Tangle - Student loan cancellation and the Supreme Court.

Episode Date: March 1, 2023

On Tuesday, the Supreme Court heard oral arguments in a challenge to President Biden's student debt cancellation program. Members of the Supreme Court's conservative majority seemed skeptical of the legality of the program, casting doubt on its future.You can read today's podcast here, today’s “Under the Radar” story here and today’s “Have a nice day” story here. Read our previous coverage of student loan forgiveness here. From the Blindspot Report, a story that the left missed here and a story that the right missed here. Today’s clickables: Quick Hits (1:03), Today’s Story (3:05), Right’s Take (14:12) Left’s Take (8:50) , Isaac’s Take (19:19), Blindspot Report (24:51), Under the Radar (25:25), Numbers (28:24), Have A Nice Day (26:39)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+. The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada, which is Chinatown is streaming November 19th, only on Disney+. yourself from the flu. It's the first cell-based flu vaccine authorized in Canada for ages six months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at flucellvax.ca.

From executive producer Isaac Saul, this is Tangle. Good morning, good afternoon, and good evening, and welcome to the Tangle podcast, the place we get views from across the political spectrum. Some independent thinking without all that hysterical nonsense you find everywhere else. I'm your host, Isaac Saul, and on today's episode, we're going to be talking about the student loan cancellation program that is in front of the Supreme Court right now. There were oral arguments on Tuesday. And yeah, it's a pretty complicated, interesting case. My feelings actually changed about a little bit after reading some more today. So we're going to talk about that.

Before we jump in, though, as always, we'll start off with some quick hits. First up, the Biden administration opened up applications for chip manufacturers to apply for government funding, including requirements that firms must meet, like providing child care to workers. Number two, the White House is giving government agencies 30 days to delete TikTok from federal devices, citing security concerns. Canada, Taiwan, and some European countries are also considering similar bans. Number three, Eli Lilly is going to reduce the price of its most commonly prescribed insulin drug by 70% and cap prices at $35 in certain pharmacies for people with private insurance. Medicare recipients are already benefiting from cap prices. Number four,

almost 700 Iranian schoolgirls have been poisoned since November in what officials believe are targeted attacks to close down their schools. Number five, Chicago Mayor Lori Lightfoot, the Democrat, lost her reelection bid, becoming the first incumbent mayor in Chicago to be defeated after one term in 40 years.

Paul Vallis and Brandon Johnson, both Democrats, will meet in a runoff. The Supreme Court is hearing arguments today on President Biden's student loan forgiveness plan. The policy seeks to cancel roughly $430 billion in student debt for about 40 million borrowers. After months in legal limbo, President Biden's sweeping student loan forgiveness plan faces a critical week at the nation's highest court. Lawyers set to argue their cases before the Supreme Court justices on Tuesday. 43 million eligible student loan borrowers anxiously waiting the court's decision. A group of Republican-led states are suing the Biden administration over the plan, saying it's expensive and unfair and an abuse of power. The Biden administration says those states don't even have the standing to sue in the first place.

On Tuesday, the Supreme Court heard oral arguments in a challenge to President Biden's student debt cancellation program. Members of the Supreme Court's conservative majority seem skeptical of the legality of the program, casting doubt on its future. During arguments, the court is focusing on 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 the program. We previously covered the legality of President Biden's student loan cancellation.

There is a link to that story in today's episode description. But a quick refresher. Both former President Trump and President Biden invoked the Higher Education Relief Opportunities for Students, or HEROES Act, of 2003, which was designed to grant waivers, or relief, to student loan recipients in connection with a war, military operation, or national emergency to suspend student debt payments. But Biden took it a step further, asking the Department of Education to explore whether the HEROES Act could be used to cancel student debt. The department concluded that it could, releasing a memo saying the act, quote, grants the secretary authority that could be used to effectuate a

program of targeted loan cancellation directed at addressing the financial harms of the COVID-19 end quote, and gives broad authority to grant relief from student loan requirements during specific periods, a war, other military operation, or national emergency, such as the present COVID-19 pandemic, and for specific purposes, including to address the financial harms of such a war, and for specific purposes, including to address the financial harms of such a war, other military operation, or emergency. In August, Biden exercised that authority, releasing a plan that forgives $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. The Congressional Budget Office said the plan will cost about $400 billion over 30 years. Roughly 26 million people have applied for

student debt relief, and more than 16 million of those applications have been approved. But the program has been on hold since November, when a judge in Texas struck it down. As of yet, no challenger withstanding to sue has brought their case to the Supreme Court. On Tuesday, the justices spent most of their time on Biden v. Nebraska, which court watchers believe has the best chance of succeeding. In that case, six Republican-led states—Arkansas, Iowa, Kansas, Missouri, Nebraska, and South Carolina—have challenged the order's legality. The states initially lost the challenge on standing, but a three-judge panel of the U.S. Court of Appeals blocked that ruling. In a separate case, two individual borrowers who were deemed ineligible for the program for

different reasons are suing on the basis that they were unjustly deprived of a government program, urging the administration to expand the plan to provide greater relief. A lower court has ruled that they do have standing. First, the Supreme Court will rule on whether either of the plaintiffs have standing, then it will make a determination about the legality of their arguments. In Biden v. Nebraska, the states argue they have standing because Missouri created and controls the Missouri Higher Education Loan Authority, or MOHELA, which services student loans, and Biden's debt cancellation program threatens to cut MOHELA's revenue source by 40%. U.S. Solicitor General

Elizabeth Prelogar argued that even if MOHELA were harmed, that harm wouldn't be sufficient to justify a lawsuit, an argument the liberal justices seem sympathetic to, but the conservative justices do not. If the court rules that either plaintiff has standing, it would be likely to strike the program down. Over the course of this Supreme Court's decision so far, it has pushed for clear grants of congressional authority when it comes to major policy. In June, the court struck down the Environmental Protection Agency's ability to regulate carbon emissions based on the major questions doctrine. It also ruled against the Centers for Disease Control and Prevention, which it said was not authorized to impose a moratorium

on evictions. Similarly, the court ruled that the Occupational Safety and Health Administration could not force workers to get vaccinated against COVID or undergo regular testing. While the ruling would have a large impact on the Biden administration, it could also reverberate throughout the government, affecting when and how states can challenge federal policies in court. A quick reminder, we are not discussing the merits of student loan cancellation, which we covered in two previous editions, only the program's legality, which the court should decide by July. Today, we're going to take a look at some arguments from the left and the right on the standing question and the legality of the order, and then my take. First up, we'll start with what the left is saying. Many on the left argue that the HEROES Act does explicitly authorize the program Biden implemented. Some argue that either way,

the plaintiffs that Republicans found don't have standing to sue. Others say the arguments went surprisingly well for the Biden administration, even if they are still likely to lose. In Vox, Ian Millhiser argued that the HEROES Act explicitly authorizes the program Biden put into place. The HEROES Act was enacted in the wake of the 9-11 attack on the World Trade Center to ensure that student borrowers who are impacted by a war or other military operation or national emergency are not placed in a worse position financially because of that emergency, Millhiser said. Although it was initially enacted on a temporary basis in 2003, primarily to benefit victims of the 9-11 attack

and military service members who may struggle to pay back their loans if they are called to active duty, Congress made the HEROES Act permanent in 2007. The HEROES Act does have some important limitations, the most important of which is that the Secretary's power to alter student loan obligations is only triggered when the President declares that a national emergency exists, and it only extends to military personnel and other individuals impacted by that emergency.

But when such an emergency like the 9-11 attack or the COVID-19 pandemic arises, the HEROES Act speaks in sweeping terms about the Secretary's power to alter loan obligations. Under the statute, the Secretary is authorized to waive or modify any provision of the federal laws governing student loans, including the provisions governing borrowers' obligation to repay their loans and the provisions governing cancellation of student loans. This power may be exercised, as the Secretary deems necessary necessary in connection with a war or other military operation or national emergency. The HEROES Act also permits the secretary to forgive loans en masse rather than requiring

the education department to individually determine which borrowers are eligible. According to the statute, quote, the secretary is not required to exercise the waiver or modification authority under this section on a case-by-case basis. In MSNBC, Jordan Rubin emphasized that neither of the plaintiffs appeared to have standing. It's a conservative idea, broadly speaking, that can be used to shut down the courthouse door to claims. But Tuesday's argument showed the absurdity of the legal challenge from the Republican-controlled states, including Missouri, which pressed a standing argument based on the relief program's impact on the Missouri Higher Education Loan Authority. Though that

sounds like something that can make sense, the loan authority is an independent entity that could have brought its own suit but didn't, Rubin said. As Justice Katonji Brown Jackson pointed out in arguments using the loan authority's acronym, if Mohella is being injured as a result of the plan, or at least that's the allegation, Mohella has the ability to defend itself and its interests. The court would be breaking new ground if the justices found standing on that basis, Jackson said. Of course, it's not surprising that Democratic-appointed justices pressed the standing issue, but they didn't have much company. NBC News' Lawrence Hurley reported of the six conservative justices, only Justice Amy Coney Barrett repeatedly probed whether challengers had legal standing. Other conservatives' lack of

focus on standing, coupled with what they did focus on, is reason to concern the Biden administration. That's all to say that in the forthcoming student debt opinion, which is expected by late June, don't be surprised if the majority sidesteps obvious standing problems and then, on the merits of the issue, rules that the administration overreached based on the made-up major questions doctrine. In Slate, Mark Joseph Stern said the arguments went well for Biden, all things considered, though smart money is still on the court striking it down. If the Supreme Court truly practiced textualism, this would be an easy case. The liberal justices hit this point over and over again on Tuesday.

Congress could not have made this much more clear, Justice Elena Kagan told Nebraska Solicitor General James Campbell, who argued against the program. But most of the conservative justices have devised a tool to wriggle out from under the text of a law, the quote, major questions doctrine, a dubious and ill-defined rule that courts can use to strike down any policy that presents a major question if Congress has not authorized it explicitly enough. How major? Nobody knows. Justice Kavanaugh asked Prelogar if she would recognize at least that this case is a case that presents extraordinary, serious, important issues, requiring the court to look at it a little more strictly than we might have otherwise to make sure that this was something that

Congress would have contemplated. These questions on the merits, however, often took a back seat on Tuesday. Front and center instead was the threshold problem, the argument for why they were there in the first place. The plaintiffs have struggled mightily to explain why they have standing to sue at all, he said. This doctrine requires plaintiffs to prove three things, a concrete injury, a direct connection between the injury and the government's action, and a potential form of relief that would redress that injury. Standing is a problem for the plaintiffs because it's not clear that anyone is actually injured when the government wipes student debt off the books. The government, after all, holds that debt

already. A small subset of loans are held by private institutions, but those are not included in Biden's plan. All right, that is it for the leftist saying, which brings us to what the right is saying. Many on the right argue Biden, which brings us to what the right is saying. Many on the right argue Biden overreached and the program should be struck down. Some say no reasonable person understood the context of the HEROES Act to allow for a half trillion dollars of student loan cancellation. Others say the states have standing, as even Biden's lawyers admitted there was financial injury being done. Twas the season of chaos and all through the house, not one person was stressing.

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his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. In USA Today, Ingrid Jock said Biden's student loan program is an abuse of power and the court must rule against it. The high court has already struck down several similar attempts from Biden officials. For instance, in 2021, the Supreme Court overturned the administration's continuation of the eviction ban. And in January 2022, the court ruled against the Biden mandate

to force COVID-19 vaccination or testing requirements on large businesses. Similarly, the court in June ended the Environmental Protection Agency's attempts to regulate power plant emissions. In all these cases, the issue at hand was overreach by administration officials. The merits of this case are no different. The Pacific Legal Foundation filed the first major lawsuit against the student loan forgiveness plan in September, and while its case is not one before the Supreme Court, it also filed a recent amicus brief on behalf of several former lawmakers. These lawmakers were instrumental in the passage of the 9-11-era HEROES Act, the law that Biden has used to justify the loan cancellation. They argue that the law was

never meant to be used so broadly. Rather, it was targeted to aid service members who were at war. Biden has acknowledged several times in the past year that the pandemic is over, and has finally set an end date for the dual COVID emergency declarations. Biden's claim that the pandemic hurt student loan borrowers is why the HEROES Act has been used as the basis for his plan. Take away that emergency and there isn't any legal justification left. National Review's editors called it a legal reckoning on student loans. The president's abuse of emergency wartime powers passed in the 2002 HEROES Act is nothing less than lawless royalism, they said. The statute says that the Secretary of Education can waive or modify any statutory or regulatory provision applicable to the student financial assistance programs when

necessary in connection with a war or other military operation or national emergency. Chief Justice John Roberts set the tone for the argument by noting that Justice Antonin Scalia once observed that modified, in our view, connotes moderate change. He said it might be good English to say the French Revolution modified the status of the French nobility only because there's a figure of speech called understatement and a literary device known as sarcasm. Moreover, the Chief Justice observed that even if terms such as wave or modify could be construed to encompass the outright cancellation of student debt, the court's major question doctrine requires more, namely a citation to clear congressional

authorization of the specific action taken by the administration. No one can plausibly claim that the HEROES Act even anticipated, much less green-lighted, half a trillion dollars in relief to a favored class of debtors without additional congressional input. The administration's lawyers kept rewriting the rules for the programs to include anyone who tried to sue to stop them with the aim of depriving those challengers of legal standing to sue. Despite their best efforts, however, Biden's Solicitor General was compelled to concede that MOHELA, a public instrumentality of the state of Missouri, would suffer a financial injury from the program because it holds interest in outstanding loans. In City Journal, Ilya Shapiro explained

why the Text of the Heroes Act makes this an executive overreach. The government's lawyers now make the following assertions before the Supreme Court. The COVID-19 pandemic is a national emergency, or at least was at the time the plan was announced. Every federal student loan borrower either lives in a COVID disaster area or has otherwise been financially affected by that emergency. As a result of that emergency, some borrowers will default on their loans once payments finally resume after a multi-year pause, and forgiving some or all of the borrower's principal balances will ensure their overall risk of default is no worse than it was before the pandemic. That last assertion runs headlong into a key limiting

word in the text of the HEROES Act, necessary. Most of the steps of this rude Goldberg device of a financial plan are far from necessary to achieve their final aim because a simpler and more direct method is available. If the government's purpose were truly to reduce the harm of more defaults, it could put borrowers on income-based repayment plans and, even more simply, waive some of the legal consequences of missed payments. Forgiving $400 billion of debt so that fewer people will suffer penalties for missed payments is like cutting $400 billion in income taxes so fewer people will suffer IRS underpayment penalties. The major questions doctrine, which the court has increasingly applied, makes this an easy case. Since Biden's executive action was not necessary to achieve the government's aim,

the statutory text lacks a clear statement granting the secretary such power. All right, that is it for the left and the right are saying, which brings us to my take. So 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 affected individuals who are placed in a worse position financially because of the

emergency it is ostensibly responding to, in this case, COVID-19. As I wrote in August, not everyone with student debt who made less than $125,000 in 2020 or 2021 is now worse off financially because of the pandemic. Some are very obviously doing better. This is to say nothing of the fact the Biden administration has been inconsistent with its framing of whether we were in a national emergency or not. Given that I also took a pretty clear stance against the merits of the cancellation, with the caveat that more targeted debt cancellation

would be an effective and just economic stimulus, I was expecting to clearly side with conservatives and the right-wing justices in this case. But my previous suspicions that it would be hard for Republicans to find a legitimate plaintiff have borne out. No commentators seem to be taking the individual borrowers suing the Biden administration seriously, so I'll only give them brief attention here. The entire premise of their argument appears to be that striking down this law would guarantee the Biden administration introduces a different law that does benefit them, which is obviously not guaranteed. They also argue that they had no way to publicly comment on the program, but the HEROES Act is quite explicit that public comments are not required for the Secretary of Education to modify the program. Their arguments seem entirely self-defeating.

The states have a better argument, but they too have a standing problem. As the liberal justices were quick to point out, MOHELA didn't even show up to court. Indeed, the states seemed to be suing on behalf of MOHELA and without its consent. They had to file a Freedom of Information Act request just to get internal details about the program so they could compile their case against the Biden administration. This is how the conservative National Review editorial board navigated that reality in making their case against Biden. Quote, today's arguments focused on the narrow and technical questions of Missouri law regarding the state's ability to sue on behalf of a public entity that it has created and whose board is appointed by the governor and other state agencies, albeit one that could have sued on its own, chose not to, and declined to

join or cooperate voluntarily in the state's lawsuit. While the justices are prudent to take care not to unduly widen the courthouse door to everyone who dislikes a federal policy, If that reads a bit like mental gymnastics to you, it's because it is. This isn't a question about whether anyone is, quote, doing violence to the law of standing. It's a technical question about whether the states have standing or not. And while it's true Biden's solicitor general admitted Mohella might suffer financial injury from the law, that still doesn't answer why Mohella isn't suing on its own behalf or why the state is essentially forcing a lawsuit on its behalf, much less how these states are being harmed by the potential of an independent loan servicer losing money. Again, I was surprised to see the state's lawyers

unprepared to navigate this question as it was the obvious and central tension in the case. Even Justice Amy Coney Barrett seemed a little shocked. It would be hard to see how a win for the state would benefit Mohella, she said, or a win for Mohella would benefit the state if the assets are completely separate. You don't get money out of it, Barrett told Nebraska Solicitor General James Campbell, who's representing the states. If the state wanted money from Mohella right now, does the state have the authority to do that, she asked. Campbell claimed the state had an interest in protecting Mohella and the state legislature could theoretically take action to request money. But Barrett seemed unconvinced. Do you want to address why Mohella is not here, she asked. Campbell maintained the state has the authority

to speak for Mohella, but couldn't seem to explain why or how. Ironically, challenging standing is a traditionally conservative legal tactic. As Stern rightly pointed out, for decades, conservative justices have deployed this doctrine to defeat progressive litigation. It would be incredibly inconsistent for the Supreme Court justices in the conservative majority to not address the standing issue clearly here. Still, I'm not sure there is a fifth vote to throw this case out on the issue of standing. If five justices allow the state to move forward on the standing issue,

it seems like a sure thing that loan forgiveness will be struck down. But despite my belief that the arguments would convince the court they could and should end the program on the premise that Biden was overreaching, I'm left wondering whether either of the plaintiffs Republicans found actually belong in the courtroom in the first place.

All right, that is it for my take. We are skipping today's reader question because our newsletter got a bit long. But as always, if you want to ask a reader question, you can do that by writing to me, Isaac, I-S-A-A-C, at readtangle.com. Next up is our Blind Spot Report. Once a week, we present the Blind Spot Report from our partners at Ground News, an app that tells you the bias of news coverage and what stories people on each side are missing. This week, a story the left missed is how the University of North Carolina dropped its diversity, equity, and inclusion hiring requirement amid growing backlash. A story the right missed was a new analysis showing that in Britain,

Black people are seven times more likely to die after being restrained by police. Our Under the Radar story this week is about SNAP, the Supplemental Nutrition Assistance Program, which has additional benefits that were boosted during the pandemic and are now set to expire this month. Tens of millions of Americans in 32 states who received extra government assistance to pay for food will see that assistance end. Congress passed the Families First Coronavirus Response Act in 2020 to temporarily boost food stamps, and it's estimated that it kept 4.2 million people out of poverty during the pandemic. Over the last three years, roughly $98 billion of extra assistance was distributed.

Families in the remaining states will lose about $95 per month. The Wall Street Journal has the story. There's a link to it in today's episode description. the story, there's a link to it in today's episode description. All right, next up is our numbers section. $1.6 trillion is the amount of student debt owed by borrowers. The estimated cost of Biden's cancellation program over 30 years is $400 billion. The estimated number of people eligible for this program was 40 million. The number of borrowers who applied was 26 million. And the number of people eligible for this program was 40 million. The number of borrowers who applied was 26 million. And the number of borrowers who were approved for the program was 16 million. All right. And last but not least, our have a nice day section.

A new study confirms what many parents and teenagers probably suspect. Less screen time improves teenagers' feelings about themselves. American teens spend more than eight hours a day on screens, and concerns are growing about the impact on their mental health. On Thursday, the American Psychological Association published a new study that followed hundreds of teenage participants who experienced symptoms of anxiety and depression. In a matter of three weeks of reduced screen time, they saw noticeable differences in how participants rated their satisfaction with their own weight and looks.

This randomized controlled trial showed promising results that weight and appearance esteem can improve when people cut back on social media use, wrote psychologist Andrea Graham. Oregon Public Broadcasting 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 go to readtangle.com and consider becoming a member. We'll be right back here same time tomorrow. Have a good one. Peace. 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 bakova 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. 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+. The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada, which is nearly double the historic average of 52,000 cases. What can you do this flu season? Talk to your pharmacist or doctor about getting a flu shot. Consider FluCellVax Quad and help protect yourself from the flu. It's the first cell-based flu vaccine authorized in Canada for ages 6 months and older, and it may be available for free in your province.

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