By Stephen L. Carter
“The history of coinage is indeed, in many cases, a melancholy record of fraud, folly, and ignorance.” So wrote Sir John Lubbock in his classic 1902 book, “A Short History of Coins and Currency.” And I will freely admit that my first reaction, on hearing about the platinum coin, was to nod sagely and tell myself that Lubbock was right.
But as an ever-longer list of people whose views I respect lined up in favor of minting the special trillion-dollar coin as a temporary measure to get around the debt ceiling, I decided to have another look. On somber second look, I was right the first time: It’s a really bad idea.
In the first place, it would be illegal. Proponents insist that the language of Title 31 of the United States Code, Section 5112(k), is broad enough to allow the U.S. Treasury secretary to order the coin minted in whatever denomination he chooses.
I’m old-fashioned enough that I still teach my students that the plain language of a statute must be construed in accordance with its purpose. That’s why, when a criminal statute punishes anyone who uses a gun “or” another deadly weapon in commission of a felony, you can’t escape by pleading that you used both. The literal language of the statute might permit that construction, but the legislative purpose doesn’t.
As innumerable critics have pointed out, the purpose of section 5112(k) is to allow the creation of collectors items, not money — a proposition affirmed by the former member of the House who authored the law, Michael Castle of Delaware. (Alas, there is no formal legislative history.)
But suppose I’m wrong, and the coin would be legal. Even so, I’m persuaded that political blogger Kevin Drum is asking the right questions: “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?”
I am perplexed by the determination of Democrats to enhance presidential power. All the authority they seem so excited to place in President Barack Obama’s hands will one day be wielded by a Republican. I was raised to remember that goose and gander alike sup with the same spoon.
Literary critic Lionel Trilling, back in his liberal days, had it right when he warned against the liberal tendency to so fall in love with a “cherished goal” that it “forbids that we stop to consider how we reach it.” In a constitutional system, process matters.
That’s why liberals shouldn’t be so quick to defend (for example) Obama’s use of recess appointments. True, Presidents Bill Clinton and George W. Bush used them a lot more, but for the same bad reason: to circumvent the confirmation process by thrusting into office people they wouldn’t be able to get through the Senate. To do this now and then is one thing; to make it systematic raises a genuine constitutional problem. Confirmation of executive branch appointees isn’t supposed to be easy. It’s there to restrain the executive. If the president feels tied down, that’s a sign that the process is working.
But Democrats have become impatient with process. Not long before the tax deal, some on the left floated the idea that the administration could unilaterally keep rates from rising by adjusting the tax withholding tables, which rest, statutorily, within the discretion of the Treasury secretary. I wonder how they might respond should some future supply-side Republican try to use precisely that tactic to lower rates.
Then there’s the suggestion endorsed by, among others, the Democratic leader of the House, California’s Nancy Pelosi, that the 14th Amendment allows the president to ignore Congress and raise the debt limit on his own. Well, my goodness. Why didn’t Bush think of that, back when Democrats were railing against the rising deficits in his final years? Sure, constitutional traditionalists would have been appalled, but Pelosi, one presumes, would have leaped to his defense.
The trillion-dollar coin falls into the same category. Rather than asking whether it’s legal, or how the markets would respond, we should be asking whether today’s enthusiastic supporters would be on board were it proposed by supporters of president-elect Mitt Romney.
And, yes, I know, these times are different. We face an emergency caused, according to New York Times columnist Paul Krugman, by “the mixture of ruthlessness and craziness that now characterizes House Republicans.” Is this an unusually crazy time? I wouldn’t know: Partisan politics isn’t my thing, so I’ll leave that judgment to others. But we’ve faced lots of crazy moments in history and managed to get through them without chasing every little gimmick.
Besides, there are only so many times one can go to the same well. The constant complaint offered in justification of each of these efforts is that the Republicans are being intransigent. But intransigence is built into the constitutional process. Dissenters can block action. They can force compromise. Those aspects of the system can be terribly frustrating when you happen to be in the majority, a perspective from which disagreement always looks like pigheadedness.
From the point of view of the minority, however, these are valuable checks and balances. Take the Senate filibuster, currently targeted by many on the left for extinction. There is a long tradition in deliberative bodies of requiring a supermajority vote to limit debate.
Why not just a majority? Because, as U.S. Army General Henry M. Robert wrote in the first edition of his eponymous “Rules of Order,” putting an end to the debate suspends “the fundamental right of every member of a deliberative assembly to have every question fully discussed before it is finally disposed of.” Indeed, were a simple majority able to end debate, there would never be any need to discuss anything: Just show up and vote.
Historically, the filibuster has been used for horrific ends, including as a last-ditch effort by Southern Democrats to prevent the passage of major civil rights legislation. But that filibuster was broken once and for all in 1964, and without changing the rules. What was required was a majority willing to roll logs and twist arms — that is, to do the hard work of actual governance.
Let’s assume, for the sake of argument, that today’s majority is, most of the time, the good guys. That doesn’t mean they don’t have to give in now and then to a passionate minority. Compromise, to be sure, was easier in an era when we didn’t tweet every private meeting between senators, and cable news hosts didn’t spend prime time throwing red meat to the angry herds on the right and left.
But we can have constitutional government or we can have “the good guys” winning every fight. We can’t have both.
Stephen L. Carter is a Bloomberg View columnist and a professor of law at Yale University.