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naraburns  nihil supernum  1yr ago (text post)   32947 thread views

Culture War Roundup for the week of February 27, 2023

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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.

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