- Mr. Torvik seems to have gone AWOL; and
- Specifically, Mr. Torvik appears to have abandoned his promised 94-part series on the Trillion Dollar Platinum Coin.
All I can say, dear Reader(s)™, is that I hear you, and I am doing my best. To wit, today I give you Part 8 in the platinum coin series.
The impetus for today's post is the Supreme Court's decision in Bond v. United States. The facts are simple: British secret agent James Bond went rogue and stole a large cache of chemical weapons from Saddam Hussein in 2002 (yes, that's where they went). Over the next several years, he sold the chemicals to terrorists on the black market, eventually amassing enough money to purchase nearly 60% of all platinum known to exist. Then he attempted to use that platinum to create a one-trillion-dollar coin, which he intended to gift to the United States treasury, thus solving all our fiscal problems. It was kind of a Robin Hood thing. Yesterday, the Supreme Court put the kibosh on the whole scheme.
Well, not exactly.
Here are the actual facts.
Carol Anne Bond is a microbiologist from Lansdale, Pennsylvania. In 2006, Bond’s closest friend, Myrlinda Haynes, announced that she was pregnant. When Bond discovered that her husband was the child’s father, she sought revenge against Haynes. Bond stole a quantity of 10-chloro-10H-phenoxarsine (an arsenic-based compound) from her employer, a chemical manufacturer. She also ordered a vial of potassium dichromate (a chemical commonly used in printing photographs or cleaning laboratory equipment) on Amazon.com. Both chemicals are toxic to humans and, in high enough doses, potentially lethal. It is undisputed, however, that Bond did not intend to kill Haynes. She instead hoped that Haynes would touch the chemicals and develop an uncomfortable rash.
Between November 2006 and June 2007, Bond went to Haynes’s home on at least 24 occasions and spread the chemicals on her car door, mailbox, and door knob. These attempted assaults were almost entirely unsuccessful. The chemicals that Bond used are easy to see, and Haynes was able to avoid them all but once. On that occasion, Haynes suffered a minor chemical burn on her thumb, which she treated by rinsing with water. Haynes repeatedly called the local police to report the suspicious substances, but they took no action. When Haynes found powder on her mailbox, she called the police again, who told her to call the post office. Haynes did so, and postal inspectors placed surveillance cameras around her home. The cameras caught Bond opening Haynes’s mailbox, stealing an envelope, and stuffing potassium dichromate inside the muffler of Haynes’s car.As a result of this reprehensible conduct, Bond was charged with violating 18 U.S.C. 229(a), a federal statute passed to implement the United States' obligations under an international treaty called the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction. Although no one thinks the treaty or its implementing statute was intended to cover conduct such as Bond's, the prosecution was rather straightforward under the actual text of the criminal statute, which makes it a crime—
to develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon.
A "chemical weapon" is a defined term that means—
A toxic chemical and its precursors, except where intended for a purpose not prohibited under this chapter as long as the type and quantity is consistent with such a purpose.
"A purpose not prohibited under this chapter," likewise, is specifically defined to include only these four purposes:
(A) Peaceful purposes.— Any peaceful purpose related to an industrial, agricultural, research, medical, or pharmaceutical activity or other activity.
(B) Protective purposes.— Any purpose directly related to protection against toxic chemicals and to protection against chemical weapons.
(C) Unrelated military purposes.— Any military purpose of the United States that is not connected with the use of a chemical weapon or that is not dependent on the use of the toxic or poisonous properties of the chemical weapon to cause death or other harm.
(D) Law enforcement purposes.— Any law enforcement purpose, including any domestic riot control purpose and including imposition of capital punishment.
There was no dispute that the chemicals Bond used were "toxic chemicals" and that her use of them was not one of the four protected purposes. As a result, she was convicted and sentenced to six years in federal prison.
But the Supreme Court, in an opinion by Chief Justice Roberts, reversed the conviction. One of the arguments was that the the law was unconstitutional under the Tenth Amendment because it used the Treaty Power to override traditional a traditional subject of state sovereign power. But Chief Justice Roberts chose to avoid the constitutional question, and instead found that—despite its plain text—the statute could not be interpreted to reach Bond's conduct:
Part of a fair reading of statutory text is recognizing that “Congress legislates against the backdrop” of certain unexpressed presumptions. As Justice Frankfurter put it in his famous essay on statutory interpretation, correctly reading a statute “demands awareness of certain presuppositions.” ... The notion that some things “go without saying” applies to legislation just as it does to everyday life.
* * *
These precedents make clear that it is appropriate to refer to basic principles of federalism embodied in the Constitution to resolve ambiguity in a federal statute. In this case, the ambiguity derives from the improbably broad reach of the key statutory definition given the term—“chemical weapon”—being defined; the deeply serious consequences of adopting such a boundless reading; and the lack of any apparent need to do so in light of the context from which the statute arose—a treaty about chemical warfare and terrorism.
And that brings us to the Trillion Dollar Coin. The argument for the Trillion Dollar Coin rests on an isolated (that is, utterly divorced from context) and hyper-literal reading of a throwaway provision of the U.S. Code—a provision that no one seriously contends was intended, or ever imagined, to authorize outrageous fiscal workarounds. Even this hyper-literal reading of the statute has obvious problems that would give any judge (or agency lawyer seeking to interpret it) enough wiggle room to reach a sane interpretation.
I submit that if the Trillion Dollar Coin issue were ever litigated, you would see large portions of the opinion from Bond v. United States cut and pasted into the inevitable bench-slap. The Court would find the interpretation of "such ... denominations" to be to be "improbably broad" in the context of a trillion-dollar coin, and therefore "ambiguous." From there, divining the complete lack of Congressional intent to permit a trillion-dollar coin would be child's play.