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Notes -
Supreme Court strikes down Biden’s student loan forgiveness plan:
The amusing thing here to me is that we got two major SCOTUS rulings in two days that are, on the face of it, not directly related to each other in any obvious way (besides the fact that they both deal with the university system). One could conceivably support one ruling and oppose the other. The types of legal arguments used in both cases are certainly different. And yet we all know that the degree of correlation among the two issues is very high. If you support one of the rulings, you're very likely to support the other, and vice versa.
The question for the floor is: why the high degree of correlation? Is there an underlying principle at work here that explains both positions (opposition to AA plus opposition to debt relief) that doesn't just reduce to bare economic or racial interest? The group identity angle is obvious. AA tends to benefit blacks and Hispanics at the expense of whites and Asians. Student debt relief benefits the poorer half of the social ladder at the expense of the richer half of the social ladder. Whites and Asians tend to be richer than blacks and Hispanics. So, given a choice of "do you want a better chance of your kids getting into college, and do you also not want your tax dollars going to people who couldn't pay off their student loans", people would understandably answer "yes" to both - assuming you’re in the appropriate group and that is indeed the bargain that’s being offered to you. But perhaps that's uncharitable. Which is why I'm asking for alternative models.
Yes. The conservatives on the court thing that the government should adhere to the constitution more strictly than the liberals on the court.
I got what I wanted out of the student loan decision, but I don't understand how you can read the opinion and dissent and come away with the impression that it was decided on strict constitutionalism.
While the majority rests it not on constitutionalism but their textual interpretation of the statue, they do cite the major questions doctrine to buttress their opinion.
Barrett gives an interesting but I think ultimately wrong concurrence. I do think the major questions doctrine is a variant of constitutional avoidance substantive canon. It is a second best resuscitation of the ancient but sadly neglected non delegation doctrine.
I think any purported grant of authority to the secretary to unilaterally without any APA strictures and without review of his or her decision abolish student loans whenever there is an emergency is such an extreme delegation that it may not pass constitutional muster. The major questions doctrine instead of confronting that issue head on says “we are going to make a congress be very explicit about this delegation so we will let them ultimately do it but only if we are sure Congress really wants to delegate that authority.”
I think any reasonable reading of the HEREOS act leads to that outcome.
Standing is a different matter, but I think our standing jurisprudence is all fucked; it allows law suits in situations it shouldn’t and doesn’t in others. Any situation where a taxpayer is alleging something is ultra vires should result in standing. At minimum, any congressmen should have standing.
I appreciate your sentiment on standing, but can’t help but think of the Public Citizens review. Is it right to empower everyone, all the time, with a pull-cord to halt the government?
…maybe, especially for hardline minarchists. But it’s not very practical, and it’s definitely not what the founders intended. Legal systems depend on skin in the game, and I’m not sure merely being a citizen is enough.
Well, the private law has it in derivative law suits so they manage.
I’m talking about ultra vires actions; not any action done by the government (of which the vast majority are clearly not ultra vires. I would cabin standing where the action at hand is not being challenged on ultra vires grounds but on the application therefore to real harms with real skin in the game; not the sierra club.
So I don’t think my view of standing fundamentally would overwhelm the court system but would shift what is brought.
As a second best, I would allow any congressmen to sue at any time on an ultra vires theory.
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