Joe Selvaggi talks with constitutional scholar Ilya Somin about the merits and likely success of the two Supreme Court cases Nebraska v. Biden and Department of Education v. Brown, which challenge the President’s constitutional right to cancel more than $400 billion in student debt.
Guest:
Ilya Somin is Professor of Law at George Mason University. His research focuses on constitutional law, property law, democratic theory, federalism, and migration rights. He is the author of his most recent book, Free to Move: Foot Voting, Migration, and Political Freedom (Oxford University Press, 2020, revised and expanded edition, 2021). Somin’s writings have been cited in decisions by the United States Supreme Court, multiple state supreme courts and lower federal courts, and the Supreme Court of Israel. He has testified on the use of drones for targeted killing in the War on Terror before the US Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights. Before joining the faculty at George Mason, Somin was the John M. Olin Fellow in Law at Northwestern University Law School in 2002-2003. In 2001-2002, he clerked for the Hon. Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. Professor Somin earned his BA, Summa Cum Laude, at Amherst College, MA in Political Science from Harvard University, and JD from Yale Law School.
More from Ilya Somin:
- SCOTUSblog, “Don’t let the executive abuse emergency powers to raid the Treasury,” February 21, 2023
- The Volokh Conspiracy, “Thoughts on Today’s Supreme Court Student Loan Forgiveness Oral Argument,” February 28, 2023
WATCH:
Please excuse any typos.
I’m Joe Selvaggi. This is Hubwonk, a podcast of Pioneer Institute, a think tank in Boston. Can a president and his administration legally erase more than $400 billion in student loan debt? Legal scholars agree that the answer lies with whether Congress has authorized him to do so. In oral arguments heard this week in the case of Biden v. Nebraska the plaintiffs representing six states assert that no such congressional authority has been given while the solicitor general for the administration defended the action as consistent with the intent of the 2003 Heroes Act, which had empowered the president to waive or modify the rules of loans during emergencies such as those post 9/11. To win its case, Nebraska will need to challenge the president’s tenuous interpretation of the target and scope of the Heroes Act and establish that it has standing or the legal right to sue on behalf of state agencies. Were the states to be denied standing to sue, the merits of the case would be moot thus enabling the executive branch to interpret its own limits for debt cancellation with no fear of judicial interference. Were the Supremes to find for the states the loan forgiveness plan would be stopped. What are the details and nuances of the Supreme Court case and its sister case Department of Education v. Brown. Which legal principles will find purchase among the nine members of the court and what will determine which side will win its case? My guest today is constitutional scholar and George Mason University law professor Ilya Somin. Professor Somin has written extensively on the constitutional issues surrounding Biden v. Nebraska and Department of Education v. Brown. He will show us the important legal and constitutional elements in these cases and offer his opinion on the merits of the cases the plaintiff’s legal right to sue and future presidential prerogatives that will follow from these decisions. When I return I’ll be joined by legal scholar and law professor Ilya Somin.
OK we’re back this is Hubwonk, I’m Joe Selvaggi. I’m now pleased to be joined by constitutional scholar, George Mason law professor, and a favorite guest on this podcast, Ilya Somin. Welcome back to the podcast, Ilya.
Ilya Somin: Thank you for having me.
Joe: OK now before we roll up our sleeves and get into the details of two related cases before the Supreme Court right now which are Biden v Nebraska and Board of Education v. Brown I want to stipulate for our listeners we’re not going to talk about the merits, policy merits of forgiving half a trillion dollars in student debt. We’ve done episodes on that before. We’ve had education experts talking about this issue and we really accept that it you know it may be a bad idea largely based on the fact it’s a regressive and an inflationary policy choice so let’s table that and not talk about that, really talk about is the legality of this particular action by the Biden administration and that’s why we have you as our constitutional scholar. We’ve just heard four hours of oral argument offered by some incredible attorneys, whereas I may not agree with their position I was impressed, I sat through four hours of the oral arguments with Solicitor General Elizabeth Prelogar. She was brilliant, so let’s start with the basic contours of the case who are the plaintiffs and who are the defendants in Biden v. Nebraska?
Ilya: In both cases the defendant is essentially the Biden administration. The plaintiffs is a more complicated story in one case the plaintiffs are six red states who argued that the loan forgiveness if it happens will cause them various financial losses and the like in the other case which is sort of much stranger the plaintiffs were two individuals who one of them would not get any loan forgiveness at all under the Biden program and one of them would not get as much as they would if it were more generous and they essentially argued that the current program is illegal and if the court were to strike it down then the Biden administration have to go back to square one that they would then inquire into additional ways to try to get student loan forgiveness and those might involve doing what are called notice and comment hearings under the Administrative Procedure Act and then could also result in these two individuals getting more loan forgiveness. So, ironically the two plaintiffs here far from saying that the program should be smaller they’re saying that it should be bigger they’ll also perhaps saying that it should have been done under a different act than the one the Biden administration cites as
Authorization.
Joe: So in the interest of keeping our conversation more focused given our time constraints I want to put the Board of Education v. Brown, the one you just mentioned, to the side and let’s really dilated on Biden v. Nebraska so again as you say it’s the plaintiffs are six red states they’re bringing suits so they’ve suffered some harm tell us what their claim of damage is against the administration.
Ilya: So the cleanest and simplest is that of the state of Missouri where they have a state agency called the higher education loan authority of the state of Missouri known to its friends and admirers as MOHELA. which is what I’m going to refer to it for short they are actually a loan servicer that is they service student loans and how much money they make off of servicing federally backed student loans depends on the number of the loans and how much money is in them and so forth and essentially what they say and I think correctly is that if a lot of these loans are forgiven at least in part by the Biden administration then MOHELA will make less money which in turn means less money for the state of Missouri. The other five states have other sort of more complicated theories of why they’re harmed but Missouri is the cleanest and simplest.
Joe: Now there are cases of course not just that they have they’re being harmed but of course this harm is coming with an action that is unconstitutional, so in broad strokes again we’re starting on the high level, what is their case what makes this particular Biden forgiveness program unconstitutional in their case?
Ilya: I think their argument is that it’s not legally authorized which in the first sentence about a federal statute rather than the constitution, or the constitution does come into play in as much as if this statute doesn’t authorize it then it becomes unconstitutional, I guess. And the Biden administration says that all of this over $400 billion in loan forgiveness is authorized by the 2003 Heroes Act which says that if there is a national emergency like the COVID pandemic, which was declared a national emergency by Trump, then the government can potentially waive or modify regulations affecting federal student loans with respect to people who were made worse off when it comes to paying off those loans by the national emergency than they would have been otherwise so that’s the argument and by the Biden administration. The argument on the other side is first that “waive or modify,” that language doesn’t authorize massive loan forgiveness as opposed to sort of incremental adjustments. Secondly they point out I think correctly that of the over 40 million people who qualify for loan forgiveness under this Biden plan a large number probably even a large majority were not in fact negatively impacted by the pandemic in terms of their ability to pay off the loans and so I think therefore the argument of plaintiffs in these cases is that this is a massive overreach, this goes far beyond what the statute authorizes even though possibly a more limited forgiveness of loans—or alternatively you know a modification of the regulations it doesn’t go as far as mass cancellation of loans—maybe that would have been permissible, but what the Biden administration is doing, say the plaintiffs, is not.
Joe: So, for as an aside for our listeners who are strong advocates of loan forgiveness were to be the case that Congress wrote an act specifically you know during COVID perhaps it said OK we’re going to give $20,000 worth of loans for millions of former students I guess that would that have been constitutional unequivocally constitutional for Congress to have done this?
Ilya: Yeah I think almost certainly, in that Congress does have the power to spend money or forgive federal debt which is a kind of spending of money as well, so if Congress passed the law saying you know we want it for even if they passed a law saying we want to forgive all student loan debt owed to the federal government they could have done that but they didn’t do it and thus we are here because for a number of years the liberal Democrats in Congress have wanted to pass laws of requiring mass loan forgiveness and they haven’t been able to do that including during the last Congress when Democrats had a majority in both houses, and so this is a way essentially of the executive trying to do that which Congress would not.
Joe: Yes, indeed the president is trying to do what even a Democratic-controlled Congress both the House and the Senate weren’t able to do for two years so he’s circumventing Congress itself rather than the other party, if I’ve got the facts right.
Ilya: Some of both. Obviously if Republicans were happy to do this then he wouldn’t have needed the support of almost all Democrats when the failure to get the support of almost all Democrats is ultimately why this ended up being an executive policy as opposed to something Congress did so.
Joe: So, you clearly stated that this particular, Biden’s defense, his claim is that a 20-year-old law, a 2003 law, that was entitled the Heroes Act, and we won’t go into the details perhaps some of the details of the Heroes Act was specifically designed to with the intent that during emergencies—in that case it was 911 and individuals going off war who may have had debts he didn’t want that particular that law did not want those people who went off to war with debt to be harmed by that—so this was sort of a give latitude to the president to waive or modify those loans. What the Biden administration is appointed that act as saying yes 20 years later COVID is the same as 9/11 and waiver modify includes cancel let’s take that apart first is did the heroes act pertain to other emergencies and how would you draw the limits of that particular act?
Ilya: I think here the Biden administration is probably right in that the Heroes Act specifically refers to national emergencies in general not just 9/11 specifically so anytime the president declares a national emergency which in this case Trump did and Biden continued it though he is going to terminate the national emergency he says on May 11 of this year but at the time that he declared the world forgiveness policy the national emergency was most definitely in place there’s a whole other set of issues could discuss about how it’s way too easy for the president to declare a national emergency and then continue it indefinitely under the national Emergencies Act of 1976 but in the case of COVID all but the most extreme denialists and conspiracy theorists I think would have to admit that there was in fact a genuine national emergency with COVID, especially before vaccination was available.
Joe: So, I want again zero in on OK it is an emergency but I want to focus on these terms waive or modify now you we talked about earlier we’re talking about almost half a trillion dollars in student debts not a small amount even in this day and age does waive and modify again from a legal perspective also include cancel or forgive whatever term we want to use?
Ilya: So it’s important to remember to waive or modify does not refer to the student loan debt itself but rather to the regulations governing the debt and waiver modifies not the most clear language ever I would argue that a waiver modify at the very least is ambiguous as to whether it authorizes action on such an enormous scale to actually cancel massive debt as opposed to making more incremental modifications and the Supreme Court has said in a whole series of decisions that when a federal government agency, an executive agency, says that they have been granted the power to resolve a so-called major question, that courts must rule against such a claim of authority unless it is clear that Congress has authorized this, that is, unless it’s very clear on the face of the statute that they’re allowed to do this. And here at the very least it’s ambiguous. There is another I think even more significant actual weakness in the Biden administration’s argument which is that even if waive or modify does include cancellation and mask cancellation on this scale still it can only be done with respect to individuals who because of the national emergency have been impaired in their ability to repay the loans and for very likely a large majority of the potential beneficiaries of this plan this just isn’t true. And I think that flaw in the Biden administration’s logic is actually even more significant and certainly more glaring than the one about waive or modify.
Joe: Yes I I want to focus I’m glad you brought that up because I think many of the defenders of the bottom this position sort of all the logic I think of the reverse direction they say because there is an emergency therefore the president has power, but in in the Heroes Act I think what they specifically target is this concept that the loan forgiveness would be for those who quote suffered direct economic hardship or as a direct result of a war or other military operation or natural emergency as determined by the secretary. So, it’s direct economic hardship as of it’s you know it’s hardship to them because of COVID and with respect to their loan. I think given the fact that the the president has delayed repayments of loans it’d be hard to argue that those with student loans during COVID suffered direct harm, in fact it seems to me that they received direct benefit by virtue of their delayed repayment program.
Ilya: I think to some extent that’s true although I would know two things there probably is a subset of people who really were harmed by the pandemic with respect to their ability to repay the loans—say people who had long term spells of unemployment or very severe illness that impaired their ability to work and so on, that just is only a small minority of the 40 million who actually were are covered by this plan, so a more limited plan possibly might be justified in the Heroes Act. This massive gargantuan plan I think cannot be. Ironically the administration actually argues that the suspension of student debt payments actually harmed people’s ability to repay because they say, well, if your payments have been suspended for a period of time you might get used to not paying and restructure your finances accordingly and therefore when the moratorium on payment ends then you might have to scramble it’ll be difficult for you to start repaying. I think that is somewhat perverse logic but even if it’s true it once again to the extent that it’s true probably only applied to a small minority of all the people who are covered by this plan.
Joe: Is that called a reliance interest case or you know where people—
Ilya: I suppose you can call it a reliance interest, but I think it’s weaker than a standard reliance interest case where you can argue that you shouldn’t pull something from somebody because they’ve come to rely on it. In the case of a repayment moratorium, everybody, at least everybody reasonable, understands that it’s going to end sooner or later and therefore the reasonable person would make provisions for when it’s likely to end. And while you can say that somebody who is severely ill or had long-term spells when employment might not be able to do that for the vast majority of the 40 million people, that just isn’t true now .
JOE: I want to talk about the again we talked about you introduced a major question issue which is, is it possible that you could interpret the Heroes Act to somewhat anticipate the moderate emergency or future modern emergencies and say OK, look it is possible that if we squint and look at the Heroes Act it could reasonably be expected that Congress authorized the president to waive away what is essentially 4% of GDP, half a trillion dollars. How does the court, as a constitutional scholar, how does the court draw the line between $1.00 and $10 trillion? what is the major question how much is major?
Ilya: So, that’s a good question and this is one of the points made by critics and major questions doctrine that how do we know what’s minor and what’s major? The court has struggled with this somewhat but both in this case and in most if not all the previous cases where they’ve said something is a major question it’s pretty obvious that it is, that here $400 billion of loan forgiveness I think it’s clear that it is major if anything is. There might be other cases where things are closer and where it’s more arguable and the Court has not given us a great theory of exactly where to draw the line but there are many legal doctrines based on standards of various kinds where the exact boundaries of what falls on one side of the line and what falls on the other are somewhat unclear but there can still be many cases which clearly do fall on one side and where there’s not much question. In here, it’s pretty obvious that if there’s going to be a major question of doctrine at all that it applies to this situation.
Joe: So, for our listeners, who aren’t persuaded that the major question doctor is valuable, have presidents in the past let’s say had their decisions reversed based on the fact that their policy was not clearly defined by Congress, and therefore was an overstep of authority and therefore owing to a major question violation has been struck down? Any recent examples of that?
Ilya: Sure, there are at least three of them, although one of them not completely clear it was an actual presidential policy one was the, something we’ve talked about previously on this podcast, the eviction moratorium first adopted by Donald Trump on the pretext of the COVID pandemic and later extended by Biden. That was struck down in the fall 2021 by the Supreme Court in part because at the very least the statute in question didn’t clearly give the Center for Disease Control the power to do this and they said well, it’s a major question, and so it’s not authorized it’s even ambiguous. Then there was in early last year there was the COVID vaccination mandate adopted by the Occupational Safety and Health Administration which said that some 80 million employees are required to be vaccinated against COVID. The Supreme Court said A, it’s at the very least not clear that the statute authorizes this and B, it’s a major question so authorization has to be clear. And then finally in West Virginia v. EPA where they ruled that certain kinds of large-scale air pollution regulation are not clearly authorized by the Clean Air Act and therefore because it’s not clear it would be a major question to have the power to enact regulation on this scale. This case was a little bit screwier than the other two because at the time that it was decided the Biden administration didn’t actually have a clear specific policy that they wanted to implement, so there are those three cases and there’s a number of other cases going back to at least the year 2000 and language and previous opinions going back many decades which suggests something like this approach that I think it wasn’t really clearly stated until the 2000 cases of FDA v. Brown and Williamson.
so it’s the case that whereas Congress can do such actions of president can’t do it without Congress’s consent or direction so we’re talking about a separation of powers issue so for our listeners who still say “Look, you know, set aside all the legal issues it’s a really good policy I really think we should forgive debt,”— listening to oral arguments particularly Justice Kagan seemed to be trying to argue the merits of debt forgiveness rather than the legality or constitutionality of the issue, I’d say for our listeners who are in that camp, clearly jJustice Kagan seems to be, to sort of waive away major question doctrine is to say that the president when it’s important enough should be able to act without the consent of Congress which is essentially giving unitary power to the president. Am I overstating the case?
ILYA: No, I think for most part you’re not. I would note two things. First, I think the court could rule against the Biden administration in this case even without invoking major questions doctrine simply by saying that either that wave or modified does not include mass forgiveness or even if it does that way too many of these people were not actually negatively affected by the national emergency and their ability to repay the loans. Second, if you allow Biden to sort of use loose language in one statute to enact this massive policy that Congress for years has refused to do then of course the other presidents including future Republican presidents like someone like Donald Trump, for example, could use do the same thing in order to try to divert funding to their preferred project. Indeed, Donald Trump actually did exactly that already or tried to do it during his administration with his attempts to declare a national emergency on the border and then use various loose language to try to divert funding to build his border wall, which Congress had refused to do or at least had refused to do on the scale that he wanted to do it. So, I think the key question is even if you like this particular policy and you trust Biden to use this vast authority responsibly, do you have the same trust in Donald Trump? Do you have the same trust in Ron DeSantis or whoever the next Republican president might be? And I suspect many of the people who might trust Biden would not have the same trust in future Republican presidents nor should they. I don’t trust Biden either but you know I think the Republicans also are not trustworthy. The whole point of giving the spending power to Congress, as the framers of the Constitution did, is to prevent the president to prevent any one person from essentially having control over the national treasury this is one of the things over which the English Civil War was fought to prevent the king of England from having this kind of power and our Founding Fathers were aware of this point and inherited from the English this idea that the executive, one person, should not be allowed to just spent at will.
Joe: Yes, we don’t want a king and that may disappoint some of our listeners. The flaw in that argument is first you have to create those powers for king and then you have to win every election until the end of time. Not a good plan, history isn’t kind to that. Let me just shift our argument to the issue of standing which I think is perhaps our lay people in the audience of harder to understand. I’ll just say as a layperson my understanding of standing is that in order to sue you have to be directly harmed you can’t sue on behalf of your neighbor who’s harmed you have to sue because you were harmed you mentioned MOHELA is out tens of millions of dollars. What is the argument that the Biden solicitor general is making that Nebraska and the states in that particular case do not have standing what’s the argument against standing?
Ilya: So, standing doctrine says that in order to get so-called standing the plaintiff has to show three things. One is they were harmed and the harm has to be sufficiently direct though exactly how direct is somewhat disputable. Second, they have to prove that the harm was caused by whatever illegal action they are complaining about. And third, they have to show that a court decision in their favor would be able to remedy the harm so I’ve already explained the harm that MOHELA is suffering and the Biden administration actually concedes that if MOHELA filed the lawsuit itself then they would have standing but they say MOHELA is actually independent of the state of Missouri because they’re set up as somewhat of a separate corporation which has the right to sue and be sued. this has its own finances and so forth and it has its own board which governs it as opposed to just, say, the governor of Missouri being able to issue it orders and say like this is what MOHELA should be doing. And therefore they say because MOHELA is a separate entity then Missouri can’t bring a lawsuit on behalf of MOHELA because while MOHELA might have standing Missouri does not because Missouri is you’re sufficiently separate from MOHELA. So that’s the argument that the Biden administration is making.
Joe: But in my understanding—again forgive me as a layperson—a narrow standing is a person ultimately harmed now the state may represent its citizens in this case but doesn’t an individual have to show harm? And if the government agency is harmed and no individual’s harmed is that are they still entitled to standing or perhaps more broadly?
Ilya: I think you have a misunderstanding here it is well accepted that both government agencies and states as a whole can bring cases and they do sell all the time so long as they prove standing in the three criteria that I mentioned earlier. So the argument here is not that states in general are not allowed to bring a case or the government agencies are not allowed to bring cases it’s rather that while MOHELA may have the right type of harm the state of Missouri does not because the state of Missouri is ultimately separate from MOHELA.
Joe: You mentioned that it’s six red states that have joined in this suit. Does it matter that all have to have standing or if one has standing?
Ilya: If one has standing it’s enough, and Missouri has I think the best case out of the six which is why the argument last week focused mostly on MOHELA and its relationship to Missouri and on that point I would note one thing and that is that the argument that I sketched out earlier that the Biden administration is making it simply overlooks the fact that Missouri actually owns MOHELA. So yes, MOHELA is administratively separated from the rest of the state government, but it’s still the case that MOHELA is a state agency it’s board most of the members are appointed by the governor of Missouri and even those who are not are still state officials so the fact that MOHELA is structurally separate from some other state agencies, to my mind, I don’t think that should make a decisive difference in its ability to get standing because ultimately if one entity, the state of Missouri, owns multiple different entities or has multiple different departments to state government, that should not matter so long as they all ultimately are part of the same overall government body, which in this case is the state of Missouri.
Joe: Now, this again was forcefully argued by the Biden administration. My mind wasn’t changed, but my I had some doubts were introduced we again we’ve parted this into two sections which is merits and standing. Merits seems very, very weak but standing you know I think was a little bit more more persuasive or questionable. I don’t know I’m not going to make predictions I’m sure I can’t pin you down to any predictions but what would you say is the likely outcome of this case again if it’s, if there’s no standing the merits are moot so given all the components of this case what do you see I guess the judgment would be in the spring sometime what how do you think this will come down?
Ilya: I think you’re right that standing is more iffy than the merits, but I still think it is more likely than not that the plaintiffs are going to win the case. If you look at what happened in your argument the three liberal justices clearly think Missouri does not have standing and the same goes for the other states. It’s possible that justice Amy Coney Barrett, one of the six conservative justices, might agree with them on the standing issue. The question she asked made it hard to tell you know where she was on this. On the other hand, none of the other five conservatives because it seemed to have any significant doubts about Missouri standing and if they did have those doubts I think they would have you know at least said something about it in the oral argument so think it’s very likely to at least those five justices will conclude that Missouri has standing even if they don’t think that some of the other states have standing although there is evidence that some think that some of the other states might have as well and if so I think they’re pretty clearly six justices, the six conservatives, who think that this is illegal on the merits so the most likely outcome I think is that at least five justices will conclude that at least one plaintiff, most likely Missouri, has standing and then there will be six votes for also concluding that this is illegal on the merits as well. I’m not 100% certain about that obviously and you know sometimes justices can do unexpected things that weren’t predictable based on the oral arguments but I think this is the most likely outcome.
Joe: OK, Ilya, in the time we have left we talked obviously here at great length with the about the Biden v. Nebraska case but we haven’t yet talked about the Department of Education I think I said of education earlier but actually the Department of Education v. Brown completely different case that also has some impact on or potential impact on the Biden case. Describe for our listeners, what is the constitutional importance and significance of that particular case?
Ilya: In this case the standing argument for the plaintiffs is much weaker than it is in Biden versus Nebraska. I myself think they probably deserve standing but I admit that’s because I disagree with a lot of existing standing doctrine I think it’s too restrictive. Under current standing doctrine it looks like the this case will be dismissed based on standing. In the oral argument both liberal and conservative justices were skeptical of the idea that you can get standing on the basis that the current plan is not generous enough to you and therefore that if the Court rules that the current plan is illegal maybe the Biden administration will go back to the drawing board and adopt a more generous plan under the Higher Education Act of 1965, which some people argue gives broader loan forgiveness authorization than even the Heroes Act might if you buy the Biden administration’s argument about the Heroes Act and they’re also argued that in that event if they did do it under the Higher Education Act they would go through notice and comment procedure required under the Administrative Procedure Act whereas when they did it with the Heroes Act the Biden administration skipped notice and comment because when you’re using emergency power sometimes you are able to skip it. And I think the bottom line from a standing perspective is that this claim is highly speculative. It is far from clear that the Biden administration really will try to do this again if they lose this case. They might but they might not. In at least two of the previous cases where they lost on a major questions issue even though there was potentially some room for the Biden administration to go back and redo things, they just essentially you know packed up their stuff and went home. That happened after the eviction moratorium that also happened after the OSHA vaccination mandate case. It’s possible the same will happen here, it’s hard to say and obviously even if they did go back to square one and did try to do something it is not entirely clear that they would get to the point of notice and comment rulemaking and obviously it is also not clear that whatever they come up with actually would be more generous to these two individuals than what happened, what would have been done under the Heroes Act plan, so because of the speculative nature of all of this I think there’s a majority of justices who are going to rule that these people do not have standing. That probably will not have a decisive impact on the current case because if Nebraska or Missouri or one of the other states gets standing that would be enough to invalidate or to reach the merits and in turn it’s like we discussed earlier that the Court will conclude that the policy is illegal. However, the Brown case could have implications for future efforts to gain standing on this kind of argument, saying that “the current policy isn’t generous enough to me but if it gets struck down maybe the administration would go back to the drawing board and adopt the policy that is more generous and in the process go through notice and comment rule king to allow me to file my brilliant comments that would be incredibly persuasive to the administration and therefore lead them to be more generous to me and people like me.”
Joe: So again you brought it up so I’m just going to pull the thread a little bit more there are those who say Plan B if this Heroes Act forgiveness is unsuccessful in other words it gets struck down and Plan B is to appeal to these this earlier you might argue broader permission structure for the president to forgive loans, the Higher Education Act. The president chose not to go this path but let’s say if he loses in one way he might retry it. You’ve just described as being unlikely—what are the benefits of merits so-called Plan B is this stronger weaker or you know arguably you know completely untenable if you went this other path?
Ilya: So the plaintiffs in this case are not the first to argue that the Higher Education Act should have been used. Some supporters of the administration’s position in this case have been arguing that for some time. Elizabeth Warren and some other liberal Democrats in Congress have urged the Biden administration for a long time to use this. From the perspective of supporters of loan forgiveness the advantage of this act is that it doesn’t depend on the existence of a national emergency and also it doesn’t require any selling that the people who got loan forgiveness were harmed in their ability to repay by a national emergency or really perhaps anything else. But the disadvantage is if you buy this Higher Education Act rationale it is a power to essentially forgive any federally backed student loans at any time for virtually any reason, so it’s even more of a major question than the Heroes Act rationale would be, and for that reason it’s even more clear that there would have to be clarity, that Congress had to clearly indicate that you can do this, and while I don’t want to go into all the details on the Higher Education Act at the very least is not completely clear. if it were completely clear it would raise another constitutional issue known as non-delegation, this the court has said that they’re pretty permissive about this but they have said that there’s some point where Congress is limited in its ability to delegate legislative power to the executive. And while under current doctrine this is relatively permissive, the nondelegation doctrine is pretty weak. Several Supreme Court justices have said they would want to tighten it up and so, if the Court did rule that the Biden administration or any future administration using the Higher Education Act for mass loan forgiveness that that was sufficiently authorized by Congress to overcome the major questions issue then there might be a constitutional non-delegation issue there and it’s possible that the Court would use that as the vehicle for strengthening non-delegation. So, I think while the bottom line is the Higher Education Act offers some advantages for the administration’s relatives to the Heroes Act but it also has some disadvantages as well and as a practical matter if they lose on major questions in the current case there is a high likelihood not an absolute certainty of course but a high likelihood that they would also lose on it if they went back and tried to do something similar under the Higher Education Act.
Joe: So again, to paraphrase, to say that the Higher Education Act empowers the president to effectively forgive whatever he likes would be delegating legislative authority which be in violation of Article I. I think the first sentence of Article I is all legislative powers lie with Congress not with the president so they can’t give the president legislative powers, particularly unchecked legislative powers, is that right?
Ilya: At the very least if there’s any meaningful non-delegation constraint at all it would be violated by something this sweeping. There are some constitutional scholars who say there are no limits on Congress’s power to delegate executive authority, and if that’s the case then you know you can do this too, but if there are any meaningful limits at all, then giving the power to forgive hundreds of billions of dollars in student loans at any time for any reason, you know, that’s gotta be an excessive delegation if anything is.
Joe: Now my view is again perhaps I agree completely with you that the merits argument was very, very weak. If we do have an outcome that you describe would there be let’s say in in the dissenting opinion any justices that will come out in a sense in Biden’s favor arguing that the president does have this power, and I’ll make it a two-part argument: Are any of those justices the same ones who argued against, you mentioned earlier, major questions and separation of power issues. Are they essentially trying to in a sense rule with a particular party or ideology or rather do they truly rest on principle, those people who see no problem with major questions in separation power always do so or do they call balls and strikes based on who’s throwing the ball?
Ilya: So, in fairness all of the three cases that I mentioned the three most recent major questions cases they were all decided six to three along ideological lines, and I think it is fair to say that this raises some suspicions of ideological bias both on the part of the dissenting liberal justices and on the part of the conservative justices who were in the majority, though I would note that in the case of the eviction moratorium it is often forgotten though it was the Biden administration that ended up litigating the case for the Supreme Court it was actually Donald Trump who first did this eviction moratorium and then the Biden administration extended it with relatively modest modifications of various kinds that we talked about when we did our podcast about that case. So, it’s not purely a matter of conservative justice striking down things that Democratic administrations did, but yes these cases have split along ideological lines, but I do think it’s worth remembering—and I think the justices are well aware of this—that the same kind of sweeping powers claimed by the Biden administration in these cases or in one case also the Trump administration, they could be claimed by a future president and given our closely divided partisan balance, it’s entirely possible that in 2024, 2028 or the like that future president could almost as easily or almost as easily be a Republican as a Democrat.
Joe: Yeah I’d like to say I’m getting close to end of our time if I can editorialize I like to share with friends when they ask I said our system isn’t protected by our Bill of Rights those are 10 a penny I think the division of power is the element that keeps us all safe we’ve got Article I writing law, Article II the president presiding over the executive branch and and executing those laws and of course we have judicial review article III who sure that, of course you have judicial review article III who makes sure that everybody playing by the rules. I think that the separation of powers is annoying for those who wish we had a wise benevolent ruler but again as you point out so well you have to if you want a benevolent ruler instead of the system we have you have to be prepared for the wrong guy getting all that power and all of us being in a lot of trouble enough of my editorializing for our listeners who are their heads are spinning because there’s a lot to digest for lay people are not constitutional scholars where can we learn more work and read what you are writing about these opinions or these arguments and others just like it?
Ilya: Sure I’ve written extensively about this case and some of those previous case I mentioned at the Volokh Conspiracy blog, which is hosted at the reason website I also recently wrote a piece about the case for the SCOTUS blog website, S-C-O-T-U-S, and I’ve also written about some of the these issues in my more academic writings as well which you can find just by Googling my name and going to my website, where you can download a lot of those writings for free.
Joe: Indeed and outside the array of your writings is that in many of the other articles I’ve read most are quoting you, so you have risen to the top of the most quoted legal scholars constitutional scholars at least in my universe, so congratulations on being effectively the last word on these. thank you for joining Hubwonk, Ilya, I really appreciate your time.
Ilya: Thank you so much for having me.
Joe: This has been another episode of Hub Wonk. If you enjoyed today’s episode, there are several ways to support Hubwonk and Pioneer Institute. It’d be easier for you and better for us if you subscribe to Hubwonk on your iTunes pod catcher. If you’d like to make it easier for others to find us, you’re welcome to offer a five-star rating or a favorable review. We’re always grateful. If you want to share Hub Wonk with friends, if you have ideas or comments or suggestions for me about Future Hub Wonk episodes, you’re welcome to email me at hubwonk@pioneerinstitute.org. Please join me next week for a new episode of Hubwonk.
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