The Trillion Dollar Coin (Again)Andrew Hyman

The New York Times reported on May 2 that Biden aides are debating whether the debt limit is constitutional: "Progressive groups have encouraged Mr. Biden to take actions meant to circumvent Congress on the debt limit and continue uninterrupted spending, like minting a $1 trillion coin to deposit with the Federal Reserve. Internally, administration officials have rejected most of them. Publicly, Biden aides have said the only way to avert a crisis is for Congress to act."  Besides the old trick of the trillion dollar coin, a new trick under consideration is something called "premium bonds."  
The main legal problem I see with either of these gimmicks is that they would do much more than get us out of an impending debt standoff.  They would also enable the executive branch to raise as much money as it thinks it needs (e.g. for the military), in perpetuity, without need for Congress to enact any more taxes, or authorize any more borrowing.  All the executive would need is a compliant minority in Congress to block any congressional attempt to reclaim the power to fill up the purse.

Both gimmicks would also require absurd readings of pertinent statutes.  The idea of a trillion-dollar coin, for example, arises from a statute that everyone agrees was written for the purpose of selling coins to numismatists.  As Neil Buchanan and Michael Dorf have observed, "the very act of minting trillion-dollar coins looks so cartoonish and desperate that it could undermine faith in the government’s ability to repay its obligations...." 

That numismatic statute (31 U.S. Code § 5112k) says, “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.”  To avoid the absurd reading that would allow a trillion dollar coin, contrary to the original intent, I would interpret this statute to mean that whatever denomination is selected for the coin, the denomination must be reasonably related to the value of the platinum bullion. The word “bullion” is often defined as the platinum, gold or silver considered as so much metal.  Likewise, the word “proof” in the context of coinage usually means that it is not intended for circulation.

There is another alternative here that involves no gimmicks.  The House of Representatives already approved a debt increase last month.  President Biden could therefore carry out his constitutional duty under the Fourteenth Amendment ("the public debt of the United States...shall not be questioned") by urging the Senate to approve the House bill, or an amended version that can get through the House again.

MICHAEL RAMSEY comments:  The problem of the trillion dollar coin again reflects how, in the absence of limits on delegation, careless congressional delegation combined with aggressive executive overreading of statutes can break down constitutional limits on presidential power.  Even a relatively modest nondelegation rule would prevent Congress from simply handing over to the President its power to "coin Money, [and] regulate the Value thereof" without any limits or guidelines.  But, as a second best option, it would seem that the current Court's version of the major questions doctrine reaches the same result: surely the decision to mint a trillion dollar coin is a major question that is not clearly envisioned by the statute.  That's why I find the major questions doctrine a useful and legitimate tool, despite some originalists' reservations about it.

ANDREW HYMAN adds:  I believe the MQD is one way of doing it, but the older way works too: i.e. choosing a plausible non-absurd interpretation.

MIKE RAPPAPORT comments: My view here is close to Andrew Hyman's.  Yes the MQD would cut back on this "aggressive overreading" of the statute, but (1) the MQD is not originalist statutory interpretation and (2) an originalist interpretive canon -- one does not hide elephants in mouseholes -- would address the problem.  (That canon is weaker than the MQD.)  The provision seems obviously intended to allow the coining of money rather than to allow the borrowing of money.  Thus, it makes sense to find the limitation that Andrew mentions in the provision.  Once the nonoriginalist, acontextual, aggressive interpretations are resisted, I do not think the MQD is needed.