National Review Online
Wednesday, March 01, 2023
The Supreme Court on Tuesday heard arguments in
two cases challenging Joe Biden’s power to spend a half-trillion to a
trillion taxpayer dollars forgiving student-loan debt without the consent of
Congress. The president’s abuse of “emergency” wartime powers passed in the
2002 HEROES Act is nothing less than lawless royalism. It continues his effort
to use the Covid emergency to assert unprecedented powers, such as the capacity
to order the compulsory vaccination of the nation’s workers and to prohibit the
eviction of apartment tenants for nonpayment of rent.
At least vaccination is a Covid-specific policy, and the
eviction moratorium was never designed to last forever. By contrast,
student-loan-debt forgiveness was a preexisting policy demand of progressives
before the pandemic, its effect would be to eliminate existing debts
permanently, and it was issued at a time when Biden himself was assuring the
nation that the pandemic was over and the economy was in full recovery.
If the Court cannot stop the president from raiding the
Treasury to buy votes and reward friends on the most implausible of legal
pretexts, what is it for? A majority of the Court appears to recognize that the
HEROES Act does not grant the power in question — a reality that even Nancy
Pelosi acknowledged until it became clear that Biden intended to act when he
could not get such a plan through Congress.
The statute says that the secretary of education can
“waive or modify any statutory or regulatory provision applicable to the
student financial assistance programs” when “necessary in connection with a war
or other military operation or national emergency.” Chief Justice John Roberts
set the tone for the argument by noting that Justice Antonin Scalia once
observed that “modified in our view connotes moderate change. He said it might
be good English to say that the French Revolution modified the status of the
French nobility, but only because there’s a figure of speech called
understatement and a literary device known as sarcasm.” Moreover, the chief
justice observed that, even if terms such as “waive or modify” could be
construed to encompass the outright cancellation of student debt, the Court’s
“major question doctrine” requires more — namely, a citation to “clear
congressional authorization” of the specific action taken by the
administration. No one can plausibly claim that the HEROES Act even
anticipated, much less green-lighted, half a trillion dollars in
relief to a favored class of debtors without additional congressional input.
The notion that spending so much money during a period of
runaway inflation would do no harm to anyone is nonsense, but courts of law
rightly rule only on cases brought by a particular person or entity who has
been directly injured. The administration’s lawyers kept rewriting the rules
for the programs to include anyone who tried to sue to stop them, with the aim
of depriving those challengers of legal standing to sue.
Despite their best efforts, however, Biden’s solicitor
general was compelled to concede that MOHELA, a public instrumentality of the
State of Missouri, would suffer a financial injury from the program because it
holds interests in outstanding loans. The case is thus unlike the 2021 case in
which the Court found that nobody was harmed by Obamacare’s individual mandate
once its enforcement mechanism was removed.
As a result of the administration’s concession, Tuesday’s
arguments focused on narrow and technical questions of Missouri law regarding
the state’s ability to sue on behalf of a public entity that it has created and
whose board is appointed by the governor and other state agencies — albeit one
that could have sued on its own, chose not to, and declined to join or
cooperate voluntarily in the state’s lawsuit. While the justices are prudent to
take care not to unduly widen the courthouse door to everyone who dislikes a
federal policy, it does no violence to the law of standing to allow state
governments to vindicate the rights of state-government entities that have
unquestionably suffered harm from an overreaching president claiming vast
emergency powers over domestic politics.
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