Texas Federal Court’s Dash to Invalidation of Biden’s Student Loan Forgiveness Program Likely to be Called Back for False Start

Until recently the story of judicial attacks upon President Biden’s student loan forgiveness plan (which I previously discussed here) has been a tale of frustration for the plaintiffs as no one has been able to demonstrate the “standing” necessary to give federal courts jurisdiction to decide the challenge on the merits. Last week, however, Judge Mark T. Pittman of the United States District Court for the Northern District of Texas issued a ruling in Brown v. U.S. Department of Education in which he found not only that the plaintiffs in that case had standing, but that the loan forgiveness program was unlawful. While there is much merit in the opinion’s discussion of the second point, I am not convinced that Judge Pittman is correct about the first.

Let’s start with some basics. Under the U.S. constitution, federal judicial power is limited to “Cases” and “Controversies.” Federal courts will not give advisory opinions. They have, therefore, developed the requirement that the plaintiff have “standing” in order to bring a case. As the ruling recognizes, the requirement of standing imposes three requirements: “First, there must be a concrete injury in fact that is not conjectural or hypothetical. Second, there must be causation—a fairly traceable connection between a plaintiff’s injury and the complained-of conduct of the defendant. Third, there must be redressability—a likelihood that the requested relief will redress the alleged injury.” [citations omitted]

Until Brown, plaintiffs have foundered on the rock of standing. You see, no one has apparently suffered a concrete injury from the forgiveness of the debt of others and their arguments to establish standing generally appear contrived and, frankly, not a little ludicrous. (One would think that legislators, whose power is, at least arguably, being usurped, or taxpayers, who will certainly be required to cough up more when $400 billion in federal assets are given away, have such an injury, but apparently not.)

The Brown plaintiffs approached it a little differently. Both of them have outstanding student loans and their standing argument is that the program does not provide enough forgiveness. One plaintiff’s loans are owed to a private entity and so not covered by the program while the other did not receive a Pell grant and so is entitled to only $10,000 rather than $20,000 in forgiveness. The standing argument is that they had a procedural right to notice of the program and to comment upon it before it was formally promulgated. Because there was no opportunity for notice and comment, they argue that they have standing to assert their procedural rights so long as they have a concrete interest, here asserted to be a greater forgiveness of their debts.

The problem is that the HEROES Act, which is cited as the source of the executive’s authority to forgive the loans, does not require notice and comment. Therefore, the Brown plaintiffs have not in fact suffered a procedural violation, but the court asserts that it must assume this argument true as part of the standing inquiry.

Much as the issue of whether the President (okay, the secretary of education) has the authority to create the broad-based student loan forgiveness program under the Heroes Act should be amenable to a judicial resolution, I just don’t see how violation of a non-existent procedural right can confer standing. We’ll probably learn what the Court of Appeals thinks in relatively short order.

Jay Bohn

November 17, 2022

Gorsuch’s Buffington Dissent a Well-Written Critique of Chevron Deference

I believe that the separation of powers is essential to our liberty. This is why I have often criticized the routine declaration of states of emergency1 and a result-oriented analysis of whether this or that official has the power to take a certain action.((See The Misuse of Emergency Powers (“it is increasingly uncommon for those who feel strongly about an issue to separate the merits of a particular policy from the power of a supportive official to implement that policy.”)) I have, on occasion,((See Are We Done with Democracy? and Administrative Agency Should Not Be Lawgiver, Prosecutor, Judge, Jury, and Executioner.)) warned about giving too much power to administrative agencies. Usually, the grant of power is in the form of a delegation of legislative power to the executive, but the courts are also partially responsible as they will “defer” to administrative action, including the agency’s interpretation of the statute(s) it administers. On the national level this deference is based upon Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984).

While I do not assert that the interpretation of a statute is solely a judicial function (the agency administering a statute must certainly interpret it in order to function), I do not believe that an agency’s interpretation is entitled to significant, indeed possibly any, deference by the courts, if for no other reason than because a new administration may change the agency’s interpretation significantly. If courts defer to the interpretation de jour, then they have effectively allowed the executive to change the meaning of a statute.

Last week Justice Gorsuch issued an opinion dissenting for the denial of a petition for certiorari((The Supreme Court is not required to hear every case in which the losing party in the court of appeals seeks review. Most cases the Supreme Court hears are by way of a writ of certiorari, the grant of which requires the affirmative vote of four justices.)) in Buffington v. McDonough. The dissent makes a compelling case for the reconsideration of Chevron deference; it is well worth reading.

Jay Bohn

November 14, 2022

  1. COVID-19 and Emergency Powers, COVID-19 and Emergency Powers II – Not Much Has Changed, COVID-19 and Emergency Powers III – Still Not Much Has Changed, The Misuse of Emergency Powers, and Superstorm Sandy, Ten Years Later: The State of Emergency Continues [↩]

Lame Duck Hunting Season

Tuesday was election day, and as I compose this post we still don’t know which party is going to control each house of Congress. The winners will not take office for a couple of months. The present office holders, some of whom did not run for, and others who failed, re-reelection will remain in office until then, with no limitation on their power and without even the potential of having to face the voters to rein them in. This is called the “lame duck” period, which I believe should be shortened if not eliminated.

When the Constitution was adopted, it was even worse. The election was still held in November, but the winners (President and Congress) did not take office until the following March 4, a period of four months. Worse, the required annual session of Congress (imagine, Congress was not a full-time occupation) started in December (shortly after the election), meaning that a one-term representative could spend half his actual legislative time after he had already been defeated for re-election. The situation was somewhat improved by the adoption of the Twentieth Amendment to the United States Constitution in 1933 which directed that congressional terms would end on January 3rd and Presidential terms on January 20th, reducing the lame duck period to some two to two and one-half months.

I believe that is still too long. New Jersey has about the same lame duck period but look at how many laws are sped through in the last days of each legislative term. In the United Kingdom, except for the potential of an emergent situation, once the Parliament is dissolved in preparation for an election, that Parliament never meets again. In the last general election, in 2019, the election took place on December 12, results were announced on December 13 and the new Parliament met on December 17.

Of course, the U.S. would have to run its elections a lot more efficiently to get results so quickly. We should figure out how to do that.

Jay Bohn

November 10, 2022

Time to End Pretend Time

Daylight saving time (DST), which I call “pretend time,” ended early yesterday morning when clocks were turned back to return us to standard time. Maybe I just wasn’t paying attention, but I didn’t notice the usual number of articles about efforts to make DST permanent. Oh, there was mention of the Sunshine Protection Act of 2021, a bill that passed the U.S. Senate unanimously but has not progressed in the House of Representatives, Paul Mulshine’s column calls standard time “Daylight Wasting Time,” and a CNN article Permanent Daylight Saving Time will hurt our health, experts say.

Both the time change and the bill use misleading language. “Springing” clocks ahead in March does not save daylight nor will making the change permanent protect sunshine. Moving clocks does not change the amount of daylight in any given day, it just adjusts when in the day (as measured by the conventional hours of the day) the sunlight is experienced.

Do you remember that a few years ago there was a push to start schools an hour later because adolescents needed more sleep?((Here are some of the NJ.com articles on the subject: Early class times are bad for teenage students, British researcher finds (5/6/2014), Start school day later so teens can get more sleep, N.J. lawmaker says (10/8/2014), Poll: Should school days start later in N.J.?(10/10/2014), N.J. schools make teens wake up too early, CDC says (8/6/2015), Christie agrees to study later school start times (8/10/2015), Waking up teens too early is over for 5 N.J. high schools. The law says so. (8/10/2019), N.J. high schools would start later in the day under top Democrat’s bill. Murphy is open to it. (3/25/2022).)) The NJ Legislature commissioned a study that concluded that although chronic sleep deprivation was a serious endangerment to adolescents’ health, safety, well-being, and academic performance, found delaying school start times “fraught with obstacles and challenges, [including] student transportation; after-school activities, including athletics, and childcare.” Doesn’t DST make the problem worse?

I say, if you want more light at the end of your day, heed Ben Franklin’s advice: early to bed and early to rise.

Jay Bohn

November 7, 2022

Superstorm Sandy, Ten Years Later: The State of Emergency Continues

I have written several times about the abuse of emergency powers in connection with COVID-19.((COVID-19 and Emergency Powers, COVID-19 and Emergency Powers II – Not Much Has Changed, COVID-19 and Emergency Powers III – Still Not Much Has Changed, and The Misuse of Emergency Powers.)) I recently learned that the state of emergency declared in connection with Superstorm Sandy, whose tenth anniversary was marked last weekend, is still in effect.

This information was contained in a March 4, 2022, press release “Governor Murphy Signs Executive Order Lifting COVID-19 Public Health Emergency.” As the press release reports, although the public health emergency was terminated, the state of emergency declared by Executive Order 103, on March 9, 2020, “will remain in place to ensure that the State continues to have necessary resources as COVID-19 is managed on an endemic level.” It goes on to say:

It is common practice for states of emergency for major crises to remain in place to allow the State to receive and distribute federal funding without any unnecessary red tape or bureaucratic obstacles, as exemplified by Governor Christie’s State of Emergency declaration for Superstorm Sandy, which remains in effect to this day.

So unnecessary red tape or bureaucratic obstacles are okay at other times?

This is one of the sorts of misuse of an emergency declaration I have previously criticized, using the “emergency” as an excuse to enact policy positions that the legislature wouldn’t. As I have said before, “’Emergency’ does not mean the same thing as ‘urgent.’” The legislature needs to put restraints on the power to declare states of emergency.((I have some ideas that I may explore at some other time, but right now the how is less important than the whether.)) Exercising the power of the purse and oversight are two of the most important functions a legislature; the governor can now avoid the inconvenience by the simple expedient of declaring an emergency.

If the normal controls on the spending of money are inapposite to dealing with relief funds to recover from a hurricane or a pandemic, let the Legislature change them, but this should not be an excuse for the continuation of a state of emergency.

Jay Bohn

November 3, 2022

Whether a Hug or a Handshake, Christie’s Greeting of President Obama During Post-Sandy Visit Did Not “Change” American Politics

In a pretty good piece yesterday, NJ.com/the Star-Ledger((The Star-Ledger’s article was called “How ‘The Hug’ changed American politics.” NJ.com’s version was entitled “Unforgivable” and summarized by the following lines: “‘The Hug’ changed American politics. How a Chris Christie-Barack Obama greeting signaled the death of civility.”)) discussed that greeting between then President Obama and Governor Christie when the President arrived to view the damage caused by Superstorm Sandy ten years ago today.

According to the piece, “‘The Hug'((It uses this term despite very clearly stating that it was merely a handshake with some presidential shoulder pats, a characterization supported by video evidence.)) remains an inflection point that stained Christie’s political career, symbolized the death of bipartisan politics and foreshadowed the hyper-divisive Donald Trump((Donald Trump didn’t cause the polarization, but he has used it to his advantage.)) era of political incivility.”

I’m not so sure that this incident coincided with greater political polarization and it certainly did not cause it. Oh, I remember the complaints made by some when Governor Christie was courteous to the President, who was six days from his re-election. I thought the reaction overblown and the suggestion that Christie’s action affected the presidential election laughable. No way New Jersey was going to go for Romney and little chance that Christie’s influence would affect many voters elsewhere. Is the vitriol we see today markedly worse than the insults hurled at Ronald Reagan?

No, it probably didn’t help Christie politically, but if his there is one cause for the lack of success in running for President in 2016, it was Bridgegate.((Not that anyone ever presented any proof that he ordered the bridge lanes closed in an act of political spite, and I’m sure they looked, but because people who worked for him must have thought he would find that conduct acceptable; that they could have thought so means that he did not clearly communicate the proper ethical tone.))

Certainly, politics are now more polarized than before, and part of the blame belongs to the “mainstream” media. If a newspaper like the Star-Ledger wants to be widely read and respected, its articles must report news, not just thinly disguised opinion. It must be, and be seen to be, much more objective in its reporting.((The Star-Ledger, like this blog, is entitled to whatever viewpoint it wants to express in its labelled opinion pieces.)) Readers are forced to look elsewhere and truly objective reporting is pretty hard to find.

Jay Bohn

October 31, 2022.

Please pass the SALT

In his editorial last Sunday, What?? Did Republicans really say that?, Tom Moran expresses shock that Republican candidates for Congress are blaming Democrats for not eliminating the $10,0000 limitation on the deduction for State and local taxes (sometimes called “SALT”) contained in the Tax Cuts and Jobs Act of 2017, 115–97, 131 Stat. 2054.((This law did much more than limit the SALT deduction; it also increased the standard deduction and reduced the tax rate for many. I suspect that for many taxpayers those two items led to a reduction in tax owed even without the unlimited SALT deduction. You cannot just assume that the fact that a taxpayer’s SALT liability exceeds the $10,000 limit means that that taxpayer was detrimentally affected by the law.)) Moran presents opposition to the SALT limitation as protecting the middle class from New Jersey’s high (especially property) tax rates.

I think that argument is backwards. As I said before, “[the SALT deduction] is of course not a property tax break at all, but a federal income tax break.” The best way to protect the middle class against high property taxes is to reduce them (which won’t last long without controls on spending).

Over the years NJ.com has published numerous opinion pieces opposing the SALT limitation, very often in the guise of news articles. Moran’s piece is actually labelled as an opinion, and the basic opinion he is expressing is that voters should vote for Tom Malinowski rather than Tom Kean (which of course is a position he has every right to say).

Gun Laws Not Something for Excessive Police Discretion

In yesterday’s NJ.com/Star-Ledger column, Jersey Democrats’ gun-control bill is shot full of holes, Paul Mulshine reports on his conversation he had with Assemblyman Joe Danielsen regarding his bill restricting the locations where a handgun be carried. The conversation followed a debate on the bill in the Assembly Appropriations Committee in which Assemblyman Brian Bergen expressed concern about the extensive list of locations where the carrying of a handgun would be a crime and repeatedly asked Danielsen just where a handgun could be carried, with Bergen asking if an entry into private property to pick up dog poop while carrying a handgun could lead to a conviction and extensive jail term. In the conversation with Mulshine that followed, Danielsen said that he said he would expect police to use their discretion before arresting someone for technical violations of the law.

A vague law is not made less vague just because a police officer may choose to overlook some of its more unreasonable potential applications. The law should be clear, and a person is entitled to be able to know what is, and what is not, lawful. A person should not have to depend upon a police officer’s “discretion” to avoid prosecution for what should never have been illegal in the first place, and a police officer should not have discretion to ignore criminal actions because the officer deems the law unreasonable in its application.

The 1780 Constitution of the Commonwealth of Massachusetts provided for separation of the legislative, executive, and judicial powers of the Commonwealth “to the end it may be a government of laws, and not of men.”

Jay Bohn

October 24, 2022

To Avoid Statutory Interpretation Issues, Legislature Should Write Clearer Statutes

I’ve been seeing a lot of article-editorials recently attacking originalism as an approach to interpreting the Constitution. I plan to address constitutional interpretation at length someday, but not today. What I want to address in this post are interpretive questions (primarily of statutes) that could be avoided if the legislature were only clearer.

Early on in this blog I wrote about a Supreme Court case Yellen v. Confederated Tribes of Chehalis Reservation where the Supreme Court had to decide “[w]hether Alaska Native regional and village corporations established pursuant to the Alaska Native Claims Settlement Act are ‘Indian Tribe[s]’ for purposes of the CARES Act.” I took no position on the outcome, but I was critical on Congress’s sloppy drafting that led to the question’s being unclear and its failure to settle the question by a clarifying amendment before the case got to the Court.

Recently a New Jersey statute was brought to my attention. It prescribes a certain rule unless a and b or c. Generally, the word and is conjunctive. If the statutory framework were a and b and c, then all three conditions would have to be true to invoke the “unless.” Conversely, or is disjunctive, so if the statutory framework were a or b or c, then the “unless” would apply if any one (or more) of the three conditions were true.

Use of parentheses helps show the two different interpretations:

  • (a and b) or c
  • a and (b or c)

Apparently, there is a sort of order of operations for logical expressions (and I read “logical” to refer to computer logic) whereby and is applied before or such that “(a and b) or c” would be the way to read this statute, but I am aware of no authority to apply (computer) logical rules to reading statutes.

But by mixing the conjunctions, the Legislature created confusion. Laws do not use parentheses to show the order of operations, but the statute would be clearer if the alternatives were more clearly outlined:

Provision applies, unless

1. a. a, and

b. b; or

2. c.

OR

Provision applies, unless

1. a, and

2. a. b or

b. c.

Jay Bohn

October 20, 2022

Administrative Agency Should Not Be Lawgiver, Prosecutor, Judge, Jury, and Executioner

A few months ago, I wrote about a Star-Ledger guest column in which two former EPA officials asserted that, because they are staffed by experts, administrative agencies should be given deference in defining the scope and limitation of their power, their range of activity, and the interpretation of the statutes they administer. In my view this argument results in the wholesale transfer of legislative power to the executive, likely to be supported by those who believe that the executive is more apt to enact their policy preferences.

But this isn’t all. Not only has the bureaucracy, through the power to make regulations, essentially assumed the legislative power, it also often enforces those regulations by bringing charges against those accused of violating them and then adjudicating those very charges, potentially imposing fines or other penalties. Instead of separation of powers, we have consolidation. While judicial review is theoretically available, it is a highly deferential standard, and the agency is rarely reversed.

Jay Bohn

October 17, 2022