The Biden Student Debt Plan likely will get struck down, maybe 9-0

My Atlantic piece from September here. The solution would be to shift from the pretext of a Covid emergency under the 9/11 Heroes Act to a much better fit under the Higher Education Act of 1965.

Instead of fixing the policy, President Biden announced the “Covid emergency was over,” which is fodder for every legal challenge to underscore the already fatal pretext problem, citing NY v. Commerce Dept, in which the liberal wing of Court plus Roberts struck down the Trump administration’s citizenship question on the 2020 census for offering bad faith pretexts for what was really a partisan agenda.

An update thread on how the Biden administration Department of Education tried to “solve” the problem by dodging standing, but they only made the problem much worse. Twitter explanation here.

Bottom line: the administration took a bad legal and political situation and made it worse by:
1) arbitrarily cutting off millions of student debtors for the random luck of which debts were outsourced;

2) tacitly conceding that their legal argument was so weak, they needed a standing dodge;

3) The “solution” of this arbitrary exclusion of privately serviced debt creates a huge clear group of plaintiffs w/ standing to enjoin the program on Day 1…

4) with a much worse set of facts that the administration knew it was invalid w/r/t the private servicers.

Author: Jed Shugerman

Jed Handelsman Shugerman is a Professor at Fordham Law School. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.

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