The platinum option and the value of executive overreach

Lucky Denver Mint – Jimmy Eat World

As our country lurches from crisis to manufactured crisis like a drunken sailor, the next big event on the horizon is the semi-annual renewal of the debt ceiling.  If you remember what happened in 2011, Republicans threatened to more or less destroy the American economy in the service of reducing government spending.  And we’ll have all that fun once again in the next couple months!

Now, the debt ceiling is just an insane piece of law in the first place.  It has nothing to do with the actual appropriation of money.  All that it does is control our capacity to borrow in order to pay off debts we’ve already incurred.  Which is to say: Congress is threatening to collapse the economy because they’re unhappy about the amount of money that they themselves have appropriated.

My current favored approach to dealing with this is the platinum coin approach.  An obscure provision (31 USC § 5112(k)) grants tremendous leeway to mint platinum coins of any denomination.  The exact text:

The Secretary may mint and issue platinum bullion coins and proof platinum coins in accordance with such specifications, designs, varieties, quantities, denominations, and inscriptions as the Secretary, in the Secretary’s discretion, may prescribe from time to time.

The idea is to simply mint a couple platinum coins worth a trillion dollars, deposit them, and presto, the debt is two trillion bucks smaller.  It’s that simple.

Kevin Drum, who I normally agree with on most questions, is growing increasingly shrill on this subject.  The thing is, while he’s wrong, he is wrong in an interesting way.

Like it or not, the debt ceiling is legal. Congress has the power of the purse. On the other hand, using a ridiculous loophole in a statute about commemorative and bullion coins in order to evade the debt limit isn’t legal. Seriously, folks: just forget it. I know I’ll never have to pay up on a bet over this since it will never be tested, but this would go against Obama 9-0 if it ever made it to the Supreme Court.

It’s time to get a grip and leave the fever swamp thinking to the tea party. This whole thing is embarrassing. It will never happen; it’s an exercise in executive overreach that liberals are supposedly opposed to; and it would never make it past a judge.

There are three important elements here.  First, the debt ceiling generates fundamental constitutional blockages.  That is: the president is constitutionally obligated to spend the money which Congress has appropriated AND is constitutionally obligated to adhere to the debt ceiling.  But these two things directly contradict.  The result is a “constitutional showdown” to borrow some terminology from Eric Posner and Adrian Vermeule.  The basic feature of constitutional showdowns is that they transcend ‘legality.’  They take those questions into the realm of politics.  And whoever ultimates wins the political game ends up stamping their interpretation of the law onto future decision-makers.  Think Lincoln during the Civil War: his acts weren’t strictly constitutional by the old standard, but he successfully enforced a NEW standard of judgment.

The point is that law is never as clear as it seems.  Interpretations may be better or worse, but they depend tremendously on the political background.  Faced with an impossible constitutional obligation, Obama may well have to develop a new approach to the debt ceiling which exceeds the confines of apparent legality, precisely because our current (contradictory) standards are generating a constitutional crisis.

Second, Drum’s characterization of the coin option as executive overreach is strange given his willingness to defer to a hypothetical Supreme Court action.  Such a decision would be judicial overreach to an even more extreme degree.   The job of the Court is to interpret the actual law, not to interpret the motivations or desires of those who made the law.  Even those (like me) who put a lot of value into the spirit of the law, or the principles which undergird it, do not think that the Court has free reign to simply ignore the direct (and quite clear) text.

When the law says the Secretary has discretion about denominations, it means that.   It doesn’t mean ‘the Secretary has discretion within the unspecified confines of what we meant.’  There is a reason that legislation is famously long and complex – it’s because this stuff actually IS complex, and you need to be precise.

The courts would likely refuse to even hear a case on this subject.  But if they did take it, they very likely would side with Obama, unless he was significantly losing the political battle (see above).

Third, and most importantly, Drum is correct that this would constitute a new assertion of executive power.  In a separate post he writes:

I want to ask something else: is this really the road liberals want to go down? Do we really want to be on record endorsing the idea that if a president doesn’t get his way, he should simply twist the law like a pretzel and essentially do what he wants by fiat? My recollection is that we didn’t think very highly of this kind of thing when we thought George Bush was doing it.

This is where he ends up being wrong in an interesting way.  This point is broadly correct.   The platinum option looks a lot like some of the assertions of executive power under Bush.

But really this just clarifies that treating ‘executive power’ as a good or bad thing in the abstract is mug’s game.  I have written extensively in the past about our overly deferential attitude toward Madisonian checks and balances, and this is a perfect case study.

I clearly do not think that Congress should be a rubber-stamping institution with no capacity to challenge the executive.  I don’t love the idea of war-making authority being permanently in the hands of the executive.  I don’t love signing statements which effectively pocket-veto bills.  I don’t enjoy executive discretion to torture or detain indefinitely.

But I similarly don’t like Congressional dithering.  I don’t enjoy the filibuster.  I don’t like that executive appointments are more-or-less permanently bottled in the Senate.  I don’t like the fact that the president can run on a clear set of agenda items, win by millions of votes, and then have no authority to enact those items.  I really don’t like that Congress can generate conflicting constitutional obligations which basically guarantee massive economic shocks.  And I like even less that they are apparently willing to wave that gun around in pursuit of their objectives.

All things being equal, I find the executive to be a more responsive electoral institution.  I find that in part because (for all the stupidity of the Electoral College), it’s usually the case that you end up president if the most people vote for you.  This is emphatically not the case in Congress where Democrats had a million more votes and yet somehow remain in the House minority.

All things being equal, I prefer representation on national questions (like: the basic fate of our economy) to be carried out by people with national obligations.  The president is president of the whole country and is responsive to the whole country.  House Republicans are responsible to an overwhelmingly rural and increasingly conservative subset of the population.

All things being equal, I prefer that governing be done by bodies with the capacity for decisive action.  The executive is a singular body capable of identifying goals and then pursuing them.  Congress is an inchoate body of conflicting goals, desires, and motivations.  It contains two chambers that don’t like each other, or anyone else. It retains a whole host of practices and regulations that further limit its capacity for action.

Put simply: Congress is a mess.  And while I don’t want new executive overlords, I am more than happy to permit some executive overreach on matters where Congress is manifestly incapable of functioning.

The debt ceiling is a pretty clear example of this.

This does not obligate me to uncritically endorse ALL executive power-grabs.  But a categorical refusal to accept the value of growing executive power because it reminds people of Bush would be a huge mistake.

Mint those coins, Mr. President.  Do it now and put this insane issue to rest.