A few thoughts on the platinum coin meme that is going around.
First, where in the world is Jack Balkin? As best as I can remember, the first person to propose the platinum coin in 2011 was Jack (his post was borderline tongue-in-cheek, but hey, it got the point across). It is even more curious why Jack has been silent, as this idea seems to be getting a lot of play on the web and in the blogosphere. Politicians are even talking about it.
Second, the argument seems to be gaining some traction. Larry Tribe likes it. In addition to be a respected constitutional scholar (whom Obama slighted for any meaningful Administration position), Tribe is a very astute political observer. If he is hitching himself to this wagon, there may be legs here. People are fascinated by an argument that resolves a political crisis, and is supported by a constitutional argument. Section 4 + Platinum coin = President gets out of debt crisis. This appeals to so many.
Third, as Jon Adler noted, unlike the original argument against the ACA that was “off-the-wall,” this off-the-wall idea is not headed to any court. This can be imposed purely by executive fiat. And we have seen that this President is not afraid to flex his unitary executive muscle to achieve certain policy goals. (I attended an interesting panel at AALS comparing the executive powers of Bush and Obama. The takeaway was that Obama was more aggressive about exercising his powers, but also more transparent about what he is doing). So, if the President does decide to do this, there is not much that can stop him. Unless conservatives all-the-sudden reverse decades of jurisprudence on narrowly construing taxpayer standing–I knew the Chief kept the Flast doctrine alive in Hein v. Freedom from Religion for something!
I’ll keep my eye on this.
Update: Eric Posner suggests that the President can be impeached for minting the platinum coin.
The idea that President Obama could evade the debt limit by ordering the Treasury Department to mint a $1 trillion platinum coin started off as a joke, or a quasi-joke, but now, thanks in part to Paul Krugman as well as to many other influential commentators (even the former head of the U.S. Mint), is being taken seriously. And if serious people take it seriously, then the coin loses its fairy-tale quality, and why not go through with it? The answer is that the legal case for the platinum coin is not as strong as people think, and if the president gets this wrong, the consequences could be severe.
Another more pressing worry for the Obama administration: impeachment. With a majority in the House, Republicans could easily start impeachment proceedings. And while conviction in the Senate is virtually impossible, as Democrats would not join to create the two-thirds majority needed, merely launching the impeachment process would be politically devastating for President Obama, as it was for President Clinton.
The theory for the platinum coin is weak enough to provide the legal basis for impeachment and absurd enough to provide the political basis. The $1 trillion coin would feed fears of an out-of-control president, and it would be a slap in the face of the current Congress—not some previous Congress from long ago—which has refused authority to raise the debt ceiling. While the coin theory does not literally enable the president to increase spending to whatever level he wants, as he still must respect Congress’ power over appropriations, this detail will surely be lost on a public entranced by the idea of a coin worth $1 trillion. And the gimmicky nature of the legal theory behind the coin would suggest a White House that is unscrupulous rather than guided by the spirit of the law. That is why I have argued instead that the president should rely on his emergency powers or on his inherent administrative authority to borrow money, although admittedly there’s a risk of impeachment in these approaches as well.
Yes, that is exactly what we need. An impeachment trial, presided over by none other than Chief Justice Roberts. At least Jeff Toobin would have some material for the second edition of The Oath.
Update 2: Another article arguing that the President could be impeached if he spends in excess of the debt ceiling. And this article with a profile of the person who created the platinum coin idea. Apparently it was not Jack Balkin.