Tangle - Biden v. Nebraska.

Episode Date: July 7, 2023

On Friday, the Supreme Court ruled in a 6-3 decision that the Biden administration acted unconstitutionally when it announced the cancellation of $400 billion in student loans last year. All six Republican-appointed justices were in the majority while all three Democratic-appointed justices joined the dissent.You can read today's podcast here, today’s “Under the Radar” story here, and today’s “Have A Nice Day” story here. Tickets to our event in Philadelphia on August 3rd are available here!Today’s clickables: Quick Hits (0:57), Today’s Story (02:43), Left’’s Take (10:42), Right’s Take (6:33), Isaac’s Take (14:49), Your Questions Answered (18:39), Under the Radar (21:36), Numbers (22:39), Have A Nice Day (23:23)You can subscribe to Tangle by clicking here or drop something in our tip jar by clicking here.Our podcast is written by Isaac Saul and edited by Zosha Warpeha. Music for the podcast was produced by Diet 75.Our newsletter is edited by Bailey Saul, Sean Brady, Ari Weitzman, and produced in conjunction with Tangle’s social media manager Magdalena Bokowa, who also created our logo.--- Send in a voice message: https://podcasters.spotify.com/pod/show/tanglenews/message Hosted on Acast. See acast.com/privacy for more information.

Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight.

Interior Chinatown is streaming November 19th, only on Disney+. Chinatown is streaming November 19th, only on Disney+. From executive producer Isaac Saul, this is Tangle. Good morning, good afternoon, good evening, and welcome to the Tangle Podcast, the place we get views from across the political spectrum, some independent thinking, and a little bit of my take. I'm your host, Isaac Saul, and on today's episode, we are going to be talking about Biden v. Nebraska. That is the Supreme Court case that we just got a ruling on around Biden's student loan plan,

his plan to cancel student loans. We're going to talk about the decision, what happened, and what it means. Before we do, though, as always, we'll start off with some quick hits. First up, days after a confrontation with Representative Lauren Boebert, the Republican from Colorado, Representative Marjorie Taylor Greene, the Republican from Georgia, was voted out of the House Freedom Caucus. Number two, Twitter threatened a lawsuit against its new MetaBat competitor Threads, which just passed 30 million downloads in 24 hours. Number three, Florida Governor Ron DeSantis reported $20 million of second quarter campaign fundraising, lagging behind former President Trump's $35 million. Number four, Yevgeny Prigozhin, the former chief of the

Wagner Group, is reportedly returning to Russia as supporters call for a mass gathering in St. Petersburg. Number five, the Biden administration says it plans to send cluster munitions to Ukraine. The weapons are widely banned because they can cause injuries to civilians. The Supreme Court struck down President Biden's plan to cancel up to $20,000 in student loan debt for millions of Americans. The plan has been on hold since six Republican-led states who claim the program violated President Biden's executive power took the administration to court. argued the plan is permitted within the law inside of the Heroes Act, which allows the Secretary of Education to make changes related to student loans during national emergencies like the COVID pandemic. Chief Justice John Roberts in a 6-3 decision,

writing for the conservative majority that federal law provides no authorization for the administration to wipe out so much debt. The question here is not whether something should be done. It is who has the authority to do it. On Friday, the Supreme Court ruled in a 6-3 decision that the Biden administration acted unconstitutionally when it announced the cancellation of $400 billion in student loans last year. All six Republican-appointed justices were in the majority, while all three Democratic-appointed justices joined the dissent. A quick refresher, the Higher Education Relief Opportunities for Students, or HEROES Act, was passed in 2003. HEROES was designed to grant waivers or relief to student loan recipients in connection with a war, military operation, or national emergency.

Both former President Trump and Biden used the HEROES Act to suspend student debt payments, but Biden took it a step further, exercising the authority granted by the act to cancel $10,000 in debt for individuals earning less than $125,000 per year and $20,000 per year for those who receive Pell Grants designated for low-income families. We covered oral arguments around this case in March, so if you're interested in listening to those, you can go back to our podcast from that time. But the court was examining two questions. First, do the litigants challenging the administration's program have standing to sue? Second, whether the administration violated a

separation of powers principle known as the major questions doctrine by acting without explicit congressional authorization to implement a program. On standing, the justices first upheld a U.S. Court of Appeals ruling for the Eighth Circuit that Missouri had a right to sue because it created and controls the Missouri Higher Education Loan Authority, or MOHELA, which is a servicer and holder of student loans. Debt cancellation would have cost MOHELA, which is a servicer and holder of student loans. Debt cancellation would have cost MOHELA $44 million per year, which the justices determined would also harm Missouri. The state had created the program to help state residents obtain loans to pay for college, and if the cancellation program had gone into effect, its revenues would have fallen.

Once the court determined Missouri had a right to challenge the program, it also determined that the HEROES Act gave the education secretary power to waive or modify laws related to student loans. But the court interpreted modify to mean that the Biden administration could make modest adjustments and additions to existing provisions, but not transform those provisions. In writing the majority opinion, Justice Roberts wrote that Biden's cancellation was attempting to create a novel and fundamentally different loan forgiveness program. Roberts also rejected the idea that mass student debt relief was consistent with the purpose of the HEROES Act, writing that it is a question of who has the power to cancel loans, not whether it should be done. In that regard, Roberts invoked the major questions doctrine, writing that the HEROES Act did not authorize the debt relief program at all. In her dissent, Elena Kagan argued that the state's suing did not have standing. Mojila could have filed its own lawsuit, Kagan said, but it did not. Instead, Missouri sued on its behalf. She also wrote that the debt cancellation was authorized

by the plain text of the HEROES Act, which provides the secretary with broad authority to give emergency relief to student loan borrowers, including by altering usual discharge rules. Kagan argued that only by picking the act apart and addressing sections of congressional authority as if they were unrelated could the majority make the act inconsequential. Shortly after the ruling, the Biden administration announced a new plan for cancellation through the Higher Education Act. A reminder, we will not be focusing on the merits of student loan cancellation today, Higher Education Act. A reminder, we will not be focusing on the merits of student loan cancellation today, which we covered in previous editions, but instead on the program's legality and the latest Supreme Court ruling. You can find our

coverage of oral arguments with a link in today's newsletter. Today, we're going to take a look at some arguments about the ruling from the right and the left, and then my take. First up, we'll start with what the right is saying. The right argues that the court got it right and that Biden vastly exceeded his authority. Some argue that Biden violated the obvious context and intent of the HEROES Act. Others suggest Biden still has a path to forgiving loans via Congress. In CNN, Ilyas Oman said the court got it right on student loans. The Biden administration was relying on a provision of the act that gives the Secretary of Education authority to waive or modify federal student loan requirements in order to ensure that recipients of financial assistance who have been affected by a national emergency are not placed in a worse position financially in relation to that financial assistance because

they were affected by the emergency. The administration claimed beneficiaries of the loan forgiveness plan qualified because they have been negatively affected financially as a result of the COVID-19 national emergency declared by then-President Donald Trump in March 2020. But the White House presented no proof that recipients of the cancellation were placed in a worse position financially because of COVID. Over 80% of employed college graduates did not even report a decrease in salary during the pandemic, and few suffered prolonged unemployment, according to data from the U.S. Bureau of Labor Statistics. The court also rightly ruled that Missouri had standing because it has a state-created student loan servicer that stands to lose revenue if some of the loans it processes are forgiven. An injury to that entity is an injury to the state because it's a public corporation created In National Review, Andrew C. McCarthy praised Amy Coney Barrett for her response to Justice Elena Kagan.

Justice Elena Kagan's searing criticism of the major questions doctrine as a get-out-of-text-free card clearly left a mark, McCarthy said. Kagan, the court's most formidable progressive, is a bureaucratic maximalist. If read in a vacuum, the text of a statute can plausibly be construed as a delegation by Congress of enormous power to an administrative agency, then the textualist must vindicate that delegation even if it defies history, common sense, and our Constitution's vesting in Congress of all legislative power, i.e. the authority to enact major policy. Barrett countered that a

vacuum is no home for a textualist. Not only did the court come to its conclusion without relying on the major questions doctrine, Barrett emphasizes that a textualist is not a literalist. The major questions doctrine, she explains, is not a license to flee from text. To the contrary, it stresses the importance of context, providing a tool for discerning, not departing from, the text's most natural interpretation. The doctrine doesn't change the words that Congress has used, much less instruct courts to give words an interpretation that is less plausible than their ordinary meaning. It does the opposite. It derives the best interpretation of the words based on the circumstances of their enactment, based on their

context. In the Washington Examiner, Tim Carney quipped that Democrats could still forgive student loans with this one trick. The Supreme Court struck down President Joe Biden's obviously unconstitutional attempt to forgive half a trillion dollars in student loan debt. This should surprise nobody, given that virtually everyone admitted the president does not have the authority to do this, including then-House Speaker Nancy Pelosi. Democrats are going to freak out about this decision the same way they freak out about literally every single Supreme Court decision that doesn't go their way, Carney said. If they actually wanted to forgive student loans, though, there's a tricky way they could do that, and Pelosi knows what it is. Yes, there is a branch of the federal government

that actually has the constitutional authority to pass laws, and it's not the executive. Congress could pass a law that does exactly what Biden's executive order pretended to do, Carney said. And if Democrats cannot get enough votes to pass their bill through Congress, they could try politics. If their bill is really that popular, either they can get enough votes to pass their bill through Congress, they could try politics. If their bill is really that popular, either they can pressure enough Republicans to flip, or they can defeat enough Republicans for opposing it and thus take back Congress and immediately pass their bill in January of 2025. All right, that is it for the rightist saying, which brings us to what the left is saying. Many on the left are critical of the ruling, saying the court ignored the plain text of the Heroes Act. Some disagree with the court, suggesting that the ruling was a lawless and

partisan decision. Others argue that the conservative justices are doing exactly what they so often criticize. In the Los Angeles Times, Erwin Chemerinsky said the Supreme Court rewrote the law to stop student loan forgiveness. A federal statute, the Higher Education Relief Opportunities for Students Act of 2003, or the HEROES Act, explicitly authorizes the Secretary of Education to waive or modify student loan obligations. That is exactly what President Biden did in his loan forgiveness program, but the court, ruling 6-3, decided that he lacked authority under the law to take this step, which would have helped more than 40 million people, Chemerinsky said. As Justice Elena Kagan wrote in dissent, none of these state governments would suffer any injury from the Biden student loan forgiveness

program. In fact, just last week, the Supreme Court ruled that Texas and Louisiana lacked standing to challenge the Biden administration's change in immigration policy. The court in that immigration law case said that a state cannot sue the federal government just because of an ideological disagreement with the president's policies. Based on that principle, the court should have thrown out Missouri's suit as well. In Vox, Ian Millhiser called it a lawless, completely partisan student loan decision. The decision is complete and utter nonsense, Millhiser wrote. It rewrites a federal law, which explicitly authorizes the loan forgiveness program, and it relies on a fake legal doctrine known as major questions, which has no basis in any law or any provision of the

Constitution. There are legitimate policy debates about the efficacy or fairness of student loans, but its legality should not have been a question. The HEROES Act gives sweeping authority to waive or modify any statutory or regulatory provision applicable to the student financial assistance programs as the Secretary deems necessary in connection with a war or other military operation or national emergency. Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel

a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. This is expansive language, Millheiser said. While it only applies during a national emergency, when such an emergency such as the COVID-19 pandemic arises, the secretary may either eliminate, waive, or change, modify students' borrowers' loans obligations as the secretary deems necessary. So Congress clearly authorized the education secretary to make modifications or waivers that are broad or narrow or that apply to many or few borrowers. Meanwhile, the major questions doctrine is

completely made up and appears nowhere in the Constitution and nowhere in any statute and was invented largely by Republican appointees to the Supreme Court. And finally, in MSNBC, Michael A. Cohen said the Supreme Court's conservatives are doing exactly what they claim to detest. One would be hard-pressed to find two phrases that more aptly describe the actions of the Supreme Court, including its three Trump appointees, than judicial activism and legislating from the bench, Cohen said. In this case, Congress passed a law that authorized the Secretary of Education to forgive student loans. The Secretary interpreted the law to allow him to forgive a set amount of student loans. But rather than deferring to the executive

branch or allowing Congress and the White House to reach a compromise solution, the court instead imposed its own judgment. Imposing the viewpoint of judges over that of the people's elected representatives has been a consistent and disquieting trend in the Roberts Court, Cohen said. Last year in West Virginia v. EPA, the court blocked a major climate change regulation to clean up power plants, even though the Clean Air Act authorized such action. In the process, the court enacted a new and wholly invented theory called the Major Questions Doctrine, which allows the court to restrict the actions of a regulatory agency in cases where regulation exercises powers of vast

economic and political significance. How does the court decide what is of vast economic and political significance. How does the court decide what is of vast economic and political significance and thus justifies its intervention in decisions that are traditionally made by elected officials? Your guess is as good as mine. All right, that is it for the left and the right are saying, which brings us to my take. So if you have been listening to this podcast for the last year or so, my opinion here is probably not going to be much of a surprise. I've said repeatedly that regardless of how you feel about the merits of student debt cancellation, Biden did not legally have the authority to do this. My writing from March on the

legality of canceling the loan debt is still pertinent today, so I'm just going to reread what I wrote then. Last time we wrote about the legality of this cancellation, I said that it was clear to me that Biden was using the HEROES Act in a context Congress had not intended. Several lawmakers who drafted that law have said as much in an amicus brief, and plain common sense will get you there. The bill was passed in the wake of 9-11 and was primarily intended to give soldiers who were deployed overseas relief from their student debt. Secondarily, it was also drafted to help people facing natural disasters. Further, Biden's plan is overly broad and does not have nearly enough tests to ensure it is

addressing quote affected individuals who are placed in a worse situation financially because of the emergency it is ostensibly responding to, which in this case is COVID-19. As I wrote in August, not everyone with student debt who made less than $125,000 in 2020 and 2021 is now worse off financially because of the pandemic. Some are very obviously doing better. This is to say nothing of the fact that the Biden administration has been inconsistent with its framing of whether we were in a national emergency or not. So that's what I wrote then.

I also wrote at the time that the states had a standing problem, that it was not clear to me whether they had a right to sue. In their oral arguments, they seem ill-prepared to make their standing case as if they presumed the court was going to find a way to side with them regardless. Even Justice Amy Coney Barrett seemed a bit stuck on this during oral arguments. It would be hard to see how a win for the state would benefit Mojila or a win for Mojila would benefit the state if the assets are completely separate. You don't get any money out of it, Barrett told Nebraska Solicitor General James Campbell, who is representing the states. If the state wanted money from Mojila right now,

does the state have the authority to do that? Campbell claimed the state had an interest in protecting Mojila and that the state legislature could theoretically take action to request money, but Barrett seemed unconvinced. Do you want to address why Mojila is not here, she asked. Campbell maintained that the state has the authority to speak for Mojila, but couldn't seem to explain why or how. As the Biden administration concedes, the cancellation program would cost Mojila $44 billion. Mojila was created and is managed by the state.

And while it's true that the cancellation would not hurt the state treasury and that Mojila is a separate legal entity, the language of the opinion from there is plain enough to simply read. The harm to Mojila in the performance of its public function is necessarily a direct injury to Missouri itself, the court said. The secretary also contends that because Mojila can sue on its own behalf, it, not Missouri, must be the one to sue. But where a state has been harmed in carrying out its responsibilities, the fact that it chose to exercise its authority through a public corporation it created and controls does not bar the state from suing to remedy that harm itself. That logic tracks well enough for me. Unlike yesterday when we wrote about 303 Creative, the case here is not a hypothetical. There is a

real law in question, with a real action being taken by the Biden administration, with real costs to Mojila and the states involved in the lawsuit. And given just how overreaching the Biden administration's goal was in canceling all this debt, I think the court was right to hear this case and right to rule the way it did. There isn't much ambiguity here for me on the legal questions at hand, and the answer is the same as it is for so much else. If Biden wants to cancel hundreds of billions of dollars of student loan debt, he needs Congress to help him do it. All right, that is it for my take, which brings us to your questions answered. This one's from Daniel in Louisville, Kentucky.

Daniel said, I was curious if there has been much change at the U.S.-Mexico border since the end of Title 42. I remember in the lead-up and immediate aftermath, there wasn't nearly as much chaos as was initially expected, but I didn't know if any of that has changed now that more time has passed and everyone has gotten more of a feel for how the border policy is post-Title 42. So that's a great question, Daniel. We actually touched on this a little bit earlier this week in our Under the Radar section. And I think your instinct to wait for more time to pass is a good instinct. However, I don't think enough time has passed for us to really know yet. As a reminder, Biden ended Title 42 on May 11th. The pandemic-era rule had allowed the prompt expulsion of migrants under public health

concerns. Following Biden's decision to end the policy, many pundits expected border crossings by unregistered migrants, as measured by border encounters, to go up. However, the number of border encounters has actually decreased since then. As we covered in Wednesday's Under the Radar section, there are a few theories as to why. Migrants might be in wait-and-see mode, trying to understand the new policies. New opportunities to immigrate legally might be reducing illegal immigration. Maybe increased enforcement in Mexico and Guatemala is reducing border crossings, or maybe it's some combination of the three. Or it could just be too soon to tell. Yes, there were fewer law enforcement encounters at the border in June than there were in May, and there were

actually 35,000 fewer encounters in June than there were last year. However, that's still 25,000 more than there had been in 2021, and about 180,000 more than there had been in May of 2020 under President Trump. We don't know much about how the pandemic influenced migration patterns, but what we do know is where migrants are coming from has changed. The amount of migrants coming from Ecuador, Brazil, Nicaragua, Venezuela, Haiti, and Cuba has increased tenfold over the past three years. That likely has more to do with factors within those countries than who our president is. In part because of this new makeup of migrants, it's likely that border encounters are peaking later. Rather than peaking in March as it has been for years, border encounters are now peaking

between July and September, so we should really wait until October before we get a picture of what the impact of ending Title 42 has been on border crossings. Alright, that is it for your questions answered. Before we get to our under-the-radar section this week, a quick reminder. Where are you going to be on August 3rd? Philadelphia, Pennsylvania, hanging out with the Tangle community. You can come meet us in person. We're going to have guests debating a topic that we are going to announce very soon, a lively political debate, drinks and more people to meet the Tangle community live and in the flesh.

We've got tickets on sale now. There is a link in today's episode description, or you can go to retangle.com forward slash live. All right, next up is our under the radar section. What do a democratic socialist, a Republican war veteran, and a long haired lobbyist from Montana have in common? They want the government to relax about certain mind altering substances. That's a line from a new Washington Post story about an unusual bipartisan bond forming between Representative Alexandria Ocasio-Cortez,

the Democrat from New York, and Representative Dan Crenshaw, the Republican from Texas, and Montana lobbyist Tom Onew, who rides with his horse East Rogers. Crenshaw and Ocasio-Cortez are racking up votes and even have two senators from both sides of the aisle, Senator Rand Paul, the Republican from Kentucky, and Senator Cory

Booker, the Democrat from New Jersey, interested in helping them out. The goal is to unlock government-funded studies of therapeutic psychedelics, which have shown promising results treating victims of sexual abuse, veterans with PTSD, and debilitating depression. The Washington Post has the story, and there is a link in today's episode description. All right, next up is our numbers section. The total amount of student loan debt in the United States, including federal and private loans, is now $1.75 trillion. The average amount owed per borrower is $28,950. The percentage of students

from public four-year colleges who have student loans is 55%. The percentage of Americans who supported Biden's student debt cancellation plan that was struck down is 47%, according to an April poll from Reuters. The percentage of Americans who did not support Biden's student debt cancellation plan that was struck down is 41%. That's according to the same April poll from Reuters. And the percentage of Americans with student debt who supported the plan was 83%. All right. And last but not least, our have a nice day story. The U.S. Food and Drug Administration, the FDA, has granted traditional approval to the

Alzheimer's drug, lakenamab, the first medication that has been shown to slow the progression of Alzheimer's disease. The drug, which goes by the brand name Lakembi, slows the declines in memory and thinking by targeting the disease's underlying biology. Its accelerated approval was issued earlier this year, but now the drug has gotten full approval from the FDA. There's been some controversy about the drug, including a larger-scale study that showed minimal improvements in patients, but it is a sign of hope in fighting Alzheimer's that has been exceedingly rare for medical experts. This drug is not a cure. It doesn't stop people from getting worse, but it does measurably slow the progression of the disease, Dr. Joyce Snyder, a neurologist at Washington University in St. Louis, said. CBS News has the story, and there's a link to it in today's episode

description. All right, everybody, that is it for today's podcast. As always, if you want to support our work, please consider going to retangle.com forward slash membership. And don't forget, check out our live event and also check out our YouTube channel. You've got some fun coming on UFOs. So keep an eye out for that. Make sure you're subscribed to the channel and you'll get that video right when it's out. We'll be right back here same time next week. Have a good one. Peace. Our podcast is written by me, Isaac Saul, and edited by Zosia Warpea. Our script is edited by Sean Brady, Ari Weitzman, and Bailey Saul. Shout out to our interns, Audrey Moorhead and Watkins Kelly,

and our social media manager, Magdalena Bokova, who created our podcast logo. Music for the podcast was produced by Diet75. For more from Tangle, check out our website at www.tangle.com. We'll see you next time.