Earlier this morning I said there were two recent Supreme Court cases that left me conflicted. One of them was the decision that killed off the student loan forgiveness program, so let's take a closer look at that. The easiest legal argument in favor of allowing the program to continue is a simple syllogism:
- The HEROES Act says the Secretary of Education may waive or modify "any" statutory provision of the student loan law.
- Terms of repayment are a statutory provision of the student loan law.
- Therefore, the secretary may waive repayment.
This is black letter law. What possible reason can there be for ignoring it? This leads us to the meaning of "waive or modify" and the question of just how expansive it is. Here, I think the majority opinion has a point when it says:
What the Secretary has actually done is draft a new section of the Education Act from scratch by “waiving” provisions root and branch and then filling the empty space with radically new text.
What is the limiting principle here? Could the Secretary literally abolish all payment of all student loans? Could he abolish all future payments too and essentially turn student loans into unrestricted grants? Could he refund all previous loan payments? For that matter, what stops him from abolishing the loans and then giving everyone $50,000 free and clear to make up for the hardship they've been caused in the past?
I know: this is ridiculous. And yet, the law contains no explicit limit on the Secretary's power, which means there must be an implicit one. But what?
There is now no further to go. The law is silent. As happens so often, Congress wrote some hazy statutory language without giving much thought to what it really meant or how much power they were giving up. So interpreting it becomes, literally, nothing more than a matter of opinion. The Court is forced to take a flyer at some kind of reasonable guess about how far Congress intended to go and what common sense implies.
It's possible the majority is mistaken. Their view might be too cramped. But before the loan forgiveness program was put in place, an awful lot of people—liberals and conservatives alike—thought it couldn't be implemented via executive order because that would have gone beyond the likely intent of Congress when it passed the HEROES Act. It's a close call, but it's hardly unreasonable to think the Court ended up on the right side of it.
Okay, but what is the limiting principle here for the Supreme Court? Did the majority articulate a clearer standard (to my knowledge they did not) and if so, what is it?
Doesn't this decision fit more reasonably with numerous other recent decisions in which the Court has acted as its own (and unaccountable) super-legislature?
Exactly.
“the law contains no explicit limit on the Secretary's power, which means there must be an implicit one”
this makes no sense. why must there be an implied limit? Congress wrote the law with no limit, so there’s no limit. If they’d like to add one, they can, but either the law says what it says, or the law is a game of Calvinball and I’m declaring myself god-emperor.
+1
Yep. And not only that Congress extended the law 3 times after initial passage, finally in 2007 eliminating any expiration. They had plenty of opportunity to revise it if they wanted to. They didn't.
This whole "I can't believe Congress meant what it said" school of legal interpretation is first class bullshit.
I guess just to play devil's advocate, on the flip side of this, is there any reason that Congress can't pass a statue explicitly giving the power to the executive branch of forgiving the loans completely if that truly was Congress' intent?
see, that’s the rabbit hole, poking around in “legislative intent.” don’t. the law means what it says, or it’s meaningless. if we have to ponder what Congress intended or what the founders meant, then we may as well consult the I Ching. Congress gave the secretary of education a lot of discretion. if that was an oopsie, then they can undo it with a different set of words. but either words mean things or they don’t.
Non delegation principal.
Congress cannot February it's legislative powers. That is established law.
Clearly, in practice, the limiting factor is whatever five justices decide.
If you remove politics for a moment (impossible I know), I will admit being surprised that this issue did not get real airtime. It seems clear, the HEROES Act intent was to support folks, such as soldiers, HURT by military service/deployed.
My point, COVID certainty hurt many people economically but not everyone. Some people actually economically benefited from COVID.
Seems like linking the debt relief to the original intent of the law MIGHT (realistically it probably would not matter) have enhanced the moral and legal case.
Note, items such as rental relief were generally tied to economic impact/hurt by COVID to qualify: with that said the eviction moratorium applied to everyone.
but that isn’t what the law says. if Congress meant to limit it to veterans or some other group, then they could have written it that way, or they could change it now. but at a certain point, text has to mean something, if we’re a nation of laws.
On the whole, I agree with masscommons. But I’d also point out that there needn’t be any “implicit” limiting principle to be applied. The language is clear that the discretion of the executive branch is not limited and it’s just as rational to assume that congress desired that as it is to assume (as both Kevin and the republicans on the court did) that is unsatisfactory and that no such grant of power should be allowed.
The statue says what it says. If congress is dissatisfied, it can amend the statute to limit the administration’s discretion. What the republicans on the court are doing is simply substituting their policy preferences for those of the elected branches of government.
+1
Mitch Guthman - I suspect, if your standard is applied, that you would be opening pandora's box with dangerous ends.
The US has LOTS of legislation in place/never repealed. Certainty, as we recently saw with the Comstock Act, there is Federal legislation in place, that could be repurposed by both parties with very partisan ends. I will leave it to others to come up with a better example, but I am sure the Federalist Society would love running with your concept...
"The US has LOTS of legislation in place/never repealed."
Well, of course. We're a huge country that has been around for the better part of three centuries. That doesn't mean that a court should ever be saying "Well, Congress sure is busy--they probably haven't had a chance to change this law, so I'll just do it for them."
And the law in question here isn't some hoary old anachronism from the 19th century; it was an act of congress repeatedly reauthorized and then made permanent in 2007. Three of the justices who ruled here were already on the court then (with one of them having been on the court for *sixteen years*).
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Kevin has completely accepted the radicalized courts move to become the Supreme Legislature and Supreme Executive Branch.
As Kevin tells it, the court no longer has to interpret the text of the law. Instead, the correct approach is to first decide whether or not you like the current or potential future uses of the law. If you dont like those uses or any imagined uses, you can ignore the actual language of the law and make up new language to achieve the outcomes you want based on your own opinion.
This is a crazy, radical expansion of the courts power. But Kevins all in. If you can imagine an outcome that you don't like, just substitute your opinion for the actual language of the law. Its easy.
This isn't far off from how the "major questions" doctrine works, and yeah, it's pretty awful.
It's worth recalling that the last time we had a 6-3 conservative majority on the court was 100 years ago, and that court busied themselves with things like striking down laws prohibiting 15-hour workdays and federal legislation to forbid (or just discourage!) child labor. So there's a lot of crazy coming our way.
The partial saving grace might just be the bandwidth of the Court--they can only take so many cases a year.
Kagan's dissent cites a portion of the original law which the majority opinion seems to ignore:
"(b) Notice of Waivers or Modifications.--
(1) In general.--Notwithstanding <> section 437 of the General Education Provisions
Act (20 U.S.C. 1232) and section 553 of title 5, United States
Code, the Secretary shall, by notice in the Federal Register,
publish the waivers or modifications of statutory and regulatory
provisions the Secretary deems necessary to achieve the purposes
of this section.
(2) Terms and conditions.--The notice under paragraph (1)
shall include the terms and conditions to be applied in lieu of
such statutory and regulatory provisions.
(3) Case-by-case basis.--The Secretary is not required to
exercise the waiver or modification authority under this section
on a case-by-case basis."
Item (2) indicates that Congress requires the secretary to "include the terms and conditions to be applied in lieu of" any waived provisions. To claim, then, that a law requiring that the secretary must include as part of a published notice something that he is implicitly banned from doing, is to claim that something explicitly permitted is not permitted because the implicit restriction outweighs the plain language of the law.
If it is a bad law, but not an unconstitutional one, then as Kagan argues in her dissent, Congress is the branch of government responsible for fixing it, not the Supreme Court.
You could argue that Congress was too vague. There's really nothing in the Constitution to support this requirement (that there be a limiting principle) or that Congress can't delegate authority. In fact, a textualist like Scalia (and a bunch of the conservatives) would say if Congress is unhappy with how their law is applied, they should rewrite it. It's only because these conservatives are looking for tools to block policies they dislike but don't really have textual grounds that they're going this route. But I'm not a textualist or originalist, so I agree that if the text of a law has crazy implications (minting the trillion dollar coin) there's a problem. (It's not really clear to me that what the Secretary is doing here is really beyond the scope of what Congress passed. National emergency? check. Waive or modify? check. We're talking about $400b here, which isn't unimaginable, especially for an emergency.)
But it's also silly to pretend "waive or modify any provision" doesn't mean waive or modify any provision. The law may be vague, but what the secretary did falls under what Congress wrote. If there has to be some limiting principle, it needs to be one that can be fairly and objectively applied so courts like the Roberts court can't blow away any laws they think do too much.
See https://en.m.wikipedia.org/wiki/Nondelegation_doctrine
I think the relevant section of the law is 20 U.S. Code § 1098bb(a). Paragraph (1) of that section reads in part "(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)."
Paragraph (2), in relevant part, includes ensuring that "recipients of student financial assistance under title IV of the Act who are affected individuals are not placed in a worse position financially in relation to that financial assistance because of their status as affected individuals."
So I don't see this as carte blanche for the Secretary: he or she has to assert that the modification is being made in response to an emergency in order to make sure affected individuals aren't financially impaired due to the emergency ... or basically what was done with all the pandemic aid to begin with.
If Congress or some party with standing (Nebraska?) thinks the Secretary is being unreasonable in making that determination, they can challenge it in court ... which I guess is what they did.
But there should be some sort of "Chevron deference" here ... except that the current Extreme Cult doesn't believe in Chevron deference.
Anyway, a strong burden of proof should be placed on anyone challenging the determination of the head of an Executive Branch department. I don't think that was really done in this decision.