US Government Debt Different - Finance Department - University of ...

220 United States Sovereign Debt: A Thought Experiment On Default And Restructuringin the Court of Federal Claims under current law. But as a part ofimplementing Alternatives 1 and 2, Congress might also withdrawits waiver of sovereign immunity and the jurisdiction of the Court ofFederal Claims in respect of the non-exempted Treasury obligations.That would leave holders of defaulted non-exempted Treasury obligationswithout a U.S. forum in which to pursue a money judgment.If that approach is pursued, it also would be prudent to withdraw itswaiver in connection with suits against U.S. government officials, aswell. 139 That would deprive debt holders of a U.S. forum in which tochallenge the constitutionality of Alternative 2. 140Arguably, Section Four itself could be construed as a waiver of sovereignimmunity inasmuch as it protects the rights of the holders ofpublic debt. But dictum in the plurality opinion in Perry indicatesotherwise, stating clearly that Congress is not obliged to provideremedies for creditors of the U.S. 141 Justice Stone’s concurring opinionis in accord.There is no occasion now to resolve doubts, which I entertain,with respect to these questions. At present they are academic.Concededly they may be transferred wholly to the realm ofspeculation by the exercise of the undoubted power of the Governmentto withdraw the privilege of suit upon its gold clauseobligations. 142Months after Perry was decided, Congress did withdraw its consentto file suit against the U.S. based on gold clause obligations. 143 Theonly case to consider that withdrawal of consent upheld its validityand held that a claim under a gold clause bond was “barred by thedoctrine of sovereign immunity.” 144139 See, e.g., 5 U.S.C. § 702 (permitting suits against officials and the U.S. for reliefother than money damages).140 As already explained, a bankruptcy law almost certainly would be subject tojudicial scrutiny at some point, providing a means of challenging Alternative 1. SeePart III.C.1.a., supra (discussing bankruptcy).141 Perry, 294 U.S. at 354 (quoted supra text at note 85).142 Perry, 294 U.S. at 360.143 H. J. Res. 348, 74th Cong., 49 Stat. 938 § 2 (1935), codified at 31 U.S.C.5118(c)(1)(B) & (C).144 Gold Bondholders Protective Council, Inc. v. United States, 676 F.2d 643, 646(Ct. Cl. 1982) (“In an unbroken line of decisions, it has been held that Congress