John Dean has a good essay
here, examining things beyond the "14A" options debate. That section speaks of things authorized by "law" that "shall not be questioned," but then I read about "wish lists" and such other places. Unfortunately, such bad analysis is not just made by anonymous online comments. This is why any "deal" is so much of a risk, encourages them.
7 comments:
Brings to mind President Jackson's comment that now that John Marshall has pronounced the law, let him enforce it and Chief Justice Taft's claim that the Constitution means what the court says it means.
Perhaps the political question doctrine would also preclude the court from taking on a President's invoking the 14th Amendment to ignore the debt ceiling statute.
Of course, who can say what this court will do?
Over at Volokh Conspiracy, Dilan Esper (who posted at Slate etc. too) suggested the debt question should be a political question but that current precedent would hold that it might not be. When the Gold Clause Cases forced such an issue the result was something of a mish-mash, huh?
Actually, the gold clause case was relatively easy since there was clearly standing for the bond holder. As to the merits, I find it difficult to distinguish, though not impossible. In my opinion, as you know, the court will do what it wants, politically, subject to the Chief Justice's concerns about his legacy and the majority's (whatever group that happens to be) concerns about the functioning of the government in the face of possible civil unrest and widespread public revulsion of the court's action. The tea party does not have a political majority and, as Mr. Dooley observed, "th Court follows th illiction returns."
My comment referenced how they settled the merits, leading to a somewhat confusing division and result. http://scholarship.law.ufl.edu/flr/vol64/iss5/3/
You are talking about the reasoning of various justices. The holding, however, was clear: the bondholder was entitled to his gold despite the action of Congress subsequent to issuance. That's why I say it is difficult, though not impossible, to distinguish. Language can always be dismissed as "surplusage" whereas the result is the result for whatever reason.
"the bondholder was entitled to his gold"
It is my understanding that the basic point is that the bondholder wanted an impossibility since gold coin was taken out of circulation leading to in effect a ruling w/o a remedy (Perry v. U.S. -- "fail to show a cause of action for actual damages"). The ultimate result was Stone only concurring in result, leading to a plurality, while noting such "immune from liability" and four justices dissented.
Of course, had gold coins been available, he would have been entitled to them. Dollars, of course, are still in circulation. But point taken. It's not "on all fours" as they like to say.
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Thanks for your .02!