Indefinite Detention? Trillion-Dollar Coins? A Framework for Thinking About Emergency Measures

by Michael C. Dorf

Just over a week ago, I urged Congress to enact legislation "locking down" the country and, if necessary, temporarily suspending the privilege of the writ of habeas corpus. As I related in a follow-up essay here on the blog, most of the critical commentary on my column focused on habeas suspension, even though I did not and do not regard that as the core of the proposal. For me, the key is lockdown. I am heartened that in the intervening period the governors of several of the hardest hit states (including NY, where I live) have issued stay-at-home policies. I think most of these policies are too lenient for this stage of the crisis and that broader federal action is needed, but something is better than nothing.

Meanwhile, on Twitter and elsewhere, various commentators questioned my willingness to give sweeping power to President Trump and his administration, whom we have good reason to distrust. I responded in my blog post that that is the reason I would want Congress to include sunset provisions, so much as practicable to specify details, and to delegate to medical professionals like Dr. Fauci, but I acknowledged that a substantial degree of discretion in the implementation of the policy would inevitably end up in Trump's hands, and that while that is a very substantial worry, I did not see a good alternative.

In the balance of today's essay, I want to elaborate a framework for thinking about emergency measures. I'll orient the discussion around two proposals: a collection of requests from the Department of Justice (DOJ) to Congress for substantial changes to how courts operate; and Representative Rashida Tlaib's proposal to give everyone in the US a $2,000 debit card plus $1,000/month so long as the coronavirus crisis persists, all funded by the Treasury minting two trillion-dollar coins to be purchased by the Fed.

Some of the DOJ proposals strike me as sensible responses to the emergency. For example, DOJ proposes to change Federal Rule of Criminal Procedure 5(f), which currently allows arraignment by videoconference with the defendant's consent, to allow for videoconference arraignment without the defendant's consent. Given the health risks to everyone--and given that videoconference can provide just about all that one needs for an arraignment--it would be foolish to oppose this otherwise sensible change simply because it is being proposed by the Trump/Barr DOJ.

That said, even with respect to as innocuous a proposal as the elimination of the consent requirement in Fed. R. Cr. P. 5(f), there's no reason to permanently amend the rule. It's possible that after the crisis is over we will have learned that videoconference arraignments are so effective that they can become the norm, but ex ante we should be careful to ensure that any change lasts only as long as the crisis does. Of course, that qualifier would be salient even if a fully trustworthy administration were making the proposal. Sunsets and time limits are a way to prevent justified temporary measures from becoming unjustified permanent ones, regardless of one's degree of confidence that the measures are justified during the emergency.

Some of the DOJ proposals appear to be simply bad and should be opposed for that reason. As described in a Politico article, DOJ proposes to allow for potentially prolonged pre-trial detention without a judicial hearing. That strikes me as pretty clearly unconstitutional absent suspension of habeas corpus, and I don't see a good justification for suspending habeas with respect to criminal detention (as opposed to the possibility that it might be necessary to enforce a national public-health lockdown as discussed in my Verdict column). Thus, absent much more, I'd oppose this proposal regardless of its source.

To my mind, there are two categories of proposals that pose special challenges: (1) policies that are just barely all-things-considered justified but are being advanced by an administration with questionable or bad motives; and (2) policies that are all-things-considered justified but will be implemented by an administration that we have reason to distrust. DOJ's proposal to bar COVID-19-infected persons from seeking asylum could be an example of both of these.

We certainly have very strong reason to think that the Trump administration is using the pandemic as a pretext for further restricting asylum. Thus, consideration (1) should mean that we be very careful in scrutinizing the reasons advanced for the restriction. However, I do not think it sound to oppose an otherwise justified policy simply on the ground that it was proposed by someone who had ulterior motives, even if the policy is only just barely otherwise justified. Refusing entry to asylum seekers who have the coronavirus might be justified. Indeed, much stricter policies could be justified during the public health emergency. At the moment, countries with more permissive asylum regimes than ours are sealing their borders and taking similar drastic steps. Disallowing entry of anybody with the virus who is not a US citizen or permanent resident may well be justified; thus, a narrower restriction would also be justified.

What about (2), the likelihood that the administration would enforce the law in the wrong way? That strikes me as a genuine concern here. We continue to have a critical shortage of tests. I strongly suspect that a ban on asylum seekers who have COVID-19 would be implemented as a straight-out ban on asylum seekers. As I said above, maybe that drastic and tragic policy is justified as a temporary measure, but if so, it should be adopted directly, not via a backdoor that the administration exploits.

So much for thinking about emergency proposals from one's ideological foes. What about proposals by one's friends? Representative Tlaib is essentially proposing universal basic income (UBI) during the duration of the crisis, funded by coin seignorage. Let's consider UBI and the funding mechanisms. Before doing so, I note that I share most of Rep. Tlaib's policy goals as a general matter, so I do not need to concern myself with the sorts of source-based doubts that I entertained with respect to the Trump/Barr DOJ proposals.

I am not sure where I come down on UBI in normal times. If you Google "the progressive case against UBI," you will find a slew of articles and essays arguing that UBI would likely result in a net reduction of the welfare state, with more functions now undertaken by government shifting to the private sector. This strikes me as a plausible prediction, although a greater worry in the UK and EU, where there is already a robust welfare state, but even in the US one could well see the adoption of UBI being used as the basis for cuts in other programs, like Social Security, Medicare, and Medicaid. UBI can be and has been critiqued as fundamentally neoliberal--a purely market-based approach to social welfare responsibilities of the state that might otherwise be accomplished via programs that develop solidarity. Accordingly, I think the case for UBI in normal times is uncertain.

But these are not normal times. We are already seeing enormous economic disruptions. Workers in just about every industry other than health care, food production and distribution, and delivery services are being laid off. Shelter-in-place orders permit them to leave their homes to buy groceries and medicine, but how will they do so without money? Under the circumstances, support for UBI should be a no-brainer.

Reasonable people can disagree about exactly how to structure UBI. Rep. Tlaib's proposal covers just about everyone. I agree with the suggestion I read (I apologize that I don't remember where) that means-testing is a bad idea right now, because it would complicate and thus delay implementation; people who have enough to get by without a UBI payment could be taxed in the future to compensate for overpayment--or not if doing so would make it harder to enact the program now.

The payment mechanism is a different question. During the debt-ceiling crisis of the last decade, Prof. Buchanan and I criticized the proposal for the Treasury to mint trillion-dollar platinum coins as a means of circumventing the debt ceiling. In our initial Columbia Law Review article on the subject, we objected that the platinum-coin gambit, even if legal, could spook the markets to a greater degree than the issuance of bonds in excess of the debt ceiling but in just the amount needed to cover the gap between spending and revenue. Prof. Buchanan later set forth a more fundamental objection: that minting such coins and selling them to the Treasury, which would then sell bonds, would be debt that counts against the debt ceiling--so platinum coins would not serve the very purpose they were meant to serve at the time. Prof. Buchanan and I incorporated his argument by reference in one of our follow-up Columbia Law Review articles on the debt ceiling.

I nonetheless support the Tlaib proposal because the objections that Prof. Buchanan and I raised to the platinum coin gambit as a means of circumventing the debt ceiling do not apply to it as a means of funding UBI during the coronavirus crisis. The markets are already badly spooked. UBI, however financed, would have some calming effect. Meanwhile, the debt ceiling was suspended last summer until July 2021, so there is currently no debt ceiling against which Rep. Tlaib's proposal would count against.

Accordingly, I can enthusiastically support the proposal without saying that I need to sacrifice some principle that I hold dear in non-emergency circumstances. The principles at issue simply don't apply here.

That said, it's not entirely clear why Rep. Tlaib wants to fund her proposal with platinum coins rather than simply with an ordinary allocation by the Treasury to be financed by borrowing. True, that would require an Act of Congress, but Rep. Tlaib's own proposal is styled as a bill for Congress to pass. If Congress is going to act, it need not rely on retrofitting pre-existing legal authority. However, perhaps there are political reasons why the platinum coin approach could make it through Congress where other approaches might fail. If so, I'm all for it.

Postscript: I have decided to abandon my system of numbering my COVID-19-related posts in recognition of the grim reality that for the foreseeable future, most of my and my co-bloggers' posts will be related to the pandemic in some way, so that these essays are no longer a discrete subset of the blog's usually wide array of topics, but the core.