation where the result is absurd, but the problem is that there's no apparent alternative reading of the statute that avoids the absurd result without either declaring the statute unenforceable or requiring the court to establish a quantitative standard without any textual basis. (E.g., coins of up to, say, $100 in value but no more.)

So the challenger would want to look for some other basis for a limit. Suppose hypothetically there were a consistent historical practice of only issuing commemorative coins at $100 or below. You'd have a better chance of convincing a court to read a limit like that into the statute than of picking one out of a hat.

On preview: JBS's rule in 31 would work too, if there were a general practice of keeping the value of commemorative coins at "roughly comparable to the value of the platinum used." Especially if there were something like that in the legislative history. You just need a hook to make it look and feel like the court is departing from the text in favor of some other (non-absurd) objective rule, rather than making something up on the fly.

Assuming we hit the debt ceiling, I don't understand how the Obama administration can legally choose what to spend money on. The administration doesn't have that authority normally, so why do they suddenly have it when we're against the debt ceiling?

To 35, if the action had to be taken by the Secretary of the Treasury or one of his subordinates, it would be subject to review under the Administrative Procedure Act to determine whether it was arbitrary and capricious or otherwise contrary to law. If the President could order it directly, no APA challenge because the President can't be sued directly under the APA.

Assuming APA review is available, though, query whether this would in fact be arbitrary and capricious. Assuming the Secretary had to make an administrative record, he could presumably write a very nice memo saying: "Avoiding default on the public debt is really important! I have this statutory authority to mint platinum coins right here, and I can use it to achieve that really important result. The authority has never been used this way but this is an emergency situation. The plain language of the statute authorizes my action. I conclude that I should proceed."

I think you'd have a better shot arguing that the action wasn't authorized by statute than arguing that the Secretary didn't have a (really persuasive, in fact) reason for doing it.

11 see 16

The Fed buys T-Bills from Treasury. In "monetizing" situations, I think, The Fed doesn't worry at all about what it pays for T-Bills.

11.2 the Treasury needs no permission.

However...does the Fed have to buy the trillion dollar coin? What makes the scenario work is that the Fed takes the coin. Treasury doesn't "deposit" it sells T-Bills to the Fed. And just as a bank doesn't have to buy the million dollar bill I drew up with my picture on it, I think the Fed also has discretion.

And a scenario where Treasury tries to sell 1000 1 billion dollar coins in open auction is not going to work well.

36

The Treasury mints coins. I thought the statute regulated how many coins of each type the Treasury could make, and the loophole was that the statute didn't specify the value of platinum coins.

As noted the Treasury currently mints gold and silver as well as platinum coins. All are sold based on their metal value not the "largely symbolic" face value. Presumeably the face value is largely symbolic because it is set to be well under the metal value. Unfortunately I am unfamiliar with the detailed legal authorities involved which seem rather relevant.

40: The Treasury actually has a bank account at the Fed which it deposits tax revenues in.

This article is 25 years old, so may be outdated, but certainly suggests courts would have ample ability to strike a move like this down as an abuse of discretion. (Can't excerpt b/c it's a .pdf.)

40:That doesn't quit answer the question, unless we are locking the trillion dollar coin into a safety deposit box.
You can't put a coin into an account. The Fed would have to buy it, just as my bank buys my paycheck and 100-dollar bills.

To reiterate:

The Constitution explicitly states in Article 1 Section 8 that "The Congress shall have Power" ... "To coin Money", that power has been outsourced to the Fed [& Treasury] which is under the Executive Branch.

So, yes, Obama could have the Fed [& or Treasury] issue as many $1 TRILLION dollar coins to pay off as much debt as we incur as a country, how long anyone would buy our debt might be up for question, but not that the power doesn't exist.

So +1 for Kevin's article on lead and -1 for Kevin's outsourcing of his critical faculties and regurgitating Obama's (and the right-wing's) misunderstanding of the Constitution.

39: the statute says the secretary.

I am not reading the link, but who has standing?

Courts do not generally permit absurd readings of statutes. E.g., You can't claim immunity for infringing a patent for a garlic press because "Congress shall make no law . . . abridging the freedom of . . . the press." I have no doubt that interpreting the platinium statute as encompassing trillion dollar coins is in this category. "Coin" just mean an instrument worth a trillion dollars.

On the other hand, see Walters v. Radiation Survivors, 473 U.S. 305 (1985), which held that an 1862 statue that limited attorney fees in veretans' benefit applications to $10 was still valid, even though the orignial intent of the statute was to limit payments to lawyers to a reasonable fee, not to prevent the use of lawyers entirely. Several interesting dissents.

46: Then, yes, plenty of authority to review -- assuming that none of the exceptions to judicial review under the APA are relevant (which they almost never are), and assuming that you have a plaintiff with standing (which seems more likely to be a problem here).

Again, though, I think that if this is within the statute then the Secretary would have a good reason for doing it under the circumstances. So I'm not sure there's a persuasive abuse-of-discretion standard here that doesn't simply reduce to an argument that the action violates the statute.

Courts are expected to rule based on the most sensible interpretation of a law, not its most tortured possible construction

This isn't true is it? I mean, in the ACA case, didn't Roberts himself say that if a statute was open to an unconstitutional reading and a constitutional reading, the constitutional reading should be taken if it at all possible? That isn't to say he, or any given court, would always act in accordance with that principle.

Here is Another One saying:"In general, the Treasury Department is not allowed to just print money if it feels like it. It must defer to the Federal Reserve's control of the money supply."

But I still think this is wrong.

Basically I think the Fed is the "buyer of last resort" for Treasury Bills.

If Treasury could print trillion dollar 30-year T-Bills paying 2% interest and the world would fight each other to buy them, I don't think they would need the Fed.

If their is a statute that says the Fed must buy whatever Treasury prints at whatever price Treasury calls, then tell me. I doubt it exists, because that makes a joke of Fed independence.

To the OP: I like the platinum coin option for the same reason you do -- it would simultaneously solve a very real problem and expose the degree to which the political system is currently broken.

You can understand, however, why the second reason wouldn't appeal to politicians. That is irrelevant to the legality of the platinum coin solution, but it definitely affects how it would be framed and how it would play out. It's hard to imagine Democratic politicians, for example, committing to saying as a group, "wah, wah, Republicans are complaining just because they don't like this; the rules say it's legal so that's just sour grapes."

Which just gets you back to the impeachment scenario discussed in 29, but still seems like an important element of the dynamic.

I have a possibly relevant and maybe not useless idea. If enough people who want to see the debt ceiling removed as a cudgel from budget negotiations all got together and fronted the government some money, would the debt ceiling date be pushed back enough to make a difference politically? For individuals, that could be done by delaying filing for a tax return owed, making quarterly payments ahead of schedule, or just paying in a quarterly payment even when you know your regular withholding covers your taxes.

This seems unlikely to happen for a variety of reasons, and mostly I'm just looking for an excuse to delay doing my taxes, but I wonder if anybody has ever considered trying something like this.

On theo otherr hand, the "Constitutional option," where Obama states that the 14th Amendment requires him to authorize payment on all legally valid debts of the United States,* should work. That was actually intended to limite the ability of Congress to repudiate payment for debts it had authorized. In fact, it makes it clear that Congressional refusal ot pay such obligatins is tantamount ot an act of rebellion.

("Section 4. The 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.")

And to come back to JBS' example, if Congress "unintentionally" but unambiguously repealed a criminal statute, hell yes there's no way the courts are going to permit someone to be imprisoned for violating the repealed law. The common law of crimes doesn't apply to our federal government of limited powers, and you need a positive federal enactment, within those powers, to convict anyone.

I'd be curious to hear the lawyers weigh in on my 38, because I find it very puzzling, legally.

For the record, by being the first person to use the word "standing", I win this thread.

56: I don't understand the problenm. They can't incur any more debt, and they have bills to pay that exceed the money they have to pay those bills. What could they do other than pay some and not others? (They could, I suppose, pay none of them, which would be crazy, or pay them all pro rata, which would probably be administratively impossible, and also would be crazy, but I don't think there's any legal reason they would have to do either of those things.)

54 raises an important point, republicans in congress aren't just behaving badly, they're threatening treason.

56: Because the executive doesn't have the legal authority to choose what to spend money on, right? This is mandated by Congress. There's some statutory limited discretion for when Congress allocates more money than necessary, but I think this was sharply circumscribed.

60: Congress does not really specify in what order to spend the money they appropriate (to a very limited extent, at most).

Just poking around in the code, it looks to me like 31 USC 5111(a)(1) gives the Secretary all the discretion he needs to mint coins under 5112(k).

38 -- The Executive can certainly terminate contracts for convenience, which would allow it to get out of some big defense obligations. I think it can close Yellowstone too, and put the rangers on unpaid leave. Etc.

60L: I haven't followed all of this closely enough to know the jargon, but I think that idea had been floated under some name--"Congress tells me I can't incur any more debt, but also has given me these bills to pay and not enough money with which to pay them and told me I can't choose which ones to pay and which ones not to pay; I can't follow both those instructions at the same time, so I'll ignore the one about not incurring any more debt". It seems like a weaker argument than some of the others, but who knows. We're in the realm of the crazy.

GWB wouldn't have fretted over this--he'd have kept spending and told his lawyers to write the best memo they could justifying it. And the courts wouldn't have done anything to stop it. I don't exactly feel good about following that precedent (any more than Obama already is in other regards).

Actually, why isn't 31 usc 5111(a)(1) a mandate by Congress to the Secretary to coin sufficient money to pay appropriations? Isn't the secretary abusing his discretion if he refuses to coin money the United States obviously needs?

Speaking of ambiguous statutes, President Obama could also determine that the most recent tax and spending bills implicitly repealed the less recent debt ceiling bill, isince compliance with all of these is mathematically impossible. There's an extensive body of law on the circumstances where a statute is deemed repealed by implication becuase it's inconsistent with a later one. A Court might accept it here.

Pwned by 63, except that if you call it "repeal by implicaiton," it sounds more lawyerish.

I think that might work -- I've got a post in the archives somewhere saying it's a slam dunk, no problem at all, argument but people talked me down a bit in the comments. But it's in the realm of plausibility, and certainly much less ridiculous than the platinum coin.

65: That's the one I don't understand. OMB tells congress what borrowing will be needed to comply with the spending their appropriations entail. If congress then authorizes the activities and appropriates funds, doesn't that action repeal previous limits? Probably not I guess since the text of the appns only speaks to the amount that the agencies and departments spend, and not what T does to get them the money?

I fully agree with the analysis of Widget and Unimaginative in this thread. There is a canon of construction against absurd results, even if it is invoked only infrequently, that is most likely to come into play where the interpretation urged (a) is clearly inconsistent with legislative intent (b) inconsistent with past practice in the area regulated by the statute (c) in direct conflict with other law (d) not a criminal statute and (e) absurd and weird on its face. All of those situations are in play here. If the case were brought, I'd expect the Court to go to great lengths to find the issue non justiciable, but if the case were brought and the platinum coin declared illegal I don't think (unless I've missed something, its not like I'm expert on coinage law) that would be in any sense an illegitimate judicial opinion in the Bush v Gore sense (or even in the conservative argument about the health care mandate sense) -- I might even be inclined to find it legally correct.

If congress then authorizes the activities and appropriates funds, doesn't that action repeal previous limits? Probably not I guess since the text of the appns only speaks to the amount that the agencies and departments spend, and not what T does to get them the money?.

Right. What congress is actually doing in this circumstance is not implicitly overruling the debt limit, which they've made clear they stand by; what congress is doing is implictly authorizing war on a resource-rich small nation, to be pillaged mercilessly for profit (which can be used fund our debt obligations for a few more months).

62: There's probably more to it, but read in isolation does 5112(k) have a nondelegation problem? The "intelligible principle" threshold is low, but I don't see anything at all in there guiding the Secretary's discretion. (But of course if there is a guiding principle elsewhere in the statute saving this subsection it from nondelegation, that guidance might rule out the trillion dollar coin.)

64 occurred to me too, and made me think I probably have no idea what these provisions are actually about.

Bob actually raises a good point in 51. I have no idea whether the Fed is obligated to accept a deposit from Treasury, they are certainly not obligated to buy debt. The platinum coin option would obviously be very controversial and the Fed would seek out all methods to avoid taking sides, particularly if courts had not yet ruled.

The 14th amendment constitutional option always seemed like a far better way politically to handle this problem.

What takes it out of the realm of absurdity to me is that the absurd action (trillion dollar coin) is different only in scale from the clearly intended action (hundred dollar coin). Yes, at some point quantitative differences become qualitative, and this is certainly so far past that point that it's not even visible in the rear-view mirror, but still, allowing the Treasury to mint valid currency outside the limits applicable to other forms of currency isn't an absurd result, it's what Congress really did mean to do, and really did literally do. Congress just didn't plausibly intend to let the Treasury do it to an economically important extent, and forgot about putting an explicit limit on its authorization.

That's a different kind of absurdity than I think the caselaw usually addresses. A court still easily might shut it down as absurd, but I think Drum is very wrong to think of shutting down this sort of absurdity as the kind of thing courts are obviously responsible for doing.

OT bleg: Does anyone have a recommended translation of Les Misérables? I'm asking for a "friend."

73 to 69. To 72: the Fed may not be obligated to buy debt, but wouldn't they be obligated to allow the government to pay off debt with legal currency in its possession? If the government has currency with which to pay its debts, what would the Fed's argument for not accepting that currency be?

A court still easily might shut it down as absurd, but I think Drum is very wrong to think of shutting down this sort of absurdity as the kind of thing courts are obviously responsible for doing

I don't disagree with this, if that's all you meant to say. I was disagreeing with the OP for saying: "But if it were attempted, I don't think a court would stop it, and I'm sure that a court that did stop it would be acting unusually and for politically motivated reasons."

Well, politically motivated reasons is, I think, inescapable -- if there weren't politically important ramifications, I think a court would be very likely to stick with the unambiguous plain language of the statute. Partisan reasons, maybe not, but political yes. "Unusually" -- eh. Would it be unusual for a court in a situation this politically fraught to act by trying to do the obviously sensible thing? Maybe not. But situations this politically fraught are rare: I think the usual thing to do, in a situation that involved this much legislative absurdity, but a result that was only important to the individual litigants, would be to stick with the plain language and let the chips fall where they may.

The argument going around is that legality doesn't matter, the true judge is Teh Markets. If Obama/Treasury mints a coin or invokes the 14th (the latter of which his administration has explicitly said is unconstitutional in their view) and issues bonds under those mechanisms, the bond validity/repayment will be in question so there is a risk premium and now interest rates are 10% and we're all dead in the long run.

Doesn't 5111(a)(1) preclude repeal by implication? Congress directs (a) you must pay out $100; (b) you may collect no more than $80 in taxes; (c) you may not borrow any more than $15; and (d) you "shall" issue sufficient coins to meet what you see are the needs of the United States. It seems to me that we have to pay Boeing in nickels.

Further to my 50, here's the relevant bit of Roberts's opinion:

The text of a statute can sometimes have more than one possible meaning. To take a familiar example, a law that reads "no vehicles in the park" might, or might not, ban bicycles in the park. And it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning thatdoes not do so. Justice Story said that 180 years ago: "No court ought, unless the terms of an act rendered it unavoidable, to give a construction to it which should involve a violation, however unintentional, of the constitution." Parsons v. Bedford, 3 Pet. 433, 448-449 (1830). Justice Holmes made the same point a century later: "[T]he rule issettled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that whichwill save the Act." Blodgett v. Holden, 275 U. S. 142, 148 (1927) (concurring opinion).

He goes on to explicitly disregard the "most straightforward" reading.

All that said, I suppose it's a slightly different question at stake here - not whether the statute itself is unconstitutional, but an executive act purporting to operate under the statute's authority. I suppose you could have a situation where the statute is ruled constitutional, but only on a reading which bars the Treasury's unilateral action.

Constitutional isn't an issue here, I don't think -- if Congress had meant to open the platinum coin loophole, they would have had the constitutional power to do so. The only question is whether what the plain language of the statute, doing something within Congress's constitutional powers, is idiotic enough that a court would be justified in disregarding it. Which a court certainly might do, but I think there's a strong argument they shouldn't.

Frankly, I also disagree with:

Courts are expected to do what legislatures say, not what they mean: "legislative intent" can only be considered where there's an ambiguity in the law. Even if what the legislature said is obviously not what they meant, courts are still expected to follow the letter of the statute.

It's a significant overstatement. Courts can and do follow the spirit of the statute when the letter of the statute seems clearly not to have been what was intended in the case at issue, especially if a literal reading of the statute would create absurd results.

It feels like you're arguing this whole topic on behalf of a favored position, rather than dispassionately evaluating the legal merits.

I suppose you could have a situation where the statute is ruled constitutional, but only on a reading which bars the Treasury's unilateral action.

That's sort of what I was thinking in 71. If the statute really means "the Secretary can do anything he wants with platinum, for whatever reason," I think there would be a potential nondelegation (i.e., consitutional) problem. To save the provision, it might be necessary to find a Congressionally-supplied principle that cabins the Secretary's discretion, and that principle (if there's one to be found) might exclude the trillion dollar coin option.

It feels like you're arguing this whole topic on behalf of a favored position,

Welcome to America, buddy.

I think you're overstating the size of the absurdity exception to the plain language canon. Courts spend an awful lot of time looking at legislative intent, but that's almost always a matter of legislative ambiguity -- it's really hard to write anything that's genuinely unambiguous once it gets even a little complicated, so there's nothing wrong at all with considering legislative intent to resolve ambiguity. But where you've got solidly unambiguous language, and you have to go outside the text of the statute into your knowledge of the kinds of things Congress is at all likely to want to do in order to identify a problem at all, the principle of sticking with the plain language of the law is a strong one.

85 to 82.

At all at all.

Hibernophobe.

If the statute really means "the Secretary can do anything he wants with platinum, for whatever reason," I think there would be a potential nondelegation (i.e., consitutional) problem.

He is... Platinum Man! (Less useful than Iron Man, obvs, but more socially valuable than Goldman and his sidekick, Sachs.)

And, of course, less buoyant than He-Man.

88: If you'd ever met my grandmother you'd be frightened of the Irish too.

LB and others - is there any direct connection between contractual and statutory construction in English/US law? I ask because at least under English contract law, generally speaking the plain meaning of the text governs absent powerful countervailing evidence of a less obvious meaning, or that the drafter has seriously fucked up so tahat the contract is unworkable. To the extent that if a contract says "2013", even if every party agrees it was supposed to be "2012", it's still "2013". There is jurisprudence around "commercial absurdity" and "something going wrong in the language", but in practice those are very high bars. But I've no idea how, or if, that jurisprudence ties into the interpretation of statute - there's much less judicial review in the UK.

it's really hard to write anything that's genuinely unambiguous once it gets even a little complicated

I'm not disagreeing with 85, I just don't see why you don't think that principal is in play here. You really think it's unambiguous that the secretary has authority to mint a trillion dollar platinum coin?

There are types of legal ambiguity other than pure grammatical ambiguity.

Not a direct connection. There's a similar principle -- I updated the post with a statement of the canon of construction I'm talking about from an old Supreme Court case -- but as hard as I'm arguing I'd agree with everyone on the other side that a court's probably more likely to rewrite an absurd statute than they are an absurd contract.

You really think it's unambiguous that the secretary has authority to mint a trillion dollar platinum coin?

Yes. I think someone who was reading the statute, and who was thinking only about what the statute said, rather than about the kinds of things Congress is likely to do, would be wrong to read it any other way. Once you pull back from the text of the statute, it's clearly silly and unintentional, but it's not ambiguous.

LB, why exactly do you like the platinum scheme?

To continue 95: You agree that it unambiguously allows the Treasury to mint, say, hundred dollar coins. You further agree that it has no limit on the value of the coins Treasury may mint. At that point, where's the ambiguity?

(If you're considering information outside the text of the statute, I'd say it's still not ambiguous -- at that point, it's beyond obvious that Congress didn't mean to authorize a trillion dollar coin. If anything in life is certain, that is. What Congress did is unambiguous, as is what they meant to do -- they're just different from each other.)

96: Legislative screwups really irritate me (oh, hey, I have a utopian post to put up), and so I want to see them used to create idiotic results. And it solves the debt crisis problem.

as hard as I'm arguing I'd agree with everyone on the other side that a court's probably more likely to rewrite an absurd statute than they are an absurd contract

Which I find kind of interesting. After all, the court is the only party which can rewrite a faulty contract unilaterally (in general - I'm excluding things like FDIC repudiation). Whereas Parliament/Congress is always free to correct its previous errors (within constitutional limits) and indeed constrain executive overreach short of a military coup.

Civil law jurisdictions I'm vaguely familiar with seem much more willing to throw out the plain meaning of a contract in favour of market practice or whatever. I wonder if that's a cultural thing or a true civil/common distinction.

I think Drum nails it here:

This whole notion is the kind of thing that Herman Cain would come up with.

And thus I generally agree with urple here. LB states the correct argument (my bold added), then dismisses that argument unconvincingly:

What takes it out of the realm of absurdity to me is that the absurd action (trillion dollar coin) is different only in scale from the clearly intended action (hundred dollar coin). Yes, at some point quantitative differences become qualitative, and this is certainly so far past that point that it's not even visible in the rear-view mirror, but still, allowing the Treasury to mint valid currency outside the limits applicable to other forms of currency isn't an absurd result, it's what Congress really did mean to do, and really did literally do.

In fact, as LB grants, the distinction between Congress's intent and the proposed Treasury action isn't correctly thought of as merely a matter of degree.

On the other hand, we increasingly live in a country governed by Herman Cains. The whole idea of not increasing the debt limit is, itself, quite literally a Cain-like idea. At some point, the President has to say "better to ask forgiveness than permission," and go ahead and do the right thing on the theory that once it's done, it's a fait accompli that the courts would be loath to overturn it.

The economy would crash in the meantime, though.

I dunno. Sometimes I think the U.S. is United Flight 93, and the only available choice is to do something desperate to wrest control from the terrorists. I suppose I can't blame Obama if he's holding out for an outcome more desirable than a catastrophic crash.

You agree that it unambiguously allows the Treasury to mint, say, hundred dollar coins.

Not without knowing something about the history of provision and the practice of issuances of commemorative coins, no, I don't agree with that. In context, yes, I agree that it clearly allows hundred dollar coins, but words need context to have meaning. And, given the context of what I know about the history of provision and the practice of issuances of commemorative coins, I don't agree that it unambiguously authorizes trillion dollar coins.

"history of the provision"

99: I think it's a real civil/ common distinction since it comes up as an issue in EU countries. AFAIK "teleological interpretation" is a common continental method, whereas e.g. looking at parliamentary debates for guidance was always practically heretical in both Britain and Ireland. Common law courts have to consider such methods though when attempting to interpret EU law.

Not without knowing something about the history of provision and the practice of issuances of commemorative coins, no, I don't agree with that.

So for you, plain language of the statute is never enough to settle it? I'd think someone looking at that statute and saying that it doesn't authorize hundred dollar coins because, e.g., all prior commemorative coins have had a face value of less than ten dollars would be completely indefensible.

73: What takes it out of the realm of absurdity to me is that the absurd action (trillion dollar coin) is different only in scale from the clearly intended action (hundred dollar coin).

Okay, so here's what I'm thinking:
1. There doesn't seem to be any inherent problem with either negative or positive seigniorage, since both are in operation at any given time.
2. The statute allows the coinage of both bullion AND proof coins.
3. Arbitrarily, we will say that the difference in the value of the metal in the coin and the face value should be no more than 500X one way or the other.*
4. Why not print zinc proof coins with a platinum coating such that the metal in the coin was worth, say $1000, with a face value of $500,000. And print 200,000 of them. Now we're not talking about any absurd seigniorage value, just a large one.

*Current difference for the half-ounce gold bullion coin is about 100X.

I thought that a real court would not condemn Melville's Billy Budd to death, but it appears from your post that a court would be bound to follow the letter of the law and sentence him to death. Does a court really need to follow the exact letter of the law, even when it results in something the legislature clearly would not have intended? Abraham Lincoln said that the Constitution is not a suicide pact. I dislike Andrew Jackson, but Jacksonian democracy has a long heritage in the US, and IIRC, it does not hold the letter of the law sacred.

I guess maybe they could just be small platinum coins rather than plated. So, bullion too.

I'd think someone looking at that statute and saying that it doesn't authorize hundred dollar coins because, e.g., all prior commemorative coins have had a face value of less than ten dollars would be completely indefensible.

Well, me too--in that case, if Congress wanted tighter control over the issuance of commemorative coins, they should have said so.

But you do realize in your example we're no longer talking about the issuance of commemorative coins at all, right? We're using a statute clearly intended to authorize the issuance of commemorative coins in order to do something totally unrelated.

What if the secretary wanted just to print, not a trillion dollar coin, but a few thousand million dollar coins, and then hand them to executive branch members, because he didn't like the salaries that have been legislatively provided for the executive branch? Is that also unambiguously permitted under the plain text of the statute, in your mind?

I think the trillion dollar platinum coin idea is absurd. But, really, no one has or can identify the hook upon which an injunction might really be based. What's really wrong with the coin: it's inflationary. There's neither a statutory nor a Constitutional right to be free of inflation. The statute clearly delegates the power to coin, and to decide how many nickels to coin, to the Executive. I don't think this is non-delegable (a concept that's not exactly favored in the law anyway).

The standing problem is quite real. Boehner can't challenge the number of nickels Treasury decides to produce. I can't. Bank of America can't. Boeing can't. Boeing can't even object to being paid in nickels, which are, after all, legal tender.*

*And yes, I really did pay tolls on a trip through NY and NJ in pennies despite those signs on the tollbooths.

108.3: Well, they'd have to pay him something in return for the coins, wouldn't they?

If it were a Herman Cain idea he'd print 999 coins. Or maybe one coin worth 999 billion dollars.
If Obama did want to use this and be more conservative about it (forgoing the concern about doing this in other contexts like election-related stimulus) he could say that each week they'll print one coin worth exactly enough to cover the obligations due that week, and buy back and destroy the coins as necessary if there are excess funds.

Yes, I suppose 108.3 is not a good example, for all sorts of reasons. But the point is: we're outside the world of commemorative coins. Hell, we're arguably outside the realm of legal tender, if that phrase implies something intended to be publicly circulated. So saying "they didn't place a strict limit on the value of commemorative coins that could be issued" sort of misses the point.

112 -- You're not outside the world of legal tender. Congress has been explicit on this point, and there's no ambiguity at all.

108.3 is a bad example, but there's nothing, nothing at all, that prevents the Secretary from minting a bunch of nickels, and paying cabinet member's salaries in nickels. Do you disagree?

109.2. Are you sure of that? You couldn't pay Boeing in small change here.

112 -- There used to be a $100,000 bill. It was lawful currency. It was not intended for public circulation.

112: Okay, but here again, what's your multiple limit? Obviously, everyone is fine with a negative seigniorage rate of 100X face value for gold bullion coins, as that is what the Treasury has been charging with no serious objections. The positive seigniorage on quarters, according to Wikipedia is around 5X, again with no objections. So what are your seigniorage limits for platinum coins that are non-absurd?

"Ambiguity" isn't exactly the right term for when legislative history gets introduced to interpret a statute -- it's when the meaning and interpretation isn't immediately clear (based on, inter alia, the statute as a whole, such that the "plain meaning" isn't obvious. It's not limited to strict cases of grammatical ambiguity alone, though sometimes the writing of one Antonin Scalia, whose bullshit it's always best not to confuse with either the actual law or practice of courts, has suggested it should be. As Di said above, business of courts is to implement the intent of the legislature; obviously statutory text is the best, and normally dispositive, evidence of that intent, but there can be cases (such as, probably, here) where interpreting the language in arguably the most natural sense clearly conflicts with the intent of Congress.

(generally, I think the "rules" and "canons" of statutory interpretation are a pretty poor guide to how statutes are interpreted. In the federal statute I spend the most time with, the Copyright Act, courts have routinely (effectively) rewritten statutes in order to avoid purportedly absurd results, which are generally in fact not that absurd.

Also, what's your "absurd" seigniorage multiple on bank notes? How much does it cost to print a 500 Euro note?

115: http://www.law.cornell.edu/uscode/text/31/5103 See also 31 USC 5112(h): "The coins issued under this title [including 5112(k)] shall be legal tender as provided in section 5103 of this title."

If it were a Herman Cain idea he'd print 999 coins.

And it it were a Rudy Giuliani idea, he'd mint 911.

109: What's really wrong right with the coin: it's inflationary.

The hook for an injunction would obviously be that the coin violates the Federal Reserve Act (or wherever the debt ceiling limit is found, no I am not expert in this area and neither, I believe, is anyone else here) and the purported platinum coin exception is no exception at all in these circumstances, because a statute designed for commemorative coins cannot reasonably be interpreted without absurdity to create a conflict with, or exception to, whatever law provides for the debt ceiling. That's not a difficult legal argument to figure out, and it might well be a correct one.

Rick Perry would order the Treasury to mint three coins: One for a trillion dollars, one for $500 billion, and ... I forget what the third one would be.

My only substantive comment here is: if Dick Cheney had wanted to do this, do you think he'd have done it? Do you think David Addington would have signed a legal opinion authorising it?

Yes. Of course. The other side would have minted the fucker with a hole in it so Cheney could wear it round his fucking neck to haunt the Naval Observatory.

(and no, Bob, your bank does not "buy" cash deposits from you. nor does it sell withdrawals to you. as a deposit, it would be a loan from the Treasury to the Fed, which the Fed would of course be required to repay on the Treasury's order. What would happen if the Fed decided to repay with *another* platinum coin is another question...)

And Urple, look at the contrast between 5112(k) and 5112(m).

Compared to the repeal by implication argument, or the 14th Amendment argument -- telling you that you can't borrow any more money doesn't "question" the "validity" of any existing debt -- the absurdity of coining more nickels, or a bunch f $1000 platinum coins isn't exactly overwhelming.

123 -- You think the Federal Reserve Act, or the debt ceiling, limits the number of nickels that can be minted?

Also, what's your "absurd" seigniorage multiple on bank notes? How much does it cost to print a 500 Euro note?

Natilo: I don't think anyone is arguing that the seiginorage ratio per se is what leads to the (purported) absurdity. It's the ratio of the stated value of the coins to the money supply. If it were a trillion dollar coin made of all the platinum in the world, the purported absurdity would still be there. It's just that it wouldn't make any sense for the Treasury to do that even if it were found to be legal.

(126.1 before seeing 123)

127 -- maybe, if the printing of the nickels was blatantly and shamelessly being done in a way so as to violate either the Federal Reserve Act or the debt ceiling. At least there would be a serious legal argument about that.

I'm actually curious about the nickels question. I had thought there was some law somewhere that you actually couldn't make people accept pennies in payment of a debt (and presumably likewise other small change), and I hadn't realized that small change was outside the limits on other coinage. It'd be funny to pay off the national debt in nickels, certainly.

I recall reading somewhere the nickles cost more than five cents to make, but maybe that was only for a brief period.

(Debt ceiling is in 31 USC 3101. That's from the Public Debt Act, I think).

125.3:I'm sorry, that's absurd and backwards.

Here's a comment by JKH on a platcoin (trademark) thread. I "think" JKH is James Hamilton, economist at San Diego State, but I am sure he is an accepted economist in the blogosphere.

Regular QE:

Treasury issues bond
Treasury spends
Fed buys bond
Fed issues reserves

Net effect:
Treasury spends
Fed bond asset
Fed reserve liability

Platinum Easing:

Fed "buys" coin (i.e. accepts coin deposit)
Fed issues Treasury deposit
Treasury spends
Fed issues reserves

Net effect:
Treasury spends
Fed coin asset
Fed reserve liability

Same deficit spending

Does that help? Yes, when the bank accepts my paycheck it is buying it. Now I am not sure about Fed bylaws concerning non-performing assets or whatever it can or can't buy.

But this, if the Fed did accept the trillion dollar coin, would be very close to a pure and instant cash infusion into the economy. Since the economy is what, say 15 trillion a year, I would put the instant inflationary effect at at least 5%.*

Therefore the platcoin upon acceptance is instantly worth only $950 billion. Treasury according to your scenario would not be required to make that up. Therefore the Fed is down at least $50 billion dollars out of pocket. The Fed does take losses, but I suspect the more conservative gov'ners would scream.

My bet is that the Fed would refuse to accept the coin.

*5% is fine with me. 10 % is better.

Similarly, that we start paying Fed employees with coins marked $100 does not mean those coins will buy a night in a hotel in Bangkok. The value or exchangibility (sic?) of "legal tender" isn't actually declared it is negotiated and discovered.

More on the $100,000 bill: http://www.bankrate.com/brm/news/drdon/20070322_denomination_treasury_bill_a1.asp

I do think the standing problem is real and quite possibly fatal to any attempt to get this into court, but all that means is that the final interpretation of the statute is going to be by the Administration (the President, Treasury, maybe OLC) rather than by the courts.

And, ultimately the reason that I don't think the Administration is seriously considering doing this is because it's absurd to think that Congress intended to authorize the Treasury to mint trillion-dollar coins at discretion.

That's despite the fact that, as CC has pointed out, there are some quite good plain-language arguments here. (The contrast to subsection (m), which explicitly prescribes detailed limits on the Secretary's discretion for certain types of commemorative coins, but does not apply to the platinum coins authorized by subsection (k), is indeed pretty striking.)

You can say that there would be political pressure on the Administration as well, but the political pressure to avoid defaulting on the public debt is also going to be very significant (to say the least). If they thought the platinum-coin argument was one they could make with a straight face, I doubt they would be dismissing it out of hand.

136.2 -- I agree with this, but think the repeal by implication argument is even worse. Nearly every floor statement in the House debate on the fiscal cliff bill made reference to the impending debt ceiling issue. And I think the 14 Amendment argument is worse still.

(And actually, I think they are dismissing it out of hand because they are sure, and rightly so, that the Markets would much prefer a negotiated solution to a wacky coin solution, even if legally unreviewable.)

Be the signature you want to see in the world.

My only substantive comment here is: if Dick Cheney had wanted to do this, do you think he'd have done it?

Well, yes, but that's a bad thing.

Substantively, I think it's a ridiculous thing to do, and I really do think that it would be a perfectly reasonable justification for impeachment. I want it to happen because we appear to be living in ridiculous times, so why not, but I'm not arguing that it's not in some real sense an abuse of executive power.

The post was mostly griping about the implicit attitude in Drum's post that it's the courts' job to keep the government from doing anything insane, rather than to in a limited, rule-bound way to interpret the law.

141.2 -- Yeah that's all too common.

141.1-- I can't get behind the whole sending a message about how ludicrous our times are motivation. On the other hand, minting several metric fucktons of $1000 coins made from platinum mined in Montana might have some beneficial effects. What would William Jennings Bryan say?

He's probably wonder why St. Elizabeth got the bigger hospital in Lincoln named after her. She didn't even live there.

Not so much that sending a message is independently worthwhile, but the problem's got to be solved somehow, and my sensible resistance to doing absurd things has been eroded by the last few years of Republican behavior. I figure Bryan wouldn't want to have been crucified on a cross of T-bills either.

"I assumed you would have settled the question about whether or not you can teach evolution in public schools. It's been 90 years, FFS."

"Aaah! Giant metal bird that is considerably larger than the giant metal bird we had in my day! Run!"

"The 'Rock of Ages' on Guitar Hero was not at all what I was expecting."

147 was me.

"Clarence Darrow. Christ, what an asshole."

Has anyone made the "I got your cannon of construction right here" joke yet? Because I'm still working on the "Yes, you, Vicar" variation.

"The One Trillion Dollar Congress Still Controlled by a Confederacy of Asshats Commemoratve Coin".

So, is it fair to say that any bill, law or allocation passed by Congress implicitly carries with it the caveat that its enforcement at any future time is completely contingent on the US having approved funds to carry it out?

152: I realize there are probably a whole host of other such implicit caveats that could be spelled out, but this one strikes me as utterly corrosive of the societal-government bond. But that's all to the good for the political terrorists in the Republican Party.

134: Bob, as I said above I agree with you that the Fed might not have to accept the deposited coin. But the question of whether there would be an 'instant' inflationary effect on the economy is much more complicated. The Fed has expanded its balance sheet by much more than $1 trillion since the start of the crisis and we have not seen much inflationary effect.

The platinum coin solution may not work, because the design of the coin has to be determined by legislation. i.e. Congress would have to agree what face to put on the 1T coins ...

155: That may be just the thing to get the Republicans to go along! If Obama proposes putting Reagan's face on it, how could a Republican oppose it?

156: That is what we already have had teed up and waiting since 2011. Needs some minor updates to wording.

157: Wow!

Upon reflection what needs to happen is for Obama to propose the platinum trillion dollar coin with Malcolm X's face. The economic and legal aspects of this will be completely forgotten -- all the controversy will be about Malcolm X, and whether this is proof that Obama is the Muslim traitor that the Tea-Partiers have said he is all along. And then at the last moment Obama can back down and agree to put Reagan on the coin. The Republicans will celebrate their huge victory over the Muslim President.

158 is fucking funny.

I don't see any way the Fed could refuse to accept the platinum coin. If it's legal tender, then it's legal tender and the Fed has to accept it.

The alternative is that the Fed can pick and choose which deposits from the federal government it will accept. It could decline to accept deposits of Social Security or Medicare taxes. It could decline to accept deposits of tax revenue from the expiration of the Bush tax cuts. There's no way the Fed has that kind of power.

159:I would like to know for sure.

The Fed was founded to be independent during a period in which most of the European Gov'ts monetized debt to pay for WWI. Saying the Fed must buy anything and everything Congress authorizes Treasury to print up makes a joke of an independent Central Banking System.

Dylan Mathews reports on the platinum coin option (cruelly omitting LB from his list of prominent supporters). He concludes

So the platinum coin plan plainly goes against the legislative intent of the Commemorative Coin Authorization and Reform Act of 1995, as described by its author. But there's another option. The American Eagle Palladium Bullion Coin Act of 2010, proposed by then-Rep. Denny Rehberg (R-MT) and signed into law by President Obama on Dec. 14, 2010, authorizes the Treasury secretary to mint $25 palladium coins "in such quantities as the Secretary may determine to be appropriate to meet demand." So theoretically, Geithner could issue 80 billion $25 palladium coins, collectively worth $2 trillion, and deposit them in a similar manner.

I think the common law objection to purposive interpretation is overstated -- see Heydon's Case.

160: The Fed isn't buying the coin. If you deposit money at the bank, the bank isn't buying your money. They're receiving your money, and crediting your account. There's no difference between depositing greenbacks, and depositing coins -- they're both legal tender.

||
I'm curious to know whether this approach ever succeeds.
|>

See the other thread.

As far as 'what courts will do'--well, think about the state of the world we'd be in if Obama actually did it. I think it's pretty clear that conservative and libertarian legal scholars would put forward arguments in respected venues that the platcoin is illegal, which would be duly parroted by a number of judges, and it would go all the way up to the SC, where such arguments would get somewhere between 3-6 votes.

What I think isn't getting enough attention is that one's perception of the 'absurdity' of the platcoin idea--whether it 'clearly' contravenes the other legal norms and legislative intent--is, as an empirical matter, almost certainly determined by one's background sense of what the government can or can't do, which is to say, one's ideology. It's precisely when something truly off-the-wall is proposed that ideology comes most to the fore, because that's our frame for orienting ourselves to the new and unexpected. Good-faith judges aren't immune to it; it's just how we work. For some this will be just clever lawyering, exploiting a loophole, like the double-Irish tax whatever; for others this will be lawless Kenyan--heck, Zimbabwean!--Socialism.

Just out of curiosity, suppose we go ahead and mint the trillion-dollar coin, and then Dr. Evil steals it. Are we screwed? Or can Congress retroactively devalue the coin after its issue?

I suppose the real answer is Boehner would refuse to bring a devaluation bill to the floor unless tied to entitlement reform.

166: By ideology, do you mean partisanship? Because I don't think that's true of me (in this limited instance) -- I think my reaction to this as a possible Republican ploy would be "Oh, shit, they're going to be able to get away with it; it's legal under the statute". And I don't think it's true of, e.g., Halford or Urple, both of whom are ideologically in about the same position as I am in terms of wanting the administration to get out from under the debt limit, but who are much more suspicious of the legality of the platcoin than I am, even though it favors their political ends.

If by ideology, you mean something more related to "your generalized view of how courts are supposed to work", then it works, but I don't think that's what you meant.

166: Eh I think it's arguably not legal and arguably legal. You'd have to go through the whole rigmarole of legal research and all that boring stuff to get more detailed, and dear lord I can think of nothing worse.

But I think it's a bit naive to say ideology will determine the absurdity of the idea. I would imagine I am ideologically way to the left & way more pro-state than most people here, and yet my feeling, without any research or so-on, is that the platinum coin idea is pretty fifty-fifty as far as legality goes.

Has the notion of Obama declaring that the appropriations bills are in conflict with the debt ceiling, and he will treat the former as taking precedence, been rejected for some reason? It seems to me the most precedented - courts have picked one law over another plenty of times (that EPA thing).

I could see the constitutional option working for debt service payments, but nothing else. Appropriations are simply not the same as debt, and can't be shoehorned as such either textually or with reference to intent.

Naive's the wrong word -- maybe simplistic's better?

Appropriations laws, that should be.

55

And to come back to JBS' example, if Congress "unintentionally" but unambiguously repealed a criminal statute, hell yes there's no way the courts are going to permit someone to be imprisoned for violating the repealed law. The common law of crimes doesn't apply to our federal government of limited powers, and you need a positive federal enactment, within those powers, to convict anyone.

Suppose a state legislature unintentionally but unambiguously repealed a criminal statute?

117

Okay, but here again, what's your multiple limit? Obviously, everyone is fine with a negative seigniorage rate of 100X face value for gold bullion coins, as that is what the Treasury has been charging with no serious objections. ...

This isn't correct, the treasury prices its gold, silver and platinum coins based on the value of the metal content not on the (lower) face value.

Same result, I'd expect. Anything egregious, I'd expect to get fixed pretty fast, but that defendants would go free while the law was repealed. I'm having trouble coming up with a realistic enough scenario here, though. (If you're thinking of something that would be along the lines of a typo -- a double negative, or a missing 'not', or something like that -- a court would probably correct that as a scrivener's error.)

Unless they preferred not to.

73

What takes it out of the realm of absurdity to me is that the absurd action (trillion dollar coin) is different only in scale from the clearly intended action (hundred dollar coin). Yes, at some point quantitative differences become qualitative, and this is certainly so far past that point that it's not even visible in the rear-view mirror, but still, allowing the Treasury to mint valid currency outside the limits applicable to other forms of currency isn't an absurd result, it's what Congress really did mean to do, and really did literally do. Congress just didn't plausibly intend to let the Treasury do it to an economically important extent, and forgot about putting an explicit limit on its authorization.

It is more than a difference in scale, current practice is gold, silver and platinum coins are sold priced on metal value which is more than face value. You want a coin sold based on a face value which is much greater than the metal value. This is fiat money which the other coins are not.

I don't see how that distinction makes a difference to the functioning of the statute, which doesn't depend on the price of platinum.

Criminal law's different because of the penal presumption, which is a kinda separate thing.

(And in some ways related to contra proferentem I think, although I dunno if it's ever really conceptualised like that.)

That is, the law would still be on the books after the great platinum asteroid of 2013 wiped out Iowa, and Treasury would be, if it chose to continue minting platinum coins, releasing them at face value as mementos rather than for bullion value. At that point, you'd have the same problem with the fact Congress intended to allow the minting of economically unimportant amounts of platinum, but not of important amounts, but the bullion value of platinum wouldn't enter into it.

You're using the bullion value of platinum as further evidence of Congress's real intent, but you don't need more evidence; it's blindingly obvious. The question is only whether you take that intent into account.

181 -- I think he's using the value of platinum as evidence of a practice which should aid interpretation. Which is a separate issue, although again you need to get beyond plain meaning for it to have an issue.

Hey have we done the `why-would-Congress-put-this-power-here' bit yet? I quite like that argument.

The thing is, once you get past reading the plain meaning of the statute, any other mode of interpretation you can think of says that it doesn't work. The obvious intent of Congress, prior practice, the fact that you, the interpreter, aren't a raving lunatic. So there's no need to put a lot of work into any question other than whether or not you stop at the plain meaning.

169/170: I think what I'm trying to say is that this particular sort of boundary case, where it's plain meaning vs. absurdity, is a type where there's not much you can do as far as giving reasons goes. Because what's dispositive is a sort of affective reaction--a sort of, "but that's nuts!" If you feel it, you rule against the platcoin; if not, not. And it's hard to reason people into that kind of affective response. You can gestures towards precedents, but there's not much there, and how persuasive they seem is going to depend on how relevant you find them, which, again, is going to be a matter of pretty deep-level intuitions.

This claim actually stands a bit in tension with what I said about, if this actually happened, votes breaking down by partisanship. (Very well then, I contradict myself, I contain multitudes!) I'm not saying that Rs will find the inevitable arguments made by their legal scholars (and vice versa) persuasive, exactly; but the existence of that conversation will help make that affective response more natural. Outrage is easier when your friends are outrages. The same holds even stronger for blasé detachment.

Because what's dispositive is a sort of affective reaction--a sort of, "but that's nuts!" If you feel it, you rule against the platcoin; if not, not

Again, not exactly. I feel the nutsness of it all, I'm just arguing for the position that it's not the job of a court to do what Congress meant rather than what it said, purely on the basis of insanity.

Hmm the thing is that I think this is more about statutory interpretation assumptions, and so, because I am used to the NZ rule (the meaning of an enactment must be ascertained from its text and in the light of its purpose) I feel it's pretty dodgy. But that's not really about deep level intuitions about anything but statutory interpretation.

179

I don't see how that distinction makes a difference to the functioning of the statute, which doesn't depend on the price of platinum.

Does someone have a link to the statute along with the statutes providing for gold and silver coins? Presumeably they differ in some way as no one is talking about a trillion dollar gold coin and I think you have to compare them to evaluate the claim that trillion dollar platinum coins are clearly legit.

It could be I'm absolutely, completely, 100% wrong. It has happened before, once or twice.

http://www.law.cornell.edu/uscode/text/31/5112, I think.

Here. You want to look at the difference between 5112(k) and 5112(m).

It's a real bonehead mistake -- the gold and silver bit of the law talks about commemorative coins and has limits and all that, and the platinum provision just says bullion coins and proof coins, in accordance with the Secretary of the Treasury's discretion. Why on earth the platinum coins weren't added to (m) in the same manner as the other commemorative coins, I can't imagine, other than that legislatures aren't very good at what they do.

186: Yeah, if there was a US principle of statutory interpretation that gave the purpose of the statute weight comparable to its literal wording, I'd be right with you.

It's so dumb.

Adding it to (m) mightn't have helped though --- see m (2) B.

192 to 190. I am surprised the US doesn't have clearer statutory interpretation rules. (Although I think NZ might just have quite good ones.)

(m)(2)B is still talking about public demand for commemorative coins, which to me would be enough to block this kind of patently non-commemorative coin related stunt.

193: The plain meaning rule is clear. Dumb, maybe, but clear. (And of course what courts actually do is more complicated.)

187- Sections f and l specify the values of the gold and silver coins; section k says the values of platinum are at the discretion of the Secretary. Although it looks to me like 31USC5112-l-4-C says that in addition to the prescribed gold coins there may also be denominations of the Secretary's choosing. Although the Cornell version has a typo- it says "in minting" instead of "is minting"

194 - couldn't you call it the debt-ceiling commemoration?

195 - I am skeptical.

The GPO version has the is->in typo too! Maybe it's really in the law, and it means the Secretary himself must be physically involved in minting gold coins!

More in silly statutory interpretation.

199 reminds me of the dude I heard on the radio the other day who plans to marry a corporation. One of the hosts asked if he could be the best man.

190

Thanks for the reference. It seems you would need definitions of "bullion coin" and "proof coin".

Regarding "bullion coins" clause p(4) provides:

(4) Bullion dealers.--The Director of the United States Mint shall take all steps necessary to ensure that a maximum number of reputable, reliable, and responsible dealers are qualified to offer for sale all bullion coins struck and issued by the United States Mint.

which does not seem very consistent with trillion dollar coins.

Nice try, but I don't see how the corporation was present in the car. Maybe there's some kind of silly argument for that too . . .

So corporations are expected to stay at the office 24/7 while the rest of us enjoy weekends and 40 hour work weeks?

199: Holy crap, last fall a very friendly but clearly insane guy was talking our ears off in the parking lot of the farmers' market at the Marin Civic Center,* and when he found out I was a lawyer he wanted to know if I was familiar with an activist lawyer friend of his who I'm fairly certain is the lawyer for the guy in that article. (Definitely recall the same first name, and that he was a member of a local city council--I think that narrows it down sufficiently.)

*He started off slow--plausibly just a hippy/protestor type--but eventually moved on to something something MKUltra and his time in the CIA and being in a hotel room together with Sandusky and Mumia back in the day. (We were a captive audience because I'd managed to beach our car on what turned out not to be the exit of the parking lot and had to wait for a tow truck, but that's another story.)

That's quite a hotel room.

Welcome to the Hotel Pennsylvania

Suppose a state legislature unintentionally but unambiguously repealed a criminal statute?

You mean like the time Rhode Island legalized prostitution and it took almost twenty years to notice and another ten to recriminalize?

They say it was an accident.

I do kinda hate legislative intent. Like, purpose of the law? Yes! Useful tool. What the particularly clowns sitting in the chamber that week thought? Ehhhhh.

(207 is a useful example of how lawmakers are basically cowboys.)

This is an interesting thread. Sometimes it's a good thing that we have so many lawyers around here.

The contrast in attitudes toward Kevin Drum in this post and the one immediately below it is also funny.

I adore Drum, generally -- I don't nitpick people I'm not reading.

I saw that.

174 -- Obviously, you'd need a state that hasn't abolished the common law of crimes. I think there still are some.

186 is the standard and traditional American attitude towards statutory construction as well, as Di noted upthread. LB's Scalia like position (sorry, I like LB too much to use the worst of insults, but it needs be done) is kind of a theoretical movement embraced by people like Antonin Scalia, but most courts approach statutes very much from "meaning of its text and in light of its purpose." In fairness, this is a case where the meaning of the text is unusually inconsistent in a significant way with the obvious purpose of the statute, which makes it a little bit more difficult than the average issue.

The idea that a legislature can do something unambiguously but unintentional seems pretty problematic to me. If they did it, they intended it (absent typographic error pretty much, and even then, the accuracy of legislation as published is unimpeachable in most jurisdictions for a reason.)

(Or, rather, the idea that legislature have intent seems problematic.)

216

The idea that a legislature can do something unambiguously but unintentional seems pretty problematic to me. If they did it, they intended it (absent typographic error pretty much, and even then, the accuracy of legislation as published is unimpeachable in most jurisdictions for a reason.)

I suspect it happens all the time. There is some last minute deal and everybody is in a rush and some mistake is made. Or the printer fouls up somehow and nobody notices.

Typos happen, sure, but I think substantive mistakes are fairly rare. There's a ton of people working pretty hard to get this stuff right, and they have a bunch of other folks looking over their shoulders, especially (but not exclusively) when money is involved.

That's not to say you don't sometimes have some strange situations. The Detainee Treatment Act of 2005 (which created circuit court review of enemy combatant decisions) had an effective date provision that was a compromise between several senators. Some senators (the principal proponents of the bill) were sure it would require the dismissal of all pending district court cases. Others (basically opponents of the whole thing) thought it would not be retroactive. The Supreme Court ended up resolving the question, siding with the latter. (After which, the statute was amended to unambiguously require dismissal of the pending cases, which provision was then found unconstitutional).

Lesson: Carl Levin is a better draftsman than Lindsay Graham.

I have to side with LB--it is ridiculous that the law allows this, but we live in ridiculous times. It's Congress's bad behavior that's getting us into the stupid debt ceiling crisis, it's only fair that we use another of Congress's screwups to settle the matter.

And here's the legal basis for it. Back in Eldred v. Ashcroft Lessig argued that Congress couldn't go around extending copyright willy-nilly as it went against the clear intent of the Copyright Clause which explicitly says that Authors and Inventors got the exclusive rights to their works for "limited times". Lessig argued that the limit couldn't be something absurd like 1 Trillion years--even though that would literally be within the bounds of the Copyright Clause, it clearly goes against the intent.

The SC, however, ruled the other way, saying that 1 Trillion years was indeed limited, and if that was the limit Congress wanted to set, they were free to do so, no matter the absurdity.

So if the SC has already stated its preference on absurd laws: Congress is free to write absurd laws, and the SC will not re-write it for them.

I didn't agree with them then, but they've made their case and I'm more than happy to hoist them by their own petard. The platinum coin option is no less absurd than the Trillion year limit to Copyright, and the platinum coin statute doesn't even have any mention of limits! If we're playing by Eldred v. Ashcroft rules, then there's no reason why the platinum coin is illegal under the plain and unambiguous reading of the law.

But that's a constitutional case, and arguably very much obiter. (Because life+70 years isn't absurd, the in-case-of-absurdity-problem didn't have to be decided.)

219 persuaded me. Fucking Eldred v. Ashcroft was bullshit.

Hard to see that it was wrong though -- I mean, life + 70 years is a limited time. It's a period pretty comparable to the time scale of the rule against perpetuities. I dunno, I don't like it as public policy, but hard to see how it's unconstitutional. (Or, for the point here, that it's absurd.)

which does not seem very consistent with trillion dollar coins.

Perfectly consistent. The number of dealers qualified to sell a trillion dollar coin will always be zero, the best endeavors of the officers of the mint notwithstanding.

Because life+70 years isn't absurd, the in-case-of-absurdity-problem didn't have to be decided

IIRC, Lessing et al. argued that it was indeed absurd, because the net present value to the public of a claim on something 100 years from now is barely distinguishable from zero. Congress never intended for *all* the benefits of a work to accrue to the author, only a portion (through the mechanism of an exclusive period). With an effective 100 year term, materially all of the NPV is reserved for the author. Admittedly, it's not as clear-cut as the platinum coin case, but it's an argument.

The insurance premiums alone when you have a trillion dollar coin in the glass under the counter have got to be a bitch.

Eldred has nothing to say about this situation: there was no question in Eldred that the plain meaning of the statute was consistent with Congressional intent--the argument was that Congressional intent was absurd, and the Supreme Court (sort of) said that Congress can write absurd laws if it wants to. Here we're talking about a case where the "plain" meaning is absurd, but Congressional intent apparently was something quite different.

It's not hard to find cases in which the Supreme Court goes beyond plain meaning when it thinks the plain meaning doesn't really express Congressional intent, even when the plain meaning would fall far short of absurd. Just doing a quick search on "plain meaning" near "absurd" in the SCt corpus, two of the first three hits are such cases. Small v. United States, 544 U.S. 385 (2005) (statutory phrase "convicted in any court" doesn't include foreign courts, because we don't think Congress would really have meant to include foreign courts); General Dynamics Land Systems v. Cline, 540 U.S. 581 (2004) (ADEA's prohibition on "discrimination ... because of an individual's age" really means just discrimination against olds because we don't think Congress was worried about "reverse" age discrimination). Of course, Scalia/Kennedy/Thomas dissent in those cases.

225: Thinking of the inevitable National Treasure movie that would be made suddenly turns me against the idea.

233

Perfectly consistent. The number of dealers qualified to sell a trillion dollar coin will always be zero, the best endeavors of the officers of the mint notwithstanding.

The argument would be the best effort would involve not minting a trillion dollar coin in the first place. Also that Congress didn't intend that trillion dollar coins would result from their law.

226

Eldred has nothing to say about this situation: there was no question in Eldred that the plain meaning of the statute was consistent with Congressional intent-- ...

There was a bit of a question because the extension was retroactive. It is arguable that Congress has shown that it never intends to allow existing copyright protection to expire and will continue extending the periods as needed.

226

The Supreme Court cases are interesting. I wonder if LB thinks they were correctly decided.

Lessig didn't argue in Eldred that life-of-the-author-plus-70 was too long. He expressly declined to make that argument, apparently because he thought it would be impossible to convince the Court to draw a judicially manageable line about how long was too long, especially as a matter of constitutional law. See page 14 of his opening brief, here. Instead, he argued only that Congress couldn't extend the term of copyright for existing works -- which he referred to as a "retroactive" extension, although I've never been persuaded that term really applies in its usual sense.

I think some of Lessig's amici made the argument referenced in 224. Possibly he made it himself in passing, there was a lot of paper in the case. But he didn't ask the Court to hold that Congress couldn't enact life-plus-70 for new works. (He did say that if the extension for existing works was unconstitutional, the extension for new works in the same statute was inseverable and should fall for that reason.)

(Disclosure: I worked on the case. Not on Lessig's side.)

To 226, I don't really disagree with potchkeh's description of the cases, but I think arguing about whether the Court "goes beyond the plain meaning of the statute" doesn't shed much light on how cases really get decided. Courts practically never (apart from constitutional cases) go beyond the language of the statute once they've declared that the legislature's intent is plain from that language. But courts rather often (I would argue) consider whether a result makes sense before they decide how plain the language of the statute is.

227 See: http://www.unfogged.com/archives/comments_12557.html#1518359

and the following comment as well

Here's a link to the Hamdan opinion I referred to earlier. Stevens vs. Scalia on statutory construction. Worth a read.

(I was present when the decision was rendered; Scalia didn't read his opinion, but instead a much angrier screed. Souter smirking throughout.)

I don't disagree at all with 231.last. My point was simply that asserting that the text of the statute is amenable to a "plain", linguistically unambiguous reading is not necessarily the end of the story (unless you are Scalia et al.). The majorities in the cases I cited certainly don't characterize what they're doing as going beyond the plain meaning of the statute, but they're doing so in the sense that we seem to be talking about in this thread.

I think Cline is wrongly decided. If there's ambiguity -- and I'll give you that, based on the legislative history -- then I think you go to Chevron.

Cline

235

So you agree with Scalia?

On the Chevron point, yes.

(Disclosure: I worked on the case. Not on Lessig's side.)

Are you ashamed of yourself?

isn't there some famous quote from a MA supreme court justice, of course judges make law, made some my self ?
the idea that judges interepret the strict language of statues is just, I was gonna say stupid, but so contrary to fact that it is hard to understand why some one would advocate this view

Take the 1st amendment right to free speech - it says *no law* yet no one seriously proposes that child pornographers can distribute their material

The majorities in the cases I cited certainly don't characterize what they're doing as going beyond the plain meaning of the statute, but they're doing so in the sense that we seem to be talking about in this thread.

I think there's a real distinction (although I can accept that this is going to look like quibbling to someone who's not already disposed to agree with me) between resolving ambiguity, even if it's not ambiguity that a naive reader of the statute would have taken from the language of the statute, and writing new provisions of law to avoid unintended consequences.

To spell that out: in Small v. US (which I haven't read because I'm taking a very short break from removing everything movable from my kitchen in order to clean it, but taking the characterization in the thread), the question was whether 'courts', which obviously included courts of law and excluded tennis and basketball courts, included only US courts of law or all courts of law worldwide. You could argue one way or the other, but you're picking between two usages of a word, and the US-only sense isn't insanely strained. Same with Cline -- the question is whether 'age' meant 'number of years since birth' or 'elderlyness: age as opposed to youth'; in the first case, protection for people being discriminated against for youth makes sense, in the other case it doesn't. For both of those cases, it's a bit of a strain to see the ambiguity, but once you've called the ambiguity into existence, you're choosing between two things that Congress might have meant by the words they used in the statute.

The platcoin is a different kind of problem. There's no place (that I can see, and obviously the whole statutory structure on coinage is something I'm not an expert in, and there could be some other provision I haven't focused on that makes this all nonsense) in the statute that limits the Secretary's authority to mint platcoins. To bring the statute into accordance with Congress's (concededly obvious) intentions, you don't have the option of saying that "this word, which would naturally be read broadly, was meant to have a more specific interpretation." You have to do something more aggressive, along the lines of saying that "Congress didn't want to hand out unlimited authority to increase the money supply. While there's nothing in the statute that says where exactly the limits on the Secretary's power in this regard should be drawn, obviously they would have wanted there to be some limit, and obviously it would have been well short of where the possible platcoins would have affected the money supply, so we'll use our reasonable judgment and hope close cases don't come up."

It's not a case of a court arguing that Congress used an inapposite word to express its intent, and so the court can fix that by reading the word in a specialized sense, it's a situation where a court would have to say that Congress left a provision out of the statute they wrote that they obviously would have wanted, so the court should supply it.

(And while I'm arguing hard, because it's what I do, the platcoin case is pretty close: the result really is very very very absurd. The OP was reacting more to Drum saying that it wasn't even close, and that people arguing for the legality of the platcoin were being silly. A court might rationalize the statute, but it's not a slamdunk that they should.)

(And Charley's right about Chevron deference, I say as a tool of my client administrative agencies.)

It's not obvious to me that the word "coin" is as straightforward as you want it to be. Could the secretary issue platinum "coins" which weren't shaped like discs? I'm somewhat persuaded by Shearer's argument that a 1 trillion dollar platinum coin where there's only say 10 dollars worth of platinum in it isn't a coin under normal usage of the word.

235, 242: Skidmore/Mead deference in that context I would think, and that's consistent with the result (though I agree that skirting the deference question by declaring the text unambiguous was silly).

241: you don't have the option of saying that "this word, which would naturally be read broadly, was meant to have a more specific interpretation."

If you have the option of reading the phrase "any court" to mean "any U.S. court", and the phrase "an individual's age" to mean "an individual's elderlyness", why would you not have the option of understanding the term "coin" as something like "a stamped piece of metal routinely carried for the facilitation of ordinary commercial transactions, or produced for the enjoyment of collectors" rather than something broad enough to encompass a trillion dollar coin?

I'm not suggesting that Small or Cline are indistinguishable, but I do think they're examples of the sort of thing you're objecting to. At any rate, Scalia, Kennedy, and Thomas seem to think they are.

243 -- Would you feel differently if the Secretary issued an opinion defining coin in such a way that in included the platinum coin? (Or, rather, the 500,000 $100,000 platinum coins).

Oh, what you're saying isn't absurd, but I think there's enough of a difference between the situations to react to them in a very different manner.

245: maybe.

On further thought though, I'd also argue that even if they're "coins" they're neither "bullion coins" nor "proof coins" and so aren't authorized. Bullion coins are intended to be valued for their medal content and proof coins are intended to be collectors items not circulating currency.

247 is an excellent point. I had no idea what "proof coin" meant and just assumed it meant seigniorage coin (or whatever the correct term is) to complement bullion coin. In light of this I think there's a very strong argument that 5112(k) unambiguously does not encompass issuance of seigniorage platinum coins not destined for the collectors' market.

of course judges make law

This reminds me, I found Governing With Judges by Alec Stone Sweet* fascinating on that topic. He's talking about constitutional law rather than statute, but is really good at explaining why judicial review can never be a simple matter of applying rules.

Incidentally, I'd be interested in a LB review of that book, and would happily buy a copy if that sounded tempting.

* Incidentally there's a recording by Alec on the mix that I created specifically for the first unfogged meetup. Not relevant, but how many academic political scientists also release interesting albums?

But even if they're for the collector's market they are by definition legal tender, and it certainly would be a hell of a collectors item.

The "proof coin" argument is the best one I've seen -- it doesn't change my mind about how I'd come down (that is, I think the Secretary could truthfully say "Sure this is a proof coin -- look at the mirror-like field, and boy would a collector be interested in this beauty if they could afford it" but then go do something with it other than sell it to an obviously non-existent collector (like deposit it in the Fed), but there's something useful there, and if I'd seen that argument first before I dug my heels in it might have convinced me.

As a matter of coin-collecting culture, I wonder why it's so important that all of these coins that clearly aren't meant to be currency be legally defined as "legal tender". That's where the law gets weird - catering to collectors who get bored with actual coins, but aren't content with commemorative 'coins' or whatever you call a disc of metal with pictures on it that isn't money.

||

I just overhead someone say, approvingly, "she dresses like an elementary teacher in the '90's."

I have no idea what that means.

|>

Maybe the coin is destined for the collectors market, but there are no collectors with $1 trillion to spend on it?

Cezanne's "The Card Players" sold for over $250 million last year, despite the fact that the materials that go into making it probably cost 5 orders of magnitude less. One could make an argument that the rarity and historical significance of this coin would actually make it worth quite a bit more than the value of its Pt (about $1600 for a 1 oz coin, which incidentally only has a face value of $100), though probably not $1 trillion.

201 247

According to the US Mint :

A bullion coin is a coin that is valued by its weight in a specific precious metal ...

So no trillion dollar coin with little intrinsic value. And also:

Aside from the proof version, the United States Mint does not sell American Eagle Bullion coins directly to the public. ...

suggesting the proof coins are a variety of bullion coins.

This is what wikipedia thinks about proof coinage.

Maybe the coin is destined for the collectors market, but there are no collectors with $1 trillion to spend on it?

Cut taxes on high earners and we can create a market.

LB has the right counterargument: read completely literally "proof" just refers to the way the coin is made and its physical appearance. So it's definitely plausible to read the statute as allowing beautiful shiny trillion dollar coins. But I think it's at least as plausible to read it less literally, as shorthand for items intended to have most of their value be as a collectors item not as a circulating coin. The main point is that it undermines LB's "in this situation the law is unambiguous so we don't need to look at intent etc. unlike those other cases like what 'court' means'" argument.

255: Right, from some quick googling 'proof' seems like a physical description of the coin -- it can be ordinary money, or some sort of bullion or collectible thing, but it's struck with special care to a higher standard of finish than a non-proof coin. In the case of ordinary money, you make a certain number of proof examples for a coin design. It's still a pretty good textual argument that the platinum coins aren't meant to be money, because there's no reason for a coin that's only for financial purposes to be a proof coin.

257: Yeah, on chewing over it, if I were the judge on the case I'd rule to block the trillion dollar coin with the 'proof' argument. But I'm changing my mind on the basis of something I'd missed in the text of the statute: the meaning of the word proof, not on Drum's argument that courts are responsible for stopping silly things from happening. And it's still a pretty close call.

Darn. I liked the platinum coin. Wasn't going to happen, but I liked it.

(If it made it to a court, I'd think there would still be a pretty good chance that it would make it through, in that it's a political issue, but I wouldn't think a judge who blocked it was wrong, assuming standing and everything else worked out.)

260: Well I'm never giving up the dream of the platcoin! You can have my platcoin when you pry it from my cold, dead hand! The platcoin shall rise again! Tiocfaidh ár plátcoin! Platcoins, baby, platcoins! ¡No Pasaran (sin platcoin)! The platcoin, united, will never be defeated!

Yeah, I could definitely see concluding that the statute says "at the secretary's discretion" and the secretary says it's a proof coin, and it's none of the courts business to interfere with the political branches on this point.

Shorter 259: I was wrong, but Kevin Drum was wronger.

But if it weren't for comparative rightness I'd have no rightness at all.

What? Proof coins are still coins and are still money.

The proof coin argument does not convince me at all.

(Artist's proofs are the best comparison.)

I really do not think the distinction between circulating coinage and what, ceremonial (?) coinage is helpful. There's plenty of precedent for legal tender that isn't designed to circulate but just to be used for intra-government transactions.

262: well but if the Secretary's discretion is unbounded by Congressional guidance that's an unconstitutional delegation. So either "proof coin" has to mean something more specific than "whatever the Secretary says it means", or there are bigger problems. (As Charley says up in 109, nondelegation is disfavored; but it's not a dead letter, either. I don't know what he means by suggesting the power to coin isn't nondelegable*--it's expressly committed to the legislature in Art. 1.)

266: sure, but arguably you wouldn't call such legal tender a proof coin, and when Congress uses the term "proof coin" it arguably isn't contemplating such a device.

*For non-lawyers: Congress can't "delegate" its powers to the executive branch, but that doesn't really mean they can't delegate in the ordinary sense. As long as Congress provides some intelligible principle to guide the executive's discretion, we maintain the fiction that the delegation isn't really a delegation. Strictly speaking that's the approach to "delegations" of Congress's legislative power but I'd have to imagine something analogous would be applied to the coinage power.

To spin the argument out in a little more detail: the statute specifies that it's authorizing "proof and bullion" platinum coins: therefore, it doesn't authorize platinum coins that aren't one or the other. Now, money in ordinary denominations minted for financial purposes can include some proof examples. But a requirement that all coins minted under the statute be 'proof' (or bullion, but Shearer's right that the platcoin wouldn't be a bullion coin -- it wouldn't be sold for the value of the metal therein) tells you from inside the text of the statute that there's reason to think that the authorized coins aren't intended for financial services. And that seems to be to be enough textual permission to emerge from the statute, look around at reality, and rule that the statute authorized coins that might plausibly be sold to the kind of collectors that buy proof coins, but didn't authorize coins minted for a solely financial purpose for which their nature as 'proof' coins would be irrelevant.

It's still a close call, but it's good enough for me.

But "proof", like "bullion", is just a physical descriptor. It's not about the legal properties of the object.

(You could argue proof is to be interpreted as part of a production run of non-proof coins, and if I were a judge looking for an out I'd bite.)

USMint:

"As America's official platinum bullion coin, American Eagle Platinum Bullion Coins give investors an easy way to take advantage of platinum as a precious metal investment."

"All American Eagles are legal tender coins, with their face value imprinted in U.S. dollars. Although their face value is largely symbolic, it provides proof of their authenticity as official U.S. coinage. The one-ounce platinum coin displays the highest face value ($100) ever to appear on a U.S. coin."

So a bullion coin is allowed to be worth much more than its face value, but not much less?

And there'd be no reason, say, for the Sec'y not to announce that they are investigating, I dunno, GIANT PLATCOINS A METRE ACROSS, but need to test and see if it is practically possible (i.e proof them), and then announce oh yeah by the way we've made 1T coin, but no, we're not going into general production, because of my discretion.

(Or similar.)

... and that was how LB destroyed the one last hope the US economy had.

I'm not convinced by the proof argument either. But a judge is going to have a Treasury opinion staring him in the face, and would have to defer to it unless it's totally wrong.

I do understand why they have to be legal tender. Otherwise they're not coins, and coin collectors aren't as interested in just bits of metal.

Also, if I was the executive, I would argue bullion just means issued in a standard weight and composed of a precious metal of a certain purity, and the face value issue is a side issue.

273.1: Does it have to be totally wrong or might it enough that it's kinda wrong and also totally crazy? (I mean crazy in the nicest way possible, I'm kind of a fan of the platcoin option myself.)

275 -- As someone usually arguing against the government, Chevron looks like a very very low bar for the government. LB can tell you how hard it is to get the deference she's entitled to.

271: You shall not crush this country beneath a moby disc of platinum.

I'm not that fat.

234: Comity!

239.2: No. Why do you ask?

247.2: Oh, nice catch.

275: I think "kinda wrong and also totally crazy" is a decent definition of what fails Chevron step two, actually. (That is, the statute isn't clear, but the agency interpretation of it is totally unreasonable.)

279.4 -- That's going to depend on the judge, I think.

Looking back at Hamdan, I managed to get myself mad again. Stevens uses the distinction between judicial review of a particular agency action (ec determination) and a different judicial function (petition for writ of hc) to justify finding that the DTA didn't mandate dismissal of pending habeas cases. As noted above, Congress then amended the DTA to require dismissal, but the SC found that unconstitutional. So, we're left with two different channels, right? No: the circuit decided that the two forms are not distinct to co-exist, and dismissed all DTA actions.

That's going to depend on the judge, I think.

Mmm. The problem with talking about this sort of problem as if there were a right answer is that there really isn't precedent for 'cases like this'. Down among the bottom-feeders where I spend my day job, one case is like dozens of prior cases. Something like this? Any precedent you can think of is completely distinguishable as many ways as you like.

280.1: Oh, certainly. And for the same judge it can vary from case to case, though it probably shouldn't. I was just commenting on (what I thought was) an amusing similarity between unfoggetarian's characterization and the standard from the cases.

'way wrong and irredeemably crazy' from a plaintiff's perspective.

When I interned for a judge during law school I wrote a draft opinion going against the government on Chevron step 2. Reversed on standing though.

(For the non-lawyers, here's an easy to follow DC Circuit decision on standing, circa 1994. It hasn't gotten any easier. Note that the government apparently didn't raise standing, but wanted a merits ruling. Sorry.)

Why a nonlawyer would want to read a 1994 decision on standing* when, I dunno, mastrubation is available is beyond me.

*Here's a pro tip on the doctrine: it's all bullshit.

You're half right.

And half ord.

I see that Nadler has suggested putting Albert Gallatin on the platcoin. Reason enough to do it, I say.

Also that the guy who was in charge of the Mint when the platinum section was passed has weighed in. "Diehl said he thought it could be used "as a backstop," and that it appeared to be on more firm legal ground than the 14th Amendment. "From everything I know about this, it is possible," he said. "Now, is it likely? I think it's highly unlikely to happen. It just looks so ridiculous for the major economic power in the world to produce a trillion-dollar coin in order to balance its books. But is that any more ridiculous than the country being held hostage over default? I think not.""

Earlier today I looked into how big a platinum coin would have to be to have an actual bullion value of one trillion dollars at recent platinum prices. (Verdict: insanely huge; platinum is expensive, but not that expensive.) Along the way I learned a bunch of interesting things about platinum, including the fact that the only currently active platinum mine in the US is in Montana, which I presume from his comments here Charley already knew. There was also platinum production in Platinum, Alaska from the 1920s (when there was a short lived "platinum rush") until the mines shut down in 1990. The community does still exist, which I already knew. Also, platinum was originally described based on samples from Ecuador, where it was worked in pre-Columbian times, and the vast majority of it mined today comes from South Africa.

The reverse of the platcoin should be the Apotheosis of Washington.

Support only American, union-mined platinum in your absurd fantasies, friends.

(USW)

The reverse of the platcoin should be the Apotheosis of Washington.

Oh my god. So great. (I actually only learned of that tradition's existence very recently, when I saw this amazing version.)

Regarding apotheoses: I was at the Palazzo Pitti with a friend a couple months ago and mentioned how I thought it was interesting that hiring an artist to paint a picture of yourself, nude and musclebound and in the process of becoming a god, on the ceiling of your home was once a totally normal thing for rich people to do. I was trying to imagine if, say, Donald Trump were to do that.

If the govt started buying up all available platinum to make a huge coin they would control the market price. No catalytic converter for you!

Although I guess that raises the question of where they get the money to buy the platinum.

295: would be one way to limit emissions. In hand with existing tailpipe test regime.

"You can't fool me, young man, it's money all the way down."

"When correctly viewed, everything is lewd cash."

"More weight money."

I nominate apo as Existing Tailpipe Inspector General.

If the govt started buying up all available platinum to make a huge coin they would control the market price. No catalytic converter for you!

This is actually a major plot point in The Day of the Jackal; Sir James Manson's evil mining corporation wants to get their hands on the platinum so as to feed California's emissions-control-fuelled lust for catalytic converters and dish the evil commies' efforts to control the world price.

You mean The Dogs of War, I think!

@300

I believe you mean The Dogs of War. Day of The Jackal was about a plot to assassinate Charles de Gaulle.

BTW, Frederick Forsyth seems to be a bit of a nut.

300: I'm no expert, but I think that's actually the plot of Three Days of the Condor. Or maybe The Odessa File.

303 - Piffle. Who among us has not attempted to hire mercenaries to overthrow the government of Equatorial Guinea in the name of research?

294: Another, contrasting favorite of mine is when medieval patrons have themselves painted in miniature, kneeling beside the feet of a monumental madonna-and-child or whatever, as here. I suspect that's even less conceivable among the megarich today.

294, 305: and sometimes they would find the most dour, severe, arch-Catholic cathedral around and attach a random room to it just totally full of brightly colored paintings of themselves.

Apotheosis of Washington

The US doesn't kid around about that. The dome of the Capitol has this painting, with exactly that name.

It is the right shape for the back of a (big) coin. Hmm, that would be cool.

307: No love for the Lincoln/Washington apotheotic embrace in 293? Two presidents for the price of one. Printed in 1865!

We need to save Lincoln for the next coin.Can't spend our demigods all at once. Besides, the Huntington will probably charge lots for the reproduction rights. The one in the capitol is public domain.

Regarding apotheoses: ... hiring an artist to paint a picture of yourself, nude and musclebound and in the process of becoming a god, on the ceiling of your home... I was trying to imagine if, say, Donald Trump were to do that.

There was a Doonesbury storyline in which JJ was hired to paint Trump's yacht, including one based on the Sistine Chapel (she got in trouble for putting Trump's head on Adam rather than God).

301, 302: you are of course right, it's The Dogs of War.

And Forsyth is a nutter. (He started writing thrillers after being sacked as a BBC foreign correspondent for making up the news.)

Interfluidity suggests a slightly less silly way to accomplish the exact same thing.

The Treasury won't and shouldn't mint a single, one-trillion-dollar platinum coin and deposit it with the Federal Reserve. That's fun to talk about but dumb to do. It just sounds too crazy. But the Treasury might still plan for coin seigniorage. The Treasury Secretary would announce that he is obliged by law to make certain payments, but that the debt ceiling prevents him from borrowing to meet those obligations. Although current institutional practice makes the Federal Reserve the nation's primary issuer of currency, Congress in its foresight gave this power to the US Treasury as well. Following a review of the matter, the Secretary would tell us, Treasury lawyers have determined that once the capacity to make expenditures by conventional means has been exhausted, issuing currency will be the only way Treasury can reconcile its legal obligation simultaneously to make payments and respect the debt ceiling. Therefore, Treasury will reluctantly issue currency in large denominations (as it has in the past) in order to pay its bills. In practice, that would mean million-, not trillion-, dollar coins, which would be produced on an "as-needed" basis to meet the government's expenses until borrowing authority has been restored. On the same day, the Federal Reserve would announce that it is aware of the exigencies facing the Treasury, and that, in order to fulfill its legal mandate to promote stable prices, it will "sterilize" any issue of currency by the Treasury, selling assets from its own balance sheet one-for-one. The Chairman of the Federal Reserve would hold a press conference and reassure the public that he foresees no difficulty whatsoever in preventing inflation, that the Federal Reserve has the capacity to "hoover up" nearly three trillion dollars of currency and reserves at will.

307 --- yes, on the ceiling of the Rotunda...

OT: Fuck a bunch of Gerard Depardieu.

Moving to Belgium to evade taxes, or has he done something else bad lately? (I have inchoate memories of domestic violence or something, but from decades back.)

315: I thought he was moving to Russia to evade taxes?

(He started writing thrillers after being sacked as a BBC foreign correspondent for making up the news.)

Details other than this (disputed) letter? Though I am of course inclined to believe it considering this book has him baldly admitting in an interview that he was part of a coup plot in Equatorial Guinea a few years later.

It's one thing for a rich guy to whine about taxes; it's another to shake hands with Putin, accepting your Russian citizenship.

Hilariously of course Depardieu owes his entire fucking career to the Republic's insistence on domestic film production. It really is total hypocrisy.

He was great in "Vatel".

Regarding apotheoses: ... hiring an artist to paint a picture of yourself, nude and musclebound and in the process of becoming a god, on the ceiling of your home... I was trying to imagine if, say, Donald Trump were to do that.

Surely you all haven't already forgotten these amazing paintings?

312 -- I think there's a statutory limit on paper currency. They can mint all the nickels they want need, though.

There is a picture on the internet of a gentleman reclining nude on his bed beneath an enormous painting of himself reclining nude on his bed. I would google for it but I think I saw it on lurid digs and I just no not now I don't want to.

And congressional salaries should definitely be paid in nickels. They should have to line up at the mint and get bags and bags of nickels.

323 -- We once had a rental house with a mirrored ceiling in the bedroom. It was kind of funny -- you could see yourself 12 feet away.

321: I had forgotten about those. They are amazingly amazing.

Also, you had me fooled. I was sure you'd linked to those insanely elaborate--allegorical? religious? founding-fathers-ish?--contemporary paintings that popped up here a while back. I wish I could remember more detail, but I'm at a loss for better keywords.

hiring an artist to paint a picture of yourself, nude and musclebound and in the process of becoming a god, on the ceiling of your home

She wasn't painted nude or musclebound or even on the ceiling, but when it comes to art, nobody beats the Medici.

327: The nude, musclebound, ceiling-painted guy I was thinking of was also a Medici. I forget which one, and Google isn't finding the painting.

The nude, musclebound, ceiling-painted guy I was thinking of was also a Medici.

That has to be the mouseover.

This one, maybe?

324: Nice. Looks to come to about 540 pounds of nickels a week.

Boehner would be begging for a platinum coin by month end. That's the problem with Obama: he's afraid to play the really hard ball.

[There's no ball harder than a sock full of nickels]

ccarp

Can they really print unlimited amounts of nickels, though? I thought part of the platinum coin loophole was that was the only coin where no quantity limits were specified either.

Anyway, from some quick Googling it looks like it costs more than 5 cents to make a nickel, which defeats the point. Dimes, quarters, and dollars work, with dollars being the cheapest.

317. The same plot that Margaret Thatcher's son was involved in, or a different one?

(I can't really get too worked up about plots to overthrow the government of Equatorial Guinea, because it's unspeakable.)

334: different one. Forsyth's one was pretty much as described in The Dogs of War. Mark Thatcher's one (see "The Wonga Coup") got further but was rather less well planned, because it required the Zimbabwean government not to mind.

EG would be a great place to conquer: tiny population, horrible regime, massive oil wealth (currently monopolised by horrible president). You could do it with a company.

But if you did it with a company, the Saffers could kick you out again with a battalion. Unless you arranged for them not to mind (see your previous point 2).

336: they're quite a long way away. It's a good 2000 miles from South Africa to Equatorial Guinea and I doubt the South African armed forces are up to mounting a battalion-strength opposed landing operation at that sort of range, in order to reinstall a pretty unpleasant person.

I'm sold. How much would we each have to kick in and is there a discount is we're willing to participate directly?

I'd go long on Kickstarter coups.

I'll kick in if ajay undertakes to liveblog the invasion.

Actually, I'm not sure why you'd need to go the Kickstarter route. I'm sure that Bain or a major VC house would back this play.

I work with the Bains down in Africa.

Gonna take some time to coup the things we see are bad.

Re: Forsyth, rather than making up the news, he was accused of becoming openly partisan for the Biafran side in the Nigerian civil war.

Re: Unfogged invasion of EG, I think the South Africans could make some trouble. If they bring along these four ships, plus their AOR, Drakensberg, two Rooivalk helis on two of the frigates, and four Oryx helis split between the other ships, they could project a company-sized force. It would go badly wrong if it lost even one helicopter, and a lot would depend on just how much spare space there is on Drakensberg. You might want to invest in some man portable SAMs.

343 is excellent.

Frankly our "conquer Equatorial Guinea with a company" plan seems a bit Rumsfeldian. We can take it -- but can we hold it?

Also this from Wikipedia sounds ominous for our coup: "On Christmas 1975 Macias Nguema had 150 alleged coup plotters executed to the sounds of a band playing Mary Hopkin's tune Those Were The Days in a national stadium."

The Wikipedia article on the (truly spectacularly horrible -- I'm learning here) Macias Nguema notes that the executioners were wearing Santa hats.

He also banned all Western medicine, banned the use I the word "intellectual," killed the director of the national bank and then took all of its holdings to his home in a rural village, called himself the "Unique Miracle", smoked tons of bhang, and was responsible for the death or exile of 1/3 of his country's population. Impressive!

345: agreed

Frankly Macias Nguema seems to be criminally underrated on the list of really bad 20th century bad guys. I for one hasn't heard of him until today.

I'm sure that Bain or a major VC house would back this play.

Richard Morgan, "Market Forces", writes about venture capital firms that specialise in the Conflict Investment sector: picking likely-looking insurgencies and backing them in return for a share of the mineral rights.

Alex: rule of thumb is three to one, though. To attack a company, you need a battalion. As you've pointed out, the South Africans would need to send essentially their entire navy just to land a single company, and even then they haven't got enough airlift (four Oryx at 20 pax each) even to put just that company ashore in a single lift, if everything's working (which it won't be).

Frankly our "conquer Equatorial Guinea with a company" plan seems a bit Rumsfeldian. We can take it -- but can we hold it?

The lurkers will support us in strikeemail rapidly recruited indigenous militia formations.

Dammit.

So, this is sounding practical. Orange post titles?

It's sounding similar to a non-serious and slightly drunk conversation I had a couple of years ago with someone who, I realised half-way through, was a) taking it seriously and b) actually in a good position to make it happen. That was a worrying moment - I had to do a bit of rapid backfilling. "This isn't a pitch, though! Just idle speculation!"

Nothing worse than waking up in the morning with a terrible hangover and wondering "I'm on a boat? Why am I on a boat?"

The place really is hella rich, too. Bigger GDP per capita than the UK.

Orange post titles?

No, strikeemails.

349. You're not alone in that. Cultivating international obscurity is part of his modus operandi. That and providing the populus with a fairly high standard of living by sub-Saharan standards - out of the goodness of his heart, you understand, given that he owns everything - provided they shut up and lie low. Or else...

Brits have heard of him because of the involvement of the Prime Minister's son in attempting to rid the planet of him by foul means rather than fair, but otherwise he's a dictator's dictator.

providing the populus with a fairly high standard of living by sub-Saharan standards

He hasn't really, though. They're mostly on less than a dollar a day.
http://www.guardian.co.uk/world/2011/oct/23/equatorial-guinea-africa-corruption-kleptocracy

What's especially awesome is that, according to wikipedia, Thatcher's son used The Dogs of War as a textbook for his attempted coup.

At least in the matter of literary inspiration, I'm sure unfogged can do better.

Well, there can really be only one choice for the popular, unifying leader we install in power before leaving. Mutumbo!

Although I suppose these days there are plenty of "How to stage a coup" websites.

359. Ah. I believe they used to be on rather more. He must be losing the plot.

I like it how the losers on the other thread are all like blah blah caring for disabled children blah, while over here the doers and achievers are plotting the military takedown of an African dictator.

This is an eclectic web magazine.

364: we could just put Thorn in charge. "Thorn, we have four hundred thousand impoverished Africans we need you to take care of. Can you start on Monday?" "Oh, OK then."

I like it how the losers on the other thread are all like blah blah caring for disabled children blah, while over here the doers and achievers are plotting the military takedown of an African dictator.

It is a good day for parallel discussions.

The awfulness of EG was in the news last year or so for some reason. (I don't remember why.) Before that, I'd never heard word one about EG, other than as a place on maps.

He must be losing the plot.

As we pick it up!

350: it strikes me as dangerously close to a fair fight, especially as the other side have naval gunfire support and a pair of attack helicopters. We need a better plan, or some guarantee that the Saffers won't make trouble.

There's also Nigeria to worry about - closer to the area of interest, with lots of army, and a record of *robust* interventions in West African conflicts. Like that time they were the peacekeeping force in Sierra Leone and their artillery basically destroyed Freetown. Malabo is only about 150km from Bonny Island and one of the Nigerian Navy's bases is up river from there. They have two German built landing ships...

Does Equatorial Guinea have any kind of indigeneous tradition of acrobat/strongman street performers?

ISTR Kathryn Cramer thought the Simon Mann crew had managed to get a degree of diplomatic cover - the US State Department held a conference on the future of EG a week before D-day, the Spaniards threw a major naval exercise embarking 2,000 troops on their amphibious shipping, and the Nigerians didn't say nuffink. But the South Africans, who had good sources in the plot, objected and tipped-off the Zimbabweans.

371: not that I'm aware of, but the former dictator's ne'er do well son had a go at running a hip-hop record label. he actually could afford to make it rain, and Pink was his girlfriend for a while until she found out about his dad being a tyrant frequently accused of cannibalism.

If you're going to plan a coup on the internet, you should probably at least rot13 your comments or something.

373: oh, I think I read an article about that.

GUR SVEFG GUVAT JR ZHFG QB VF TNVA GUR GEHFG BS GUR JBEXREF!

I am glad that now 304 is no longer a joke. Good work, guys! When Interpol shows up I will disavow all knowledge.

I like that the first rot13 translation page I found also converts to all-caps. ROT13 YELLING!

371. Excellent. OK, hire a bunch of Yugoslav ex-mercenaries from either Chicago (in which case Serbs) or St Louis (Bosnians) (n.b. DO NOT MIX). They are now working as supers and body shop owners.

Their cover story is that they are roadies for Pink's world tour. Surreptitiously rendezvous tour personnel with a shipping container of jet skis just off the coast.

and Pink was his girlfriend for a while until she found out about his dad being a tyrant frequently accused of cannibalism.

That wasn't Pink, it was Eve.

379: so it was. this is an example of the kind of critical intelligence that makes the difference between skating out of Malabo with a signed oil-service concession under your arm, and listening to the band strike up in Black Beach Jail.

The awfulness of EG was in the news last year or so for some reason. (I don't remember why.)

Probably because it was hosting the Women's World Cup. In collaboration with Gabon, whose ruling family is a veritable brood of Aneurin Bevans and Cincinnati compared to EG.

Damn italics.

They can take his Michael Jackson glove, but they can't take his FREEEEDOM (probably)!

And it wasn't the Women's World Cup, it was the Women's African Cup of Nations. I'll stop talking now.

To be honest, going after his gaff in Malibu sounds like it might have been more fun.

Here's the article I read, I believe.

His Flickr stream is, sorry to say, not very interesting.

Oh hey that's paywall'd now. And not a friendly, easy-to-circumvent paywall, neither. Jerks.

378: hiring a bunch of actual roadies would probably be even better - I would imagine that arranging (say) a Lady GaGa tour has a lot in common with invading a small African country. Logistics, crowd control, just-in-time shipping, lunatics in charge, and so on.

388: When We Were Kings certainly seemed to imply a great deal of overlap.

378: My sister's only association between Serbia and evil is her former landlord from when she lived in Chicago.

387. If anybody's bothered, email me as in my sig and I'll send you a pdf.

388. Yes, of course, those are the logistics officers.

Todo: compare recoil momentum of AGS-17 with Jet Ski stability. May be necessary to hunch down during operation to keep from tipping over backwards. Also: defensive capacity of inflatable watercraft is not improvable, even with kevlar, a hard lesson learned from trying to take on the Bolivian navy.

384. Ned, the instant correction of which lady rapper dated the offspring of possibly-not-a-cannibal is worth many, many points. Don't sweat the sporting event.

Favorite line from the wikipedia article:

In Ken Connor's book--How to Stage a Military Coup--the author praises The Dogs of War as a textbook for mercenaries; in much the same way that The Day of the Jackal is appreciated as a guide for assassins.

I love the fact that a book titled How to Stage a Military Coup exists, although I suppose Military Coups for Dummies would be even better.

It's suggested that Forsyth was involved in a coup plot for real and invented the "it was research for my novel" story when the whole thing fell apart.

Cryptic Ned just volunteered to be in charge, I think.

The Day of the Jackal really is a great book. There aren't many better thrillers.

Can I draft the constitution?

I wasn't planning on having one.

I did read "The Wonga Coup" and I did represent the coup's obvious staging point, Gabon, in Model UN, though the little folder of info I got from my school library and the CIA World Factbook may now be out of date. I've been told I have a commanding voice but again I have no experience with logistics. I nominate Witt.

No, you delegate to Witt.

396 is true. It's pulp, but it's high-grade Norwegian Timber Council-standard pulp.

I did represent the coup's obvious staging point, Gabon, in Model UN

I read this as stating that the coup's obvious staging point was Gabon in Model UN, which seemed like bold and original thinking.

We could get the kids to help if we could convince them that they could use the experience in a college application's personal statement.

Oh, Sally would love to organize a bunch of nerdy middle-schoolers to help with the invasion. She's waxed poetic about her plans for world domination, complete with envisioned roles for all of her friends in her evil plot. Oddly, almost all of them will be working in marketing for the plot, and the rest will form a volleyball team. I'm not sure this will work, but never having taken over the world myself, I can't really argue with her.

Suppose the statute idiotically and unintentionally made rape legal, would you really have the courts enforce the plain meaning?

Rightly or wrongly, that may be happening in this case.

Step one in the plan is obviously to get a ship. There was a great candidate - this ship, (http://en.wikipedia.org/wiki/ARA_Libertad_%28Q-2%29) the ARA Libertad, a three-masted Argentinian sailing frigate seized by the bailiffs for non-payment of debt in Ghana. Unfortunately the Argentinians have managed to get it back. But staging the conquest of a small African country from a tall ship would be unbelievably Airwolf.

Once the country's under control, we'll set up a first-class university there where we can all get tenure, right?

You guys are so behind the times. The new colonialism is to convince the leadership of the country to hand over control of a small free-enterprise zone to Chicago school economists.

Once the country's under control, we'll set up a first-class university there where we can all get tenure, right?

Don't forget the Law School! Halford can be in charge of IP law and LizardBreath can handle litigation.

The rest of us can deal with advertising and designing glossy documents making dubious claims about the rosy employment outlook for our graduates.

"Speaking of ambiguous statutes, President Obama could also determine that the most recent tax and spending bills implicitly repealed the less recent debt ceiling bill, isince compliance with all of these is mathematically impossible. There's an extensive body of law on the circumstances where a statute is deemed repealed by implication becuase it's inconsistent with a later one. A Court might accept it here."

Except that it's not mathematically impossible, because he could mint the platinum coin. Congress could sue the President saying "He could have minted the platinum coin," and they'd win.

See how that works? At the moment, the President is *obliged* to mint platinum coins in order to pay the government's obligations.

It's sad that people consider it more "politically likely" that the President will just break the law than that he will mint the coin.

"And I'm being aggressive about what courts should do, not what I think they're likely to do -- I think there's a good chance that a court would actually shut down the platinum coin loophole as absurd. "

That would be an impeachable offense on the part of the judges, of course.

@ #64: "Actually, why isn't 31 usc 5111(a)(1) a mandate by Congress to the Secretary to coin sufficient money to pay appropriations? Isn't the secretary abusing his discretion if he refuses to coin money the United States obviously needs?"

It is a mandate by Congress to the Secretary to coin sufficient money to pay appropriations, and if the Secretary refuses to coin the necessary amount of money the Secretary is abusing his discretion.

Black letter law here. There were periods when the Treasury printed money directly ("US Notes"). The Treasury's *obligation* to create sufficient currency is quite clear, legally speaking.

@83: "If the statute really means "the Secretary can do anything he wants with platinum, for whatever reason," I think there would be a potential nondelegation (i.e., consitutional) problem."

No, there isn't. It's well-established law that Congress can authorize the Treasury to print "however much money it likes". This has been done in the past, including during the Civil War. This is well within the delegatable powers of Congress.

The new colonialism is to convince the leadership of the country to hand over control of a small free-enterprise zone to Chicago school economists.

Step two, presumably: seal the borders and stop the blighters getting out again. Equatorial Guinea as a sort of Economist Roach Motel. Bit harsh on the Equatoguineans, but it would still be an improvement on the late president.

@409 addendum: I suggest it be named the Paul Campos School of Law.

@131: the deal with pennies and nickels is this.

They are only legal tender when offered in quantities summing up to some relatively small amount, I think under $20. (Look up the legal tender laws.)

So the Federal Reserve would only be required to accept the first $20 of pennies and nickels in payment for government debts.

That said, the Federal Reserve is *permitted* to accept more -- it can accept things which aren't legal tender. So if Bernanke cooperated, the national debt could be paid off in pennies. If we could find enough zinc.

it would still be an improvement on the late president

I'm unconvinced. Are you perhaps forgetting that his death squads wear Santa hats?

Obviously, when we see something that works, we'll keep it.

I'm only going to be a law professor if being a law professor comes with a all-female trained ninja assassin bodyguard crew. Otherwise honestly what's the point.

Santa hats

In the Congo, roving bands of armed men dressed in drag wear bright blue and pink ladies' wigs, apparently there's a superstition about some types of headgear conferring mystical imperviousness.

So I think crocheted oversized headgear in gaudy national colors, coupled with either these or Borat unitards. Bruno Mars/ Whitney Houston theme music.

I have a good friend who regularly assembles and re-assembles -- usually just in his mind, but sometimes* on an elaborate spreadsheet -- what he calls Team Apocalypse. These are the people he knows who possess skills sufficient, and perhaps even necessary, to be useful when the End Days arrive. It's funny to be there when he meets someone new who might have what it takes to join TA: "Oh, you're a structural engineer? Have you ever done any demolitions work? With explosives of your own design, perchance?"

* During faculty meetings.

Um, have any of you ever done any demolitions work? With explosives of your own design? I'm asking for a friend.

I once started a grass fire with a bottle rocket. Does that count?

Halford, being a law professor even in the US automatically means you get a team of female ninja assassin bodyguards. The professors just never mention it because it would seem like boasting. And obviously you never see them because, hello, ninja.

OT: I am in a rental Prius. Sweet Jesus is this car terrible. This is where freedom and acceleration died, for real. Honestly I think the bus would be more fun.

By "bus" I mean the APC I'm going to use to deploy lingerie ninja strike team six in front of the radio station in Malabo.

I means, seriously. You think Glenn Reynolds has survived this long by his wits alone?

421: You know, I used to complain that after the revolution, all we'd have was vegetarian cafes and bookstores, because that's all anarchists knew how to do. But nowadays, shit, I could put together an anarchist post-apocalypse team with a doctor, six nurses, a couple of herbalists, at least half a dozen contractors, probably a dozen computer programmers, homesteaders, gardeners, brewers (home and commercial), and a bunch of less useful people like arts organization administrators and lawyers and professors.

Everyone will need a blogger so I'm all set.

I hate to break it to you, Nat, but after the revolution anarchists are going to finish a distant third to Mormons and heavily armed survivalist militias.

If anyone needs a jackass who doesn't watch for pedestrians when turning onto or off of one of the busiest streets in the city, we're running a significant surplus here.

430: They all live out in the sticks though. We have more ex-military types and hunters than you might expect, too.

388: I know somebody who has organised a Lady Gaga tour and that sounds about right.

425: Bwahaha.

Halford, ninjas aren't real. Nothing has any point.

Except for the end of my katana. POKE.

||

I should not be allowed to talk to pure-minded young men. One of the line attorneys just came into my office with an administrative record on one of his cases: a stack of paper about four inches high. And started complaining that the agency contact had not wanted to have it copied because it was 'ten inches thick'. My attorney goes off, "Ten inches? Does that look like ten inches to you? Who looks at something like that and calls it ten inches?"

And I start giggling helplessly, and barely restrain myself from saying "I understand that sort of thing is a terrible problem on online dating sites." Must restrain self from making rude jokes to subordinates.

|>

416 -- In the US, coins are legal tender for paying debts, regardless of amount.

That's no katana.

416: Apparently there used to be such a law (the limit was 25 cents), but no longer. 31 USC 5103: United States coins and currency (including Federal reserve notes and circulating notes of Federal reserve banks and national banks) are legal tender for all debts, public charges, taxes, and dues. No qualifications, although it doesn't apply to simple purchase of goods.

Am I just missing it or has no one yet figured out how to use platinum coins to fund the planned invasion? This thread was making me so happy today and I'm trying to string it out longer.

I'm the son of the recently replaced president of a small country in West Africa. He left me a small bag of platinum coins, and told me I needed to get them to the United States, I would be willing to split their value with you. Please send me your SSN, your bank routing information, and your mother's maiden name.

405

Rightly or wrongly, that may be happening in this case.

Not quite the same thing as there is no indication the legislature in 1872 intended to include cases other than impersonating a woman's husband. I believe in many states there is no such thing as rape by impersonation.

I did a report on Equatorial Guinea for my high school Spanish class. (We had to do a report on a Spanish-speaking country, so of course I chose the most obscure and bizarre Spanish-speaking country in the world.) ¡El país gobernado más peormente en el mundo!

437 is great, except that you shouldn't have restrained yourself.

Algún grupo de gringos sin preparación tiene que atacar.

Geez, EG bought a four-page ad in the NYT (maybe WashPost) last week. I recall it had a photo of a Catholic basilica and the caption touted the basilica as a sign of close relations with the Vatican. Don't mess with EG, they've got powerful friends. And Santa hats.

Better hurry, he's moving the capital inland. Oyala: Birth of a titanic city in the jungle ...

It's the remoteness of Oyala that makes it so appealing to President Obiang. In a rare interview he described how rebels had recently plotted a seaborne assault on his palace in the current capital, Malabo.

What if we just hid where he is building the new city and pounced after he was done?

407: Once the country's under control, we'll set up a first-class university there where we can all get tenure, right?

Your wish is already granted Dr. Essear, if that is your real name.

Deep in the rainforest, a giant dome of steel and glass is the centrepiece of one of the most grandiose and expensive construction projects in all of Africa. The library of the new International University of Central Africa has the look of a spaceship docked in a jungle clearing. Around the dome, a sprawling campus is taking shape.

Life is excellent for academics in Ghana, I've heard somewhere.

Oh, once we have Malabo and Bata we'll have the seaport, the oil, the two international airports, the air base and most of the population. There's like one decent road in and out of Oyala, and no airstrip yet. He'll be like a rat in a trap once we take out his electricity and communications. (Air-dispersed centimetric-range graphite fibres. essear can knock some up for us, I'm sure.)

I am annoyed that the MoD has moved so quickly to scrap the Round Table-class LSLs, after they decommissioned. Exactly perfect for our needs.

Let me be the first to suggest we name this "Operation Fresh Salt."

Air-dispersed centimetric-range graphite fibre

I'm probably misreading this, but you're suggesting we throw pencils?

You drop lots and lots of pieces of conductive material over a power station and everything shorts out. They used it in Kosovo and (I think) the first Gulf War.

Right, I remember that now. Pity, though -- I already have pencils.

Americans, lobby your government to sell us this fine ship.

Alex, try this. It's almost new:
http://www.aucklandshipbrokers.com/index.php?option=com_content&task=view&id=1024&Itemid=107

And it's on the west coast of Africa already!

Accommodation is a concern; twenty berths? no sick bay or helipad, either.

To the OP, Bloomberg (the rag not the rat) seems to support LB.

As does the former director of the mint and co-author of the platinum coin bill. (He does admit it would be an unintended consequence of the law, but dismisses that objection, but how many other pieces of legislation have had unintended consequences? Most, I'd guess.

462: Ha! I was just coming over here to link that.

Holy crap.

Hah.

462: Ha! I was just coming over here to link that.

I e-mailed that to LB earlier.

I have to say, the best argument that I've heard against the platinum coin option is that it gifts the Republicans the best of both world -- the ability to look like they are standing on principle while making Obama look lawyerish, while preventing the consequences of the policy the Republicans support.

In this case the stakes my be high enough that preventing the consequences is worth the political problems but, I'd point out, that's exactly the sort of decision making which has gotten people frustrated with Obama's ability to manage negotiations in the past.

The Republicans, ex hypothesi, are willing to impose Depression 2 and possibly default if they don't get their pony and the downside of not having that is Obama looks "lawyerish"?

Action movie idea: An elite group of highly trained terrorists plans to raid Fort Knox and steal the platinum coin, simultaneously causing the instantaneous default of the U.S. government and giving them $1 trillion to spend on nasty terrorist things (it's legal tender! We have to honor it!). Seal Team 6 must stop them.

The Republicans, ex hypothesi, are willing to impose Depression 2 and possibly default if they don't get their pony and the downside of not having that is Obama looks "lawyerish"?

In that case, of course, mint the coin (or whatever option sounds best to avoid default) but I'm not convinced that they will cause default. That is, of course, the trillion dollar question.

You know, something that I hadn't thought of in so many words before is that the debt ceiling itself is subject to the same criticisms as the platinum coin; I'd have to do the research properly to back this up, but it wasn't originally passed to give Congress a tool to put the Executive in a cleft stick where it's been mandated to spend money and forbidden to borrow the money necessary. Both the debt ceiling and the platinum coin are the same sort of opportunistic taking advantage of a statute passed for a different purpose entirely.

Second Liberty Bond Act of 1917. It makes sense, when you're delegating borrowing authority, to put a limit on it.

And it's probably even necessary to put a limit on it to avoid non-delegation problems. But I'd be beyond surprised if there were anything in the legislative history that suggests there was an intent by having a debt limit to allow Congress to impose conflicting obligations on the Executive.

472 -- See, I think 31 USC 5111(a)(1) and the unlimited ability to coin nickels (etc) gets over that problem.

I'm not convinced that they will cause default. That is, of course, the trillion dollar question.

But they have the option-value of so doing. You need a suitably scary deterrent. What would Addington do?

But I'd be beyond surprised if there were anything in the legislative history that suggests there was an intent by having a debt limit to allow Congress to impose conflicting obligations on the Executive.

My impression is that, prior to the last increase, it was strictly a formality. People would use it as an occasion to make speeches about how much of a problem the debt was and then overwhelmingly vote in favor of the increase.

You're just nickel-happy. It's because you like the ones with bison on them, admit it.

But the arguments against allowing Congress to use the debt limit in the manner it is are very similar to the arguments against the platinum coin. It's absurd, it's undignified, and it's not an intended result of the statutory structure.

I mean, even the 'proof coin' argument, which I think would give a judge cover for blocking the platcoin, is only an argument that Congress didn't contemplate the economically significant platcoin, not that they specifically intended to not allow it. And I'd bet you could make an equally strong argument that the reasons for having a debt limit at all did not include authorizing spending without authorizing the creation of sufficient money to spend.

475: Right, of course that's how it's always worked. I'm just saying that if we're talking about intent of the legislature, I'd be very, very surprised if there were any evidence at all that Congress ever stated an intent to use the debt limit to pull this sort of stunt.

76 last -- I doubt it, particularly given the intervening Congressional practice. That doesn't seem like the best route for platform supporters.

If I had to give a client advice on this, which I wouldn't because I'm no qualified to do so and haven't done the research, I'd say the platcoin is neither clearly legal nor clearly illegal, but there's a decent chance the issue would be found to be nonjusticiable. I think that's the bottom line.

I do like buffalo nickels. Also the Corps of Discovery nickels. Doesn't mean I would enjoy seeing an Albert Gallatin $1 billion coin (they could make a bunch of them, and all the billionaires would want one.)

From a legal standpoint, making nickels instead of platcoins avoids every single argument, and what Krugman calls the clown suit. Geithner can say with a straight face that those nickels are needed. Boehner can say anything he wants, but what sort of tea drinking idiot opposes coins?

+n't!

It seems to me to be subject to all the same arguments as the platcoin except for the 'proof coin' argument, and to be physically impractical as well, unless you're only using it for minor acts of spite like paying Congress. I haven't even done back of the envelope calculations, but are we capable of turning out sufficient small change to meet our obligations? It seems unlikely that we are.

478: I suppose it depends on what's made it in to the Congressional Record; you're right that on the last couple of go-rounds there could be something.

(I was thinking of the relevant history as being the original passage rather than the reauthorizations, but you're right that that's not safe.)

I agree with 478.2. Which ends up making the political stakes that much higher. Not a problem with $1 billion proof coins sold to collectors, obviously.

Come to think, the legislative intent of Congress on the debt limit can't possibly have been to allow Congress to force a default by authorizing spending and refusing to authorize the necessary borrowing, because that would violate the 14th Amendment.

The 14th Amendment argument might not be strong enough to allow the administration to just keep borrowing, but I bet it's enough to argue that Congress can't possibly have intended the debt limit as a tool to force default.

Drum is funny on this -- he clearly just viscerally hates it. Something about this kind of hanky-panky is clearly completely intolerable to him. I think he's an excellent blogger, but not a lawyerly turn of mind at all.

... he clearly just viscerally hates heavy metals.

not a lawyerly turn of mind at all

Praising with faint damns?

Well, there's not much to be said for having a lawyerly turn of mind if you're not going to be lawyering with it. It's just funny how he looks at someone pulling what is admittedly an extreme example of a fundamental lawyering move: looking at some words you didn't write, and finding a plausible way to read them in a way that serves your purposes, and reacts to it like someone who saw a nasty legal argument in the woodshed when he was little.

I mean, you don't have to buy the platcoin as a good idea, but I'd expect almost any lawyer to react to it with admiring respect, even if they ultimately reject it. It's a really sweet move to pull.

I mean, nobody's actually pulling the move. People without even the nominal ability to pull it are talking about pulling it, and then nobody will pull it, and then the people who were talking about pulling it will be mad that it didn't happen, even though it was never going to happen, and almost certainly either wouldn't work, or would cause bigger problems than it solved. I can understand why he'd get tired of that.

But that's not how he's talking about it: don't be silly, it's not going to happen and I'm bored, would be absolutely defensible. Calling it lawless and saying a judge would stop it, guaranteed, sounds like the conversation is fingernails on a blackboard to him. I'm not calling him stupid or anything, it's just funny that an idea that's technically appealing to me, and I think on some level to most lawyers, annoys him so much.

475

My impression is that, prior to the last increase, it was strictly a formality. People would use it as an occasion to make speeches about how much of a problem the debt was and then overwhelmingly vote in favor of the increase.

This is not true. See here for example:

"The fact that we are here today to debate raising America's debt limit is a sign of leadership failure. It is a sign that the U.S. Government can't pay its own bills," Obama said. The Senate narrowly approved raising the limit along partisan lines, 52-48, with all Democrats opposed.

and

Obama: "I think that it's important to understand the vantage point of a senator versus the vantage point of a president. When you're a senator, traditionally what's happened is, this is always a lousy vote. Nobody likes to be tagged as having increased the debt limit - for the United States by a trillion dollars. As president, you start realizing, you know what, we, we can't play around with this stuff. This is the full faith and credit of the United States. And so that was just an example of a new senator making what is a political vote as opposed to doing what was important for the country. And I'm the first one to acknowledge it."

nonjusticiable

So this is really a word?

485: I haven't followed this thread much, but have you seen this from Eric Posner (linked from LGM), LB? Posner points out, as others have as well, that the executive branch is given fundamentally contradictory instructions by Congress on the one hand and the Constitution on the other. (That's not exactly the scenario Posner describes, but the general idea remains that the Executive may well have the power to adjudicate between conflicting instructions.)

On Drum's reaction: he's responding from a political perspective, right? He keeps saying "it's not legal, it's just not" and I take it that's because he views the courts as far more politicized than you might.

494: Maybe that's what's driving his reaction, but I don't think so -- he's not talking about the political views of possible judges, he's saying that it's just lawless. That sounds to me like someone who thinks that any judge, regardless of politics, should reject it. I think he just really disapproves of trickery and sharp practice.

I think he just really disapproves of trickery and sharp practice.

Right, and for political reasons: we would not like it if conservative Republicans pulled a similar trick. Drum's trying to keep his eye on the ball, I think.

That sounds to me like someone who thinks that any judge, regardless of politics, should reject it.

He says he thinks the SC would down it 9-0, so.

I think he just really disapproves of trickery and sharp practice.

Yeah, it was really put on bright display yesterday when, two posts after bitching at the platcoin, he had a post up explaining what the GOP should "really" use as leverage instead of the debt ceiling. Since, you know, a liberal offering advice to the GOP about how to be more moderate is the most useful activity possible. Honestly, it felt like a throwback to the 2000 election, with Dems so fucking focused on being reasonable while the GOP focused on, you know, fucking winning.

I've been mostly happy with my swap of Yggles for Drum, but this issue is driving me away (because it reminds me why I didn't like Drum in the first place).

If Obama lets it become a negotiation (which he pledged not to do but has already somewhat done, irritatingly), then hitting the ceiling is something that both sides can try to spin as the other side failing to compromise in good faith, and the combination of economic unrest + no clear political victory makes hitting the ceiling way too risky, so Democrats ultimately probably have no choice but to cave.

If Obama would stick to his position of 'absolutely no negotiation', and would offer to talk about tax reform and spending cuts and whatever else the GOP wants to talk about but not tied to a debt ceiling increase--because the debt ceiling is not a matter of negotiation and *must* be raised in a clean bill, and democrats are clearly and publicly and vocally lined up ready and willing to support a clean increase in the debt ceiling, then I really don't see how Obama loses. I honestly don't believe the Republicans can fail to raise the ceiling in that instance. As the deadline approached, the pressure coming from their backers would be overwhelming. (They're only soothing nerves now by assuring supporters that of course the ceiling will ultimately be increased, we're just trying to extract some pro-market concessions in the negotiation.) And if by chance they were crazy enough to do it*, the economic repercussions would at least be offset by truly devastating political consequences for the Republicans.

* There are certainly some tea party types who would be happy to hit the limit, because they're insane, but Democrats would be lined up the other way and I don't think Boehner could hold his caucus together on this point, nor as doomsday approached do I think he would even try.

Hey, Andrew Sullivan linked this post. I feel all blog-influential like it was 2006.

Doh, missed my opportunity to break the "bullion or proof" argument on the interwebs, as KD just posted it.

No, it's still yours -- I don't think his post mentioned 'proof'.

498 is right. This whole conversation, other than as a subject of dorm-room debate (which, to be clear, is totally fun and a great thing to do in this eclectic dorm room), is nonsense. And that's why Drum is annoyed. Ostensibly serious people are talking about this seriously, and not from a lawyerly perspective but as a politically viable tactic. If you're relentlessly rational and a centrist, like Drum, that's crazy-making, especially because, as urple says in 498, there's a much better political tactic at hand.

I don't see how that's a viable tactic. Obama tries to stay above the fray, the Republicans pass some debt ceiling bill with some combination of regressive, socially damaging spending cuts and tax relief for the overburdened wealthy, and fingers begin to point. The media remains nonjudgemental and unbiased.

The Senate Democrats are forced between letting the economy collapse on the one hand and hurting poor people while rewarding the wealthy on the other. The bill gets to Obama in record time.

499: It also showed up on Memeorandum. It's always a little surprising to me when that happens.

Memeorandum always used to pick me up a fair amount, back when I posted more then occasionally about something. I figure someone there reads here habitually.

Than. Not then, than.

|| I just read this post title as "Kevin Drum isn't a mouth-breather". I have no idea where that came from. |>

I've been mostly happy with my swap of Yggles for Drum

I started reading Drum during the election and have been consistently glad that I did.

Drum was one of the first blogs I started reading when I started reading political blogs at all, and one of the few from that era that I still read with about as much interest as ever.

503: when you say "the Republicans", do you mean the Republicans in the House? Who are less popular than Hitler? And cancer? And Hitler with cancer? Now, the fight over the sequester may be another story entirely, and Obama may still have designs on a Grand Bargain, but if he holds the line on the debt ceiling, much as urple outlines above, I don't think he'll face any political blowback.

I don't think he'd face much blowback; I think he would end up signing a really shitty bill.

I should have said "meaningful political blowback". Of course he'll face political blowback; he's the president. Still, this issue is a giant loser for Republicans: the Chamber of Commerce hates it, Wall Street hates it, plutocrats hate it. Only the Tea Party likes it, and the GOP hates the Tea Party right now.

512: can you explain to me, showing your work, how a shitty bill gets through the Senate? I just can't imagine how you game this out. I mean, I get as far as the House passes a shitty bill, and then I'm done. The President goes on national television and talks about extremists in the House of Representatives. Chris Christie keeps running against the House GOP (which is a brilliant strategy, by the way). And again, Wall Street and Main Street speak out against the harm this debate is doing the country's economy and standing in the world. Meanwhile, Harry Reid is laughing his ass off, knowing that Mitch McConell is in a huge bind. Should he champion this piece of shit bill and risk alienating more voters who have to vote in non-gerrymandered Senate elections? Or should he back away and risk emboldening whichever Tea Party loonbag is going to primary him from the right in two year? Hilarity ensues.

Drum was one of the first blogs I started reading when I started reading political blogs at all

I read him regularly at Washington Monthly, but didn't make the move to follow him at Mother Jones* until last year.

* Partially because I didn't like the comments section there; which is a silly reason because the comments at Washington Monthly were terrible. But I was cutting back on blog reading in general and decided to only follow ones in which I had a positive sense of the commenters as well as the bloggers.

I see Senate Democrats blinking long before House Republicans do. It's not as if the pain caucus needs much convincing, and, as you note, a large fraction of the House Republicans are insane, and this time they don't see a need to pass a bill.

515: I remember him and the late Inkblot from back when he was the unaffiliated Calpundit.

I called him Calpundit for a long time after he moved. Much better name.

Actually I quite liked the Washmonth comments crowd; there were a few well-defined "petey"-type trolls, but a lot of intelligent contributions. And KDrum has always been one of the clearer super-traffic bloggers, with more punch than (say) Klein and more honestly partisan and pro-you politics than Isaylegs.

Steve Gilliard, Spackerman, Kdrum, and Digby basically did the tackling up the middle through the whole of the Bush years.

also, Inkblot. I wish I could stage a missing-cat formation flypast:-)

I quite liked the Washmonth comments crowd

I'm not sure that should be past tense. The Washington Monthly crowd is still pretty good.