Tuesday, January 8, 2013

The Importance of Interpretation

This is part three in my planned 94-part series on the $1 Trillion Platinum Coin, which clever people continue to peddle feverishly and foolishly.

The basic argument in favor of the legality of the Platinum Coin is, "Hey, the statute says what it says. Sure, it's a stupid loophole, but we take the law as we find it." In other words, it's hyper-technical literalism—strict constructionism—a way of interpreting texts that even Justice Scalia denounces.

But it's also self-defeating because if you give a hyper-literal reading to the relevant statute (31 U.S.C. 5112) you'll see that it is self-contradictory. That is, it contains irreconcilable provisions.

Section 5112(a) says: "The Secretary of the Treasury may mint and issue only the following coins" and then goes on to specify just twelve specific coins of specific denomination. By its terms, § 5112(a) prohibits the minting of any other coins. Since the trillion dollar platinum coin is not among the enumerated coins, the Secretary of the Treasury may not mint or issue it. "Hey, just read the statute, idiot!"

But wait! Section 5112(k) says "The Secretary may mint and issue platinum bullion coins and proof platinum coins." So, under subsection (k), the Secretary can mint a coin that subsection (a) clearly prohibits. DOES NOT COMPUTE!

Even worse, there is the embarrassment of § 5112(e), which authorizes the minting of silver dollars. That provision, however, is reconcilable with subsection (a) because it explicitly begins with a magical phrase: "Notwithstanding any other provision of law, the Secretary shall mint and issue . . . [silver dollars]." Subsection (k), the platinum-coin section, lacks the magic words. It just contradicts without excuse.

The provisions are irreconcilable—what Congress literally gives with subsection (k), it literally takes away with subsection (a). What can we do???

Well, we interpret the statute as a whole, of course. Turns out, there's a basic canon of interpretation that governs when two parts of statute are irreconcilable: the general/specific canon. This is the interpretive rule that, if two provisions are irreconcilable, the specific provision wins out over the more general provision. So if the question is whether the Secretary of Treasury may mint a platinum coin, you have two applicable provisions: (1) the general provision that the Secretary may mint only 12 kinds of coins, none of which are platinum; and (2) the specific provision that says the Secretary may indeed mint a platinum coin. The rule is that the specific provision wins. THE PLATINUM COIN LIVES!

Now, this may seem like common sense. And it is. But remember: people are talking about the minting of a trillion dollar coin. So I am going back to first principles. Today's lesson: to give a statute its fair meaning, you have to read all of it, and you almost always have to interpret it. If you read just ten or twenty words and apply no judgment, you'll almost never actually know what the law is.

Keeping those basic concepts in mind, ask yourself a question: given that the specified denominations in § 5112 range from one cent to $50, does a fair reading of subsection (k) give the Secretary of Treasury "discretion" to mint and issue $1 trillion coins? Or would that be an abuse of the discretion delegated by Congress?

No comments:

Post a Comment

Comments on posts older than 30 days are moderated because almost all of those comments are spam.

Post a Comment