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naraburns  nihil supernum  1yr ago (text post)   33001 thread views

Culture War Roundup for the week of February 27, 2023

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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.

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