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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:
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:
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:
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?
I can understand the opposition to student loan forgiveness, but I think it would be possible to achieve the same goals in a way that would seem (to me at least) a bit more just - and that is to make sure that the universities and colleges which took in all of this money pay the price. I find it hard to get too angry at people who fell for what is essentially a scam when they took what was actually a fairly rational action at the time.
I think that student loans shouldn't be forgiven, but instead transferred to the colleges and universities that handed out those dud loans. That's where the real anti-social behaviour is, especially when institutions like Harvard have utterly obscene endowments. If a university or college took an extraordinary amount of money in exchange for giving someone a worthless education, they should absolutely pay the price. You'd need to have some checks and balances, but leaving higher education bodies responsible for non-performing student loan debt would give them skin in the game and align their incentives. Forcing them to carefully decide whether a given loan would actually be paid off would have all kinds of positive consequences. It would have a lot of negative consequences for my opponents in the culture war, but that's a price I'd be willing to pay.
Can we really not treat 18 year olds like adults? I'm quite warry of establishing that Americans are incapable of making even basic financial decisions. Let future loans be discharged in bankruptcy and have the lenders step in in their own interest against bad loans if you need a guardrail.
You've hit the nail on the head. The perverse incentives comes from the combination of the loan not being dischargeable by bankruptcy and the government guaranteeing it. Without those, lenders would have be diligent about to whom they loaned and how much. It wouldn't matter if the university wants to do away with the SAT or ACT because the lender would require it. How we would move to a system like this is nearly unimaginable to me at this point with all of the vested interests feeding off of the tit of the student loan program, but I feel we're at an inflection point where something must be done.
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Somebody falling for a scam does not make that scam morally acceptable. If I make all sorts of medical claims about my special proprietary snake oil, and some people actually experience placebo benefits from it, that doesn't prevent me from being a scam artist. The behaviour that these universities/colleges engaged in is absolutely deserving of censure - and at the very least they shouldn't receive extra financial privileges like they do currently. If you want to talk about treating 18 year olds like adults, we should also treat the people who made the terrible decision to loan them money like adults and retroactively remove the inability to discharge those debts through bankruptcy.
And yes I understand that all of these ideas are bad for academia - but that's what happens when you stop being academia and start fighting in the culture war.
I would like to burn the academy to the ground so I'm not offended by things being bad for them. But the rot here starts at guaranteeing the loans in the first place. The schools didn't lie about the degrees, they were real degrees, if they promised job opportunities then they should be punished for that, but I don't really think that's the case.
We interfered with the free market and once again it backfired spectacularly, if this hurts scumbag academia as well then good, but my focus is on the habit we have of trying to subvert the market and being shocked(shocked!) when our meddling burns us. It's very important we stop doing this.
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I would even find it okay to let current loans be dischargeable in bankruptcy. Maybe you could have some kind of federal support. Changing that incentive seems key to the whole extortion.
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I'm generally favor of that as well; the problem, though, is that student loans are Federally guaranteed, so any successful discharges would have to get picked up by the government as opposed to eaten by the creditor. The other issue is that when you limit it to a certain dollar amount per borrower it makes it relatively easy to do the math. With bankruptcy you'd have to estimate the dollar value of student loan debt people who filed anyway, plus an additional estimate of the additional filers the dischargeability would attract. Then you have banks who wouldn't like it anyway because these "student loan bankruptcies", by which I mean people filing because of student loans who wouldn't otherwise file, would drag in all kinds of other debts that they would have to eat. One final thing I just thought of is that the moment congress considered making bankruptcy debt dischargeable (I mean seriously considered, as in legislation that has a chance of passing, not one legislator's proposal) it would throw all us attorneys for a loop because now we'd have to advise every client with student loan debt about the possibility of it becoming dischargeable in the near future and have discussion about whether it's prudent to wait. It would also be immediately viewed as unfair by anyone who recently filed before this was an option (and now has to wait 8 years before filing again), though I suspect a long enough lead time would mitigate this.
I think it's much easier if we don't do anything about current loans but just stop making them bankruptcy proof and federally guaranteed in the future. That won't cause any problems
I'd rather it start with 10% dischargeable and then work up to 50% over the course of a decade or so. (with the amount discharged transferred as debt or as reductions caps on annual grants to the given institution the discharged debt came from). 100% dischargeable makes a masters in theater more appealing not less.
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On one hand, I agree that we have to draw the line somewhere for adulthood. The infantilization of progressively older people in the western world is nothing short of insane.
On the other, I consider myself a reasonably pragmatic and intelligent guy. I made some pretty fucking stupid college/financial decisions. It's impossible to understand what money is worth and what role college actually plays until you make more than $10/hour and are about halfway through your sophomore year.
The pricks who doubled down on worthless graduate or doctorate degrees I consider to be unforgivable losers who deserve to pay every penny of their debt. Undergrads who fucked up and went to a school with a pretty campus for a mediocre degree.... it just seems too plausible that this is some dumb mistake that shouldn't cost $40k +.
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