Giving it away

I subscribe to alerts from services including the Associated Press, the New York Times, Axios, Politico, and Semafor. Every one of them agrees that yesterday’s oral argument in Biden v. Nebraska portended difficulties for President Biden’s $500 billion student loan giveaway. I listened to the oral argument on C-SPAN and have posted it below. I hope they have it right. Biden’s royal decree (via Secretary of Education Miguel Cardona) canceling the repayment obligations of millions of borrowers should be an impeachable offense. It is blatantly inconsistent with the text and tenor of the Constitution.

Listening to the oral argument, however, I offer these observations. Solicitor General Elizabeth Prelogar is a formidable advocate. She did an excellent job on behalf of the Biden administration. I’m not sure she didn’t have the better of the argument on the two issues raised in the Nebraska case. She hammered on the state of Missouri’s lack of standing to contest the legality of Cardona’s giveaway plan and on the broad authority granted by Congress to the Secretary of Education to do what he has done.

Nebraska Solicitor General James Campbell argued the case for respondents. He argued that the state of Missouri’s has standing to press the claim of illegality. The state of Missouri claims standing based on the direct impact of the loan giveaway order on MOHELA, Missouri’s Higher Education Loan Authority, and the resulting secondary impact on the state itself. MOHELA is a separately incorporated state entity. Why wasn’t it asserting the claim on its own behalf? That was a difficult question for Campbell to answer. In my view the standing argument advanced on behalf of Missouri is tenuous (and Missouri’s standing argument is the strongest in the case).

In his student loan giveaway plan Cardona purported to exercise the authority delegated by Congress in the post-9/11 HEROES Act of 2003 to “waive or modify any statutory or regulatory provision applicable” to federal student loan programs. The statute authorizes the Secretary of Education to take such action if “a national emergency” causes student borrowers to be “placed in a worse position financially.”

The Department of Justice Office of Legal Counsel set forth its strained analysis in a 25-page memorandum that is posted online here. Former Reps. John Kline and Buck McKeon set forth the background of the act in their amicus brief.

The argument advanced by the Biden administration isn’t exactly a joke. Based on the applicable statutory language, it is plausible in its own way — perhaps in a Pickwickian sense. The statute grants the secretary broad powers in case of a national emergency. The government turned the pandemic into an emergency of a kind. Hey, what’s the problem?

If a majority of the Court rules reaches the merits of the case and rules against the Biden administration, the Court will draw on its “major questions doctrine.” As the Congressional Research Service puts it in the linked backgrounder:

In a handful of cases involving a challenge to agency actions, the Supreme Court has rejected agency claims of regulatory authority under the major questions doctrine when (1) the underlying claim of authority concerns an issue of “vast ‘economic and political significance,’” and (2) Congress has not clearly empowered the agency.

That is certainly the case here.

I came away from the oral argument with the painfully obvious thought that Congress should never delegate its authority to the executive branch. If that is impossible, it should only do so in a highly specific manner. Otherwise the authority is sure to be abused, as in this case.

I pass over the argument in the other student loan giveaway case heard by the Court yesterday. The other case doesn’t cut it. If the Court doesn’t cut the administration off at the pass in Biden v. Nebraska, it’s not going to happen.

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