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naraburns  nihil supernum  1yr ago (text post)   32932 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?

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.

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