Roe v. Wade Part II

My previous blog on Roe v. Wade argued that the laws on abortion should reflect the democratic will of the public. “Roe vs Wade” I have personally always been pro-choice but also believed that that case needed to be made democratically. Before joining the Supreme Court judge Ginsburg stated that: “Roe v. Wade sparked public opposition and academic criticism, in part, I believe, because the Court ventured too far in the change it ordered and presented an incomplete justification for its action.” “Scholarship Law, UNC.edu” She added, “Roe v. Wade, in contrast, invited no dialogue with legislators. “Ruth Bader Ginsburg-Roe vs Wade”

Conservative columnist George F. Will wrote that rather than end the debate about abortion with Roe: “Instead, it inflamed the issue and embittered our politics — because the court, by judicial fiat, abruptly ended what had been a democratic process of accommodation and compromise on abortion policy . . . .   Before the court suddenly discovered in the Constitution a virtually unlimited right to abortion, many state legislatures were doing what legislatures are supposed to do in a democracy: They were debating and revising laws to reflect changing community thinking.” “George Will on Roe”

I also argued, quoting Justice Alito, that revoking Roe would not endanger the Obergefell v. Hodges decision, which legalized same-sex marriages, the Loving v. Virginia decision, which legalized interracial marriages, the Griswold v. Connecticut decision, which ban restrictions on contraception, and several other cases. These decisions were also based (in part) on the Due Process Clause of the Fifth and Fourteenth Amendments to the Constitution.  I argued that my right to marry a man was protected by the Equal Protection Clause of the Fourteenth Amendment. A lawyer friend, Jack Nadler, has raised some interesting challenges to this assertion and clarified for us non-lawyers the fuller meaning of applying the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the Constitution.

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Jack Nadler is a Retired Partner in the Washington DC office of Squire Patton Boggs.  While at Squire, Jack served as outside counsel for SAGE (formerly Services and Advocacy for Gay Elders), which represents the interest of LGBT older adults.  Jack led the team that drafted the extensive friend of the court (amicus) brief that SAGE filed in Obergefell v. Hodges, the case in which the Supreme Court struck down State restrictions on same-sex marriage.  Jack previously taught law at American University’s Washington College of Law in Washington, DC and the China University of Political Science and Law in Beijing, and served as a Law Clerk to the Hon. Joel M. Flaum on the United State Court of Appeals for the Seventh Circuit in Chicago.  He is a graduate of Columbia Law School, the Columbia University School of International and Public Affairs, and Vassar College. 

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A Response:  Why Overruling Roe v. Wade Threatens Marriage Equality

Jack Nadler  

I disagree with my friend Warren’s contention that a decision to overrule Roe v. Wade, based on the rationale in Justice Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization, would not threaten the right of same-sex couples to marry.  In particular, I do not agree that, even if the Court adopts the reasoning in the draft opinion, the courts would be likely to continue to uphold marriage equality under the Fourteenth Amendment’s Equal Protection Clause.

The rights of same-sex couples to marry, recognized by the Supreme Court in Obergefell, just like the right to abortion recognized in Roe, is grounded on the Due Process Clause, which provides that no State may “deprive any person of life, liberty, or property, without due process of law.”  Specifically, the right of same-sex couples to marry is based on the doctrine of substantive Due Process, which provides that the Due Process Clause’s protection of “liberty” precludes a State from infringing on certain “fundamental rights” that individuals possess, regardless of what procedures the State uses.

Justice Alito’s draft opinion in Dobbs is a direct repudiation of the doctrine of substantive Due Process.  The express rationale for overruling Roe is that the Constitution only protects rights that are expressly granted in its text or that are “deeply rooted in our nation’s history and tradition.” Because the Constitution does not expressly grant women the right to have an abortion, and because, prior to Roe, the United States did not have a long “history and tradition” of permitting abortion, the draft opinion concludes that the Constitution does not provide this right.

The same rationale is fully applicable to Obergefell, which held that the Due Process Clause precludes the States from depriving same-sex couples of their fundamental right to marry.  Indeed, in his dissenting opinion in Obergefell, Justice Alito applied the exact same standard and concluded that, because “[t]he Constitution says nothing about a right to same-sex marriage,” and because “it is beyond dispute that the right to same-sex marriage is not among those rights . . . deeply rooted in this Nation’s history and traditions,” the Court erred when it found that the Due Process Clause grants same-sex couples the right to marry. 

Warren’s reliance of Justice Alito’s assertion that the Court’s decision to over-rule Roe does not affect “any other right that this Court has held fall within the Fourteenth Amendment’s protection of ‘liberty’” – including the right of same-sex couples to marry – is misplaced.  The binding part of a court decision is not what the court says; it is what the court actually does and the reasoning essential to support that action.  The rest of the court’s opinion is non-binding dicta.  The reality is that Obergefell rests on the same substantive Due Process foundation as Roe.  The Court cannot demolish that foundation in the abortion context while simultaneously preserving it in all other contexts.  The Constitution either does – or does not – allow the Court to identify judicially enforceable rights beyond those expressly enumerated in the text or “deeply rooted in our nation’s history and tradition.”

I also disagree with Warren’s contention that overruling Roe and thereby “return[ing] the determination of the rules of abortion to the elected representatives in each state” is desirable because “policy in a democracy should be determined by voters and their representatives.”  This is precisely the argument that the marriage equality opponents made in Obergefell.  Indeed, in his dissenting opinion, Justice Alito contended that “[a]ny change on a question so fundamental [as the definition of marriage] should be made by the people through their elected officials.”  The Court rejected this argument, observing  that, “[w]hile the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right.”  Had the Court left the question of whether same-sex couples should be allowed to marry to the States, then even now the right of same-sex couples to marry likely would still be denied in many States.

The impact on marriage equality of the Court’s decision to overrule Roe must be seen in the larger judicial context.  At the same time the Court is contracting the scope of the Fourteenth Amendment’s restriction on governmental infringement on personal liberty, it is also expanding the scope of the First Amendment protections for the free exercise of religion.  A clash is inevitable.  Indeed, in a 2020 concurring opinion, Justice Alito joined Justice Thomas in declaring that Obergefell has had “ruinous consequences for religious liberty.” 

In order to address the perceived threat to freedom of religion, several of the Justices appear to believe that in any conflict between a religious person’s right to free exercise of religion and a same-sex couple’s right to marry, the “express” free exercise right must trump any “judge made” liberty right.  This could have significant adverse consequences for same-sex couples.  For example, a business owner could refuse to provide the same spousal health insurance coverage to a gay employee’s spouse that the company provides to its straight employees’ spouses on the ground that covering the gay employee’s spouse would violate the owner’s religious conviction that marriage is between one man and one woman.  If the Court adopts this “hierarchy of rights” approach, then the State in which the company is located would be constitutionally powerless to apply its non-discrimination law to make the employer provide coverage.

I agree with Warren that same-sex marriage supporters should not be “hysterical” about the Court’s decision to overrule Roe.  But I do think we should be very concerned about the potential of this decision, over time, to erode the LGBT community’s hard-won victories that have secured judicial protection of our fundamental rights, including the right to marry.

Discussion

The Equal Protection Clause

Warren:  As a legal layman, I always thought that my right to marriage equality rested on the Equal Protection Clause of the Fourteenth Amendment.   Didn’t Obergefell hold that the restrictions on same-sex marriage violated both the Due Process and the Equal Protection Clause?

Jack:  Ever since the Court struck down State prohibitions of private consensual same-sex sexual relations in Lawrence v. Texas, it has relied on substantive Due Process, rather than the Equal Protection Clause.  To be sure, there is a brief section in the Obergefell opinion that essentially says that there is a “synergy” between the Equal Protection and Due Process Clauses because the denial of marriage equality is a denial of the “fundamental right to marry” protected by the Due Process Clause and a denial of a fundamental right to a specific group also violates the Equal Protection Clause.  As the Court somewhat delphicly explained:

“Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other.  In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right.”

However, as I noted earlier, the binding part of a court decision is not what the court says; it is what the court actually does and the reasoning essential to support that action.  The rest of the court’s opinion is non-binding dicta.  The dissenters in Obergefell correctly observed that the Court had utterly failed to conduct an Equal Protection analysis, and, in any case, this finding was not necessary to resolve the case.  Indeed, Chief Justice Roberts stated that the Court’s opinion had “fail[ed] to provide even a single sentence explaining how the Equal Protection Clause supplies independent weight for its position, nor does it attempt to justify its gratuitous violation of the canon against unnecessarily resolving constitutional questions.”  Justice Thomas similarly observed that the Court had “clearly use[d] equal protection only to shore up its substantive due process analysis.” 

The bottom line is that, if you take the substantive Due Process analysis out of Obergefell, the Equal Protection Clause analysis does not provide an adequate independent basis on which to strike down State restrictions on marriage equality.  Consequently, if the Court eliminates substantive Due Process, the passing reference to Equal Protection in Obergefell would not be enough to support the result in that case.

Warren: Even if the Court in Obergefell did not adequately rely on the Equal Protection Clause as the basis for striking down restrictions on same-sex marriage, could the Court rely on that Clause in any subsequent challenge to marriage equality?   Do you think it is worth doing so?

Jack: Unfortunately, if the Court demolishes substantive Due Process, the Equal Protection Clause is unlikely to be able to fill the gap.  Under modern constitutional jurisprudence, when presented with the claim that a statute violates the Equal Protection Clause by impermissibly treating two groups differently, the Court conducts its analysis in different ways depending on which group is being treated differently.

Historically, the Court was very reluctant to find that a distinction between groups made by the legislature violated the Equal Protection Clause.  So, the Court applied what came to be known as “rational basis” scrutiny.  Under this highly deferential standard, regardless of the legislature’s actual intent, the Court upheld a statute if there was any possible basis on which the legislature rationally could have made the distinction.  Not surprisingly, applying this standard, the Court virtually never found a legislative distinction between groups violated the Equal Protection Clause.

The civil rights movement changed things.  Instead of analyzing race-based statutory distinctions under the rational basis standard, the Court ruled that such distinctions were subject to “strict scrutiny.”  This meant that a race-based statutory distinction would be found to violate the Equal Protection Clause unless the legislature actually intended for the distinction to serve a “compelling purpose” and the means it chose were “narrowly tailored” to achieve the stated purpose.  Very few race-based distinctions can be found constitutional under this standard.

Things got still more complicated with the rise of the women’s movement, when the Court had to decide whether to use rational basis or strict scrutiny to assess whether gender-based statutory distinctions violated the Equal Protection Clause.  The Court decided that challenges to such distinctions should receive “intermediate” scrutiny.  Basically, such distinctions need to serve an “important” purpose and the means used must be “substantially related” to achieving the stated purpose. 

The Court has never determined what level of scrutiny to apply in cases involving statutes that make distinctions based on sexual orientation.  In his dissenting opinion in Obergefell, however, Justice Alito briefly considered the Equal Protection argument, effectively applying the rational basis standard.  He concluded that the States had provided a sufficient justification for distinguishing between same-sex and opposite-sex couples because marriage is “inextricably linked to the one thing that only an opposite-sex couple can do:  procreate. . . . States formalize and promote marriage    . . . to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children.”  Therefore, in his view, because same-sex couples cannot procreate, excluding them from marriage does not violate the Equal Protection Clause.

In order to use the Equal Protection Clause as a basis on which to uphold marriage equality, it would be necessary to convince the Court that distinctions based on sexual orientation should receive some degree of heightened scrutiny.  In light of the history of legal discrimination against gays and lesbians, heightened scrutiny clearly is appropriate.  But given that there are some objective differences between homosexuals and heterosexuals – especially the fact that our sexual unions cannot lead to procreation – some statutory distinctions conceivably could be legitimate, so strict scrutiny may not be warranted.   Moreover, the level of de jure discrimination suffered by gays and lesbians, while significant, is probably closer to the level suffered by women than by African Americans, making it hard to justify strict scrutiny.  Therefore, the most appropriate solution would be for the Court to apply intermediate scrutiny to sexual-orientation-based distinctions.  That said, as a practical matter, given its current make-up, there is no chance that the Supreme Court would add statutory distinctions based on sexual orientation to the short list of categories that receive heightened scrutiny.  A court that is prepared to shrink the reach of the Due Process Clause, is highly unlikely to expand the scope of the Equal Protection Clause.

Interstate recognition of same-sex marriage

Warren:  If marriage equality is overturned and returns to a state-by-state determination, the question arises what would happen if a same-sex couple legally married in Maryland and then moved to a state in which such marriages were not allowed? 

Jack:  We most likely would return to the situation that existed before Obergefell, when a lawful Maryland same-sex marriage would not have been recognized in the vast majority of States where same-sex marriage was not legal. This would lead to some horrific situations.  Here, based on actual experiences before Obergefell, are a couple of examples.

First, the ability of married  same-sex couples to travel would be limited.  Imagine that our lawfully married couple decided to go on vacation in Florida, which did not allow same-sex marriage.  During the vacation, one of the spouses is hospitalized with a life-threatening injury or illness and is unable to make medical decisions for himself.   If the hospitalized spouse had been married to a woman, the wife – as next of kin – would have the legal right to visit her spouse in the hospital and, if necessary, make life or death medical decisions for him.  However, because the hospitalized spouse is married to another man, Florida would not consider his husband to be next of kin.  As a result, he would not have the right to visit his critically ill spouse in the hospital.  Even worse, the right to make life-or-death medical decision for the incapacitated spouse would go to the person that Florida recognized as next-of-kin – who may be a parent, sibling, nephew, or child from a prior heterosexual marriage, even if that person disapproves of the spouses’ relationship.  That person could even requested the hospital to bar the spouse from visiting.

Second, getting a divorce would be a nightmare.  Let’s say that our married friends decide to retire to Florida.  However, after a few years of fun in the sun, the couple agrees to get divorced.  But, because Florida doesn’t recognize their marriage, Florida won’t grant them a divorce; the State cannot dissolve a union that it does not recognize exists.  Unfortunately, the couple can’t make a quick trip back to Maryland to get a divorce decree because they are no longer residents.  So, unless they are prepared to take up residence in a State that recognizes same-sex marriage, they’re stuck with each other.

Warren:  How could this be possible?  Wouldn’t the Constitution’s Full Faith and Credit Clause require Florida to recognize a marriage lawfully performed out of state?

Jack:  The answer, regrettably, is no.   The Constitution’s Full Faith and Credit Clause, Art IV Sec 1, provides that every State must give “full faith and credit . . . to the public acts, records, and judicial proceedings of every other State.” The Clause also gives Congress power to “prescribe    . . . the effects” of such State acts.  However, notwithstanding this Clause, the courts have long held that a State need not recognize an out-of-state marriage, lawful where entered into, that contravenes the State’s public policy – such as a polygamous marriage or a marriage involving a child or first cousins. 

Prior to Obergefell, a few States that did not yet have marriage equality recognized lawful out-of-state same-sex marriages.  However,  the vast majority did not.  Indeed, a large number of States adopted constitutional amendments expressly barring recognition of such marriages.  Moreover, when it enacted the infamous Defense of Marriage Act (DOMA), Congress, purporting to use its power under the second sentence in the Full Faith and Credit Clause, expressly provided that States did not need to recognize same-sex marriages lawfully entered into in other States. 

DOMA’s non-recognition provision was not challenged in the Supreme Court’s Windsor case and survived the Court’s decision to strike down the portion of the law that provided that the Federal Government would not recognize same-sex marriages even if they were lawfully entered into in a State that had marriage equality. One of the two questions that the Supreme Court subsequently agreed to consider in Obergefell was whether the Full Faith and Credit Clause required States that did not permit same-sex marriage to recognize lawful out-of-state same-sex marriages.  Because the Obergefell Court ruled that State had to allow same-sex couples to marry, it did not resolve the out-of-state-recognition question.  Thus, if Obergefell is reversed, a State could again decline to recognize same-sex marriages lawfully entered into in another State.

Conclusion

Warren:  It seems to me that if Obergefell is challenged on the basis that no explicit right to same-sex marriage can be found in the Constitution to which the Due Process Clause could be applied, a stronger case for applying the Equal Protection Clause could be made. If that failed, we would have to live with state-by-state determination of marriage equality and Congress could stipulate that the Full Faith and Credit provisions of the Constitution would obligate states that do not permit same-sex marriage to recognize such marriages legally obtained in other states. Public understanding of and sentiment toward LGBT people has evolved and progressed considerably from the earlier times in which restrictive and discriminatory legislation such as DOMA were first adopted. Thus, I think it is likely that marriage equality would be widely embraced in the democratic approach of legislation.

Jack:  Warren believes that times have changed and that, even if Obergefell were overruled, many States would choose to retain marriage equality.  He also believes that, pursuant to its express authority under the Full Faith and Credit Clause, Congress would adopt legislation requiring that every State recognize same-sex marriages lawfully performed in another State.  I am far less sanguine. 

Despite all the progress made, 27 States have not yet enacted statutes that expressly bar discrimination in employment, housing, and access to public accommodations on the basis of sexual orientation.  I do not want to count on these States to take affirmative action to preserve the right of same-sex couples to marry.  I am particularly concerned about the many States that, prior to Obergefell, had amended their constitutions to limit marriage to “one man and one woman.”  If Obergefell is overruled, these State constitutional prohibitions on same-sex marriage presumably would immediately come back into in effect.  In that case, same-sex marriage would be barred in those States until such time, if ever, as the State completed the often-arduous process of amending its constitution to remove the restriction. 

As for Congress, the prospect that 60 Senators would support legislation to restrict the historic right of a State to decline to recognize out-of-state marriages that contravene its public policy seems remote.

Warren:  As of the middle of last year 83% of Americans supported marriage equality. Support among Republicans has risen from 40% in 2016 to 55% in June 2021. “Support for same-sex marriage in the United States by political party” Thus, I think it is likely that marriage equality would be widely embraced in the democratic approach of legislation.

Even with regard to abortion, the most recent Pew survey finds that 61% of Americans support the legalization of abortion in all or most cases. “Majority favor legal abortion”  While support is stronger among Democrats, 38% of Republicans support it and almost half of Republicans under thirty do. “Senate Majority Leader Charles Schumer (D-N.Y.) late last week teed up a vote on the Women’s Health Protection Act, which would essentially codify Roe into law. The vote is expected to take place midweek. There is little drama surrounding the vote, as it will fail….” “The Hill”  Why it seems destined to fail is a mystery to me, but then life is full of mysteries.

Roe vs Wade

The debate for and against the legality of abortion has been around as long as I have, i.e., for a very long time. Quoting from Justice Alito’s leaked draft of a possible court decision: “For the first 185 years after the adoption of the Constitu­tion, each State was permitted to address this issue in ac­cordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade, 410 U.S. 113. Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one.” “Alito draft annotated”

Should the Supreme Court rescind Roe vs Wade, it would not make abortions illegal or necessarily restrict when they would be allowed. The current standard is that an abortion is permissible before the fetus becomes viable (likely to live if delivered). What rescinding Roe vs Wade would do is return the determination of the rules on abortion to the elected representatives in each state.  I have always been “pro-choice”, but I also believe that policy in a democracy should be determined by voters and their representative. I am comfortable with either a state-by-state determination or a federal determination, but I would like to see the status quo preserved. By that I do not mean that Roe vs Wade should be upheld, as it is simply an incorrect interpretation of the Constitution as Alito correctly claims: “even abortion supporters have found it hard to defend Roe’s reasoning.”

As Alito has also explained: “The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of ‘liberty.’ Roe’s defenders char­acterize the abortion right as similar to the rights recog­nized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different.”  The Fourteenth Amendment provided for the protection of equal rights for all people. What any two straight, white people can do, black and/or gay people have the right to do as well, such as marry.

The almost hysterical reaction to the possibility of overturning Roe vs Wade is unwarranted. It will not make abortions illegal. As Alito stated: “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

Econ 101: Moving money abroad

The Washington Post published an article this morning titled “THREE DOZEN TYCOONS MET PUTIN ON INVASION DAY. MOST HAD MOVED MONEY ABROAD.“Offshore Putin Russia Oligarchs Pandora” It said things like “many of them had been moving their wealth out of the country for years,” and “The money often ends up offshore.” While where income is claimed is important for tax purposes, which is another interesting and complicated story, the abandon with which this story discusses moving wealth around drives us economists up the wall.

Wealth can be physical (factories, stores, etc.) or human (the knowledge or skills of people).  Financial wealth, such as money, is a claim on physical or human wealth. People can move abroad, and many skilled Russian’s are doing so. Moving physical capital abroad is more difficult if even possible. A yacht built in Russia can be sailed off to another country, but not a shopping mall. What this and similar articles generally mean by moving wealth abroad, is, as the headline states, moving money abroad. This is often done to minimize taxation, which is usually based on where income is recorded. “The corporate income tax” That is an interesting subject of its own but not my focus today.

How do people “move money abroad?” Money is rarely moved in suitcases anymore, and a bag full of rubles can’t be spent abroad in most places anyway.  So, let’s take a deeper look at what is really happening when Russian tycoons (or anyone else) “move money abroad.”

The easiest example is when Russian exporters are paid in foreign currency (generally US dollars). If the exporter has a dollar account in a bank abroad (in a US bank to keep it simple) the payment for his export can be deposited directly there by a debit to Shell Oil’s bank account and a credit to the Russian exporter’s US bank account via the normal interbank transfer process. He can hold it there or buy US treasures or other US financial assets. His money is moved abroad by moving (selling) his goods abroad and keeping the payment abroad. This helps explain why Russia is insisting that German and other buyers of its oil must pay in rubles.

To pay for oil or any other Russian export with rubles the foreign buyers must first buy rubles in the foreign exchange market. The increased demand for rubles increases its exchange rate (or keeps it from falling as Russian importers sell rubles for dollars to pay for imports). Russia has made the process of paying dollars then buying rubles simple and almost automatic, but critically the Russian exporter receives ruble. Normally Russian exporters would convert dollar payments into ruble with which to pay for their workers and local suppliers, etc. But by keeping the dollar payment abroad, they have effectively “moved money abroad” by shipping goods (and services) abroad.

If a tycoon’s income/wealth is local (in rubles), and he wants to move it abroad, he can’t just write a check (or SWIFT payment order) to deposit X amount of money in his account with the Bank of America. The funds in his local bank, which will be in rubles, will need to be exchanged for dollars in the foreign exchange market. He (his bank) will deposit his ruble in the ruble account of the seller of the dollars and will receive those dollars in his Bank of America account in the U.S. If the supply of dollars to the foreign exchange market are not being supplied as the result of Russian exports, the increased demand for dollars will depreciate the ruble (increase the ruble price of a dollar). With a balance of imports and exports the ruble/dollar exchange rate should be stable. But a net increase in the movement of money abroad would depreciate the ruble. In short, underlying the movement of money abroad, there is a net movement of goods (exports minus imports) abroad.

If there was a sudden increase in money being moved abroad from Russia (often called capital flight) the ruble’s exchange rate would depreciate and the cost of imports would thereby increase.

Afghan update

The heart-breaking attack on Ukraine by Russian troops has distracted our attention from the tragic misrule (or failure to properly rule) of the Taliban in Afghanistan. An Afghan official I worked with over the last twenty years, who was able to leave Kabul on one of those final fights at the end of August 2021, sent me the following report on conditions in Kabul. I am not revealing his name for his safety and the safety of his family.

“The economy is getting worse day by day, businesses facing many problems, shopkeepers complain less sales, poor people hardly find one time meal, hunger is increasing, at DAB [the central bank], the payment system has been stopped, APS, FID and many other depts are paralyzed, they haven’t managed to print new banknotes, girls’ high school still closed, bomb blasts occurred in many mosques recently during Holy Month of Ramadan and only poor civilians killed, and many more problems.

God help people of Afghanistan.“

Indeed. Over the last twenty years Afghanistan gradually developed and strengthened its institutions of government. After toppling the elected government of Afghanistan, my hope, and the hope of the West, was that the Taliban would form an inclusive government that would build on that progress. It hasn’t happened. The new Taliban “government” has not even been able to solidify itself. If it fails, Afghanistan will suffer another (or continuing) civil war.  “Nation building in Afghanistan”

The former Canadian ambassador to Afghanistan, William Crosbie, commented that: “Hope is certainly receding that the TB will work towards a political settlement to make its military takeover a lasting peace. Our argument to those neighbouring countries and non-Western partners (e.g. China) has been that the TB regime is not sustainable as a Pashtun, TB clique relying on fear.  Quite apart from the economic devastation of a non-functioning government and private sector, the ethnic and tribal rivalries and other extremist groups will resort to the tactics that the TB used so effectively. And they will prove just as destructive.” 

God help the good people of Afghanistan.

A Libertarian Money

Some people claim that libertarians like cryptocurrencies like bitcoin because they do not rely in any way on government. Perhaps those people meant “anarchists” because libertarians (to be safe perhaps I should just refer to my own views though I know that they are widely shared by other libertarians) accept the critical importance of government in defining and protecting property rights and personal safety. Bitcoin and most other cryptocurrencies do not satisfy the requirements for a good libertarian money because they do not satisfy the requirements for good money. This note explains why this is so and defines what is good libertarian money.

Are Cryptocurrencies the Answer?

Economists note the incredible power of markets and market prices in directing our scarce resources (our labor, capital, and technology) to their best uses. But prices are expressed in terms of money. The presumption, and actual reality, is that within each market prices are expressed in terms of the same money. It would not facilitate our choices if apples were priced at $6 per bushel and oranges at 3 bitcoin per bag. Presently, virtually nothing is priced in bitcoin. In addition, sellers don’t generally accept payment in a currency other than the one in which the good’s price is expressed, thus very few sellers will accept bitcoin in payment. Moreover, you can only accept bitcoin in payment if you have a bitcoin account together with the software required (a bitcoin wallet).

None of these are insurmountable barriers to growth in the use of bitcoins, but they do require strong incentives for putting up with and/or overcoming them. I explained the basics of bitcoins value in the following blog in 2014: “Cryptocurrencies-the bitcoin phenomena”   One incentive would be to replace the established currency in a market (a country’s legal tender) that has very unstable value (think Venezuela, Argentina, Brazil at various times in their histories). Another would be the need for anonymity (as is achieved with paper currency) that an illegal drug dealer or a political dissident in a repressive regime might require and find convenient.

Bitcoin’s claim to eliminate the trusted third party (bank accounting systems) required by existing electronic (digital) payments with bank deposits, is particularly attractive to libertarians.  But this claim is a gross exaggeration. To prevent the double spending of the same bitcoin, each transaction must be verified by so called miners (third parties you don’t need to trust) which takes five to ten minutes and very large amounts of electricity to process as miners race to solve increasingly difficult mathematical puzzles. Also, all transactions are very public on block chains, though accounts may be held under pseudonyms and are thus described as pseudo-anonymous.

Though actual bitcoin transactions have been made easier via the development of software wallets, many assign their bitcoins to exchanges (trusted third parties).  “The future of bitcoin exchanges”  The loss of a bitcoin owner’s password to his account is fatal and final. Those bitcoins are lost forever. But more deadly to the use of bitcoin as money (unit of account and medium of payment) is the volatility of its value.  The price of a bitcoin has ranged from just under $30,000 to over $67,500 over the last year. It is currently $39,268. Thus, payments of bitcoin generally involve temporarily purchasing them with dollars or some other stable currency and then exchanging them back to dollars as quickly as possible after receipt. The costs of these exchanges are often overlooked when claiming that bitcoin transfers are cheaper than traditional means of electronic payments. Most buyers and sellers of bitcoin are indulging in a form of gambling.

The Libertarian Alternative

There are monetary regimes, however, that satisfy libertarian preferences for minimal government involvement and manipulation. The Constitution of the United States provides the authority for such a regime in Article I Section 8 “To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;” The classical gold standard was such a system. However, its “rules” were diluted when taken over by central banks. Moreover, the practice of actually buying and storing gold distorted its market price and was costly, flaws that are avoided in the system I propose below.

In the U.S. today, as well as every other country in the world, there are thousands of private companies that create and offer their own currency. Most of them are banks. While that would seem to make libertarians happy, thousands of individual bank producers of money would not constitute an efficient monetary system without rules and mechanisms for linking them into what we think of as one currency–in our case the U.S. dollar.

While the dollars deposited in my bank are my bank’s liability, I am protected from the bank’s failure by deposit insurance. Your bank accepts my deposits in my bank because my bank credits your bank’s account with the Federal Reserve (by debiting its account with the Fed). In short, the deposits at thousands of different banks are accepted by every other bank because they are all ultimately claims on the Fed. This is similar to the gold standard in which the money created by thousands of banks were accepted everywhere because they were redeemable for a well-defined amount of gold.

Libertarians want a currency and monetary system that can’t be manipulated by the government (central bank).  The dollar is now a fiat currency (redeemable for nothing–except a claim on, i.e., deposit with, the Federal Reserve). Thus, its supply is determined by the Fed’s judgement of what is needed for “price stability and maximum sustainable employment.” We libertarians want a currency that we each individually control the supply of. In short, we want a currency with a hard anchor (which was the case for the gold standard) supplied according to currency board  rules (which historically were violated by central banks nominally anchored by gold). Currency board rules require the currency issuer to sell or repurchase its currency at its fixed price in response to public demand. Any number of private producers of dollars redeemable at an officially fixed price for a well-defined anchor (gold, aluminum, a basket of goods, etc.) would result in a money supply determined by the public that was consistent with and appropriate for its fixed price to the anchor and that was fully interchangeable. The central bank would be passive. It would have no monetary policy (beyond the fixed price for the anchor). This seems like libertarian heaven.

I led the IMF teams that established the Central Bank of Bosnia and Herzegovina, which follows currency board rules. I have written a book about that experience:   “One Currency for Bosnia-Creating the Central Bank of Bosnia and Herzegovina”   or  “Amazon– One Currency for Bosnia” I also participated in Bulgaria’s adoption of currency board rules. The currencies of both countries are anchored to the Euro and their currency experiences have been outstanding. Their money supplies are basically regulated by market arbitrage. If the market exchange rate of the Bulgarian lev to the Euro rises above its official rate, it would be cheaper for the banks that issue lev to buy Euros from the Bulgarian National Bank thus reducing the supply of lev in the market and lowering its market price for Euro. See my blog on Bulgaria’s experience: “Bulgaria and the Chicago Plan

A Libertarian International Reserve Currency

What about cross border payments? In brief, cross border transactors have found it economical to price and settle transactions in a vehicle currency, usually the US dollar. The increasingly frequent deployment of sanctions enforced by restricting the use of the dollar has intensified the search for alternatives. See my more detailed discussion: “The Empire and the Dollar”  The search for alternatives to the dollar risks fragmenting the global market place as proposed by Russia’s Sergey Glazyev.  “A new global financial system”

The International Monetary Fund has already created such an alternative. An internationally established unit (anchor) is much less likely to be abused for national political purposes, but the IMF’s Special Drawing Right (SDR) suffers from some serious defects. However, these can be fixed. “Time for a New Global Currency”   Why the World needs a new Reserve Asset with a Hard Anchor

The SDR can be “fixed” in two stages. The first is to develop the private sector’s uses of the SDR unit of account (invoicing oil and other globally traded commodities in SDRs, borrowing and lending denominated in SDRs, SDR bonds and bills, and digital SDR deposits–eSDRs). See my more detailed discussion:  “Promoting Market SDRs”  As with national currencies, where hundreds of individual producers of the national currency are made interchangeable by being claims on the central bank, the market SDRs of many competitive producers would be interchangeable as the result of being redeemable for the official SDR of the IMF.

The second stage would require a reform of the IMF’s official SDR. Rather than allocating them from time to time to all IMF members, they should be issued according to currency board rules. In addition, the valuation of the official SDR should be changed from its current basket of five currencies to a small basket of homogeneous, globally traded commodities. The IMF’s existing rules for periodically adjusting the SDR’s valuation basket are transparent and appropriate and should continue to be used. In one sense, this would reestablish an improved international gold standard like system. It would be improved by replacing a single commodity anchor with a small portfolio of commodities and its supply would be improved by adopting the market driven rules of a currency board.  “Free Banking in a Digital Age”

Why does Turbo Tax want our data?

The usually helpful Geoffrey A. Fowler’s article in today’s Washington Post reveals that Turbo Tax and H&R Block want our tax data “to target you with “offers” — or, as they’re more commonly known, advertisements.” For them to take and keep these data we must agree. Mr. Fowler asks, “did you know that by clicking ‘agree’ to some of their privacy prompts, you may be letting them use you?”  “Tax Prep Privacy”  

Wow. Econ Prof Coats was immediately aroused.

Turbo Tax, like any other company, is in business to make money. It makes money by developing products we like enough to pay for. We are presumably better off as a result. In looking for tax assistance software, we can search the web for what we think would be useful. Or, if Turbo Tax has developed something they anticipate we would like but might not know about, they can advertise it in the hopes that we will be interested and try their new product. Or if they have information from our earlier tax returns that enable them to refine their list of who might benefit from their product, they can target only those specific individuals with their “ad” while sparing millions of others from getting the ads they have no interest in. Like most economic transactions, this would be win-win.

I clicked “agree.”

What future Russia do we want?

It is not possible to see the pictures of dead bodies (320 and counting) and to hear the reports of the barbaric massacre of citizens of Bucha or the recent rocket attack on a train station in Kramatorsk that killed 50 and injured 98 civilians without feeling outrage towards the Russians and sorrow for the people of Ukraine. Understandable though such feels are, it is not a good state of mind in which to plan for a better future.

In a face-to-face interview with the Editor in Chief of The Economist in Kyiv on March 25, President Volodymyr Zelenskyin defined victory as: “being able to save as many lives as possible…because without this nothing would make sense.”  “The Russian war in Ukraine”  In this spirit, compromises will be made by both sides and a peace deal will be signed. It is for Ukraine to decide what is acceptable to them. But what should we wish for and— via various sanctions around the globe against Russia—what should we press for?

Our hearts cry out for revenge and punishment for Russia’s aggression and inhumane and barbaric behavior. But we would be much wiser to rely more on our minds than our hearts in fashioning the future. Existing and potentially strengthened sanctions will flatten the Russian economy if not lifted. Reallocating confiscated Russian property (e.g., the Central Bank of Russia’s foreign exchange reserves) for the reconstruction of Ukraine may seem justifiable but is surely illegal and no one should forget the role played by the Treaty of Versailles (providing for German reparations for WWI) in bringing about WWII. “How to stop a new cold war”

Ukraine President Zelensky has already indicated Ukraine’s potential willingness to become politically neutral ala Austria and give up seeking NATO membership. While taking territory by force violates international law, the formal return of Crimea to Russia, which is supported by over 80% of its residents, may well be part of a peace agreement. Should the U.S. and EU oppose such provisions? Should?

There are some, not just the defense industry, which profits from war, who believe that Putin is determined to reestablish the Imperial Russian Empire and must be resisted at all costs. We should fight Russia “to the last Ukrainian.” “How to stop a new cold war”  See the following interesting interview of Noam Chomsky: “Chomsky-US policy toward Putin assures no path to de-escalation in Ukraine”

Others, myself included, take seriously Putin’s (and Boris Yeltsin before him) pleas for a European security architecture in which Russia feels comfortable. We believe that America’s Monroe Doctrine is applicable to all major powers. Our true interest is in a peaceful Russia that is a comfortable member of the European continent ten or more years into the future. We should encourage Ukraine’s peace negotiations and our own sanctions and defense policies in that direction. Our defense industries have profited enough from our never-ending wars. Enough is enough. “Economic sanctions”

And we must never forget that our own flourishing rests, in part, on our reliable commitment to the rule of law. Why are we sanctioning Russians living outside of Russia and confiscating their yachts when they have not been convicted of any crimes? “The American Civil Liberties Union helped scuttle a bill this week that would have enabled the Biden administration to liquidate Russian oligarchs’ assets and turn the proceeds over to Ukraine.” “ACLU Ukraine-Russia-Oligarchs”

Our news media are confronting us daily with Russia’s atrocities (facts Russians are unable to see in their own country). It is hard not to want to strike out against Russia in kind. Such short-sighted reactions are not in Ukraine’s, nor the world’s, long run interest. We are, and should behave, better than that. “Ukraine itself is proposing terms that, if backed by a combination of U.S. and European sticks and carrots, stand some prospect of success.” “What can the US really do to protect civilians in Ukraine”  We should not let our short sighted, emotional, anger towards Russia and our military industry get in the way.

The good and evil in us all

Listening to political dialog in the U.S. has become very painful and disheartening because there is no dialog. The Republicans and Democrats simply hurdle nasty insults at each other. They are enemies rather than fellow citizens with different views. Serious policy issues and challenges do not receive the serious debate they need. The atmosphere is ugly.

Russia’s unjustified and increasingly barbaric attacks on Ukraine is another example of the worst in mankind.  Following four weeks of Russian attacks on Mariupol, Bucha, and other cities the destruction of lives and property is clearly visible. While it may take a while to sort out the truth of who did what, “President Biden on Monday joined the chorus of world leaders who have said reports of mass killings in the Kyiv suburb of Bucha constituted a ‘war crime,’ vowing to hold Russian President Vladimir Putin ‘accountable’ for the apparent atrocities in Ukraine.” “Bucha Biden sanctions Russia Ukraine”  However, it is natural, and appropriate, that we honor the bravery of Ukrainians defending their homeland and despise the savagery of the Russians invading it.

These understandable reactions do not excuse our damaging loss of our ability to differentiate among people, judging each other individually. Removing Russian performers from western stages may seem a childish reaction–OK it is a childish reaction–but it reveals a dangerous predisposition of caveman behavior. What are we to make of the removal of compositions of Pyotr Ilyich Tchaikovsky from current orchestral programs? He has been dead for more than a hundred years. Or as tweeted by Edward Luttwak: “The U of Milano cancels Dostoevsky course; Poland cancels Mussorgsky, Shostakovich & Stravinsky…. Actual thought is needed.”

Not all Russians living in Russia disapprove of their country’s war in Ukraine (hearing only official Russian propaganda) but many do according to those now leaving Russia in fear or disgust. We are told that many of the young Russian soldiers sent into Ukraine didn’t know why they were there and are not happy fighting their Ukrainian cousins.

Seeing such behavior has been very disheartening.

But man left the caves with admirable instincts as well. Helping their fellow man in need contributed to their own survival as well. The incredible welcome of 4 million Ukrainians in Europe in one month is breathtakingly heartwarming. Though I am embarrassed that the admission of Afghan and other war refugees has not been as easy or welcoming. My friend Tom Palmer continues to help fleeing Ukrainians relocate to Poland as do many others. A recent J Street webinar interview of Naomi Steinberg from the Hebrew Immigrant Aid Society about their work assisting Ukrainian immigrants was equally heartwarming. She noted that in earlier days HIAS helped Jews flying from persecution. Today, she said: “We are helping refugees, not because theyare Jewish but because we are Jewish.”

The fear and loathing of “others” and the desire to help those in need are both impulses that helped cavemen survive. But we no longer live in caves and our survival and flourishing requires that we tame the first instinct and encourage the second one.

The Russian War in Ukraine

“Mariupol. As things have worsened the escape routes, already dangerous, have become more deadly. Oleksandr Horbachenko, a welder, says that when he left on March 18th the city was in a state of collapse, with no municipal services, no drinkable water and no food. He says at least 80% of buildings are bombed out. ‘The whole of the centre is in ruins, with wires and glass everywhere. The worst thing is seeing the corpses strewn across the street. There are hundreds of them rotting away near the central market.’” The Economist: An uncertain outlook”

All wars are terrible, especially when seen up close. Those who recklessly urge them are almost always viewing them safely from afar.  Russia’s war on Ukraine has become tangible to us because the Internet brings it visually to us in our living rooms almost instantly and because Russia’s poor planning and poor excursion on the ground have pushed it to launch rocket attacks on civilian locations. Anatol Lieven: Why the Russians are losing their military gambit in Ukraine”

In an in-person interview of Ukraine President Volodymyr Zelensky in his compound in Kyiv, The Economist staff asked the President how he would define victory.

“’Victory is being able to save as many lives as possible…because without this nothing would make sense. Our land is important, yes, but ultimately, it’s just territory.’ To save everyone, defend all interests while protecting people and not giving up territory is probably an impossible task, he concedes.”

Why then, asked The Economist, hasn’t the President agreed with Putin on the terms of a peace?

Zelensky replied that: “Everyone has varied interests. There are those in the West who don’t mind a long war because it would mean exhausting Russia, even if this means the demise of Ukraine and comes at the cost of Ukrainian lives. This is definitely in the interests of some countries. For other countries, it would be better if the war ended quickly, because Russia’s market is a big one that their economies are suffering as a result of the war. They would like to see Russia keep certain markets” The Economist: Volodymyr Zelensky in his own words

This should give you pause. The severe economic sanctions being imposed on Russia (leaving aside the legally questionable confiscation of the private property of Russian oligarchs living in England and elsewhere) seem designed to flatten and isolate the Russian economy. Why? To what end?  That certainly doesn’t benefit me or my country. Presumably they are meant to bring an end to the fighting, but what conditions must Russia satisfy to have them lifted? I have heard none stated.

Why hasn’t the U.S. pressed harder for negotiations? Who benefits financially from prolonging this war? Who besides the usual profiters of war (Military Industrial Congressional Media Complex)?

The Empire and the Dollar

Committee for the Republic Salon

March 24, 2022

Warren Coats[1]

In our multicurrency world, the U.S. dollar is widely used for pricing internationally traded goods, for international payments, and for denominating the assets governments and companies hold as reserves. Why is that and what are its implications for U.S. behavior? What would a better system look like?

In a world of many different national currencies, the payment for international trade has found economy in using an intermediate, so-called vehicle currency to facilitate the exchange of the buyer’s currency into and delivery of the seller’s currency. Following the collapse in 1971 of the dollar-based gold exchange standard overseen by the International Monetary Fund, the dollar continues to dominate in this role. This role has given the United States important political power and financial benefits.

I will quickly review these benefits, and how they have come to encourage the U.S. to exploit them in exercising its international power, the forces that are building to seek an alternative, and the potential for the IMF’s Special Drawing Rights (SDRs) to provide an alternative.

The Dollar’s International Reserve Status

Cross border commerce and investments require a common currency to price and denominate them and the mechanisms for cross border payments. While modern technologies continue to increase the speed and ease and lower the cost of domestic payments of domestic currencies, cross border payments remain relatively slow and costly.

The payment and receipt of a currency is ultimately reflected/settled on the books of that currency’s issuer. If I pay you for something and your account is in a different bank than mine, the transfer of funds from my bank to your bank and to you will pass through a Federal Reserve Bank. My bank’s account at the Fed will be debited and yours will be credited.  A fundamental difference between national and international currencies is that the central bank issuers of national currencies only hold deposits for banks that are domestically licensed, while the issuers of international currencies, such as the Special Drawing Right (SDR) of the International Monetary Fund, hold deposits from banks almost anywhere in the world, enabling the settlement of their payments to enjoy the efficiencies of domestic payments in domestic currencies.

The older gold standard functioned more like an international central bank issuer of currencies but without such an international central bank. Instead, national currencies were tied to gold by virtue of the commitment of central banks on the gold standard to redeem their currency for gold at a fixed price. Thus, any net flow of payments from one country to another was ultimately settled by transferring the ownership of the gold it was fixed to from the deficit to the surplus country. This could occur by debiting the deficit country’s gold account at the New York Federal Reserve Bank and crediting the surplus country’s gold account at the same place or by physically shipping the gold.

In today’s world, cross border payments generally involve the need to exchange one currency for another at exchange rates that fluctuate. To facilitate the comparison of prices of globally traded goods (e.g., oil, gold, copper, and other commodities) they are generally priced in one common currency. The U.S. dollar is the currency most widely used for this purpose (79%). This contributes to the use of the dollar for cross boarder payments as well even when the buyer’s currency differs from the seller’s ultimate currency (the currency paid to its workers, etc.). https://www.federalreserve.gov/econres/notes/feds-notes/the-international-role-of-the-u-s-dollar-20211006.htm

Some economy is brought to the markets for foreign exchange needed for cross boarder payments by using a common so called vehicle currency as a common go between. The adoption by airlines of a hub and spoke model for connecting all airports in a country or the world illustrates the economy of a single or small number of vehicle currencies (hubs) to exchange currency X for currency Y. The U.S. dollar is the most widely used vehicle currency for this purpose. This is supported by and reflected in the dominance of the dollar in invoicing internationally traded goods and in the foreign exchange reserves of banks (central and commercial) around the world. The Euro is the second most used currency in these ways.

In 2021 40.5% of international payments were made in US dollars.  The use of Euros in international payments and in reserves has moved up to second place behind the dollar at 36.7% of payments.  The Pound sterling is a distant third at 5.9%. Having passed the Japanese yen a few years back for fourth place the Chinese RMB achieved 3.2% of international payments in January of this year from almost zero a decade ago. “China’s currency scores a win during the Olympics”  The Federal Reserve has constructed an “aggregate index of international currency usage.” The dollar has remained in the neighborhood of 70% for the last two decades. https://www.federalreserve.gov/econres/notes/feds-notes/the-international-role-of-the-u-s-dollar-20211006.htm

To pay for things with a currency, one must hold some amount of that currency. It is this demand for dollar reserves resulting from the widespread international invoicing and payments in dollars, that underlies foreign financing of US debt. For starters, about half of dollar currency (actual banknotes) are held abroad. That is the extent to which we pay for imports with cash and the sellers just hold the cash. Foreign central banks hold almost 13 trillion dollars in foreign exchange reserves of which over 7 trillion is in U.S. dollars (much of that is held in the form of US government debt). About 60% of the foreign currency claims of banks are dollar claims.

The dollar grew into its vehicle and reserve currency roles because of the size of the U.S. economy and its extensive trade with the rest of the world, the size and liquidity of financial assets denominated in dollars, public confidence in the stability of the dollar’s purchasing power, and in its trusted contract enforcement (rule of law).

U.S. Benefits from reserve currency status

The so-called exorbitant privilege of a reserve currency–the ability to borrow abroad in your own currency–makes it easier for the U.S. government to finance its military and other expenditures with debt. For countries to accumulate dollar reserves they must have a balance of payments surplus, i.e., they must sell more to the U.S. than they buy from the U.S.. As a result, American’s enjoy cheaper imports and the excess of dollars paid for such imports over those paid back for US exports are held in foreign reserves (generally in the form of US treasury debt).

As an aside, it is simply wrong to attribute much of the so-called offshoring of our manufacturing to the above phenomenon. The somewhat lower exchange rate for the dollar needed to generate the surplus China and other countries need for the trade surplus with which they buy American debt, does make imports somewhat cheaper. However, even if the dollar was totally replaced in foreign reserves and trade balanced, we would continue to be better off producing what we export and importing what China and the others produce and sell to us. Freely pursuing our comparative advantages increases our incomes and the incomes of the Chinese and others selling to us. Free trade is win-win. Contrary to the myth, U.S. manufacturing is at an all-time high. (Manufacturing employment is lower because of increased labor productivity). https://www.macrotrends.net/countries/USA/united-states/manufacturing-output

The U.S. dollar’s dominance in global trade and finance contributes to the existence of the American Empire in two ways. It attracts foreign financing of the U.S. government and its military industrial complex thus reducing the burden of the empire on the American taxpayer and it provides a tool by which the U.S. can impose its will on other countries or individuals in managing its empire. Borrowing to pay our government’s bills is politically easier than raising taxes and avoids (or delays) a debate over guns versus butter. 

Three factors now challenge the dollars reserve currency role. 1) Cumbersome payment technology: Existing arrangements for cross border payments via the Society for Worldwide Interbank Financial Telecommunication (SWIFT) are technically crude and outmoded. 2) Weaponization of the dollar: The U.S. has abused the importance of its currency for cross border payments to force compliance with its policy preferences not always shared by other countries, by threatening to block the use of the dollar. 3) Growing risk of a decline in the dollar’s value: The growing expectation of dollar inflation and the skyrocketing increase in the U.S. fiscal deficit are increasing the risk of holding and dealing in dollars.

The first factor–payment technology–is temporary. It is being modernized. While payment technology (ease, speed, security, and cost of making cross border payments) is important, it is not as important as the features of the currency being paid. As a currency, the dollar excels for the reasons given earlier.

The second factor–weaponization of the dollar–has been growing in importance as the U.S. has increasingly sanctioned trade and dollar payments without broad international support–Iran, etc.  The EU has sought work arounds in Euros. China and Russia are building alternative payment arrangement using China’s Renminbi. Even with the dramatic increase in coordinated sanctions against Russia, restricting the use of dollars is less effective than directly blocking trade. https://wcoats.blog/2022/03/04/how-to-stop-russia-in-ukraine/  The broad support for sanctions on Russia more likely increases support from the dollar as the dominant international currency rather than reducing it. On the other hand, those on the other side (e.g., Russia and China) will work harder to find alternatives. The balance of these contradictory forces is difficult to assess.

The third factor has never been taken very seriously until now. At the end of February (2022) the US national debt was over 30.1 trillion dollars or 125% of US output (GDP). Federal government interest payments on its net debt were $426 billion per annum. But with the increase in inflation, interest rates are rising. Uncle Sam’s debt service payments are likely to double or triple over the next five to ten years, rising to 15% to 20% of the Federal budget. The world still expects the US to regain control of its spending, but the risks of default are creeping up. Paul “Samuelson stated in 2005 that at some uncertain future period these pressures would precipitate a run against the U.S. dollar with serious global financial consequences.” https://en.wikipedia.org/wiki/International_use_of_the_U.S._dollar

It is the second factor, US abuse of its ability to sanction the use of the dollar that is most threatening to push the dollar over the cliff.

The Alternative to the dollar

An internationally defined and issued currency would have a number of advantages over the use of a national currency for cross border payments.

While the value of the dollar has been quite stable for many years, using a basket of major currencies for pricing internationally traded goods and financial instruments would be even more stable. This is what the International Monetary Fund’s unit of account–the Special Drawing Rights (SDR)– offers. The value of one SDR is equal to the current market value of fixed amounts of the US Dollar, Euro, British pound, Japanese yen, and Chinese yuan. Thus, its widespread use for pricing internationally traded goods and financial instruments would provide even greater stability than would any one of these currencies. Every morning when I check movements in the price of oil, I must ask myself whether it was really a change in the price of oil or in the exchange rate of the dollar. See my: “Why the World Needs a Reserve Asset with a Hard Anchor”

The IMF’s SDR can only be held and used by member central banks and a few international bodies. Thus, private SDRs–so called Market SDRs–are needed for payments by the private sector (perhaps issued by the IMF or the BIS). Being issued by an international body, such Market SDRs would have the equivalent of a central bank for settling cross boarder payments allowing the simplifications and economy increasingly available for domestic payments in the domestic currency. `

Moreover, as an internationally issued currency the SDR would be far better protected from the political abuse increasingly experienced with the US dollar and might be expected with the Chinese RMB or other national currencies.

Getting from here to there

But first things first. Before considering the reform of the international monetary system, let’s consider the reform of the dollar–the reform of U.S. monetary policy. The price of the dollar should be fixed to a hard anchor and issued according to currency board rules.

During the heydays of the gold standard (1820-1913) international trade flourished dramatically increasing global incomes and reducing poverty. According to Antoni Estevadeordal, Brian Frantz and Alan M. Taylor “Until 1913 the rise of the gold standard and the fall in transport costs were the main trade-creating forces.” https://www.jstor.org/stable/25053910  However, to cope with WWI, the Great Depression, and WWII, the gold standard failed and was abandoned because of weaknesses in banking systems and because the countries that fixed the value of their currencies to gold did not fully play by the gold standard’s rules.

Under a strict gold standard, the central bank would issue and redeem its currency whenever anyone bought it for gold at the official price of gold. In fact, however, by actively buying and selling (or lending) its currency for other assets whenever it thought appropriate, the Federal Reserve’s monetary liabilities (base money) were partially backed by U.S. treasury bills and other assets. In addition, the fractional reserve banking system allowed banks to create deposit money that was also not backed by gold. The market’s ability to redeem dollars for gold kept the market value of gold close to its official dollar value. However, the gap between the Fed’s monetary liabilities and its gold backing grew until the market (most conspicuously, France) lost confidence in the Fed’s ability to honor its redemption commitment and President Nixon closed the “gold window” in 1971 rather than tighten monetary policy.

Currency Board Rules

A reformed monetary system that returns to a hard anchor (firmly fixed price of the currency for gold or some other asset) should require the Fed to adhere strictly to currency board rules. Such rules oblige a central bank to buy and sell its currency at a set price in response to public demand. Under the Gold Standard, the price of the currency was set as an amount of gold (a gold anchor). For existing currency boards, the price is typically an amount of another currency or basket of currencies. See my book on the establishment of the Central Bank of Bosnia and Herzegovina (“One currency for Bosnia-creating the Central Bank of Bosnia and Herzegovina”).    The Fed would provide the amount of dollars demanded by the market by passively buying and selling them at the dollar’s officially fixed price for its anchor. All traditional open market operations by the Fed in the forms of active purchases and sales of T-bills or other assets would be forbidden.

The Anchor

Another weakness of the historical gold standard was that the price of the anchor, based on one single commodity, varied relative to other goods, services and wages. While the purchasing power of the gold dollar was relatively stable over long periods of time, gold did not prove a stable anchor over shorter periods relevant for investment.

Expanding the anchor from one commodity to a basket of 5 to 10 commodities with greater collective stability relative to the goods and services people actually buy (as measured by, e.g., the CPI index), would reduce this volatility. The basket would consist of fixed amounts of each of these commodities and their collective market value would define the value of one dollar.  There have been similar proposals in the past, but the high transaction and storage costs of dealing with all the goods in the valuation basket doomed them. However, with indirect redeemability discussed next, the valuation basket would not suffer from this problem.

Indirect redeemability

Historically, gold and silver standards obliged the monetary authority to buy and sell its currency for actual gold or silver. If the dollar price of gold in the market was higher than its official price, people would buy gold at the central bank increasing its market supply and reducing the money supply until the market price came down again. These precious metals had to be stored and guarded at considerable cost. More importantly, taking large amounts of gold and silver off the market distorted their price by creating an artificial demand for them. A new gold standard would see the relative price of gold rising over time due to the increasing cost of discovery and extraction. The fixed dollar price of gold means that the dollar prices of everything else would fall (deflation). While the predictability of the value of money is one of its most important qualities, stability of its value, such as approximately zero inflation, is also desirable.

Indirect redeemability eliminates these shortcomings of the traditional gold standard. Indirect redeemability means that currency is issued or redeemed for assets of equal market value rather than the actual anchor commodities.  Market actors would still have an arbitrage profit incentive to keep the supply of money appropriate for its official value.  As the economy grows and the demand for money increases, this mechanism would increase the money supply as people sell their T-bills to the Fed for additional dollars at its official (gold or whatever) price.

Towards a global anchor

The United States could easily amend its monetary policy to incorporate the above features – adopting a government defined value of the dollar as called for in Article 1 Section 8 of the U.S. Constitution and a market determined supply. The Federal Reserve would be restricted by law to passive currency board rules. Additional financial sector stability would be achieved by also adopting the Chicago Plan of 100% reserve requirements against demand deposits. This would be a natural byproduct of the Fed creating a two-tier Central Bank Digital Currency (CBCD) now under consideration.

The gold standard was an international system for regulating the supply of money and thus prices in each country and between countries and provided a single world currency (via fixed exchange rates). Balance of trade and payments between countries was maintained (when central banks played by the rules) because deficit countries lost money (gold) to surplus countries, reducing prices in the former and increasing them in the latter. This led to a flourishing of trade between countries. This was a highly desirable feature for liberal market economies.

The United States could adopt the hard anchor currency board system described above on its own and others might follow by fixing their currencies to the dollar as in the past. The amendments to the historic gold standard system proposed above would significantly tighten the rules under which it would operate and strengthen the prospects of its survival.

However, there would be significant benefits to developing such a standard internationally. One way or the other, replacing the fluctuating exchange rates between the dollar and other currencies with the equivalent of a single currency would be a significant boon to world trade and world prosperity.  Replacing the U.S. dollar as the world’s reserve currency with an international unit would have additional benefits for the smooth functioning of the global trading and payments system.  

In a small step to create an internationally issued currency the IMF created its Special Drawing Right (SDR) in 1969 in the expectation of supplementing the gold-based US dollar. But in today’s world of fiat currencies with floating exchange rates the SDR has several limitations as a reserve currency, most of which can be lived with for a while. The SDR allocated by the IMF can only be held and used by the central banks of IMF member countries and a few international organizations such as the World Bank and BIS. The SDR falls short as a challenger to the US dollar because of the absence of widespread private market use of the unit.

To become a serious supplement to, if not replacement for, the US dollar in the international monetary system the SDR would need to be usable for payments by private sector parties. This would require the creation of private or Market SDRs. This could be done in much the same way banks now create dollar deposits.

Digital SDR currency

As with national currencies, the internationally issued SDR needs a central issuer of the base money version of market SDRs (M-SDRs). The IMF should oversee the develop of a procedure for issuing M-SDRs following currency board rules and backed 100% by official SDRs or by an appropriate mix of sovereign debt of the five basket currencies.

The IMF might establish an IMF trust fund that would issue M-SDRs to AAA or AA international banks upon their request and payment of the equivalent value of one or more of the five basket currencies (and would redeem them under similar arrangements). As with other IMF trusts, the IMF might approach the BIS to operationally manage the issuance and redemption of M-SDRs and the maintenance of the official SDR asset backing (or its equivalent in the five currencies in the valuation basket).

Banks offering M-SDR deposits/currency to their customers would hold an M-SDR reserve backing with the IMF SDR trust fund. The base money M-SDRs issued by the IMF trust fund would perform the same payment settlement function as do central banks for the base money they issue, with the critical difference that its depositors/participants would be global rather than national. This would enable virtually instantaneous final settlement of M-SDR payments globally.

An M-SDR would facilitate and be facilitated by invoicing internationally traded goods and financial instruments in SDRs. More, if not most, internationally traded commodities could and should be priced in SDRs. Cross border borrowing can and should be denominated in SDR starting with bond issues and lending by international development institutions (as is now the case with the IMF, and to a very limited extent the World Bank).  https://www.brettonwoods.org/article/proposal-for-an-imf-staff-executive-board-paper-on-promoting-market-sdrs

To go all the way with SDRs, the IMF’s Articles of Agreement would need to be amended to replace the allocation of SDRs with issuing them according to currency board rules as discussed earlier. Furthermore, the valuation basket that now consists of key currencies would need to be replaced with a commodity basket as outlined in my Real SDR Currency Board proposal: (http://works.bepress.com/warren_coats/25/).

The shift from dollar to SDR international reserves, payments, and invoicing would give the world a more stable currency for all of these purposes. This would further promote trade because of more efficient cross boarder payments thus further lifting incomes around the world. Being an internationally issued and controlled currency, the potential for its political abuse by the U.S. would be greatly reduced. But eliminating the seigniorage that the U.S. now enjoys supplying its currency to the rest of the world, i.e., the foreign financing of some of its debt, would remain without further measures.

As central banks and foreign firms shifted from dollars to SDRs they might simply transfer the US treasury bills (and other US investments) that they now hold to the issuers of the M-SDRs. In that case the U.S. would continue to enjoy its exorbitant privilege of foreign financing in exchange for holding its currency. In this case M-SDRs rather than USD would also be backed by US debt. Thus, rules are need for what currency or assets must be paid to buy M-SDRs and/or what assets M-SDRs are backed by. This could take the form of buying M-SDRs with USD but the issuer exchanging the dollars for a more balanced portfolio of assets. While the SDR value continues to be defined by a basket of currencies, the assets backing issued SDR might reflect the same proportions of the same currencies.

The reduction in this way of the role of the dollar as a reserve currency would be win win. It would provide for more stable and more efficient international trade and payments. It would help demilitarize money and it would modestly increase the cost of US debt finance, hopefully encouraging more careful spending.


[1] Dr. Coats retired from the IMF after 26 years of service in May 2003 to join the Board of Directors of the Cayman Islands Monetary Authority. He was chief of the SDR division in the Finance Department of the IMF from 1982–88 and a visiting economist to the Board of Governors of the Federal Reserve in 1979.  In March 2019 Central Banking Journal awarded him for his “Outstanding Contribution for Capacity Building.”  His recent books are One Currency for Bosnia: Creating the Central Bank of Bosnia and Herzegovina; My Travels in the Former Soviet Union; My Travels to Afghanistan; My Travels to Jerusalem; and My Travels to Baghdad. He has a B.A. degree in Economics from U of California, Berkeley, and a Ph.D. in economics from the U of Chicago. He is a fellow of Johns Hopkins Krieger School of Arts and Sciences, Institute for Applied Economics, Global Health, and the Study of Business Enterprise.