Tuesday, January 08, 2013

Are Platinum Coins Constitutional ?

I think it might be an open question whether section (k) of

31 USC § 5112 - Denominations, specifications, and design of coins is constitutional.


It reads 

(k) 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.

The US Constitution article 1 section 8 begins

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

It isn't clear to me that Congress can delegate the decision about the value of Platinum coins, either bullion or proof, to the Secretary of the Treasury.

See post below for why I think the fate of the world economy doesn't not depend on this. 

3 comments:

Orestes Ippeau said...

You raise the Nondelegation Doctrine: no branch can delegate power to another which the Constitution specifically allocates to the former. The body of decided laws leans to practicality, IOW the "Intelligibility Principle", per Mistretta v. USSCt 1989
"...in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives ... [it's] "constitutionally sufficient" if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority ... Only if we could say that there is an absence of standards for the guidance of the Administrator's action, so that it would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed, would we be justified in overriding its choice of means for effecting its declared purpose ... Congress has met that standard here. The Act sets forth more than merely an "intelligible principle" or minimal standards. One court has aptly put it: "The statute outlines the policies which prompted establishment of the Commission, explains what the Commission should do and how it should do it, and sets out specific directives to govern particular situations."
Title 31 is "Money and Finance". Subtitle II is: "The Budget Process", III is: "Financial Management". IV, where 5112(k) is: "Money", Chapter 51: "Coins and Currency". 5112's "General Authority" is in II: "Denominations, specifications, and design of coins" -- NOT I, "Minting and issuing coins, medals, and numismatic items". 5112 provides specific, tightly defined standards to a wide manner of coinage, and includes specific references to numismatics. (k) is the SOLE exception to the policy of precise valuation of closely defined coins.
The argument for this as impermissible: Congress has NOT provided policies and standards for the exercise of the particular power, 31 USC § 5112(k), that make it "[--]possible in a proper proceeding to ascertain whether the will of Congress has been obeyed".
The converse argument: the courts CAN discern the will of Congress her. If Congress wanted to treat platinum as "numismatic", it would have placed the power found (k) under Sc. I, not II. The courts cannot legislate, nor overrule Congress even for acting foolishly. imprudently, or even just unevenly, and must 'presume regularity', i.e. that Congress intended this effect -- for, if this were a mere drafting error, Congress can act correct it. Congress realized in this world of quantum speed finance, it is, compared to the Treasury Secretary, ill-placed to judge the circumstances under which this power should be exercised and the speed to exercise it effectively, so Congress granted this one coinage power DELIBERATELY without valuation ... because you never know when something screwy might happen, like a crazy majority in the House taking the Debt Ceiling hostage.

Orestes Ippeau said...

Tribe thinks it's fine:

http://www.washingtonmonthly.com/ten-miles-square/2013/01/harvard_law_school_professor_l042276.php

Jeffrey Davis said...

I wonder what an Executive Branch does if Congress can't delegate authority.