How Do You Challenge A Student Loan Forgiveness Rule That Does Not Exist?

The Biden Administration keeps moving the goal posts to block legal challenges.

To date, I have not written about President Biden's student loan forgiveness initiative. Why? Because the rule doesn't actually exist! There has been no notice in the Federal Register. Rather, we are left with a series of press releases, fact sheets, and the like. Government by blog post, as I've called it, is not new. The Obama Administration would often modify regulatory regimes, such as the Affordable Care Act, through FAQs and other subregulatory guidance documents. But as best as I can recall, the Obama Administration did not deliberately avoid publishing a new rule to frustrate legal challenges. Yet it seems that the Biden Administration is doing exactly that. Indeed, the Administration appears to be making changes to the policy on the fly for the express purpose of blocking law suits.

Consider the case brought by the Pacific Legal Foundation on September 27. What was the theory of standing? Frank Garrison (a lawyer for PLF) claimed he would face an increased tax burden if his debt was automatically cancelled. When the suit was filed, Garrison did not have to take any steps--the debt would be cancelled automatically. PLF obviously recognized that this policy could be changed. Steve Simpson of PLF told the New York Times:

If borrowers can opt out, Mr. Garrison's claim "will be a harder case for us," said Steve Simpson, a senior attorney at Pacific Legal, which is representing Mr. Garrison. "It would be harder to argue that he's harmed any more."

Lo and behold, the Biden Administration would make just that change. On September 28, the Department of Education filed a notice with the court:

In his motions for temporary restraining order and preliminary injunction, Plaintiff challenges a federal student loan cancellation policy announced by the U.S. Department of Education ("Department"), and claims that he will be harmed if the Department automatically cancels $20,000 of his federal student loan debt. Defendants submit this notice in advance of tomorrow's scheduled conference to inform the Court that the Department updated its website today to confirm that any borrower who qualifies for automatic debt relief—i.e., relief without filing an application—will be given an opportunity to opt out. See U.S. Dep't of Educ., Federal Student Aid, One-Time Student Debt Relief, https://perma.cc/Z6H5-2QYN (last visited Sept. 28, 2022) ("If you would like to opt out of debt relief for any reason, including because you are concerned about a state tax liability, you will be given an opportunity to opt out."). Upon receiving this lawsuit and reviewing Plaintiff's filings, the Department has already taken steps to effectuate Plaintiff's clearly stated desire to opt out of the program and not receive $20,000 in automatic cancellation of his federal student loan debt, and so notified Plaintiff's counsel today.

Within 24 hours, the Department updated its website, and opted Garrison out of cancellation, thus mooting the suit. This filing almost sounds giddy. You can't stop us! We're the government! And, by the way, you're stuck paying the $20,000 debt. Sorry, Frank. Emily Bremer flagged the change:

Because the Department has not yet published a notice of or rule governing the program (the final agency action everyone seems to be waiting for), the program remains malleable even as its implementation is already underway. Indeed, the Department's guidance to borrowers changed just this week (compare this snapshot from Monday, September 26 to this snapshot from today). "Nearly 8 million borrowers may be eligible to receive relief automatically," changed to "[n]early 8 million borrowers may be eligible to receive relief without applying–unless they choose to opt out."

Now you see it:

Now you don't.

The word "automatically" was simply airbrushed away, like a photo of Stalin.

And on September 29, the district court denied relief because of the change:

Following a change in the student loan debt relief plan at issue (Filing No. 13), the court, in view of the fact the Department of Education exempted Plaintiff from receiving debt relief, finds Plaintiff cannot be irreparably harmed as is required for preliminary relief. Pursuant to the parties' agreement, the motions for a temporary restraining order (Filing No. 4) and preliminary injunction (Filing No. 5) are DENIED without prejudice.

Notice that the court refers to a "student loan debt relief plan." Not a rule or regulation or anything of the sort. A "plan," whatever that is.

On September 29, we saw yet another attempt to block litigation. Missouri and several other states challenged the not-yet-released policy. Missouri's Higher Education Authority asserted standing based on servicing Federal Family Education Loans (FFELP):

104. The Mass Debt Cancellation has created an enormous incentive to consolidate FFELP loans not held by ED (which are not currently eligible for cancellation) into DLP loans (which are eligible for cancellation). The inevitable result is that FFELP loan borrowers will likely consolidate into DLP loans en masse.

105. The consolidation of MOHELA's FFELP loans harms the entity by depriving it of an asset (the FFELP loans themselves) that it currently owns.

106. The consolidation of MOHELA's FFELP loans harms the entity by depriving it of the ongoing interest payments that those loans generate.

This argument may have been valid when the complaint was filed. But sometime on September 29, the Education Department excluded the FFEL loans from the loan forgiveness policy. Poof! NPR described the reversal as "remarkable."

Today, according to federal data, more than 4 million borrowers still have commercially-held FFEL loans. Until Thursday, the department's own website advised these borrowers that they could consolidate these loans into federal Direct Loans and thereby qualify for relief under Biden's debt cancellation program.

On Thursday, though, the department iss. The guidance now says, "As of Sept. 29, 2022, borrowers with federal student loans not held by ED cannot obtain one-time debt relief by consolidating those loans into Direct Loans."

Now you see it!

Now you don't!

If only the Internet Archive was around to index the missing eighteen minutes from the Watergate Tapes!

The Department of Education excluded nearly 800,000 borrowers with FFEL loans. Why? It seems that the government is trying to block Missouri's suit. To be sure, Missouri has several other theories of standing. (I was impressed with how thorough the injury section was.) But the government's behavior here is clear as day: modify the policy on the fly to knock out any viable theories of standing, even if doing so excludes people from loan forgiveness.

Emily Bremer offers a more charitable take:

This change presumably was made in response to the lawsuit filed earlier this week challenging the program's legality, to defeat the plaintiff's standing (and prevent others from having such standing).

This raises a troubling possibility: that the Department of Education has not published a notice or rule establishing the loan forgiveness program (as § 1098bb requires) precisely because the absence of a final agency action makes a legal challenge more difficult. Maybe a notice or rule will be forthcoming–perhaps when the first borrowers receive the promised loan forgiveness. If so, millions of borrowers might be granted relief before a court could consider a challenge to the program's lawsuits. And perhaps that, too, is the goal.

How do you challenge a rule that doesn't exist, and that constantly changes with every new blog post? The Biden Administration keeps moving the goal posts to block legal challenges.

I have no doubt lawyers in DOJ planned each and every step here: they would wait till a suit was filed, then update the website with a "revision" to try to moot the litigation. (Congressional Republicans should exercise their oversight power here to investigate.) And, for all we know, the Department will finally publish the rule when it looks like things are getting risky in court--maybe hope for a remand without vacatur. (Recall the various iterations of the travel ban that were issued.) But by that point, millions of Americans will already benefit from the rule, and the Administration will have prevailed.

We should all think back to the census litigation. The Chief Justice, in particular, was incensed with how the Trump Administration played fast and loose with the rules, and modified explanations on the fly during the course of litigation. Here, we have an inchoate policy that is about to spend hundreds of billions of dollars, without an actual rule in print. And, the plan is being altered for the blatant purpose of blocking litigation. I suspect this gamesmanship will not be received well. If one or more circuits enjoin the policy, do not expect the Supreme Court to stay the injunction on the emergency docket.

Comments

[David Welker]

Eliminating injuries is now blatant manipulation?

Wrong! That is exactly how government SHOULD implement its policies.

Take the PLF lawsuit, for example. The intent behind student loan forgiveness was to help people, not make them worse off. The PLF correctly found a case where the policy hurt a small class of people the government never intended to harm.

The idea that the government should go ahead and harm people it doesn’t want to harm so a heroic lawsuit can proceed is just crazy.

According to Blackman, changing course to not harm people is “gamesmanship.”

But in reality, the PLF won. Through its lawsuit it participated in deliberative democracy and prevented injury to an overlooked minority. That should be something to celebrate rather than complain about. The creation of an opt-out is a good thing.

[Kazinski]

The governments policy will make everyone worse off, it exacerbates inflation, increases the deficit, and it sets a terrible precedent in the student loan program, and is just going to encourage more irresponsible borrowing for worthless degrees.

I do have two kids that have outstanding student loans, although one makes more than the income limit, it wouldn't impact either one of their lives for better or worse either way.

[David Welker]

The best argument I can think of is to prevent miscalculation. I have seen people delay graduation so they can work (at a much lower wage than when they graduate) to avoid student loans and I have seem people say they aren’t going to college at all over student loans. Such decisions generally don’t make good economic sense.

Talk about worthless degrees is hype. Statistics show that those with college degrees tend to make much more than those without. Causing people to fear that their degrees will be useless creates unnecessary anxiety. A bachelors degree in any subject from any public university will open a lot of new opportunities. Even if not in the major, now you are set to go get an MBA or a JD or a masters degree if the doors that are immediately opened just from a bachelors are appealing.

The reality of the situation is that federal student loans are a good deal. You can participate in an income based repayment program if you need to, so the loans should never be an unreasonable burden.

The real problem is, many people miscalculate because they fail to realize what a great deal these federal student loans are and thus delay or avoid getting an education that would greatly benefit them.

Loan forgiveness makes it clear what is often obscured by rhetoric. Student loans are a good deal. Don’t worry about them and instead focus on doing well in school and it will be fine.

Anyway, that is an aside. My discussion here isn’t based on my views on the merits of student loan forgiveness. On the whole, I view it as a positive. Not mainly because $10,000 or $20,000 will be forgiven, but because it will encourage more people to get an education without worrying that their student loans will kill them.

[Brett Bellmore]

"Talk about worthless degrees is hype. Statistics show that those with college degrees tend to make much more than those without."

How can you say that's hype, when you appeal to vague statistics that don't distinguish between one degree and the next? Nobody says that a degree in, say, civil engineering is worthless. Next to nobody thinks a degree in X studies has any real value. Average across them, and you're going to see some value, even if some degrees are worthless.

[jimc5499]

Really? When I was getting my degree in Mechanical Engineering, I had to take an English class that was taught by a Grad student. He was quick to pick on the engineering students and he really had it in for me because I was also a veteran. He was getting a Master's in Romance Languages. I graduated in 2007. In 2010 I was going to a new job and I stopped at a drive thru coffee shop. Guess who was working the window? He's still there except now he's an Assistant Manager. I'm betting that he's one of the people who will benefit from Biden's scam.

[Joe_dallas]

Ouch!

[David Welker]

If this person is an assistant manager at Starbucks, it is because that is what he has chosen. No one prevented him from say, getting a teaching credential and teaching high school, did they? He might have his reasons. For example, to be near family members. Or maybe he just did that job temporarily and decided he really liked it.

[Toranth]

Teaching credentials are neither cheap nor easy to acquire for people already in debt for non-academic non-education degrees.
In my state, someone with a non-education degree requires 5 years professional work experience in their field, then a years worth of education classes from an approved university.
After that, if they pass their testing program, they get one year as a full time teacher DURING WHICH they also need to complete a second year of education and evaluation. Passing this will give a 5-year license, subject to renewal exams.
The state estimates this will cost $10K to $20K for the first year of classes, then the second year will be about the same, but have the benefit of earning a partial salary for the teaching time.

This is compared to someone with a bachelors in education, that is allowed to begin teaching any subject immediately.

For a graduate with a Masters in Romance Languages, this could be difficult to afford. On top of that, there are only about 8 million teaching positions in the US school system (according to the DoE), and there are almost a million language graduates from universities every year (ignoring all other, similar, degrees).

[David Welker]

When you say 5 years, I think you are referring to the maximum amount of time to move from a preliminary to a clear credential. It isn’t THAT hard to become a teacher with just a bachelors degree.

[Toranth]

In my state, the requirement for a non-education degree holder, is 5 years of "degree related" work experience before they can even apply for the "alternate teach license" programs.
The required classes and all comes after that.

[jb]

There's tons of jobs that require a college degree but aren't finicky about what the major was. Whether this is a good requirement or not may be up for debate, but it's indisputable that many employers behave this way.

Also, even the majors that result in the smallest gains in lifetime earnings are still significantly positive, and this from a study highlighting the difference in value of types of degrees:

https://1gyhoq479ufd3yna29x7ubjn-wpengine.netdna-ssl.com/wp-content/uploads/cew-college_payoff_2021-fr.pdf

Someone with the lowest-paying college degree still sees 25% more in lifetime earnings (on average) than someone with only a high school education.

[Absaroka]

"Someone with the lowest-paying college degree still sees 25% more in lifetime earnings (on average) than someone with only a high school education."

Note that that there are 2 effects in play here. It's not like test subjects were randomly assigned to college and no-college groups and the resulting salary measured. Some fraction of the not-college folks didn't have the ability and/or drive to get through college. To be clear, there are lots of not-college people who are brighter than the average college graduate, and who have more drive - the distributions have a lot of overlap.

There are other confounding factors as well - the example set by the careers of your parents/relatives/neighbors, etc, etc.

But I don't think you can look at a particular individual and say 'you will likely earn 25% more by going to college'.

(There was a book called 'The Millionaire Next Door' that looked at how people became millionaires. IIUC (I didn't read the book, just summaries) one of the common paths was a bright, ambitious HS grad goes into plumbing or whatever, and in a few years starts a plumbing company. If you do that and succeed, you can end up better off than a lot of white collar types; a white collar can only sell his own time, where as the proprietor of Joe's Plumbing is selling lots of people's time.)

[David Welker]

By definition, only a minority of people can make a career out of selling other people’s labor. So, there is no way that the owner of a plumbing business which has employees can be a thing that the majority of plumbers achieve.

Similarly, that Bill Gated dropped out of college to become an employer mathematically cannot be an example for most people.

Overall, college is a solid bet at any public school, regardless of major.

[BravoCharlieDelta]

Its such a good deal and solid bet that we have a crisis requiring the government washing away of $400B of the good deal to save the recipients of said good deal.

You Democrats always talk about of both sides of your mouths.

[David Welker]

There is no actual crisis. What there is instead is a lot of confusion. Under income based programs, the most that must be paid is 10% of your discretionary income. For many people who default, the payment if they were to enter into such a repayment plan would be zero or very low. The reason they default is failure to act, often based on fear rather than knowledge.

Given the large upsides of earning a college degree, making this bet is a no brainer financially for anyone who has the mental capacity.

[BravoCharlieDelta]

So Biden and the Democrats have to zero out $400B in student loans because these college educated people are too stupid to access the IBR options on their student loans?

And it's not a crisis? If it's not a crisis what's motivating Biden to sign away $400B in student debt?

[David Welker]

I explained that the main justification in my mind is not the burden of the debt itself, but the tendency of many people to overreact to it.

These overreactions do real damage (much more significant than student loan debt) when they cause capable people to delay or fail to pursue educational opportunities.

That is my view.

[jb]

A big part of the problem is private schools and or shady advanced degrees or certifications. Many of these have both high dropout rates and bad results for getting people better jobs at the end.

It's also true that many people spend way more money than they should on college, despite the fact that it generally has a good ROI, so some of the problems that people run into are self-inflicted.

FWIW, I agree that loan forgiveness isn't a great tool to resolve the problems with higher ed and it's extremely poorly targeted (although at least they put an income cap). I'd rather spend the money making community colleges free or something along those lines.

[BravoCharlieDelta]

A big part of the problem is private schools and or shady advanced degrees or certifications. Many of these have both high dropout rates and bad results for getting people better jobs at the end.

What percent of the $400B cost is attributed to this, why do you think that, and why should those people get a bailout for their own failures?

[jb]

It's weird that you seem to have just stopped reading after the paragraph you quoted since there were two more that already lay out my answer to your questions.

[BravoCharlieDelta]

You’re other two paragraphs don’t support your claims in the first.

Are you for real? You thin-skinned babies throw out all sorts of outrageous claims and piss yourselves whenever someone asks for support.

[Brett Bellmore]

Only because graduating with even the worst major at least demonstrates a degree of diligence, even if no relevant skills or knowledge. In a way graduating from high school no longer does.

But it is, at this point, an insanely expensive way of proving diligence.

[David Welker]

It is not really that expensive when you consider the alternative. Also, pretty much any major will greatly improve your ability to read and write. Let’s not forget the way that college opens up the door to specialized graduate education.

It isn’t crazy to go into a high risk major like say acting, and then if that big high risk, high reward hope doesn’t work out, go get an MBA or whatever. (You have to be diligent to keep your doors open by getting good grades, of course.)

Much of the cost of education is driven by the cost of housing. Think about it. High housing costs not only increases the cost students must pay, it drives up the salaries that universities must pay their employees.

Talking about curtailing the cost of education by dampening demand is counterproductive. We should instead be looking how to improve supply (including through online education for properly motivated students) and through improving the supply of housing.

[jb]

It's true that a lot of places use it as a heuristic for this, but a college education will generally improve your reading, writing and critical thinking skills beyond high school as well. Those skills would be easy for an employer to assess independently, though.

Agreed that costs have gotten out of control, though. It would be nice if there was more focus on that side of the equation as opposed to paying off loans once people already have them.

[jb]

Obviously there's confounding factors, and some HS graduates earn more than people with law or medical degrees. Similarly, some people who do well without a degree might have done just as well or better with one. My point was mostly that there's not really such a thing as a college degree that adds no value. Sure, some of them are less valuable but I think it's pretty hard to make the case that the expected value of any given major is actually negative.

Now, there are definitely schools and/or degree programs that are not valuable. I think this Slate piece had some pretty sensible ideas for more comprehensive reform of the student loan system that would be a lot more helpful than a one-time forgiveness program:

https://slate.com/business/2022/09/student-loans-forgiveness-biden-system-reform-plan.html

[David Welker]

A degree in X studies can be a stepping stone to an MBA or a JD or an MD (with careful selection of prerequisites) or another more specialized masters degree.

Such a degree is only worthless if you listen to people who say they are worthless and decide to not do anything with it.

[Michael P]

There absolutely are degrees that are not worth the money they cost. Two of my siblings have two and a half degrees that they have never used and seem unlikely to ever use, including one from George Washington University. In the wider population, grievance studies degrees tend to produce toxic graduates.

Loan forgiveness encourages people to sign up for degrees that need loan forgiveness. Those are the degrees that end up costing more than they benefit anyone. Aggregate statistics that include people who aren't so foolish (the statistics your cited) do not change that.

[dwb68]

Its only going to get to the Supreme Court if someone has standing. I think that if exceptions are carved out correctly, it will be hard to find injury, except through the ensuing increased taxes and inflation (which is not enough for standing). The only body that may have standing is Congress, for usurping spending authority.

Roberts may not look kindly on Biden's antics. On the other hand, they are also sticklers for standing. Ultimately, Congress implicitly agrees with the loan forgiveness plan- or they would block it legislatively, or join a lawsuit suit. Conservatives are also sticklers for Congress doing its job.

[Michael P]

Yes, which is why it's being rushed through now: to try to keep Congress in the hands of Democrats who won't do their jobs.

[Joe_dallas]

The case brought by the states has standing ( or will have standing) . The forgiveness directly affects those states income tax. See section 108(a) , section 108(f) and the definition of taxable income under each of the respective state’s income tax laws.

[dwb68]

wrong place !!

[David Welker]

Do your siblings work at McDonalds or what?

[jb]

"Two of my siblings have two and a half degrees that they have never used and seem unlikely to ever use, including one from George Washington University."

Maybe that tells us more about your siblings than about the degrees.

In any case, lots of people have degrees that they don't "use". Even if you look at someone with a professional degree like a J.D., a lot of what you learn may not be that applicable to your general practice. That doesn't mean that the degree isn't worth the money, though, especially if it enables you to get a job that requires it.

[Joe_dallas]

David W - Students loans were designed to primarily benefit the education establishment. Tuition has risen much faster than the rate of inflation due to the availability of money for college tuition. Additionally a significant portion of the increase in tuition has gone to administration (the industrial education complex) and not into actual education.

[Moderation4ever]

Thank you for pointing out that despite the hype about worthless degrees a college degree is of value and is often necessary. Many employers either require a degree or use the degree as a screening tool for employment.

I am in my sixties and know several people who started working directly out of high school. Starting out in the mailroom or file room they progressed to good paying jobs in their firm or agency. They have also told me that their route of employment is not available to young people today. To get where they were you would need a college degree. Worthless or not it is a prerequisite for employment at the company.

[damikesc]

"Talk about worthless degrees is hype. Statistics show that those with college degrees tend to make much more than those without. "

So why force those without degrees -- who will make less --- subsidize those who have them and will, therefore, make more.

Where is the justification in taxing the poor to benefit the rich?

[jb]

Since we have progressive taxes and an income cutoff for loan forgiveness, it's actually mostly that we're taxing the even-more-rich to subsidize the semi-rich.

[Nige]

I don't think it matches the Trump tax cuts for exacerbating inflation, boosting the deficit and setting a terrible precedent, tbh.

[Don Nico]

More whataboutism.

[Nige]

Oh, I think a lot of people will compare and contrast who the Republicans work to give money to and who they work to stop getting any relief.

[zztop8970]

Yes, a lot of people suffer from the same inability to reason that you display, so they resort to logical fallacies.

[Nige]

Compare and contrast is not a logical fallacy.

[zztop8970]

"X did something bad, so this bad thing is ok" is, though.

[BravoCharlieDelta]

haha I know right, letting people keep their own money and not giving it to the wise and omnipotent people in government is so harmful to society!

[Nige]

Man those poor billionaires were hurting till Trump cut their taxes. Hello inflation!

[BravoCharlieDelta]

People having their own money causes inflation!

Sincerely,

The Smartest Guy in the Room, Nige.

[Sarcastr0]

Look it up, chief. All thing being equal, it absolutely contributes.

[BravoCharlieDelta]

People earning money and not giving it to the people in government causes inflation?

your Statist religion is sick

[Sarcastr0]

The multiplier is pretty baseline macroeconomics.

Someone secure in their ideology could handle that their policy preferences have costs as well as benefits.

Not you it seems.

[Nige]

I know all the money in the world rightfully belongs to billionaires, but yeah, it causes inflation, and so do massive profits!

[Rev. Arthur L. Kirkland]

" is just going to encourage more irresponsible borrowing for worthless degrees "

First, education-disdaining, disaffected Republicans are among my favorite culture war casualties.

Second, overcoming Republicans' intense support of shit-rate, sketchily accredited, for-profit schools would avoid a substantial volume of irresponsible lending, borrowing, and profit-taking.

[Michael P]

Changing things constantly is blatant manipulation, yes. The rule of law requires predictability and clarity. The Biden administration frustrates predictability, clarity, and the rule of law -- and they seem to be doing so intentionally.

[KenveeB]

How about the government puts together a clear rule of what they want to do so everyone knows what the actual plan is and anyone who wants to challenge it can, with the courts giving the final ruling of whether it follows the law or not? Almost like how government is designed to work.

[jb]

Huh? No. It's generally not the case at all that most laws are supposed to be reviewed by courts before they go into effect. That might be a reasonable system, but it's not what we have and standing requirements mean that in most cases it's not possible in our system.

[Bob from Ohio]

"The intent behind student loan forgiveness was to help"

Democrats in the mid terms

[Nige]

Yeah, they might actually learn that policies that help people boost their support. The weird conviction that conservatives were the grown-ups and therefore their policies of punishing people as much as possible, unless they're rich, must be the grown-up thing to do might be wearing off.

[zztop8970]

Giving people money so that they vote for you helps them financially. It is also illegal.

[Alpheus W Drinkwater]

Please cite the law that would be broken. Was it illegal when Congress passed and Trump signed those huge tax cuts? Of course by your definition, passing ANY tax cuts would be illegal, because it could be argued that you are giving people money in exchange for their votes.

[zztop8970]

18 U.S. Code § 597 - Expenditures to influence voting
"Whoever makes or offers to make an expenditure to any person, either to vote or withhold his vote, or to vote for or against any candidate; and

Whoever solicits, accepts, or receives any such expenditure in consideration of his vote or the withholding of his vote—

Shall be fined under this title or imprisoned not more than one year, or both; and if the violation was willful, shall be fined under this title or imprisoned not more than two years, or both.

Any more questions?

[Alpheus W Drinkwater]

Yes. You honestly think that law applies in this situation?

[zztop8970]

It clearly applies to what I wrote - "Giving people money so that they vote for you helps them financially. It is also illegal", which was a response to the idiotic claim that policies that help people financially should be practiced by politicians because it increases support for them.
Your reaction to this example shows it did its job in illustrating why that claim is ludicrous.

I hope that the legality of the vote buying by canceling loans will soon be tested in court.

[Nige]

So any kind of financial reief for anyone, including tax cuts, is vote buying? And if all your money comes from the same billionaires whose tax you're cutting, then you're doubly corrupt!

[zztop8970]

No, some are, some aren't
But your claim that anything that helps people financially should be practiced by politicians because it increases support for them is ludicrous, as what I quoted shows.

The legality of this particular vote-buying scheme will hopefully be tested in the court system soon.

[nekit2010g]

Relying on BS standing doctrines so that people can't challenge illegal government actions unless they're harmed, and then constantly moving the goalposts is not comporting with the spirit of the law or the Constitution.

[Brett Bellmore]

This is how dictators roll, and Biden, or his administration anyway, is dictatorial.

No formal legislative process, indeed, the legislature has nothing to do but sign blank checks, and I think we can safely assume that, if they neglected to do that much, the money would be spent anyway, because it's not like they're waiting on appropriations bills.

No formal, stable rule making process. The ground shifts under your feet every time you try to get your footing.

No laws, just ever mutating dictates.

We are watching the country become a dictatorship, right before our eyes. And a great many of our at least nominally private institutions are pitching in and helping. Censoring our communications, tracking citizens' activities, setting up the mechanisms for a Chinese style social credit score.

It may take some years for the transformation to become complete, but it's gaining speed all the while.

[Sarcastr0]

The executive is designed to work like this; agility in implementation is why they decided on one President not 2.

This is not a dictatorship, Biden is not a dictator. Quit being overdramatic and crying wolf; it devalues you and the concern you claim to have.

[Michael P]

The executive is also designed to have more limited powers than it currently exercises. The current situation is broken. And dictatorial, even if you blithely assert otherwise.

[Sarcastr0]

That's a different topic - and one I agree with.

Executive overreach is not the same as being a dictator, or else every President in the modern era is a dictator.

[Armchair Lawyer]

Overreach enough, and you become a dictator.

Declare you have universal spending authority, and don't need Congress to actually create laws to do the things you want to do....Gets pretty far down that road.

[Stephen Lathrop]

Armchair — Right wingers want debt forgiveness and spending to be the same thing. That is ideological with them; it is not the law.

There is a law, and right wingers wish it wasn't there. But instead of complaining forthrightly to congress about it, right wingers want the courts to make the law go away—for right-wing policy reasons, and because they corruptly believe the right wing has captured the courts politically. That is not good for the nation.

[Michael P]

Debt forgiveness is spending, for the same reason it's income.

[Schroeder4213]

Armchair Lawyer,

But the president is relying on legislation. Namely, the HEROES Act.

Now, you can disagree with the President’s interpretation of the HEROES Act.

For instance, the current Supreme Court would likely disagree based on the Major Questions Doctrine, which–like so many things in our law–five to nine unelected judge just made up out of thin air.

But if you want to challenge the merits of the President’s interpretation, you have to satisfy current standing doctrine, which was also made up out of thin air by five to nine unelected judges.

That’s not being a dictator. That’s just working within our (stupid) system.

[defaultdotxbe]

Just because the dictator can point to an Enabling Act doesn't make him any less of a dictator.

[Michael P]

Writing sweeping, society-wide rules in ways that avoid ever having to face challenges over the rules is pretty dictatorial.

[Schroeder4213]

It's also how the Supreme Court has decided our Constitution requires it to work.

[Michael P]

What? The Supreme Court has never said that.

[Brett Bellmore]

You're just rationalizing. The difference between an executive and a dictator is that the executive executes laws crafted by a legislature. The dictator creates 'laws' by simple fiat.

Which is this? Why, it's fiat, not statutory law. Biden is just making it up as he goes along, with the force of law.

And you're cool with that because you apparently like his dictates so far. Doesn't mean they're not dictates, rather than enforcement of actual laws.

[Michael P]

He's not just rationalizing, he's reveling in lawless and capricious executive actions.

[Sarcastr0]

*twirls mustache dictatorishly*

[Sarcastr0]

You're making a fake distinction and then begging the question so you can get on your fainting couch about it.

There is no law being made here, any more than your average OMB implementation guidance memo.

you’re cool with that because you apparently like his dictates so far.
No - I think this is executive overreach, as I have said many times. I like the policy, but don't think there is a statutory basis for it. I also think standing is an issue. And I don't think every bit of executive overreach is the President being a dictator, because I think words mean things.
But thanks for assuming bad faith.

Given how you come down in your legal analysis every single time, I get why you'd project that onto others.

[Armchair Lawyer]

"There is no law being made here"

Effectively there is. It may not law in the strictest legal sense, but it has the form and function of a new law, one designed for mass debt relief from student loans.

[Brett Bellmore]

No, it's not law, and that's the point: It's dictate. Something that has the force of law, without BEING law.

[Sarcastr0]

No, Brett. You don’t like the interpretation cited (and you like Trump doing the same thing) but you need to learn that you really not agreeing with something doesn’t make it disappear.

[TwelveInchPianist]

"There is no law being made here,"

Yup. And the sooner we can get a court to say that, the better.

[Seamus]

Good point. Helps explain why it's important that a president be able to declassify documents and information just by thinking them declassified.

[nekit2010g]

No different than a man who likes to have an orgasm into another man's anus thinking he's normal.

[Alpheus W Drinkwater]

You're about the thousandth new commenter who comes here making a comment like that, thinking you are edgy and original. You are neither. Just a boring troll.

[BravoCharlieDelta]

The executive is designed to whimsically make rule changes with out any administrative requirements such as notice and comment?

[dwb68]

tbh, Biden admin is responding to lawsuits by changing the program, which is not how dictators roll. Also, Congress could block the program.

[Nige]

Dictators notoriously love to give debt relief to struggling graduates.

[Sarcastr0]

No fair changing the implementation to avoid burdening people!

I had to learn how some really important legal issues are not justiciable 1L year.
You seem to still be learning that lesson.

[Brett Bellmore]

They're changing the implementation to avoid anybody having standing to challenge their unconstitutional actions in court, Sarcastr0. It's detailed above.

We're going to need some version of "moot, but capable of repetition", to deal with executive actions that continually mutate to evade judicial review.

[Sarcastr0]

Standing is a bitch, Brett. That's just the way it is.

After Scalia crafted it to kill loads of environmental lawsuits, now it suddenly feels unfair to you this time, so you've decided it is not just unfair but DICTATORIAL and demand the policy be changed.

I'm down with broadening justiciability rules if you are, but you sure are showing your outcome-oriented perspective here by suddenly discovering standing is hard.

[Armchair Lawyer]

The Feds didn't morph their rules and regulations on environmental law, deliberately to avoid giving standing to anyone.

Here is the opposite.

[Brett Bellmore]

"The Feds didn’t morph their rules and regulations on environmental law, deliberately to avoid giving standing to anyone."

No, in environmental law they mostly used "sue and settle".

[BravoCharlieDelta]

In secret collusion with like-minded activist groups, of course.

[Sarcastr0]

Not mostly - don’t be ignorant. They lost a lot.

[tkamenick]

Standing is also bullshit, Sarcastr0, not in the Constitution, and its supposed prudential basis is disproven by the existence of taxpayer standing in tons of states without causing the problems it is claimed to cause.

[Sarcastr0]

It was cited by the first Chief Justice

[PeteRR]

When I lived in CA, it was an understanding that gun owners and activists shouldn't point out flaws in pending gun control bills before the CA legislature. More than once Dem sponsors made changes in response to criticisms. Let them become law and use Dem ignorance of guns to challenge the newly passed bills.

[Michael P]

No law is being proposed here, only a rule that keeps shifting. For example: When does this loan forgiveness start? They've already changed it once to make it retroactive to some loan balances that were already repaid. Will that change again?

[mydisplayname]

"I suspect this gamesmanship will not be received well."

On that point, sir, I suspect you are absolutely correct.

[Rev. Arthur L. Kirkland]

Are you kidding? By masquerading as a resident of Indiana, this Garrison chap has secured a lifetime of adoration from the Federalist Society.

[Martinned]

Fair cop, for a while it looked suspiciously like Josh was going to do a whole spiel about government by press release without ever mentioning Donald "Twitter" Trump. But on the end he did suddenly remembered that the US used to have a president who used to announce entire new policies in barely intelligible tweets without ever mentioning them to the relevant officials.

[Michael P]

Please, won't anybody tu quoque the whatabouts?!

We used to have a president who campaigned against an individual mandate to buy health insurance, until he decided that if you liked your health insurance, you could keep you health insurance, until he forced the carrier to cancel that, but if you liked your doctor, you could keep your doctor, and it was a fact-checkable offense to challenge that assertion, until it became the lie of the year. And the 1980s called to demand their foreign policy back, but after the election, he would have more flexibility to do what the Russians wanted him to do.

[Seamus]

How 'bout if we all agree that was bad too? If we do that, will you admit that what Biden's doing is lawless and irresponsible?

[apedad]

This is just back end, administrative stuff which any administration is allowed to do - and therefore Prof. Blackman (a self-proclaimed constitutional law professor), is just flaying and wailing about crap.

The real issue is up front where, "(t)he Biden administration claims that its authority to forgive the student loans derives from section 1098bb(a)(1) of the Higher Education Relief Opportunities for Students (HEROES) Act." (Forbes, 9/26/22)

If that claim turns out to be legal then the rule making follows appropriately (as long as the Administrative Procedure Act is followed but Prof. Blackman didn't address that).

If the claim turns out not to be valid, then the rule making is no longer an issue.

[Armchair Lawyer]

The administration knows that its case is...very weak. So, they're looking to avoid anyone being able to bring a case, by cutting off standing arguments, by changing the "plan"

The court should shoot down this type of play

[apedad]

Any administration can change any rules – as long as they follow the APA.

BTW, since Prof. Blackman did address the Federal Registry (so I was wrong about him not addressing APA), here’s what the APA says:

5 U.S. Code § 553 – Rule making (a)This section applies, according to the provisions thereof, except to the extent that there is involved— (1)a military or foreign affairs function of the United States; or (2)a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.

https://www.law.cornell.edu/uscode/text/5/553

[Armchair Lawyer]

They aren't using the APA here, because this plan isn't a final "rule".

[Sarcastr0]

Which is legal and accepted practice.

[Armchair Lawyer]

Not really. Not like this.

[Sarcastr0]

Says you. Because your ox is getting gored.

[Michael P]

Yes, there are higher standards than APA rulemaking in those cases. The Biden administration hasn't even pretended to satisfy APA requirements here.

[Sarcastr0]

This isn’t a rulemaking. Not that you seem to understand about the APA.

[Seamus]

The rule making is an issue if the administration is doing it without making an actual rule. It's because of crap like this that Congress passed the Administrative Procedure Act in the first place.

[Sarcastr0]

This is prerulemaking.

[FivebySixThree]

The best method to reign in education expenses is for the government to treat it like medicare/medicaid a set rates for courses and degrees which greatly limits how much colleges can charge in order for their students to receive loans.

this also allows the government to limit how much money is loaned to those paying to achieve frivolous degrees.

[tkamenick]

Because health care costs are so under control? Ever notice that the industries most heavily controlled and regulated by the government are those whose costs constantly outpace inflation by huge amounts?

[damikesc]

It is odd that medicine is held to a microscope that higher ed ---- with far higher rates of increase --- is not.

[Sarcastr0]

It almost as though school and healthcare are different!

[Rev. Arthur L. Kirkland]

" The best method to reign in education expenses "

" frivolous degrees"

Deftly played.

[Dan Schiavetta]

Typical Republican response to Democratic attempts to address their concerns. Won't take "yes" for an answer.

[Michael P]

Typical Democrat response to not having the power to do something: Do it anyway, and troll anyone who calls them out.

[ReaderY]

The real problem here is that in order to twist things the way they’ve been twisted here, making perfectly ordinary draft policy revision prior to finalization appear to be a dark conspiracy, you at the very least have to give away that you don’t know the slightest thing about how ordinary government ordinarily works and have absolutely no clue what you’re talking about.

The alternative implication is worse - you are here only to make Democrats look bad come what may, however poorly your spin may fit the facts, and you simply don’t give a shit about the truth or reasonableness of what you’re saying.

[Michael P]

Ordinary draft policy revision isn't done by press release and blog posts, as JB wrote. It's done by internal deliberation, publishing a notice of proposed rulemaking, collecting public comments, reviewing those, and revising the draft rule before adopting it. Absolutely none of this process looks like that.

This is being rushed through in an effort to buy votes and keep Democrats from losing both houses of Congress in November. People treat it like a dark conspiracy because it is one.

[Sarcastr0]

So announcing something vitiates reacting to a burden becoming apparent as good policymaking?

[Michael P]

Nothing about this loss like good policymaking.

[Dan Schiavetta]

Biden had been talking loan forgiveness all along. It was a promise he made before the 2020 election. As midterms near he finally makes good on a promise he had made some time ago. What is such a dark conspiracy about that?

[Michael P]

Now do Trump's campaign promises about locking down immigration. You might understand why promising some ends doesn't justify the means.

[Dan Schiavetta]

You said this rule was being "rushed through to buy votes". I simply pointed out that this is not a new idea. Biden's people had been thinking about this for some time.

[Michael P]

It's being rushed through now because Biden's team recognizes their other feckless policies have dynamited their hopes for the midterm election. You might remember a similar rush in 2010 that actually involved legislation.

The fact that he sat on his promise for a long time doesn't mean his administration is being deliberate. It's plain to see they are not being deliberate.

[Brett Bellmore]

So, what you're saying is, he had plenty of time to go through the formal rule making process, or even ask Congress to enact legislation, and didn't bother?

[F.D. Wolf]

I don't think anyone in the Biden administration has any expectation that this program will ever become a reality. Few really believe it is legal, and no one can seriously think the current Supreme Court would uphold it. They just don't want it shot down before the midterm elections. If it's struck down after the elections, they can shrug their shoulders and say, "We tried." By 2024, no one will remember anyway.

[Rev. Arthur L. Kirkland]

Why do you predict the Court would reject this? Do you have inside information on who has engaged Ginni Thomas, and how much she is being paid, with respect to this issue?

Thank you.

[zztop8970]

This.

[ReaderY]

How about the following significantly more charitable interpretation:

The policy has not been published in the Federal Register because it does not yet exist; a draft policy is still being formulated and finalized. As it is being finalized, various criticisms are being considered and in some cases changes based on them are being considered. The current crop of lawsuits, while premature, do articulate criticisms that can be considered comments on the draft policy for consideration.

This interpretation isn’t just a more charitable interpretation than a conspiracy theory changing the goalposts to avoid lawsuits interpretation. It fits the facts considerably better. The fact that it hasn’t been published in the Federal Register yet and is changing as criticisms are received is more consistent with its being a draft policy undergoing revision prior to finalization - a feature common to the evolution of many government policies - than with its being part of a secret Democrat conspiracy to own the conservs.

[Michael P]

That presumes they're drafting anything except web pages, and that they intend to publish anything in the Federal Register. They're crafting a Swiss cheese policy to evade judicial review -- which is not actually a legitimate purpose of the rulemaking process.

[Rev. Arthur L. Kirkland]

" They’re crafting a Swiss cheese policy to evade judicial review — which is not actually a legitimate purpose of the rulemaking process. "

Just ask Jonathan Mitchell, revered by a white, male, right-wing blog as a "genius."

Are you guys enjoying the culture war? I know I have, for roughly 50 years!

Reason, progress, science, education, modernity, and inclusiveness vs. bigotry, backwardness, superstition, ignorance, insularity, dogma, and pining for illusory good old days. I know which side has prevailed at the American marketplace of ideas throughout my lifetime. I know which side is positioned to continue to shape our national progress. I know which side I am on.

How about you, clingers?

[Brett Bellmore]

One way in which the policy is not changing, though, is its lack of genuine statutory basis. In all its mutations it remains a massively expensive executive branch fiat, a dictate. Not a genuine effort to see that the law is faithfully executed.

There's no curing THAT short of legislation, which does not appear to be contemplated.

[Stephen Lathrop]

Good for you, Bellmore. You just came close to conceding that loan forgiveness enjoys current legislative support. Too bad you preceded that valid insight with ideological fulminations of the sort the political right-wing expects its wholly-owned right-wing judicial system to support.

Looks like the nation is in for many repeats of this general pattern. Right wingers think they corrupted the Supreme Court fair and square. They will howl like banshees if political opponents try to maneuver around that.

It would be more gracious for right wingers to show restraint—maybe take victories from their ideologically corrupted court one case or controversy at a time, in the normal order of judicial business. It is unseemly for right wingers to try to make every political disagreement into a court case, simply because they think that gets them a guaranteed win. It will not prove politically wise to keep so continuously on display the character of such a tawdry Court.

[Brett Bellmore]

Lots of things have enough legislative support that the legislature won't move against them, but don't get done by the legislature because they don't want to commit political suicide. That fear of the voters is part of the process, a key constraint on what gets made law.

Working around the legislative process by executive (Or judicial!) fiat defeats that democratic constraint on what can become law.

[Aunt Teefah]

"lack of genuine statutory basis."

Except for the statute that gives the Secretary of Education the right to "compromise, waive, or release any right, title, claim, lien, or demand, however acquired, including any equity or any right of redemption." https://www.law.cornell.edu/uscode/text/20/1082. I'm genuinely not sure how Congress could be more clear in giving the administration the power to forgive student loans than that.

[Joe_dallas]

The states have standing even with the frequent modifications to avoid standing.

Debt forgiveness in taxable income unless excluded under section 108. Section 108(f) provides a temporary provision that excludes from income student loans that are forgiven from 2021-2025. Since most states definition of their states taxable income starts with federal law, (subject to that states modifications ) , then the student loan forgiveness will affect state income tax.
The states have either a loss of state revenue or will have to modify the state statutes to ensure the forgiveness is picked as income taxable in their state. Therefore the state are definitely harmed and have standing.

[Sarcastr0]

At best, this gets at the income exclusion aspect. Good luck with the politics of that court case!

[Joe_dallas]

It gets standing. Period

[Sarcastr0]

On the narrow issue.

[Joe_dallas]

doesnt matter that it gets standing on a narrow issue.

It gets standing

though it should be noted that the income tax issue is not a narrow issue - but you already knew that

[Sarcastr0]

Yeah it does. If you can tailor the remedy to vitiate standing what do you think would happen?

[Ben_]

Politics of that court case: Biden loses, it was illegal. No transfer of relatively rich people’s debts onto relatively poorer Americans. University administrators' avarice hits a speed bump.

Ultimately the best politics will be when red state legislators in a few states manage to mandate less costly degree programs.

The next year should be a good one for University reforms from the Supreme Court also.

[Davy C]

I'm not convinced that "we'd have to modify state law" creates standing for the state to sue. After all, they could just modify their own laws.

[Joe_dallas]

the steps to modify state law is an injury.

[Sarcastr0]

Any precedent to cite for that or the scope issue?

[Joe_dallas]

Sarcastr0 47 mins ago
Flag Comment Mute User
"Any precedent to cite for that or the scope issue?"

Do you really need a citation ?

Its kinda obvious

[Sarcastr0]

They call this an appeal to incredulity.

Obvious to you is not an argument. People are different, and just as some things use the taxing power you don’t expect, not everything you think should be is a legal injury.

[Stephen Lathrop]

In this instance, right wing concerns seem based on pure ideology, or on hostility to non-engineering degrees. Nothing at all wrong with maneuvering politically around objections of that sort. It would be wrong to decide a legal case on those bases.

More generally, the American political right trends lately toward an expectation of entitlement to court decisions in their favor—especially ones tailored to vindicate their preferred policy preferences. That creates more fuel for the oncoming illegitimacy crisis in the courts.

Tangentially, it is hard not to notice that a generously open-handed Democratic administration is about to put itself on the hook for billions to relieve avoidable losses suffered by a class of victims far more heedless than the class of student degree aspirants. Where is the right wing outrage? How can the political right have so quickly forgotten the contrary former example of its current would-be hero—who now heads a state administration insisting, "Send cash, not relief materials?"

[Brett Bellmore]

Now, that's silly; Engineering is only one letter in "STEM". I have hostility to non-STEM degrees. (Only three quarters joking, there are a few non-STEM majors that tend to pay off.)

Or to be more precise, I view degrees which don't predictably lead to increased incomes that would allow for paying the cost of obtaining them to be a luxury good. I've got no objection to people who can afford luxury goods purchasing them.

I do have an extreme, and I think warranted, objection to the government subsidizing the purchase of luxury goods to the tune of billions of dollars, on the backs of people who didn't buy them. The government should no more make life easy for people who go into debt to purchase useless degrees, than it should make life easy for people who go into debt to purchase concert tickets, foreign vacations, or visits to Nevada brothels. I see no moral distinction between buying your entertainment from the Mustang Ranch, or buying it from Harvard.

[ReaderY]

Well, it’s a consistent perspective if you view surviving a luxury good. For those with adequate life insurance, Survival doesn’t increase your short-term income.

We needn’t even reach ultra-luxuries like understanding, participating in, having opinions on the affairs of the society one is a member of, let alone super-uktra-luxuries like understanding ones universe or the world of human beings.

It’s enough to point out that bare survival is not a luxury only if one acknowledges the existence of values other than increase ones income as necessities. What might those values be? Well, if one wishes to indulge in the luxury of surviving, one has to indulge in the luxury of finding out.

[Brett Bellmore]

What exactly is the connection you make between "bare survival" and a degree in "Gender studies", to give an example? The program we're discussing isn't needs based, you'll notice, and it's available to people making several times the median income in this country. It's hardly capable of being construed as aimed at saving people's lives.

Do you suppose we should have a program forgiving debts incurred visiting brothels, just because some fraction of the people borrowing money to frequent them might end up in dire circumstances? And claim that the brothel loan forgiveness program was a matter of "bare survival"?

Again, degrees in subjects that would not be expected to increase your income enough to pay for having obtained the degree, are nothing but expensive luxury goods, no different morally than sex holidays or pigging out at 5 star restaurants. They don't even have the virtue of physical luxuries like fancy cars, which could be repossessed to pay down the loan!

[ReaderY]

It’s very straightforward. Since insurance lets you obtain income without surviving, survival, let alone education of any sort, is a luxury by your definition. So there must be something else out there in life besides merely ontaining income.

What might that be? Maybe it’s not to be found in gender studies. But since you’ve lumped pretty much all human intellectual endeavors right in there with gender studies, that lumping means that you’ve forced it to be in the category that contains them.

[zztop8970]

You are a bit off in your logic. It's not "survival" that is a luxury good, but the financial product called "life insurance" which is a luxury good. I don't see a particular reason to subsidize your life insurance.

[Stephen Lathrop]

zztop8970 — Do you see any particular reason why I should subsidize the folly of idiots who choose to build on the unrelieved flood plain we call, "Florida?"

[zztop8970]

No, you shouldn't
Having deflected that red herring, can we get back on topic?

[Toranth]

A college education is a one of two things:
A) An investment in yourself, with the expectation that your improved job prospects will pay for the cost of the education, or
B) A luxury entertainment, where you pay to learn things, with the benefit of the expenditure being the learning itself.

You're playing sophomoric semantic games about route B being somehow more than a luxury, and pretending that people that go route A are merely "surviving" - as if an engineer is incapable of appreciating art without a Bachelors in the subject, or a mathematician is incapable of knowing any history.

To put it mildly, your argument is silly. Your strawman attacks on Brett's argument about the ROI and/or quality of different degrees are absurd, and you obviously know it. Else you wouldn't spend so much effort on your "sarcastic" strawman slaughter.

[Sarcastr0]

Education doesn’t fit into boxes like that. It can be both. And finding what you love which has value as well.

[Toranth]

If you enjoy your investment, that's a benefit, but you're still in route A.

As for the value of "finding what you love", that's a great route B luxury entertainment.

[Sarcastr0]

A society where everyone is employed, but a lot of them hate their jobs, is not my idea of a good goal.

You do understand how collectivist it is to insist each individual must look to the collective benefit in what society will support? In liberalism, society exists to support the individual, not vice versa.

[Absaroka]

Well, I certainly think that income maximization isn't life's sole purpose. Personally, I like to bum around the mountains, and have willingly traded a good deal - years - of income for time in the mountains.

If by 'society exists to support the individual' you mean that society should leave me alone when I'm bumming around the mountains, then I agree. But if you are saying that working people ought to be forced to subsidize climbing bums, then I very much disagree. Those people probably have things they would rather do than pay for my trips to the mountains - go fishing, take their kids to the park, or contemplate their navel. I have no right to keep their nose to the grindstone to support my leisure.

Whether my preferred leisure activity is climbing, reading 17th century French poetry, or studying LaPlace transforms, it is something I should pay for myself, not ask society, AKA 'other people', to pay for.

(and with that, the Aspen are changing and I'm off to the mountains for a couple of weeks!)

[Sarcastr0]

Your plan to funnel lives choices into the roles you prefer is functionally not leaving people alone nor particularly free. Picking winners and losers is not something government should be doing or does well.

Part of college is finding out who you are. Predestination as a ‘productive member of society’ is a couple of generations out of date. As it should be. Self actualization is important. A society that allows that is supporting its members having good lives. Insisting I that’s only worth spending money on if it helps the collective…well, that’s something else.

[Toranth]

Where does Absaroka - or myself - every suggest "funnel lives choices into the roles you prefer"?
In fact, he explicitly said the opposite! He doesn't want people forced to pay for his (or anyone else's) interests.

And "finding out who you are" is an idiotic phrase for growing up, and has absolutely zero to do with attending a university. Why do you think that blue-collar professionals and other non-college workers are not capable of "finding out who they are"? That's a pretty classist (and ignorant) view of them.

And hilariously, while you're trying to paint your individual liberal opponents as collective, you are the one insisting that it is the responsibility of people to pay for the "self-actualization" of others, in order to benefit "society"!

[Toranth]

If you think describing people's choices as a matter of personal responsibility as "collectivist", you need to stop huffing whatever you're on.

At no time did I describe any responsibility of the student (save to pay for the education). Nor did I ever suggest that there should be force used - government or otherwise - to force people into one route.

What I said is that if you choose to buy an education, you are either treating it as an investment which will pay for itself, or as a luxury entertainment which won't.

[Absaroka]

"the government subsidizing the purchase of luxury goods"

The funny thing is, as Joe_Dallas points out above, student loans don't subsidize the student's college costs - they subsidize massively bloated college administrations. I know because I worked in one for a couple of decades. I've worked for federal agencies, and while they aren't always paragons of lean-n-mean efficiency, they are immensely - like an order of magnitude - more efficient than the university where I worked.

Students are also victims of student loans, along with taxpayers. When I went to school, you could pay tuition/room/board as you went by working a min wage job summers and part time during the school year. The dining halls hired lots of students because their schedules fitted when the dining hall needed them; it was a win-win. Whether your degree was EE or Literature, you graduated without a debt load. The cost today is a lot, lot, higher, but the education isn't any better.

[Stephen Lathrop]

Bellmore, you misunderstand the value you suppose STEM graduates offer to employers. They are not valued for their technical skills anywhere near as much as they are valued for docility and interchangeability.

Prior to today’s Human Resources Department vogue for STEM, most of the kinds of functions performed by today’s legions of proud STEM Lords were the routine province of lower-status but higher-skilled blue collar types. Those proved all too productive to suit their employers. That productivity made them nearly indispensable.

As the economy consolidated in fewer, larger employers, senior corporate managers began to exercise a priority to rid themselves of dependence on skilled workers who enjoyed independent power to hamper management decision making. Managements were willing to sacrifice a lot to achieve that; they pursued that goal relentlessly. What they had to sacrifice generally in the transition could be more than made up personally, after mangers gained unfettered power to reward themselves. Their aim was first to seize the remainder for themselves, and then grow it if they could.

That management impulse, more than anything else, is what killed blue collar industrialism in this nation. It has not been good for the nation. It has even proved fatal or greatly damaging to some of the corporations which practiced it. I worked for one of those, as a blue collar worker on a shop floor. It was the now-defunct Morrison-Knudsen Corporation—an engineering and construction giant—which went bankrupt suddenly, after a newly-hired professional manager failed to notice that high-order blue collar skills were the essence of what the company had been selling for many decades to clients all over the world.

A routinely-trained engineer today would be fortunate indeed to earn what commonplace wage scales paid genuinely skilled blue collar types in the 1960s. Partly, that is because that routinely-trained engineer is by no means as useful, or as productive, as was, for instance, an experienced millwright situated in a job to make full use of his skills.

Same goes for tool and die makers, pipe fitters, some electricians, master joiners, and so on. Even the typesetters of that era produced more-skilled and more-useful work than anything today’s high tech approach usually delivers.

But alas, skills of that sort were always in genuinely short supply, which hampered management, exposed it to labor strife, and leveraged labor claims to share in productivity gains. Today’s managers have got free of those constraints, by resorting to an actually more-plentiful and less troublesome resource—rudimentally-trained STEM workers, who do not join unions.

Of course, skilled-trade types were still needed. No problem. Their contributions could be outsourced from abroad, where brutally managed economies kept their ability to demand just compensation in check, and where managements here needed give them no thought. That economic sleight of hand in the management suite created the opening which gave today’s run-of-the-mill STEM types an opportunity to strut and preen, as if they deserved preferment as a natural right.

It is in some ways a pathetic display. With little or no work autonomy, too-often early forced retirements, and constant threat of replacement by lower-paid STEM types either living abroad, or actually from abroad, most STEM workers are notably worse off today than their blue collar predecessors became while they thrived. Celebration of STEM is thus, at best, a somewhat benighted accommodation to a malign workforce transition engineered to privilege a small subset of managers.

The more general point is that there was no natural superiority to justify a STEM-type approach to dealing with commonplace kinds of labor needs. It happened by policy, opportunistically, and for reasons of management greed.

What can happen by policy could be reversed by contrary policy. Today’s preening STEM types, to get jobs at all, could find themselves packed into hives, underpaid even more than they already are, doing little but drudgery. More-useful and more-productive blue collar tradesmen could once again master the more interesting problems, and collect just rewards for doing it. An economy reorganized that way would work better for most Americans.

With an economy where builders still thought, and thinkers still built, STEM would be needed far less than you suppose, Bellmore.

[Brett Bellmore]

Hm, we are not entirely in disagreement here. Though I don't disparage the blue collar guys down in the tool room, at my previous job it was a small company, and I spent half my time doing that work. (Which improved me as an engineer, to be sure!) And my father was a master machinist.

We would have a much healthier economy with less college and more vo-tech, but professional managers don't value the blue collar workers. Happily, the company I now work for has an apprenticeship program recruiting HS students.

[Rev. Arthur L. Kirkland]

" We would have a much healthier economy with less college "

That might be the antisocial disaffectedness, backwater resentment, belligerent ignorance, and autism talking.

[Michael P]

He understands the value he supposes that STEM grads offer to their employees better than you do. He understands their actual value better, too.

My employer doesn't hire STEM grads because they are docile or interchangeable. They get hired because they can think same work independently, and have complementary skill sets that contribute to solving the technical problems.

The disturbingly large profits churned out by relatively small numbers of "tech bro" employees shows how wrong you are about relative productivity -- not that you being loudly but totally wrong is anything new.

[Joe_dallas]

The hostility is due to complete lack of constitutional authority

[Nige]

Hang on, correcting an error that had a material effect on how something is understood and could have negatively affected how people accessed the scheme is now Stalinism? Really? REALLY?

[Brett Bellmore]

It is if they're correcting errors in an illegal program created by executive dictate, sure.

[Nige]

Oh no correcting an error in yet another program Repulicans want to blockl Tyranny! They're supposed to just sit there and let them block!

[Bubba Jones]

It seems problematic to the layman that they are implementing a policy prior to publishing it.

What happens to the people who get their loans canceled by a policy that it later overturned? Are they going to get hit for missed payments?

[ReaderY]

They are they implementing it? How?

[Rev. Arthur L. Kirkland]

" I have no doubt lawyers in DOJ planned each and every step here: they would wait till a suit was filed, then update the website with a "revision" to try to moot the litigation. "

Has anyone seen Josh Blackman and Brett Bellmore in the same room?

Has anyone seen South Texas College Of Law Houston in a ranking that placed more than 10 American law schools below it?

[dwb68]

I posted this in the wrong place:

Its only going to get to the Supreme Court if someone has standing. I think that if exceptions are carved out correctly, it will be hard to find injury, except through the ensuing increased taxes and inflation (which is not enough for standing). The only body that may have standing is Congress, for usurping spending authority.

Roberts may not look kindly on Biden’s antics. On the other hand, they are also sticklers for standing. Ultimately, Congress implicitly agrees with the loan forgiveness plan- or they would block it legislatively, or join a lawsuit suit. Conservatives are also sticklers for Congress doing its job.

Also: Conservatives should look on the bright side. If Biden has the authority to “find” hundreds of billions in spending, the next 12 years of the Republican administration should be fun as they “find” the ability to cut Social Security and Medicare, raise eligibility limits, impose means testing, and make it solvent. Or just plain cut it to solve deficits.

Nothing goes around in D.C. without coming right back around on the party the escalated the constitutional warfare.

[Joe_dallas]

DWB - as I noted elsewhere the states will have injury due to the states income tax laws and the interaction of those states income tax laws and the federal tax code. See section 108(a) and section 108(f).

[Variant]

Either we’ll continue have pre-regulation lawsuits that slowly whittle it down to nothing as holes highlighted by myriad injury claims are closed, or we’ll have a lawsuit by the House of Representatives after the GOP wins control back in November.

As Ilya pointed out in his article, the bar for 'injury' can be quite low. Low enough that if there's even an iota of burden placed on petitioner to "opt out," it'll qualify as an injury. Would the administration adjust to make the program "opt in" if this strategy is employed?

I’m not sure anyone on either side of the aisle seriously believes this is legal. They’re just taking advantage of a loophole in standing doctrine.

[Moderation4ever]

I agree with the author here and would point out that this is a symptom of a failing democracy. The founders saw the three branches as checks against each other but not the type of adversarial moves that we are seeing today. Rather than seeing cooperation and compromise to address issue, we see one or two branches try to stop the third and the opposed branch tries tricks like this to thwart the effort.

[Rev. Arthur L. Kirkland]

Relax, modernation4ever. There is nothing wrong with America or its political branches that replacement is not already solving.

[dwb68]

It does not mean democracy is failing lol.

It means congress is not doing its job.

[Variant]

It means that the courts *may* not be doing theirs.

[Ben_]

It's illegal and we're a state in a union of states governed by laws should be enough for standing. States give up autonomy to be part of a union. One of the conditions of that union is for the other states and the Feds to act lawfully.

[Michael P]

The judicial rationale for not extending standing that far is that it would allow literally anyone to prosecute a suit making such claims, even if the claims are ultimately (or even obviously) meritless.

[Ben_]

States and co-equal branches of government should always have standing to challenge federal actions. That’s not "literally everyone".

Ultimately it doesn’t matter much because too many people at too many levels don’t care about honesty or right and wrong. Voters are corrupt and demand money other people earned. Politicians casually ignore their oaths. Judges decide outcomes based on an agenda and then search for rationalizations to justify the decisions afterwards. Prosecutors are pro-crime and pro-criminal and have zero intention of serving or protecting the non-criminal public. Public health authorities ignore the scientific method and make rules based on emotions. FBI acts as a political enforcement gestapo. News media outright lie and otherwise carefully edit the news as if they were North Korean government propaganda agents. Presidents want to be President for 20-55% of Americans and against the rest.

[DaveM]

This is very sound. Co-equal branches should always have standing.

[Alpheus W Drinkwater]

Standing isn't primarily a limit on the power of the other branches, it is a limit on the power of the judicial branch. If every political disagreement is justiciable, then the judiciary branch has all the power.

[Rev. Arthur L. Kirkland]

It sounds like the government is changing some online guidance here nearly as quickly as Republican candidates are wiping their anti-abortion absolutism and gun nuttery from their websites!

[DaveM]

The doctrine of standing based on individual harm is clearly not working as intended. If it only takes $1 of "harm" to get in front of a judge, that's just a nuisance, not a rule with any practical force. Such a rule now has utility only as an obstacle in lawfare. Bah. It's worse than useless. A claim of unconstitutionality alone should be enough to get a hearing in court.

[Schroeder4213]

I would have a little more sympathy if conservatives had a history of supporting broad standing doctrine in, for instance, civil rights case.

As it is, I'm just enjoying the strong "I'm not mad; I'm laughing actually" energy of this post.

[TwelveInchPianist]

I suppose we'll get a court decision on the legality of this when a future president, following his duty to take care that the laws are faithfully executed, declares this action illegal and begins collecting on the loans.

Biden's setting these poor students up for a horrible situation in the future.

[Eric Rasmusen]

Anybody have thoughts on these Standing tricks?

1. Borrower. "I don't want my loan forgiven, because then I'll have giant state and federal tax loan forgiveness income liability this year, and I'm short on money now but won't be in a few years". Biden can respond by making forgiveness optional, but he'll have to clarify, maybe with a formal notice-and-comment rule.

2. Lender. Borrower refuses to pay, saying his loan is forgiven and pointing to Biden. Lender says that's false; court must decide. This is the obvious way to get standing. It could a request for declaratory judgement and injunction by the lender, before the refusal to pay even happens. I suppose this would work, tho, even if Biden says he will pay back the student's loan so the lender has no harm. It's like in Merchant of Venice, where SHylock refuses to let other people pay the Merchant's debt. Or is money fungible enough taht this works?

3. The federal False Claims Act. Is there some way to use this angle? Can a relator sue Biden for makinga false claim to give away govt. property?

4. Borrower. Borrower asks the court for a declaratory judgement as to whether if Biden forgives the loan, the next President can undo that and say it isn't forgiven after all. He would ask for an injunction to stop the next President from doing this, which is a bit of a collusive lawsuit, but amici could step in.

Fun stuff.

4.

[Aunt Teefah]

You know, one might think that Professor Blackman, as a party to and beneficiary of a racket to bilk young people out of $34,000 per year and delivering them a 62% shot at gainful employment (see https://www.lawschooltransparency.com/schools/southtexas), might be less brazen in his attempts to further impoverish his marks. But alas, there is no one more contemptuous of his victims than a right wing grifter.

[dwb68]

People can choose not to go to college. They can also choose a better major. A graduate in STEM majors has nearly a 100% chance at gainful employment and a good return on tuition. *

Also, for some things (like the first two years) people can choose less expensive options like Community College.

The only people getting bilked are the people who made better choices and now have to bailout all the woke history majors.

* And a law degree is not one of those good choices lol. No bailouts for lawyers.

[Sarcastr0]

There is more to life than STEM jobs.

[Toranth]

There's no requirement that someone pay you for enjoying your "more to life", though.

As I pointed out elsewhere, there are many times as many graduates with language degrees as there are job openings for them.

[Sarcastr0]

There is more to an educated and cultural populous than STEM jobs.

[Toranth]

And there's still no requirement that someone pay you because you are "educated and cultural". Insisting that people must get jobs just because they've found "something they love" is quite oppressive to every employer, and anti-liberty.

Also, you've again decided that people in STEM jobs cannot be "educated or cultured". While that's often a view of those that lose out in the job markets with poor degree choices, it's a remarkably ignorant one - and very bigoted as well.

[Rev. Arthur L. Kirkland]

" And a law degree is not one of those good choices lol. "

I get $600 an hour for my time consequent to my law degree.

What is your hourly rate, clinger?

(And that $600 doesn't consider the end-of-year premium I ask some clients to pay.)

Your random capitalization indicates you should have chosen an English course or two. Are you not aware of your incompetence with respect to standard English?

Carry on, clinger.

[Randal]

I don't understand your problem, Josh. These plaintiffs are getting exactly what they're asking for.

The only way that can be bad for the plaintiffs is if the suits themselves are bad-faith lawsuits. I mean, that's essentially your premise, right?

"Stop giving me what I say I want because you're frustrating my ulterior motives!" Jesus, what a flock of asses.