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naraburns  nihil supernum  1yr ago (text post)   32916 thread views

Culture War Roundup for the week of February 27, 2023

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I’ve previously written about how much I dislike student loan forgiveness policies and framing college education as a public good. Now that the Biden administration is attempting to implement the policy, the discourse has shifted away from whether it’s a good idea to whether it’s a legally valid policy, with two challenges currently going to the Supreme Court. For a defense of the policy that extends all the way to declaring that the challenges are completely illegitimate, we can look to a Voxsplainer from Ian Millheiser:

The legal issues are straightforward: A federal law known as the Heroes Act explicitly authorizes the program that Biden announced in the summer of 2022, as the Covid-19 pandemic persisted. Under that program, most borrowers who earned less than $125,000 a year during the pandemic will receive $10,000 in student loan forgiveness. Borrowers who received Pell Grants, a program that serves low-income students, may have up to $20,000 in debt forgiven.

And yet, while this program is clearly authorized by a federal law permitting the secretary of education to “waive or modify” many student loan obligations “as the Secretary deems necessary in connection with a war or other military operation or national emergency,” it is unlikely to survive contact with a Supreme Court dominated by Republican appointees.>

I suggest a full readthrough, but that does get to the heart of the matter. The full text of the Heros Act is here and is about as clear as Milheiser suggest above. After some initial throatclearing, the act says:

SEC. 2. WAIVER AUTHORITY FOR RESPONSE TO MILITARY CONTINGENCIES AND NATIONAL EMERGENCIES. (a) WAIVERS AND MODIFICATIONS.— (1) IN GENERAL.—Notwithstanding any other provision of law, unless enacted with specific reference to this section, the Secretary of Education (referred to in this Act as the ‘‘Secretary’’) may waive or modify any statutory or regulatory provision applicable to the student financial assistance programs under title IV of the Act as the Secretary deems necessary in connection with a war or other military operation or national emergency to provide the waivers or modifications authorized by paragraph (2).

I don’t see anything in the ensuing paragraphs that would narrow this meaningfully, although I welcome input from anyone with a sharper legal eye than I have. Nonetheless, I find myself looking at this as an utterly dishonest exploitation of a law that was written with a clear purpose in mind. The Heros Act was created to handle soldiers being sent abroad to fight the War on Terror; whether this was good or bad policy, it had a clear purpose and a somewhat defined cost cap based on how many people are actually affiliated with the military or meaningfully economically impacted. The Biden student debt cancellation takes advantage of the “or national emergency” provision by declaring that everyone was impacted by the declared Covid emergency and therefore all student debt was subject to cancellation per this bill.

This, I suppose, is where I rediscover that whatever judicial philosophy I adhere to looks more like originalism than textualism, but really looks even more like I adhere to my own You Must Be Kidding Doctrine. I don’t buy for a moment that the people that drafted this legislation intended to empower the executive branch to declare an emergency that affects all Americans and that this would grant the power to cancel as much student debt for as large of a group of people as they like. Had they intended to do so, they probably would have just done that explicitly rather than spending a page clearing their throats about the importance of the United States military.

I see many speculating that the ostensibly conservative Supreme Court will use the Major Questions Doctrine to overturn the policy:

In the last few decades, the Supreme Court has placed another limitation on the Chevron Doctrine’s scope. The “major questions doctrine” holds that courts should not defer to agency statutory interpretations that concern questions of “vast economic or political significance.” The Supreme Court justifies this limitation with the non-delegation doctrine. According to the Supreme Court, courts are supposed to interpret “major” legal questions, not administrative bureaucrats.

I have to confess that I personally despise student loan “forgiveness” so much that I would be enthusiastic about nearly any convoluted reasoning that the Supreme Court comes up with to reject it as a legitimate policy. I am further bolstered in that attitude by what I perceive as decades of utterly ridiculous, lawless rulings that build on the time honored principle of deciding what I want and figuring out why the law agrees with me later. In this particular case, I think it’s actually fairly reasonable to say that this $400 billion policy and license for trillions more is not a legitimate use of executive authority delegated by Heros act, but I don’t think I can actually prove that through looking at the language in the text.

What say you?

I can completely understand the distaste with which the forgiveness is seen by many people, and I'm not certain that it is ideal. However, the fact that we allow young people to take on debt that is not dischargeable by bankruptcy is unconscionable to me. This is abhorrent, and essentially every religion forbids it.

And this is the true crux of the issue. The entire problem of the student loan program is built on the twin perverse incentives of the loans being non-dischargeable and guaranteed by the government. This has allowed state schools to balloon beyond their original missions and expand into administrative behemoths. It's created an industry of for-profit universities whose customers pay nothing out of pocket but are burdened with non-dischargeable debt in the hopes of improving their lot in life. It's put a millstone around the necks of young people and become one more thing people need to do before having children -- finish college, get a job, pay off loans, buy a house. I also believe it has been the essential driver of wokeism. It's been used to create and fund environments where ideas are sheltered from contact with reality and need to produce no cash value beyond seeming like a good place for students to cash their government checks. It simply cannot continue like this.

It simply cannot continue like this.

Yes, and that's why loan forgiveness is an incredibly bad idea, because it will make sure the individual incentives are still completely screwed up,

and will mean this will get worse, and will be repeated every single time the blue tribe gets the presidency.

The entire problem of the student loan program is built on the twin perverse incentives of the loans being non-dischargeable and guaranteed by the government.

Plus, states often restrict supply. I have one collaborator at a smaller public uni that is trying to add another PhD program, but the bigger public unis in the state have been able to throw up all sorts of barriers, forcing them to try to show that there is sufficient "need" for such a program (which is essentially impossible to do); really, they're just preventing competition in self-interested fashion. "Best I can do is subsidize demand and restrict supply," is the meme that keeps on giving.

Double plus is that universities are basically the only industry in which the government basically mandates that they're able to nearly perfectly price discriminate, allowing them to capture the vast majority of the surplus. Can you imagine literally any other industry in which the federal government says, "Well, in order to engage in this commerce, individuals need to provide extremely detailed personal and family financial information to the supplier, so that the supplier can optimally tailor an individual price as close as possible to the individual's willingness to pay"? For literally any other industry, this would be absolutely unthinkable... an obscene corruption scandal.

I was thinking of price discrimination just yesterday; before a certain American department store made their prices universal and non-negotiable, retail cashiers were expected to haggle with their customers. If this had continued into the socialism era, we might have seen cashiers giving lower prices to the low class and demanding much higher prices for daily goods to the suit-and-tie class.

Woolworth?

Wanamaker’s.

waive or modify any statutory or regulatory provision

This is where I've heard the main objection comes from: the balance of a student loan is not a statutory or regulatory provision. Since 'waive' means 'cross-out', if there isn't an actual provision in the text that can be crossed out to accomplish student loan forgiveness, it isn't authorized by the act.

The SG seemed to suggest that every change involves a waiver and a modification. The downside of this argument is the statute has the word “or” suggesting waiver can apply without modification or vice versa.

I can understand the opposition to student loan forgiveness, but I think it would be possible to achieve the same goals in a way that would seem (to me at least) a bit more just - and that is to make sure that the universities and colleges which took in all of this money pay the price. I find it hard to get too angry at people who fell for what is essentially a scam when they took what was actually a fairly rational action at the time.

I think that student loans shouldn't be forgiven, but instead transferred to the colleges and universities that handed out those dud loans. That's where the real anti-social behaviour is, especially when institutions like Harvard have utterly obscene endowments. If a university or college took an extraordinary amount of money in exchange for giving someone a worthless education, they should absolutely pay the price. You'd need to have some checks and balances, but leaving higher education bodies responsible for non-performing student loan debt would give them skin in the game and align their incentives. Forcing them to carefully decide whether a given loan would actually be paid off would have all kinds of positive consequences. It would have a lot of negative consequences for my opponents in the culture war, but that's a price I'd be willing to pay.

There’s far less legal ground for this than there is for student loan forgiveness. At least with regards to loan forgiveness you have the executive of the actual agency that holds the debt taking tan action that is by definition legal (if the courts say so).

The universities more or less deliver what they promise. They’re accredited to the standards of the various regional accrediting boards, and if a person attends they will receive education at that low standard.

The big issue is the lending program itself which incentivized enrolling and matriculating as many students in possible for access to the money. The government created this by incentivizing it.

Yeah, the government loans incentivized enrolling as many students as possible. And 100 other ways.

This was very successful at keeping 18-24 olds out of the workforce, and thus far had had no negative consequences on the LFRP.

I think it would be possible to achieve the same goals in a way that would seem (to me at least) a bit more just - and that is to make sure that the universities and colleges which took in all of this money pay the price.

That's running off of mistake theory.

Think of it as ideology-based where the universities are on the left and forgving the loans is a way to insulate the universities from the real-world consequences of encouraging degrees that are bad in the job market but great for spreading their brand of politics. Under this theory, the government doesn't want to make the unversities pay the price.

Oh I totally agree that that's the case currently. I'm making a proposal which I understand has zero chance of being ratified under the current system - you'd need some kind of firebrand populist to make it into government (and actually have the ability to make and pass meaningful laws).

Can we really not treat 18 year olds like adults? I'm quite warry of establishing that Americans are incapable of making even basic financial decisions. Let future loans be discharged in bankruptcy and have the lenders step in in their own interest against bad loans if you need a guardrail.

You've hit the nail on the head. The perverse incentives comes from the combination of the loan not being dischargeable by bankruptcy and the government guaranteeing it. Without those, lenders would have be diligent about to whom they loaned and how much. It wouldn't matter if the university wants to do away with the SAT or ACT because the lender would require it. How we would move to a system like this is nearly unimaginable to me at this point with all of the vested interests feeding off of the tit of the student loan program, but I feel we're at an inflection point where something must be done.

Somebody falling for a scam does not make that scam morally acceptable. If I make all sorts of medical claims about my special proprietary snake oil, and some people actually experience placebo benefits from it, that doesn't prevent me from being a scam artist. The behaviour that these universities/colleges engaged in is absolutely deserving of censure - and at the very least they shouldn't receive extra financial privileges like they do currently. If you want to talk about treating 18 year olds like adults, we should also treat the people who made the terrible decision to loan them money like adults and retroactively remove the inability to discharge those debts through bankruptcy.

And yes I understand that all of these ideas are bad for academia - but that's what happens when you stop being academia and start fighting in the culture war.

I would like to burn the academy to the ground so I'm not offended by things being bad for them. But the rot here starts at guaranteeing the loans in the first place. The schools didn't lie about the degrees, they were real degrees, if they promised job opportunities then they should be punished for that, but I don't really think that's the case.

We interfered with the free market and once again it backfired spectacularly, if this hurts scumbag academia as well then good, but my focus is on the habit we have of trying to subvert the market and being shocked(shocked!) when our meddling burns us. It's very important we stop doing this.

I would even find it okay to let current loans be dischargeable in bankruptcy. Maybe you could have some kind of federal support. Changing that incentive seems key to the whole extortion.

I'm generally favor of that as well; the problem, though, is that student loans are Federally guaranteed, so any successful discharges would have to get picked up by the government as opposed to eaten by the creditor. The other issue is that when you limit it to a certain dollar amount per borrower it makes it relatively easy to do the math. With bankruptcy you'd have to estimate the dollar value of student loan debt people who filed anyway, plus an additional estimate of the additional filers the dischargeability would attract. Then you have banks who wouldn't like it anyway because these "student loan bankruptcies", by which I mean people filing because of student loans who wouldn't otherwise file, would drag in all kinds of other debts that they would have to eat. One final thing I just thought of is that the moment congress considered making bankruptcy debt dischargeable (I mean seriously considered, as in legislation that has a chance of passing, not one legislator's proposal) it would throw all us attorneys for a loop because now we'd have to advise every client with student loan debt about the possibility of it becoming dischargeable in the near future and have discussion about whether it's prudent to wait. It would also be immediately viewed as unfair by anyone who recently filed before this was an option (and now has to wait 8 years before filing again), though I suspect a long enough lead time would mitigate this.

I think it's much easier if we don't do anything about current loans but just stop making them bankruptcy proof and federally guaranteed in the future. That won't cause any problems

I'd rather it start with 10% dischargeable and then work up to 50% over the course of a decade or so. (with the amount discharged transferred as debt or as reductions caps on annual grants to the given institution the discharged debt came from). 100% dischargeable makes a masters in theater more appealing not less.

On one hand, I agree that we have to draw the line somewhere for adulthood. The infantilization of progressively older people in the western world is nothing short of insane.

On the other, I consider myself a reasonably pragmatic and intelligent guy. I made some pretty fucking stupid college/financial decisions. It's impossible to understand what money is worth and what role college actually plays until you make more than $10/hour and are about halfway through your sophomore year.

The pricks who doubled down on worthless graduate or doctorate degrees I consider to be unforgivable losers who deserve to pay every penny of their debt. Undergrads who fucked up and went to a school with a pretty campus for a mediocre degree.... it just seems too plausible that this is some dumb mistake that shouldn't cost $40k +.

I don't understand why the Biden administration didn't try to pass this as law while the Democrats controlled congress.

I doubt they had even 50 votes in the Senate to forgive student loans even under reconciliation. Manchin seems like a pretty obvious No. 80% of Virginia adults don't have a Bachelor's or higher. Forgiveness is going to be easy to show in ads as taxing them to give money to the 20% who do.

same for Republicans. no one has any power

The Democrats haven't had the ability to pass legislation without multiple Republican votes for several years, certainly not during the Biden administration, other than the reconciliation exception. I don't know what exactly falls under that exception, so maybe they could have done it that way, I guess. Of course, most likely they couldn't have gotten every Democratic senator to agree, so it wouldn't have mattered anyway.

Because they do not actually want to pass this law - it would, in the long run, hurt a lot of members of their social class/donors. They are taking action on it because their polling numbers are suggesting big problems, and so they have to put on a show and make it look like they actually care about the issues impacting their constituents.

They likely did not have the votes in the Senate, and trying and failing and then doing it by executive order would be even more likely to be met by judicial stink-eye.

Textualism isn’t giving a strict reading of a text but a fair reading of the text which requires using context and seeking not what Congress “meant but the true meaning of what they said.” Scalia and Garner, Reading Law, P 394.

So the question is whether the true meaning of waive or modify any provision really means the ability to forgive debt?

I would say no.

The first clue is the preamble. The entire thing is about military personal. Moreover, there is a notion that they can be called in short order which can upset among other things their post secondary education. Given that, these “heroes” should be supported. This also suggests a relatively small class of people (even if it is expanded in the text but this gives a clue as to whether this rule can really be fairly read to enact policy writ large).

The next clue is that there appears to be a very large grant of authority for the education secretary to change the statutory or regulatory requirements solely at the discretion of the secretary and outside of normal APA requirements. This is truly an extraordinary grant of authority. The APA notice and comment requirement acts as a check on the administrative state by requiring them to listen to the public and responsibly respond. But here the secretary claims the ability to re-write law sans any oversight whatsoever. Query whether that violates non-delegation principles. Are we sure that is what these words really mean here?

Third clue, related to the above, is the inclusion of emergency and the requirement that the secretary explain him or herself after the fact to congress. . Taken together, this seems to address situations where because time is short (there is a war or an emergency) the change to student loans cannot occur through normal processes (either congress or APA). Thus, the secretary can make changes in the short term but explain those changes to congress (who presumably at such time can make reasoned decisions outside the course of an emergency).

The fourth clue is that multiple places the waiver states it is designed to make the relevant person no worse off while at the same time not requiring a case-by-case determination. Presumably because again this covers emergency situations by attempting to preserve the status quo ante; not legislation.

Taking all of those clues together it seems impossible this bill can be fairly read to give to the secretary the ability to uniformly cancel student loans of every in the US two years after an emergency has been declared (a 500b undertaking here but principally not limited to that number) without any oversight (ie not preserving the status quo ante but changing it). If it did, it raises serious non-delegation questions (which means Major Questions doctrine likely applies).

Moreover, we have the Scalia “no elephants in any hills” to fall back on as well as for others the “dog that didn’t bark” canon.

To me, this statute either doesn’t give the secretary the authority to do this or it is probably an unconstitutional statute.

The really infuriating part of this situation is the standing issue. Biden is (probably) acting illegally but if no one has standing to challenge his actions, then there's fuck-all anyone can do about it. This may be the straw that breaks the camels back for me and causes me to just sit and wait for the end.

I think standing is a shitty piece of jurisprudence but likely a necessary one. Basically if I harm every 100m that’s fine but if I harm a specific person (as opposed to general) 10k that becomes justiciable.

I do think we should expand it to allow members of congress to sue.

I do think we should expand it to allow members of congress to sue.

I don't know why I've never heard of this solution, but it does seem a pretty straightforward solution. Any congressional representative should have standing on issues that effect their constituency as a whole.

This is really awful. In effect, the government has levied a tax burden on everyone, but then has selectively "forgiven" the burdens of a favored group.

Taken to an extreme, they could use this same mechanism to pass a bill of attainder against an individual. The government would simply levy a charge on everyone, but then "forgive" it for all but one person.

Hopefully the Supreme Court puts the kibosh on this. When you forgive the debts of a select few, you harm every person who has paid their debt. Money is fungible.

Has the US or any State ever subsidised business? And has such subsidy come at the expense of the taxpayer and to the benefit of the subsidy recipient? What’s different here, exactly?

What’s different here, exactly?

In a legal case like this, there are several broad categories of questions that have to get answered. The first one relevant here is standing, in which the court considers whether or not it should consider the merits of the case in a later step. Standing here includes who, if anyone, was wronged. In particular, SCOTUS likes to reject cases on standing because it typically doesn't set precedent for future cases. Some are (wrongly IMO) trying to argue that no one was harmed by this decision. I don't like this idea because it suggests that certain subsidies are entirely beyond review.

If the court finds standing, it will consider the merits of the case: was this action allowed by the (rather vague) statutory text passed by Congress. There is plenty of case law allowing subsidies in many instances. The Executive here points to a few catch-all clauses to justify this action.

There are some limits in how much power Congress can grant to the Executive, but exactly where that limit is and how far the Executive can stretch the letter of the law is a legal question for the court that seems likely to fall to the partisan split.

That's the entire nature of progressive taxation and a huge swathe of welfare programs. Those of the correct ethnicities (not whites or more recently East Asians) get favorable loans and subsidies in business.

I've seen people try to argue that there is no standing, but I can't find them convincing because the general argument implies that government debt forgiveness is never subject to judicial review. If this were such a plenary power of the executive -- because we never can go far enough in the courts to read what Congress wrote -- that would seem to mean that pretty much any forgiveness plan would be acceptable, including downright stupid things like "debt forgiveness for contributors to my campaign." There be lots of dragons.

I haven't seen anyone argue that the specifics of this case cause a lack of standing, so I've taken it largely as a sign that the people making such arguments are partisans for whom the ends justify the means.

I think it’s simple. Democracy needs people being reasonably. You can always find some poorly worded law to do whatever you want. If we wanted a law to be specific then it has no flexibility for the real intent and would also require thousands of pages laying out every situation.

This seems to me like Biden can say textually he’s allowed. It does feel the mountains into mole holes logic but that’s not Law. Everyone knows the bill wasn’t designed to authorize this usage. A good faith attempt by Biden would have to been pass explicit bill.

The standing / immunities debate was front and center at the oral arguments.

Thanks for posting this. The SG in rebuttal seems to be suggesting that any change to a provision is both a waiver and a modification. But the statute says waiver or modification. If every action is both, the statute would read the waiver and modification (or suggests you can have one but not the other).

I don’t know if im reading too much into the SG’s comments but he was responding to the AG who took pains to separate what is a waiver and a modification.

The problem also is credentialism; we cannot just blame the borrower or the lenders. Things like automated resume screening, degrees req. in the application, etc. So it's wrong for the govt. to subsidize college from a free market perspective, I can understand the rationale if college is effectively a very expensive ticket for a hope of entering the middle class.

From an optics standpoint, I can understand the unpopularity. Forgiving student loans seems to be equivalent of bribery for a core constituency. But so can tax cuts, which benefit generally wealthier, red-leaning voters. The irony is that had Biden pledged billions for something vague like 'helping Ukraine' or 'general welfare' ,there would have been much less polarization even if the money does not have as much of a quantifiable benefit. It's worse that spending is seen as favoring a specific group , than if it's sent into a furnace and benefits no one specifically but middlemen.

I think the unpopularity is right. Unless we solve the issues that are making college unaffordable, simply wiping the debts (or a portion of the debts) simply makes the problem worse. The issue is that for skilled, non-labor jobs, college has become not so much a “nice to have” thing, but a requirement, in fact, it’s basically like high school was in the 1960s. If you want a good job and don’t want to be in construction, repair, or a chef or some other skilled labor— you have to go to college.

This creates a huge demand and thus makes the price inelastic. No one really looks at the costs or the interest rates beyond the choice between schools. You go, and if it costs 100K so what? You need the degree to even apply. And as long as college is the ticket to a middle class lifestyle, people will go, regardless of the cost. And of course as college becomes obligatory, and everyone gets a degree, the value falls. College in 1970 was a “wow, he must be a real go-getter. He must be smart,” thing. This was because they were relatively rare. Once college became the default, it’s not longer useful to signal intelligence or hard work (unless it’s a super hard degree), it’s too diluted to do that.

Making loans forgivable even if it requires a specific act of government to do so simply makes the problem worse. The forgiveness will be priced in. Why wouldn’t a school charge as much as they can get away with? If the dumbass students can’t pay, the government will. And on the student side, there’s no reason to economize here. If the debt gets bad enough, there will be a bailout. The employer side gets harder as well. Everyone other than the truly stupid have a diploma. So college is no longer enough. Maybe it will be internships, maybe we move up the credential treadmill, but college itself won’t be a ticket to those coveted middle class jobs. They’ll be a ticket to the line to buy a ticket to the middle class. And such a thing can stretch out quite a while because obviously people are willing to do everything possible to not be poor.

I'm reminded of the US healthcare tax system's incentives for employer-provided health insurance, which (a) encourages people to buy and use more healthcare than would be optimal and (b) encourages them to delegate decisions to a third party. IIRC, the system evolved as an accident of World War II, as employers and employees avoided wage controls. Now, it exists because middle class people think "Ah, finally a tax break that I get."

I can see the same dynamics playing out with student debt, with occasional debt jubilees giving politicians a chance to posture (Republicans for, Democrats against) before eventually forgiving the debt, just like with the Debt Ceiling. When organised and motivated, the middle class can be a very effective group, as suggested by Director's Law:

https://en.wikipedia.org/wiki/Director%27s_law

I'm extremely skeptical that the lower classes are subsidizing the middle class. I would need to see some numbers to back that up given that income taxes are progressive and most handouts are restricted by income.

Is this the math where they count tax breaks the same as welfare payments?

Is this the math where they count tax breaks the same as welfare payments?

Moreso that money is fungible. A trillion dollars you spent on college-educated middle-to-upper-class young people is a trillion dollars you could have spent on the poor and the working class, and didn't.

I'm extremely skeptical that the lower classes are subsidizing the middle class

The claim is that the upper and lower classes combined are paying the majority of taxes, not that the lower classes are paying the majority of taxes.

I don't know if that's true, but there are tendencies that make welfare to the middle classes crucial to political success in most places today, even in ostensibly egalitarian societies.

That's like saying that me and Jeff Bezos combined have a net worth of $100 billion.

The lower class pays a negative amount of taxes after accounting for subsidies

Can someone explain to me why this has turned into such a legal issue?

The state issued these loans that Biden is attempting to forgive, did it not? I would've thought it would go without saying that the state would then also have the power to forgive them. It's not like debt forgiveness isn't something countries don't routinely engage in, so this whole thing has left me perplexed.

The State as a whole pretty unquestionably has the power, and there have been (smaller) loan forgiveness in the past. While I'd argue that doing so for loans issued by third parties would fall afoul of the Contracts Clause, the courts have routinely and consistently held that this clause only limits individual states and not the federal government.

The President, however, does not have the power to unilaterally do so. The core component is the Appropriations Clause, which prohibits federal spending without legislative authorization. Courts don't accept purely constitutional arguments, but rather places where those constitutional problems impinge on specific people, so the exacts are a little removed, but they're all about this problem.

Probably have a takings claim

That is one thing they don't have.

Poster above (unless I am misreading) came in and said that federal government could render nukl and void an agreement between say you and me. If you were the beneficiary, that would fall pretty squarely within the takings clause putting aside bankruptcy proceedings.

That fact pattern is a bit different compared to the case at hand

But isn't the poster talking about student loan forgiveness, under which the lenders are paid? There is nothing taken from them.

Maybe. If the lender is paid, then agree no takings (or if takings fair compensation). It wasn’t clear from me the poster was positing the lender was paid.

As I understand it the main legal issue is that congress didn’t appropriate the money to forgive the loans. Student loans where supposed to be a source of revenue (for example this is partially how Obama care was supposed to be financed https://www.wsj.com/articles/obamas-giant-student-loan-con-1480640259 note that this is from 2016) so it seems to be a bit of a stretch that a different older law (the hero’s act) would allow the excecutive to simply take all of this money and spend it on something else.

Which part of the state has that power to forgive? The executive acting on what authority derived from what statute? The congress did not pass legislation directing the executive to do that forgiveness. The executive has a policy goal of doing so and is now reaching for some other statutory authority to implement it since in the US the executive cannot generally act unilaterally. The court case is whether that is or is not cricket.

The state can, the legal question is who is permitted to authorize this on behalf of the state. The question exists because it was not explicitly authorized by Congress, the nominal source of state authority, so it needs to have been authorized by Congress in at least a roundabout way.

I don’t see anything in the ensuing paragraphs that would narrow this meaningfully, although I welcome input from anyone with a sharper legal eye than I have.

They're disfavored nowadays, since it's often possible to find multiple different interpretations using them, but the venerable canons of construction could be of assistance here. When construing the meaning of words present in a list, the canon ejusdem generis states that where general words or phrases follow a number of specific words or phrases, the general words should be construed as limited to only things of a similar nature or kind to those designated by specific words/phrases.

The PMO could plausibly do something like this via Order in Council -- in which case you'd have a similar palaver around getting somebody with an interest in the matter to bring it to the SCC. (Although I think the provinces could request a reference hearing pretty easily, assuming they administer aspects of student loans here too; I don't actually know how that works?)

For an example of how this plays out over time you need only look to the Trudeau government's recent gun banning activity; firearms (as property) legislation is plausibly not even in Federal jurisdiction, so (1990s Liberal) government found a loophole around 'public safety' which they exploited to pass incremental legislation. (Partially but not substantially reversed the next time Conservatives had power)

Next comes Trudeau, who's power is too shaky to get anything controversial through parliament -- so he issues an OIC banning various things, including ones which the previous (90s) legislation specifically sets out as 'not bannable by OIC'. (firearms with a valid hunting/sporting use case)

While this is wending it's way towards the SCC (which I give about 50/50 for finding some loophole to weasel out of obeying the 90s Act; they are very liberal but don't like to appears as totally insane puppets) the Liberal government notices that the next time Conservatives beat them they can just reverse the OIC; their solution is to try sneaking the OIC terms in to a bill mostly about handguns at the amendment stage. Their argument: "It doesn't matter that we are adding unrelated provisions to this bill after it's been debated in the House; these things are already banned by OIC."

So I guess the point is that the parliamentary system doesn't really prevent end-runs by the executive (equivalent); much as President TruSantis could reverse the Biden decision in 2024, but with no effect since the loans would be already cancelled, Pollievre (or whoever) could reverse the OIC, but it won't matter if the Liberals have got the guns into their smelter in the meantime.

I mean, they do seem to be trying to legislate it because they see the OIC as legally vulnerable.

Right, which makes "well these things are already banned under the OIC" an odd argument for why it's OK to tack them onto an unrelated bill in committee just before third reading!

After all, if the next Conservative government wants to, they can repeal the statute just as easily as they could the OIC (assuming they command a majority of the Commons).

No, they don't need a majority to reverse an OIC. (just as Trudeau didn't need on to introduce it)

The conservatives are unlikely to win a majority, and even if they do the political capital around reversing a bill (which has a bunch of other unrelated stuff that the House already debated and agreed to) is much different from just writing a new OIC.

It’s broken by design. The founders of America were very concerned that the government not get too much power, and as such designed the system to pit the branches and people within those branches against each other. This was a hedge against tyranny as no single branch could run things by itself. It would be even worse had we not gone to direct elections of the senate (rather than appointing them by state government) because that would make the senate beholden to the government of their state and thus even more beholden to local industrial powers.

Rather it is an old school common law incrementialist system. In that philosophy, the basic rule of thumb is that big things shouldn't be done outside of the proper channels, and any sort of game playing is strongly disfavored.

Perhaps I don't understand the Canadian system well, but doesn't this just rely on people to be on their best behavior? What, other than Canadian manners, is keeping people in line here?

These protections didn't prevent the government from running roughshod over civil liberties during the pandemic. They even invoked the Emergency Act during the trucker convoy protests.

Canada's dismal human rights record during the pandemic would definitely give me pause before endorsing such a system.

the use of the Act has been subject to judicial review, as well as a really detailed formal inquiry by a judge of the Ontario Court of Appeal.

Have you read the document? Do you have a frame of reference by which to judge the document? Say, have you read IG reports in the US following potential scandals? This report is an utter whitewash, by any reasonable standard. I mean, the amount of times they hold on to

“ongoing economic losses of 0.1 – 0.2% of gross domestic product for every week the blockades continue,"

as if the COVID restrictions weren't causing multiples of that. The pains they go through to say, "We're not a court; it's not really our job to say whether it's legal or not." The frankly ridiculous straining to try to claim "concerns" of "serious violence" (the latter being what the test required; the former being the barest shred of what they had).

"There was also a risk of violence arising from counter protests."

A pure heckler's veto. Egads, this document is enough to make me tear my remaining hair out! Wait... that would be serious violence! EMERGENCY! Your bank account is now frozen.

"CSIS and ITAC had also advised of the risk that a lone wolf actor, inspired by the IMVE elements at the protests, might conduct an attack against soft targets such as opposition groups or members of the public, and that lone wolf actors are very difficult to detect and predict."

Not pre-crime. Not stochastic terrorism. The fact that we can mouth the words "stochastic terrorism" and then decry the fact that we can't identify pre-crime is sufficient to declare "serious violence" and an emergency in Canada.

Make no mistake, random ass-comments on the internet are a sufficient "threat of serious violence" in Canada to suspend civil liberties even further than they had already gone just because of COVID. Of course, this is only the case if such a thing is in the interest of The Party; it will not be suitable for any opposition. One day, you may find yourself opposing The Party on some issue. You might think that it's minor, that reasonable minds might disagree. You might even join a little happy protest; you and your people have a long history of gaining political victories by mostly peaceful protest. But they will find every single disconnected shred of stochastic possible danger in the entire panopticon, and not a single one of your rights will be vindicated, given the 'emergency' that you present.

as if the COVID restrictions weren't causing multiples of that

These aren't analogous. Saying that 'the government has a legitimate interest in taking X action because of the problems caused by Y event' does not imply that the government can't take any action that might cause a problem similar to that one. The court was allowing a government action to go ahead, not attempting to prevent it as it would have been had it taken issue with Covid restrictions'.

I mean, it's not even actually legally important, because the test was about "serious violence", not about some level of economic damage. It's just that this particular report jumps back to this measure of economic damage multiple times as if it's some form of evidence of "violence". It's a total red herring in the report that just detracts from its credibility.

does not imply that the government can't take any action that might cause a problem similar to that one

I don't think I claimed this. Instead, it's just peak hypocrisy. Government does action A, which causes damage B. People protest A, and their protest causes damage epsilon*B, with epsilon<1. Now, suddenly, anything that causes damage on the level of epsilon*B is an emergency suitable to suspend civil liberties. By that reasoning, action A, itself, should have created an emergency that was suitable to suspend the civil liberties of the politicians, for they had caused far greater damage.

The court was allowing a government action to go ahead

I mean, not really. This isn't a court. They aren't allowing an action to go ahead. The action was already done and over. This is just an ass-covering commission to say, "If we stretch suuuuuuuuper hard and bend every test in a way that is maximally favorable to the government, allowing things like heckler's vetos and stochastic pre-crime, mayyyyyyyybe that stuff the government did in the past miiiiiight have been okay."

By that reasoning, action A, itself, should have created an emergency that was suitable to suspend the civil liberties of the politicians, for they had caused far greater damage.

What? You seem to be implying that the exact same strictures should exist on government action and on private action. As I said, that the government took an action that caused B doesn't imply ordinary citizens can also cause B with impunity.

You seem to be implying that the exact same strictures should exist on government action and on private action.

To be clear, I am not. Especially not as a legal matter. As a public perception matter, their justification shows immense hypocrisy.

Completely separate from that is the legal matter of "serious violence", which is horribly ill-supported in this document, to the crazy extent of stochastic pre-crime.

More comments

Americans simply don't give a shit about the conditions of our prisons.

It would be more correct to say Americans tend to actively view inhumane conditions in prison as a feature, with prisons occasionally draw criticism if they are too nice.

The plain and ordinary meaning of ‘cruel and unusual punishment’ doesn’t seem to apply to ‘shithole prisons’. If we look at the 18th century, it’s pretty clear what’s being referred to- gibetting, drawing and quartering, burning at the stake, and other European means of deliberately cruel public executions that were largely reserved for treason, sorcery, piracy, and religious offenses. Indeed, that would fit well indeed with the constitutional focus on preventing Americans being punished for…. Treason and religious offenses.

Prohibitions against public executions by torture were in the 18th century very necessary, but the reasoning was more to do with not marking out special institutions, crimes against which being very disproportionate retribution. And that’s a reasonable thing to prohibit that still needs to be prohibited. In the 18th century it was commonly understood that some crimes were worse because the dignity of the victim- by virtue of being a nobleman, religious official, whatever- was inviolable, and that such crimes should bring disproportionate retribution because of that dignity. That’s the context behind the 8th amendment as written.

I leave as an exercise for the reader whether hate crime laws violate that today.

That is rather the point, I suspect, for its proponents.

I don’t see anything in the ensuing paragraphs that would narrow this meaningfully, although I welcome input from anyone with a sharper legal eye than I have.

Well, the text you quotes authorizes such waivers as are authorized by paragraph (2), so let's look at paragraph (2):


(2) ACTIONS AUTHORIZED.—The Secretary is authorized to

waive or modify any provision described in paragraph (1) as

may be necessary to ensure that—

And then a number of things that can be ensured is listed, but the most relevant seems to be the first, item (A):


(A) recipients of student financial assistance under

title IV of the Act who are affected individuals are not

placed in a worse position financially in relation to that

financial assistance because of their status as affected

individuals;

Ok, so this seems to allow that a waiver can be made to make it so that an "affected individual" is not made financially worse off by virtue of being an "affected individual". This leads to the obvious question, who is an affected individual? Helpfully, the statute tells us in Sec 5:


(2) AFFECTED INDIVIDUAL.—The term ‘‘affected individual’’

means an individual who—

(A) is serving on active duty during a war or other

military operation or national emergency;

Doesn't apply to ordinary borrowers.


(B) is performing qualifying National Guard duty

during a war or other military operation or national emergency;

Doesn't apply to civilian borrowers.


(C) resides or is employed in an area that is declared

a disaster area by any Federal, State, or local official

in connection with a national emergency; or

To my knowledge, this did not happen, i.e. the entire country was not declared a disaster area, so does not apply.


(D) suffered direct economic hardship as a direct result

of a war or other military operation or national emergency,

as determined by the Secretary.

This would be the one to hang your hat on, but would seem to require, at least, some demonstration that the borrowers suffered direct economic hardship as a direct result of the national Covid emergency. Linking economic hardship to COVID-related employment problems is a possibility, but that's not terribly "direct", particularly since forbearance was already granted. And, this would not seem to obviously not apply to relief granted to borrowers who remained employed throughout.

So, I would disagree that the law clearly and unambiguously grants the Secretary this authority.

Why doesn’t (c) apply? I thought we did declare COVID a national emergency. Regardless could this be fixed by executive order if Biden just officially declared COVID a national emergency.

Obvious that’s the issue with the bill - declare a national emergency. Gain unlimited power.

(c) requires a "disaster area" declaration in connection with a national emergency, which is a different thing with different consequences.

"The whole damn country is a disaster area" would be a fun thing to see the Biden team argue though...

Obvious that’s the issue with the bill - declare a national emergency. Gain unlimited power.

You sweet summer child; the country has been under multiple continuous states of emergency for decades. Technically we're still under the state of emergency declared by Jimmy Carter over the Iranian Hostage Crisis.

The Congressional Research Service prepared a Report in 2019. Take a look.

The part saying "as determined by the Secretary" is pretty clear on who should be deciding who is directly impacted though. The law may be unconstituional but I think your own analysis shows it does unambiguously grant the Secretary that power.

Who do you have to demonstrate a direct hardship to? The Secretary. Who decides what criteria to use? The Secretary.

Judges are perfectly able to second guess the judgment of Executive Officials. That's a big part of what judicial review is. If the Secretary made no serious effort to ensure beneficiaries of the program actually 'suffered direct economic hardship as a direct result of a war or other military operation or national emergency', the judiciary is perfectly empowered to say, "You acted unconstitutionally".

The ordinary rules of statutory construction would say that the statutory language should be interpreted as much as possible to not contain superfluous provisions. If we take the last provision, as you mention, and interpret that to mean that the Secretary has unlimited latitude to make the determination as to who is or is not an "affected person", then that renders the provisions about direct economic harm superfluous. Therefore I think a more reasonable interpretation would be that within the pool of people that actually meet those statutory requirements, the Secretary may determine who is eligible for relief. Not that the Secretary may, by their own discretion, dispense with the other statutory requirements.

then that renders the provisions about direct economic harm superfluous.

No it just specifies who gets to decide who has suffered economic harm. It specifically does not attempt to define what direct economic harm might be, just farms it out to the secretary. If the Secretary said these people did not suffer economic harm but I will still forgive their debt, he does not fulfill the law.

I agree that it allows a Secretary to act in bad faith and pretend they think some people are directly harmed, which is why I would not have written the law like that.

It is not clear to me why the "intent" of the people who enacted the laws is of any relevance, or even how such an "intent" could be discerned, or how you would even prove the whole set of lawmakers were of one uniform "intent" in passing the law. What if some of the lawmakers who voted for the HEROES act did intend it be used in situations like this? As the late great Antonin Scalia wrote:

Well, they owe [fidelity to the text], first of all, because we are governed by what the legislators enacted, not by the purposes they had in mind. When what they enacted diverges from what the intended, it is the former that controls.

But secondly, even if you think that our laws mean not what the legislature enacted but what the legislators intended, there is no way to tell what they intended except the text. Nothing but the text has received the approval of the majority of the legislature and of the President, assuming that he signed it rather than vetoed it and had it passed over his veto. Nothing but the text reflects the legislature's full purpose.

...

We are governed by the laws that the Members of Congress enact, not their unenacted intentions. And if they said "up" when they meant "down" and you could prove by the testimony of 100 bishops that that's what they meant, I would still say, too bad. Again, we are governed by laws, and what the law says is what the laws mean.

As to the Major Questions Doctrine, it seems about as blatant a judicial power grab as any in the Supreme Court's history.

As to the Major Questions Doctrine, it seems about as blatant a judicial power grab as any in the Supreme Court's history.

I understand it adds ambiguity, but a half-trillion-dollar bailout to the white-collar class under the veneer of a 9/11 bill isn't the best place to make the stand that it's a dumb concept.

As to the Major Questions Doctrine, it seems about as blatant a judicial power grab as any in the Supreme Court's history.

As the late great Antonin Scalia wrote:

“Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions — it does not, one might say, hide elephants in mouseholes.”

Scalia's commitment to the idea that the text means what it pretty obviously just means, and not some twisted thing to allow all sorts of absurd results, was a large part of the 'judicial power grab' that is the Major Questions Doctrine.

EDIT: Basically right on cue.

There is no consistent theory of interpretation the Supreme Court could adopt without issuing a ruling that says, “Huh, turns out the United States Government has been running illegally for the past X years,” at which point they either need to:

a. Issue from the bench a compliance plan outlining steps each government entity must take to be brought into accordance with the Constitution.

b. Functionally dissolve the government.

c. Make an official declaration of “fuck it”, overrule Marbury vs Madison, declare all pending issues moot, and go back to hearing admiralty appeals or something.

There are no good options here.

My inner Ron Swanson is giddy about b.

I mean, to be fair the government doesn’t violate the constitution under the ‘living document’ interpretation because there’s nothing to violate.

That would be equivalent to option c.

In reality, they function as a 9-man supercongress, bound by no restraints other than their own free will and what they can get away with.

what they can get away with.

In practice this is every branch of government. Words on paper (even if that paper is the constitution) do nothing to stop anyone from doing anything. Rather they give other people pretexts and justifications to stop each other.

So in reality, Congress, the executive branch, and literally everyone on earth are in fact "bound by no restraints other than their own free will and what they can get away with."

The Major Questions doctrine seems entirely correct. If the executive branch is allowed to interpret laws however they please, there is really no point for either of the other two branches.

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