Briahna Joy Gray, who was the press secretary of Bernie Sanders’s 2020 Presidential campaign, contends that Joe Biden’s “loan forgiveness” plan was never intended to take effect. In her opinion –
They used the promise of student debt cancellation to induce young voter turn out -- knowing it wasn't going anywhere bc they relied on faulty legal authority.
Hard to convince me the Biden admin didn't do this intentionally.
As you probably know, last Thursday a federal judge ruled, in Brown v. U.S. Department of Education, that the President has no authority to forgive student loans without Congressional approval. The Administration has defended its action against a barrage of lawsuits not by arguing that Congressional authorization isn’t needed but that no one has the right to take the question to court.
The Brown plaintiffs found an ingenious way around the Administration’s theory (as summarized in the court’s opinion) “that no one has standing to challenge the Program because where the government is providing a benefit, nobody is harmed by the existence of that benefit” (which implies that the President has unlimited power to provide benefits to anyone and to any extent that he wishes). The plaintiffs’ counterargument was that they are student borrowers whose loans the Administration had not purported to forgive and that the Department of Education’s failure to allow the public to comment on the action before putting it into effect, as required by the Administrative Procedure Act, deprived them of their opportunity to make the case for more favorable treatment of their own indebtedness. The court held that these facts resulted in a concrete injury that can be redressed by a favorable court decision. Those are the elements needed to establish standing to bring a lawsuit.
Standing is a complex and contentious subject. Discussing the merits of the court’s opinion in Brown goes beyond the scope of this post. What interests me at the moment is Miss Gray’s reasoning. Back in December, she declared, “Biden absolutely does have the power to cancel all student debut by executive order. No congressional involvement required.” After Brown, she elaborated, saying that the President “could’ve immediately canceled student debt instead of making it a means tested program, in which case there wouldn’t have been these opportunities for people to obstruct”. The Brown plaintiffs, for instance, would have lacked standing, because their loans would have been “forgiven”.
Note that her analysis doesn’t rest on the Constitution but only on the idea that the Constitutional mandate “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law” can, through clever maneuvering, be rendered unenforceable, in which case, she evidently believes, a progressive President has no duty to abide by it.
Briahna Joy Gray is just one progressive, but does anyone imagine that she is an outlier? We’ve heard a lot this year about how “democracy is in danger”. Doesn’t the enthusiasm of a large political movement for arbitrary, unconstitutional executive action carry a whiff of dictatorship?
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