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naraburns  nihil supernum  2yr ago (text post)   33742 thread views

Culture War Roundup for the week of February 27, 2023

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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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