site banner
naraburns  nihil supernum  1yr ago (text post)   32927 thread views

Culture War Roundup for the week of February 27, 2023

This weekly roundup thread is intended for all culture war posts. 'Culture war' is vaguely defined, but it basically means controversial issues that fall along set tribal lines. Arguments over culture war issues generate a lot of heat and little light, and few deeply entrenched people ever change their minds. This thread is for voicing opinions and analyzing the state of the discussion while trying to optimize for light over heat.

Optimistically, we think that engaging with people you disagree with is worth your time, and so is being nice! Pessimistically, there are many dynamics that can lead discussions on Culture War topics to become unproductive. There's a human tendency to divide along tribal lines, praising your ingroup and vilifying your outgroup - and if you think you find it easy to criticize your ingroup, then it may be that your outgroup is not who you think it is. Extremists with opposing positions can feed off each other, highlighting each other's worst points to justify their own angry rhetoric, which becomes in turn a new example of bad behavior for the other side to highlight.

We would like to avoid these negative dynamics. Accordingly, we ask that you do not use this thread for waging the Culture War. Examples of waging the Culture War:

  • Shaming.

  • Attempting to 'build consensus' or enforce ideological conformity.

  • Making sweeping generalizations to vilify a group you dislike.

  • Recruiting for a cause.

  • Posting links that could be summarized as 'Boo outgroup!' Basically, if your content is 'Can you believe what Those People did this week?' then you should either refrain from posting, or do some very patient work to contextualize and/or steel-man the relevant viewpoint.

In general, you should argue to understand, not to win. This thread is not territory to be claimed by one group or another; indeed, the aim is to have many different viewpoints represented here. Thus, we also ask that you follow some guidelines:

  • Speak plainly. Avoid sarcasm and mockery. When disagreeing with someone, state your objections explicitly.

  • Be as precise and charitable as you can. Don't paraphrase unflatteringly.

  • Don't imply that someone said something they did not say, even if you think it follows from what they said.

  • Write like everyone is reading and you want them to be included in the discussion.

On an ad hoc basis, the mods will try to compile a list of the best posts/comments from the previous week, posted in Quality Contribution threads and archived at /r/TheThread. You may nominate a comment for this list by clicking on 'report' at the bottom of the post and typing 'Actually a quality contribution' as the report reason.

10
Top Bottom Old Controversial Comments
Jump in the discussion.

No email address required.

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 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.

What is this place?

This website is a place for people who want to move past shady thinking and test their ideas in a court of people who don't all share the same biases. Our goal is to optimize for light, not heat; this is a group effort, and all commentators are asked to do their part.

The weekly Culture War threads host the most controversial topics and are the most visible aspect of The Motte. However, many other topics are appropriate here. We encourage people to post anything related to science, politics, or philosophy; if in doubt, post!

Check out The Vault for an archive of old quality posts. You are encouraged to crosspost these elsewhere.


Why are you called The Motte?

A motte is a stone keep on a raised earthwork common in early medieval fortifications. More pertinently, it's an element in a rhetorical move called a "Motte-and-Bailey", originally identified by philosopher Nicholas Shackel. It describes the tendency in discourse for people to move from a controversial but high value claim to a defensible but less exciting one upon any resistance to the former. He likens this to the medieval fortification, where a desirable land (the bailey) is abandoned when in danger for the more easily defended motte. In Shackel's words, "The Motte represents the defensible but undesired propositions to which one retreats when hard pressed."

On The Motte, always attempt to remain inside your defensible territory, even if you are not being pressed.


New post guidelines

If you're posting something that isn't related to the culture war, we encourage you to post a thread for it. A submission statement is highly appreciated, but isn't necessary for text posts or links to largely-text posts such as blogs or news articles; if we're unsure of the value of your post, we might remove it until you add a submission statement. A submission statement is required for non-text sources (videos, podcasts, images).

Culture war posts go in the culture war thread; all links must either include a submission statement or significant commentary. Bare links without those will be removed.

If in doubt, please post it!


Rules


Recommended Posts And Communities

Recommended Realtime Chats