By Becket Adams
Sunday, March 12, 2023
The press has once again embraced a position that just so happens to serve Democratic interests.
It’s crazy this keeps happening. What are the odds?
President Biden’s unlawful $400 billion student-debt-forgiveness scheme, which he willed into existence via executive fiat just before the 2022 midterm elections, just made an appearance before the Supreme Court. Critics and proponents alike predict that the Court’s conservative majority will strike down the initiative, but we won’t know for several months.
Is the student bailout really an example of executive overreach? Does it run afoul of the United States Constitution? What are the arguments before the Supreme Court?
If you relied on the corporate press, you’d be hard-pressed to answer.
The major newsrooms don’t appear to be all that interested in matters lawful, constitutional, and jurisprudential. Rather, they’re focused on emotional appeals, arguing that student-loan forgiveness is a moral good and Biden’s plan must therefore remain in place. Newsrooms are also attacking the Supreme Court justices directly, preemptively undermining the ruling that many are expecting. Executive overreach? Pah. Anything to avoid addressing the actual matter before the Court.
Biden has invoked as legal justification for his plan the 2003 HEROES Act, in which Congress granted the executive the power to “waive or modify” certain student-loan provisions in times of national emergency. What current emergency justifies Biden’s invocation of the HEROES Act, which was passed at a time when the U.S. had troops in Afghanistan and Iraq? Why, Covid-19, of course.
Amazingly, the press doesn’t seem to be concerned with these nagging details and arguments.
A Washington Post editorial concedes that Biden’s scheme is “a questionable reading” of the law, not to mention “expensive and ill-targeted.” The editorial also criticizes Biden for not getting congressional approval.
Yet, despite conceding that Biden has badly overstepped his authority with this “regressive and expensive mistake,” the Washington Post argues that the Court should allow his plan to go forward. In fact, “it would be an overreach for the justices to strike it down.”
What? If not to rein in executive excesses and hold steady the balance of power among the three branches, what purpose, if any, does the Supreme Court serve? The Washington Post recognizes the president’s plan as unlawful, yet recommends we accept it anyway? For what reason should we accept a lawless decree from the executive branch?
Well, you see, argues the paper, the “administration’s opponents, which include several states and two individuals, ‘lack standing’ — that is, a direct, concrete stake in the outcome — to challenge the law.”
“Standing is no mere procedural formality,” the editorial says. “It is a core judicial principle.”
The Washington Post editorial concludes, “The countervailing danger is that an unconstrained court would invite waves of lawsuits from people seeking favorable rulings on disputes in which they have no stake, save for their ideological preferences, gumming up the courts and government and making the court resemble a body of nine unelected legislators.”
On the matter of standing, in what was likely the clearest indication that the White House understood it lacks the authority to unilaterally forgive billions in student loans, it changed the details of the plan, almost immediately after issuing it, to exclude certain “privately backed” loans. That meant that an estimated 700,000 potential beneficiaries are no longer eligible for the program.
As Heritage Foundation legal-policy analyst Jack Fitzhenry explained, “by getting rid of the privately backed loans, they probably cut off the right to sue from certain investors, financial institutions, and state governments who could argue they would be negatively impacted by the proposal.” That is, the administration, recognizing the plan’s obviously flimsy legal justification, shrewdly amended the program to prevent anyone from having standing.
What does the Washington Post have to say about the other side of the argument, the one that involves a lawless executive branch? What does the paper make of the “countervailing danger” posed by the executive ransacking the Treasury without congressional approval and with no justification other than a decidedly dubious interpretation of a 9/11-era law?
On this point the paper is silent. Its concern is solely for the Supreme Court, not the branch that created the crisis in the first place.
Elsewhere in the press, the coverage has been similarly favorable to Biden’s plan, doubts about its legal authority be damned.
CNN asked Ph.D. student Desiree Veney, the vice president of the NAACP at Morgan State University, for comment. She suggested that student-loan forgiveness is tied explicitly to racial equality. Speaking of students at historically black colleges and universities, she said that student debt has prevented a lot of them from “engag[ing] in many wealth-building activities in regards to investing, purchasing homes, and different things like that, that will fill that racial wealth gap.” Through the Supreme Court case, she said, such students were “able to utilize our voices and our platforms, so we can be heard.”
CNN also featured Representative Ayanna Pressley (D., Mass.) delivering emotional appeals in favor of the program.
“This is a systemic crisis — a nearly $2 trillion crisis burning people from every walk of life,” she said. “Like those millions of black borrowers . . . I had no choice but to take out those loans. I ultimately defaulted on those loans, and I did pay off those loans, but it took me 20 plus years to do so.”
Newsweek presented a supposed gotcha: “Clarence Thomas Complained About His Own Student Loan Debt.”
The Associated Press played at a similar game with a report titled, “Justice Thomas wrote of ‘crushing weight’ of student loans.”
Washington Monthly provided another: “Conservative jurists demand ‘textualism’ to get what they want, except when a statute’s words thwart their desired goal. But by using a new trick, they break their own rules. That’s how they blew up the EPA’s Clean Power Rule and may soon eviscerate Biden’s student loan relief.”
At ABC News, Terry Moran sorrowfully reported a human-interest story, warning that the Supreme Court could do serious financial harm to poor, struggling Americans.
“They lined up in the cold rain outside the Supreme Court,” Moran said in reference to protesters, “few of the millions of Americans whose financial futures may depend on this case.” He continued, “The Supreme Court’s conservatives [were] clearly signaling that they think President Biden has gone too far with his $400 billion student-loan-forgiveness plan, and that Congress must approve such huge sums.”
Earlier, Vanity Fair characterized GOP opposition to the bailout plan as a “hysterical sh** fit.” These were “the same Republicans who’ve never met a billionaire or corporate entity whose taxes they didn’t want to cut.”
Also, did you know the Supreme Court justices went to good schools? Did you know college used to be cheaper? It’s true!
A subtle CNN headline reads, “College debt relief program rests in the hands of nine wealthy and elite people.” The network promoted the same report on social media under the headline, “The fate of Biden’s student loan forgiveness program that would impact scores of borrowers from a wide array of colleges and socioeconomic backgrounds lies in the hands of 9 relatively wealthy people who graduated from a short list of elite private schools.”
At Bloomberg Law, this headline: “The nine Supreme Court justices who will rule on President Joe Biden’s student loan forgiveness plan went to college when it cost a fraction of what it does today.”
At Insider: “The Supreme Court justices deciding whether to end Biden’s student loan relief program paid an average of $42,539 to go to college. Today, they’d have to pay around $320,531.”
These stories are beside the point. The central question before the court is whether the White House overstepped its authority, not whether college is too expensive. So, excellent job, everyone, “dunking” on a position no one is arguing.
What these reports fail to mention is the fact that the president himself in 2020 doubted he had the authority to simply wave away student-loan debt: “It’s arguable that the president may have the executive power to forgive up to $50,000 in student debt. Well, I think that’s pretty questionable. I’m unsure of that. I’d be unlikely to do that.”
In 2021, Nancy Pelosi took a similar position: “Suppose . . . your child just decided they, at this time, [do] not want to go to college, but you’re paying taxes to forgive somebody else’s obligations,” she said. “You may not be happy about that.”
It’s probably just an oversight that the press has largely ignored what Democratic leaders themselves said about student-loan forgiveness almost certainly being unlawful.
Embarrassingly, for a fair and forthright analysis of the actual legal arguments surrounding the student-loan-forgiveness plan, we turn to a Bloomberg News opinion piece by Noah Feldman:
Leave aside whether you think that the loan forgiveness is good public policy, a question on which there is room for disagreement, even among progressives. What’s troubling the conservative justices, legally speaking, is the scope of executive power implicated by the president’s unilateral decision to invoke his emergency pandemic powers to spend nearly half a trillion dollars without the approval of Congress. And liberals should care about this sort of unchecked executive power as much as conservatives do. The president, after all, is not always a Democrat.
Yes! Thank you!
It’s a strange world we live in when an opinion column is more straightforward and trustworthy than a basic news report.
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