Thread by @LDHerrine

I'm going to have to do a thread in response to this editorial.

It has several problems.

https://twitter.com/jedshug/status/1566420680446562304

First, contra the title, it's not actually an objection to Biden's plan. It's an objection to the legal reasoning in a memo that may or may not represent the Admin's full legal reasoning and does not limit the Admin's ability to defend its action on appeal.

Shugerman is objecting to an OLC memo publicized when the plan was announced. This memo seems primarily focused on repudiating a previous memo from the Trump Admin. It is not a formal administrative action or announcement of the admin's full theory of the case.

The Dept of Ed will have to release its own legal justification when it takes the formal legal action to begin cancelling this debt. If it relies exclusively on HEROES, it can wait even longer to release full reasoning. If compromise is invoked, it depends on how they style it.

So Shugerman is really saying "Biden Admin, if this is the full extent of your legal reasoning, you may have a problem! You can do better!" But then why say that in an article in a center-right magazine that is bound to be pointed to by opponents of student debt cancellation?

(I know authors do not choose their titles. But the title is itself an indication of how the article will be received, a predictable result of publishing this "I'm a liberal, but..." argument in a center-right publication.)

Then there are issues with the reasoning--issues that could have been sorted out if @jedshug had first raised these objections by consulting with those who have been working on this issue for a while (whether in the admin or otherwise) rather than going right for the megaphone

First, this is a ridiculously blase treatment of standing, one of the central issues. And it's flawed at best.

First theory relies on private banks. But the Dept of Ed will only be cancelling loans in its possession--not those administered by private banks. And...

for the few public loans still administered by private banks, if the Admin takes possession of those, it will be only by paying out the full guaranty. So no financial loss (at best arguable financial loss), and redressability of the alleged injury is questionable.

What about "state programs"? How would they be adversely affected? Shugerman does not say. Perhaps the theory is that students would be likely to take on even more aid from states if they thought their loans were likely to be cancelled? But that is speculative at best.

Maybe @jedshug could clarify what he has in mind? In any case, what he puts in the article does not illustrate the "inevitability" of courts getting to the merits. There's a reason so much of the legal discourse has focused on who has standing.

Now, it's true the conservative judiciary has illustrated a willingness to be blase about justiciability questions when it wants to get to the merits, but I'd think a liberal legal scholar would want to point out the politics of that doctrinal shift, not take it for granted.

Next, on MQD.

Shugerman doesn't really seem convinced by his complaint that the admin ignores MQD or leg history. After all, he seems to suggest that the admin's arg might have worked just fine a year ago. So his cmplt really seems to be over fit.

But, for what it's worth, it's not at all clear that the Biden Admin should be treating MQD as settled doctrine. The Court has not announced an administrable test (it's basically a smell test), for one thing. For another, if we're setting up for constitutional hardball...

it's time for the Admin to do more to highlight all the ways this Court is rewriting the law to undermine democracy and arrogate power to itself. Treating MQD as basically illegitimate could be good legal politics. That's contestable, of course, but it's not bad lawyering.

In any case, the admin does actually deal with the legislative history--which it rightly says is thin. And the admin rightly points to the expansion beyond 9/11 and Shugerman does seem convinced that the legislative history seems to support using HEROES in a pandemic context. So?

Shugerman's real objection is that cancelling this debt is not actually targeted toward preventing people from being made worse off by the pandemic. Appealing to COVID is "pretext". Here, I agree that the admin would have to say more to tease out the connection if challenged.

But that doesn't nec mean it's insufficient for the OLC to say that the statute entrusts the decision to the Secretary, which would require courts to defer. It does mean that, when the admin takes its formal action, it should articulate the connection more clearly...

just in case courts don't defer. The admin certainly should be thinking about how to deal with a situation in which courts don't defer, but an OLC memo that is only public because Trump Admin previously issued a public memo need not contain the full extent of that legal advice.

Finally, Shugerman argues that the solution is for the admin to appeal to a different authority (the one I have previously argued for). Unsurprisingly, I agree that this different authority is a stronger legal justification, but there's a reason I didn't write an editorial:

For one, I don't write off HEROES entirely. But, for another, publicly critiquing the legal foundations for this action plays into the hands of those who oppose it. That doesn't mean supporters of this action should muzzle our criticisms. Rather,

we need to take care with how those criticisms interact with the judicial politics of the moment. One thing I have learned is that once you get too far into the legal details, people tune out. So the question is how to present the upshot of the legal details.

I think @jedshug's position is: this jubilee is lawful, but relying on HEROES to justify it is likely to result in a 9-0 reversal, and, in any case, will set a bad precedent. Emphasizing the problem w HEROES and characterizing it as a problem with the admin's action...

when the admin has not definitively relied on one or another legal theory is likely to focus the public discussion on legal controversy, deemphasizing the lawfulness of the action. The upshot becomes: this court would be right to strike down this action.

That is all the worse when the reasoning contains problems that could have been sorted out by first expressing these concerns privately.

/fin (for now?)