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naraburns  nihil supernum  1yr ago (text post)   32946 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?

Rather it is an old school common law incrementialist system. In that philosophy, the basic rule of thumb is that big things shouldn't be done outside of the proper channels, and any sort of game playing is strongly disfavored.

Perhaps I don't understand the Canadian system well, but doesn't this just rely on people to be on their best behavior? What, other than Canadian manners, is keeping people in line here?

These protections didn't prevent the government from running roughshod over civil liberties during the pandemic. They even invoked the Emergency Act during the trucker convoy protests.

Canada's dismal human rights record during the pandemic would definitely give me pause before endorsing such a system.

the use of the Act has been subject to judicial review, as well as a really detailed formal inquiry by a judge of the Ontario Court of Appeal.

Have you read the document? Do you have a frame of reference by which to judge the document? Say, have you read IG reports in the US following potential scandals? This report is an utter whitewash, by any reasonable standard. I mean, the amount of times they hold on to

“ongoing economic losses of 0.1 – 0.2% of gross domestic product for every week the blockades continue,"

as if the COVID restrictions weren't causing multiples of that. The pains they go through to say, "We're not a court; it's not really our job to say whether it's legal or not." The frankly ridiculous straining to try to claim "concerns" of "serious violence" (the latter being what the test required; the former being the barest shred of what they had).

"There was also a risk of violence arising from counter protests."

A pure heckler's veto. Egads, this document is enough to make me tear my remaining hair out! Wait... that would be serious violence! EMERGENCY! Your bank account is now frozen.

"CSIS and ITAC had also advised of the risk that a lone wolf actor, inspired by the IMVE elements at the protests, might conduct an attack against soft targets such as opposition groups or members of the public, and that lone wolf actors are very difficult to detect and predict."

Not pre-crime. Not stochastic terrorism. The fact that we can mouth the words "stochastic terrorism" and then decry the fact that we can't identify pre-crime is sufficient to declare "serious violence" and an emergency in Canada.

Make no mistake, random ass-comments on the internet are a sufficient "threat of serious violence" in Canada to suspend civil liberties even further than they had already gone just because of COVID. Of course, this is only the case if such a thing is in the interest of The Party; it will not be suitable for any opposition. One day, you may find yourself opposing The Party on some issue. You might think that it's minor, that reasonable minds might disagree. You might even join a little happy protest; you and your people have a long history of gaining political victories by mostly peaceful protest. But they will find every single disconnected shred of stochastic possible danger in the entire panopticon, and not a single one of your rights will be vindicated, given the 'emergency' that you present.

as if the COVID restrictions weren't causing multiples of that

These aren't analogous. Saying that 'the government has a legitimate interest in taking X action because of the problems caused by Y event' does not imply that the government can't take any action that might cause a problem similar to that one. The court was allowing a government action to go ahead, not attempting to prevent it as it would have been had it taken issue with Covid restrictions'.

I mean, it's not even actually legally important, because the test was about "serious violence", not about some level of economic damage. It's just that this particular report jumps back to this measure of economic damage multiple times as if it's some form of evidence of "violence". It's a total red herring in the report that just detracts from its credibility.

does not imply that the government can't take any action that might cause a problem similar to that one

I don't think I claimed this. Instead, it's just peak hypocrisy. Government does action A, which causes damage B. People protest A, and their protest causes damage epsilon*B, with epsilon<1. Now, suddenly, anything that causes damage on the level of epsilon*B is an emergency suitable to suspend civil liberties. By that reasoning, action A, itself, should have created an emergency that was suitable to suspend the civil liberties of the politicians, for they had caused far greater damage.

The court was allowing a government action to go ahead

I mean, not really. This isn't a court. They aren't allowing an action to go ahead. The action was already done and over. This is just an ass-covering commission to say, "If we stretch suuuuuuuuper hard and bend every test in a way that is maximally favorable to the government, allowing things like heckler's vetos and stochastic pre-crime, mayyyyyyyybe that stuff the government did in the past miiiiiight have been okay."

By that reasoning, action A, itself, should have created an emergency that was suitable to suspend the civil liberties of the politicians, for they had caused far greater damage.

What? You seem to be implying that the exact same strictures should exist on government action and on private action. As I said, that the government took an action that caused B doesn't imply ordinary citizens can also cause B with impunity.

You seem to be implying that the exact same strictures should exist on government action and on private action.

To be clear, I am not. Especially not as a legal matter. As a public perception matter, their justification shows immense hypocrisy.

Completely separate from that is the legal matter of "serious violence", which is horribly ill-supported in this document, to the crazy extent of stochastic pre-crime.

More comments

Americans simply don't give a shit about the conditions of our prisons.

It would be more correct to say Americans tend to actively view inhumane conditions in prison as a feature, with prisons occasionally draw criticism if they are too nice.

The plain and ordinary meaning of ‘cruel and unusual punishment’ doesn’t seem to apply to ‘shithole prisons’. If we look at the 18th century, it’s pretty clear what’s being referred to- gibetting, drawing and quartering, burning at the stake, and other European means of deliberately cruel public executions that were largely reserved for treason, sorcery, piracy, and religious offenses. Indeed, that would fit well indeed with the constitutional focus on preventing Americans being punished for…. Treason and religious offenses.

Prohibitions against public executions by torture were in the 18th century very necessary, but the reasoning was more to do with not marking out special institutions, crimes against which being very disproportionate retribution. And that’s a reasonable thing to prohibit that still needs to be prohibited. In the 18th century it was commonly understood that some crimes were worse because the dignity of the victim- by virtue of being a nobleman, religious official, whatever- was inviolable, and that such crimes should bring disproportionate retribution because of that dignity. That’s the context behind the 8th amendment as written.

I leave as an exercise for the reader whether hate crime laws violate that today.

That is rather the point, I suspect, for its proponents.

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