WaPo: Biden Is Egregiously Violating the Law, but Whatever

By Charles C. W. Cooke

Thursday, March 02, 2023

 

The Washington Post’s editorial board has concluded that, while President Biden’s student-loan-forgiveness order is flatly illegal, the Supreme Court should let it go into effect anyway, because the plaintiffs in the two cases that the Court has considered lack standing. “Biden overreached on student loans,” the piece’s headline reads. “But the court shouldn’t stop him.”

 

I am a “standing dove,” and, as such, I disagree with the Post’s conclusion here. Both generally, and specifically, I consider the case for standing in this area to be strong, and I concur with our editorial, which asked, “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?” Nevertheless, while I am unimpressed by — and suspicious of — the Post’s standing argument, that is not my most vehement objection to its editorial’s broader reasoning. My most vehement objection is to where the Post’s editors place their emphasis — which seems to me, as a long-time reader of the paper, to be at odds with the high stakes of this case; to be inconsistent with the approach that the same editors habitually took during the last presidency; and to call into serious question whether the piece’s drafters actually believe the argument that they have elected to advance.

 

At various points, the Post’s editorial describes Biden’s executive order as “expensive and ill-targeted,” “egregious,” “made worse by the fact that Mr. Biden failed to get congressional approval for the $400 billion initiative,” “a regressive and expensive mistake,” and reliant on “a questionable reading of the two-decade-old law.” They note that, when the law was passed, “it is unlikely [its enactors] were envisioning a future president issuing audacious, across-the-board student loan relief, as opposed to, say, pausing loan payments while soldiers are deployed in a foreign war or helping hurricane survivors rebuild,” and conclude that the “straightforward reading of the law’s purpose is that it permits aid targeted at those who would struggle to repay their loans as a direct result of a serious emergency.” Having so opined, they then conclude that while the on-the-merits argument against the legality of Biden’s order is open and shut, the Court is powerless to step in because 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.”

 

This being so, one would expect the Post’s editors to be spitting blood. If the Post’s analysis is correct, then the president of the United States — by explicit design! — has found a way of taking at least $400 billion from the Treasury and avoiding any judicial consequences for it. That, surely, must make the paper apoplectic?

 

But it doesn’t. Looking to the future, the only worry that the Post’s editors feel a need to share is that the standing rules might be construed too broadly:

 

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.

 

Certainly, that’s a risk — although I’d ask as an aside why the Post felt the need to suggest that such a development would make “the court resemble a body of nine unelected legislators,” given that its editors agree that, on the merits, Biden’s plan should be DOA. But you know what else is a risk? Allowing the executive branch to get away with spending hundreds of billions of dollars without Congress’s approval simply because it has found a way of doing so that evades judicial review. Surely, if the Post’s editors were as alarmed by Biden’s order as they insist they are, then they would’ve included at least one paragraph on the “countervailing danger” of a totally unmoored Article II branch that, by the paper’s own acknowledgment, has been freed up to avoid a “straightforward reading of the law” in perpetuity. Yet it never comes.

 

I have said before that I consider Biden’s order to have created a constitutional crisis, and I am still of this view. If they are arguing in good faith, it is acceptable for observers such as the Post’s editors to contend that, while Biden’s move was “egregious,” it is non-justiciable. What is not acceptable is leaving the question there. “But the court shouldn’t stop him” is not the end of the conclusion that must flow from the Post’s standing argument that “some things — even egregious ones — that presidents or Congresses do are not challenged in court for some time, or ever”; it is the beginning. At the very least, the next step should be to lambast the president for violating his oath of office, to lament that he has so wantonly violated the highest law in the land, and to name and shame everyone who has gone along with it — including many within the press. If its editorial is to be taken at face value, the Post has concluded that the president has committed a terrible violation of the law, and the Court has no choice but to let him get away with it. The appropriate response to that is not, “Oh well, whatever”; it is opprobrium, censure, and, yes, even impeachment.

 

I won’t wait up for the addendum.