Aziz Z. Huq (University of Chicago – Law School) & Brian D. Galle (Georgetown University Law Center) have posted The Constitutional Money Problem on SSRN. Here is the abstract:
We consider three aspects of the constitutional status of the U.S. Federal Reserve. Under the Supreme Court's contemporary approach to constitutional meaning, there is a surprising degree of doubt about whether key aspects of the Federal Reserve ("Fed")-its independence from Congress and the President, and even its power to create money are constitutional. We suggest this is reason to believe the Court's dominant interpretive approaches generate implausible results, but identify a previously overlooked source of constitutional grounding for the Fed that better supports its authority and structure. We further sketch the potential limits, costs, and benefits of our suggestion.
And from the paper:
Some originalists prioritize original public understandings over the intentions of the Constitution’s framers, and for them matters are less clear. As we’ve said, we think the ultimate text is ambiguous as to whether bills of credit or Congressional power to define “legal tender” are authorized, and we do not know if the general public had a clear understanding of those terms in any event. While we are not aware of any comprehensive effort to discern the original public meanings of “borrow Money” and “coin Money,” there is evidence that the constitutional drafters used the word “coin” intentionally to distinguish that power from the authority to issue paper money.
Highly recommended! Clearly an advance on an important topic. I would like to know what the authors think about John Mikhail's work on the three Necessary and Proper Clauses, clearly relevant to their paper.