EDITORIAL
This may startle some of our more conservative readers, but I’m actually in agreement with the dissenting opinion in Biden v. Nebraska, the recent 6-3 decision that struck down the Administration’s student loan forgiveness program.
I’ve got a bone to pick with Biden on this, mind you. It’s clearly Presidential overreach, a cash giveaway that, if the Court hadn’t stopped it, Congress would have. Since he obviously knew this going into it, that makes it a stunt to get votes — and a particularly cruel one, since an awful lot of people out there are very deeply in debt during what anyone but a Boomer would have to admit are some of the worst economic times since the Depression.
BUT. Kagan, Sotomayor, and Jackson are in the right, and the other six Justices in the wrong.
Let’s start with the technicality: Standing. As Roberts is the first to admit — and, indeed, states overtly — standing is everything. It is plainly evident that MOHELA, as an injured party, would have had standing to pursue the case. However, it’s an independent corporation, not a part of the budget of the State of Missouri. It had the ability and authority to engage in the legal battle on its own behalf, and did not. Thus, it’s reasonable to dispute that Missouri had the standing to contest. Since that’s the case, I’m compelled to disagree with Roberts in his statement that the standing of the other states required no exploration. Frankly, if that’s the best argument for standing, they were scraping the bottom of that barrel hard enough to touch mud.
However, since the decision has been made, it’s unlikely this part of it will ever again be explored. To overturn something generally requires an objection of substance, not of procedure. So let’s move on to substance.
The finding of the Court is that the HEROES Act doesn’t delegate full authority to eliminate loans on a wholesale basis to the Secretary of Education. A reading of the act in question, however, makes it plain that, in fact, that’s precisely what it does do. The language is rather clear. In a war or national emergency, the Secretary pretty much has carte blanche, so long as the action is taken to deal with the emergency. And, like it or not, Congress declared COVID an emergency.
For those who would object that this is not the emergency that Congress intended… yeah, you’re right. On the other hand, we’re presently engaged in something like twenty-one different States of Emergency all at once, some of which have been going on for rather a long time. The definition of the word “emergency” has been put under a great deal of strain by this, and I very much fear that it may never be the same. Evidently, “something we don’t much like but don’t care enough about to draft legislation about, and that’s going to be the way of things pretty much forever” now qualifies as an emergency. We’ll be sending ambulances around in the afternoons with cups of tea next, I shouldn’t wonder.
The point (I suppose I should bring us back to the point) is that, if Congress didn’t mean this sort of emergency, they probably ought to have said so when they drafted the legislation. And they did not.
Now, Barrett (of all people — I know; I was as shocked as anyone) raises a good point about that: In the bill that contained the HEROES Act, the purpose of it was made quite clear in the introduction. This is what I meant earlier about Presidential overreach; the act was never intended to permit something like this. I’m actually not surprised Congress didn’t consider someone might attempt it, to be honest; given the fiscal cliff we’re presently sliding over, the thought of giving back half a trillion dollars in potential revenue when we’re looking at some fifty trillion in approaching debt is patently insane.
But the wording is on the side of Biden, crazy though his position may be. Even Barrett doesn’t dispute that, though her grounds for disagreement based on the intent of the law are reasonable and, indeed, quite arguable. The simple truth of the matter is that, as usual, Congress wrote a law poorly.
Roberts said only one day before, in Students v. Harvard, “We understand the dissents want that law to be different. They are entitled to that desire.” In this case, I can understand how the Court wants the law to be different — but it’s not, and as originalists, they should be the last people to use SCOTUS to legislate.
Having said that, it’s evident that Biden never actually expected this massive cash giveaway to take place. It was an obvious stunt, a way for him to say with a straight face, “If you give me 60 Senators and control of the House, I can finally fix things.” The honest truth of the matter, however, is that nothing shy of a major miracle can actually do that. We’re over the edge of the fiscal cliff right now. The only question remaining is, what happens after the crash, when there’s more Americans collecting Social Security (which still pays for itself) and Medicare (which doesn’t come near) than are paying in?
Unfortunately, you and I are about to face that dismal truth. And who you vote for? Won’t matter worth spit.
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