Add Laurence Tribe To The Pro-Coin Group

Along with Philip Diehl, former Director of the United States Mint, the most authoritative voice to speak so far on the legality and viability of the Platinum Coin Option is Laurence Tribe, nearly universally recognized to be America’s greatest living Constitutional scholar.

And, like Diehl, Tribe says that the PCO is perfectly legal and viable as a means to deal with Republican hostage-taking on the debt ceiling.

He first said so back in July of 2011, during the first Republican hostage-taking:

Here is another option: the Treasury could mint coins to cover all the nation’s spending commitments. As Jack Balkin has pointed out, 31 U.S.C. § 5112(k) authorizes the Treasury to mint platinum coins in any denomination. Balkin suggests that the President could exercise this authority to mint a couple of trillion-dollar coins. By doing so, the President could put an end to the problem created when the Treasury’s revenues are insufficient to meet its spending commitments, without violating any existing federal law. If we accept Balkin’s interpretation of the relevant statutory provision, the central premise of Professor Buchanan’s argument—that default is guaranteed to occur under extant statutes come August 3—isn’t even true to begin with.

Of course, raising the debt ceiling might be a wiser move from a policy standpoint than simply printing more money or issuing new forms of currency. But this is not a constitutional distinction on which Professor Buchanan is entitled to rely in order to pronounce the debt ceiling unconstitutional, while leaving the ceiling on outstanding currency notes—and other elements of our revenue-raising arrangements—intact.

He has now reiterated and expanded upon his July 2011 comments:

I don’t think it makes sense to think about this as some sort of “loophole” issue. Using the statute this way doesn’t entail exploiting a loophole; it entails just reading the plain language that Congress used. The statute clearly does authorize the issuance of trillion-dollar coins. First, the statute itself doesn’t set any limit on coin value. Second, other clauses of 31 USC §5112 do set such limits, but §5112(k)—dealing with platinum coins—does not. So expressio unius strengthens the inference that there isn’t any limit here.

Of course, Congress probably didn’t have trillion-dollar coins in mind, but there’s no textual or other legal basis for importing this probable intention into the statute. What 535 people might have had in their collective “mind” just can’t control the meaning of a law this clear.

It’s also quite clear that the minting of such a coin couldn’t be challenged; I don’t see who would have standing.

Bottom line: This is a situation where the political and economic considerations, not the legal considerations, have to drive the decision-making about this option. It’s certainly a lot better from just about every perspective than having the nation stuck on either horn of the very real dilemma you outlined below, which I agree offers no plausible way out as long as enough leaders in Congress insist on playing Russian Roulette with our economy and risking our full faith and credit by using the debt ceiling as a bargaining chip as they are threatening to do.

There are still some rabid dead-enders out there who are willing to discount what the former head of the Mint and the greatest living Constitutional scholar have to say on this issue, but their voices are getting ever more shrieky as they find their numbers shrinking.

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