Ascertaining the Majorness of Student Debt Relief | Crooked Media
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March 06, 2023
Strict Scrutiny
Ascertaining the Majorness of Student Debt Relief

In This Episode

What’s going to happen to the federal student debt relief plan? Melissa, Leah and Kate give listeners some answers as they break down last week’s Supreme Court oral arguments on the cases blocking 20 million borrowers from seeing between $10,000 and $20,000 of forgiveness on their federal student loans. They also discuss how those arguments could affect a pending federal court ruling that could force the FDA to reverse its approval of mifepristone, a drug used in medication abortion.

  • Listen to last week’s episode previewing the student debt relief cases
  • Listen to this episode on the federal court case regarding the FDA approval of mifepristone.
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TRANSCRIPT

 

Melissa Murray [AD]

 

Show Intro Mr. Chief Justice, may it please the court. It’s an old joke, but when an argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said. I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

 

Kate Shaw Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts. I’m Kate Shaw.

 

Melissa Murray And I’m Melissa Murray.

 

Leah Litman And I’m Leah Litman.

 

Melissa Murray And yes, the band is back together. We have been far flung in recent weeks, which has meant that you listeners have gotten us at less than full strength. And I have to say, even at Medium Caf, we are a lot. But today we are full caf, we are back in full force. And that is terrific because we have lots, lots, lots to cover. So let’s get right to it.

 

Leah Litman Our focus is going to be on the two enormous cases the court heard last week involving the fate of student loan relief for 20 million borrowers. The answer to that issue will turn on the related questions of whether having a sad because your debt relief is too small is enough to get a federal court to invalidate everyone’s debt relief. Also, whether states can sue any time a third party might be affected by something the federal government has done, and whether somehow, under the major Questions doctrine, the whole program may be invalidated because John Roberts is upset that lawn service providers have not been the target of a specific federal government COVID relief program and statute that doesn’t actually apply to them anyway. So there was a lot in the 5 hours of arguments in these two cases that was just a brief preview. And we will start there and we will then briefly touch on the other cases. The court heard some developments outside of the court and finally, some court culture.

 

Kate Shaw All right. So we’re diving right into argument recaps. As Lisa just said, we’re going to spend most of our time this week on Nebraska versus Biden and Department of Education versus Brown. The two super important cases involving the lawfulness of the Biden administration’s plan to cancel significant amounts of student debt for eligible borrowers. And as a reminder of the background at issue in these cases is an August 2022 decision by the Secretary of Education that he would provide targeted debt relief to millions of student loan borrowers. But he had concluded we’re suffering the continuing economic impact of the COVID pandemic. In doing so, the secretary relied on a provision of the Heroes Act passed in 2003, which authorizes the secretary to waive or modify any statutory or regulatory provision applicable to the Student Financial Assistance Program as the Secretary deems necessary in connection with a war or other military operation or national emergency. Since 2003, when the law was passed, the Education Secretary has repeatedly relied on this statutory language to provide student loan relief under particular circumstances.

 

Melissa Murray The dispute here needs a little context, I think, to sort of give it some color. As many of you know, during the pandemic, the various administrations, first the Trump administration and then the Biden administration issued several, quote unquote, pauses in loan repayment obligations. So, for example, Trump Administration Secretary of Education Betsy DeVos announced that they would pause on having people repay their student loans because of the economic disruption of the pandemic. And then that was reiterated under the Biden administration when Secretary of Education Miguel Cardona also issued a pause in August 2022. And amidst some criticism that the Biden administration had given short shrift to a campaign promise to deal with student debt relief, Secretary Cardona decided to order an additional pause of student loan obligations. But then he also made a subsequent decision to end the across the board pauses in December 2022 and to instead issue up to $10,000 in student loan relief to eligible borrowers and up to $20,000 in student loan relief for qualifying Pell Grant recipients. In his supporting analysis underlying these decisions, Secretary Cardona relied on historical data about borrowers who transitioned back to repayment after periods of forbearance, including after other emergency situations. And he concluded that such borrowers are typically adequate, elevated risk of delinquency and default, end quote. He also concluded, based on data that pauses alone would not be sufficient to alleviate the economic effects of a disaster on the affected borrowers ability to repay their loans. He reviewed COVID pandemic specific data, including borrower surveys, loan data, economic studies and credit analysis conducted by the Consumer Financial Protection Bureau and the Federal Reserve Banks to underscore the need for this kind of sweeping relief as opposed to the more incremental pauses.

 

Leah Litman So a lot of people were pretty excited about this announcement. Some people were not so excited. Some of the less excited people decided to go to court to see if they could convince five justices to undo this action. And they just so happened to find some similarly unexcited people on the Supreme Court.

 

Melissa Murray You know what that is, Leah? That’s democracy.

 

Leah Litman What?

 

Melissa Murray That’s democracy. That right there’s democracy.

 

Leah Litman Definitely deliberation, judicial restraint. Separation of powers. All of the things law. Right? Sounds like law to me anyways. The people who went to court. There are two groups of plaintiffs challenging this decision. Six states who don’t like the debt relief and two borrowers who want broader relief. And they have filed suit, seeking to bar the secretary from providing any relief to anyone, at least under this particular decision or program. This makes sense. Definitely. The two cases were argued separately on behalf of the federal government in both cases. Solicitor General Elizabeth Prelogar argued We will have more to say about her, though maybe right now we’ll just say she is probably better at this than pretty much anyone is at anything. There are differences in both the standing and merits arguments between the two cases, but we are going to divide our discussion into first standing and we’ll talk about the standing issues in both cases and then merits and also talk about both cases there.

 

Melissa Murray And in dividing the two. We are going to be very unlike Chief Justice John Roberts, who seems to think that they are inextricably conflated. Sorry, am I getting ahead of myself?

 

Kate Shaw No, we all are. We will quickly get there. No. Know that it was just one of the craziest things about this argument, but maybe just a little bit of kind of background first.

 

Leah Litman I’ll just say another preview. I listened to one of these arguments in front of a pool in Miami Beach drinking liquor. And at various moments I turned to my companion and asked, Am I blotto or did that just happen? And.

 

Kate Shaw You should have thrown your phone into the swimming pool. It was so shocking. But no, I mean, maybe maybe John Roberts was actually drunk when he was asking these questions that I couldn’t quite believe were coming out of his mouth. And yet I listened again. They definitely were.

 

Melissa Murray Okay. This is when your optimism like you couldn’t believe these were coming out of his mouth. Okay.

 

Kate Shaw I know.

 

Melissa Murray Bye

 

Kate Shaw I know. Well, okay, so let’s let’s explain why. And before we do that, just a quick reminder. Standing, you know, at base is the idea that the court should only have the power to decide cases when before the court are individuals who have a concrete injury that is traceable to the action of a defendant that they are complaining about and where a favorable judicial ruling would redress that injury. And these plaintiffs I mean, I’m talking about the plaintiffs in both cases simply do not have standing under any traditional standing test of this court. And again, that’s true of both the state plaintiffs and the individual plaintiffs.

 

Melissa Murray But don’t let standing get in the way of a good time at the Supreme Court.

 

Kate Shaw And.

 

Leah Litman They certainly don’t.

 

Melissa Murray Don’t let it.

 

Kate Shaw Nor really did. Again, John Roberts in particular, like even sort of pretend that standing was something that was a constraint on the court if right before him was a program that he was really mad about, it was just wild. So, okay, so I’m standing argument, as Leah and I previewed last week, kind of the heart of the state’s theory and the focus of the justices standing questions in the first case was Mohela, which is the Missouri Loan authority that Missouri says is injured by this relief plan, but whose injuries the federal government says cannot possibly be the basis of a kind of injury that a federal court recognizes because Mohela is a separate legal entity and is not a party to this case. And pretty sort of basic standing principles would suggest that Missouri cannot be in court asserting someone else’s interests based on someone else’s injuries.

 

Melissa Murray And the question of whether Mohela really was the appropriate entity to be bringing this case and the fact that Mohela was not the entity bringing this case really seem to be a big concern for both the litigants and the justices, particularly for the justices on the liberal wing who emphasize this a lot. We’re going to play a bunch of clips here and you’re going to hear from Solicitor General Prelogar for the federal government in both cases, as well as Nebraska’s Solicitor general James Campbell, who represented the state seeking to blow up the student loan relief plan, and then a private attorney who’s representing the two individuals in the Brown case. So first up is our favorite fanboy, Justice Samuel Alito, who appears to be asking General Prelogar even though we have been incredibly demanding in standing cases before where we didn’t want to grant relief, what if instead here we just decided to forget about these legal niceties because you only live once? And why not completely overturn the President’s student loan relief. So here he goes.

 

Clip Okay. Injury, in fact, is a factual question. So I understand a big thrust of your argument to be that Missouri lacks standing because Mohela is a is separately incorporated. But why should that formal distinction govern the determination of injury? In fact?

 

Clip So we think that the injury impact analysis here has. Both a factual and a legal component. In the first place, of course, we’re making arguments that even if there’s a financial injury to Mohela, the state hasn’t carried its its burden to show that that will have downstream effects on the state or that those would be cognizable. And Mohela hasn’t paid money into the relevant state fund for the past 15 years. It said that further payments were not deemed probable even before this plan was announced. But even putting that the factual discrepancies to the side, there’s a fundamental problem as a matter of law with the claim of injury. And I think it arises directly from two sets of black letter law principles. The first is that the whole point of incorporation is that you’re creating a separate legal person with its own rights and interests, and Missouri has derived substantial benefits from structuring Mohela that way. And the second is the basic Article three principle that a party has to come to court and assert her own rights and interests. You can’t invoke the interests of a third party.

 

Clip All of that is certainly true. You think that that the lot the fact that Mohela is incorporated is the end of the day. That’s enough to destroy, to defeat standard.

 

Leah Litman This is just one of the examples where I couldn’t believe they were letting these words come out of their mouth. Like, usually I think they try to pretend that what is happening isn’t actually happening. Like, Oh, no, I’m just doing a neutral standing analysis here. Whereas this is basically Sam Alito saying why should a little thing like the formalities of law get in the way of me vetoing every Democratic policy for the rest of my life? And this exchange between General Prelogar and Justice Jackson made pretty clear how pretty indefensible Justice Alito suggestion was. So let’s play that.

 

Clip Yes, I had understood that the injury that was being asserted here was an economic injury. But if we look at Mohela and we see that its financial interests are totally disentangled from the state, it stands alone. It’s incorporated separately. The state is not liable for anything that happens to Mohela. I don’t know how that could possibly be a reason to say that an injury to Mohela should count as an injury to the state.

 

Clip Yes, we agree exactly with that analysis and it’s important to think about the benefits that Missouri has obtained from structuring Mohela that way. This is not the first lawsuit that Mohela has been involved in. Actually, Mohela is not involved in this particular suit, but in prior suits, when Mohela has been sued, the state’s been entirely absent because state law makes clear that Missouri cannot be on the hook for Mohela. His liabilities. It creates a wall of separation financially between the two entities, and Missouri gets a lot of benefit from that.

 

Melissa Murray Both Kagan and Justice Sotomayor jumped in to underscore this point that Justice Jackson is making. Why isn’t McCullough the appropriate litigant here? Why are the states bringing this on behalf of Mohela when Mohela is perfectly able to be a litigant in this case? And again, that’s a really good question.

 

Kate Shaw Yeah. And so this came up a bunch in the questions from the liberal end of the bench. And actually I was somewhat heartened to see that Justice Barrett at times also seemed pretty unsure of sort of what the absence of Mohela meant for the state’s standing. Now, she did press Prelogar on whether Mohela would be viewed as a state actor for certain purposes, and then seemed to kind of engage in what was intended as a game of gotcha when Prelogar said, yes, they would. But that’s, I think, just wrong. Entities are sometimes viewed as state actors for some purposes, but not others. But she really then did press Campbell, Nebraska’s lawyer representing the states in this case. So she pressed him, I thought, hard and in an encouraging way about McCullough’s conspicuous absence. So let’s play that clip here.

 

Clip Do you want to address why Mohela is not here?

 

Clip Mohela is not here because the state’s asserting its interests. He doesn’t need to be here because the state has the authority to speak for them. And that brings me to.

 

Clip Why didn’t the state just make Mohela come then? If Mohela is really an arm of the state and all of this would be a lot easier. I mean, the solicitor General conceded that if Mohela was here, Mohela would have standing. If Mohela is an arm of the state, why didn’t you just strong arm Mohela and say, you’ve got to pursue this suit?

 

Melissa Murray Let’s take a vote. Who thinks Kate is going to get her heart broken by Justice Barrett on this?

 

Leah Litman One problem with an audio only podcast is you cannot see that both Melissa.

 

Melissa Murray The sea of hands being raised

 

Leah Litman And I immediately raised our hands. And again, I have to think back to the Texas SBA case.

 

Melissa Murray That’s what I was thinking when we. Yes, Kate, the only way she’s going to come through for you is if she can put Mohela in a safe haven box and leave it there.

 

Kate Shaw Well, but what about let me let me come back with Texas versus California. Right. So there have been cases where she has found.

 

Leah Litman 7-2. 7-2.

 

Kate Shaw Saying that Gorsuch and Alito are in play on standing. But Barrett agreed so that there was no standing in that case. Right? Isn’t that helpful evidence in support of my theory that there are some standing claims that. Barrett just things are a bridge too far and that this could be one of them? I’m going to retire, I’m going to remain.

 

Melissa Murray The ones that don’t matter because there are five people.

 

Kate Shaw Look, I’m going to get I think even more like sort of reaching through the computer to throttle me when I say I don’t know the only other. So finding four. I think that actually the women seemed likely to me to find, at least in a case. And I think in both cases that there is no standing. Now where you find a fifth? I’m not going to supply an answer to.

 

Melissa Murray Too bad there are not nine women on this court.

 

Kate Shaw I mean, it might not matter depending on who they are, but I just think I actually think four. I think that there’s a decent chance that you have four votes for no standing. And I again, thinking about Texas versus California, Thomas might be the most gettable to my mind of the vote.

 

Melissa Murray Maybe they can pull along the court’s most robust feminist, Brett Kavanaugh to join them, and then they’ll have a majority of five on standing. Amazing.

 

Kate Shaw Well, it’s definitely not going to be John Roberts, which, you know, is ordinarily.

 

Leah Litman It’s definitely not going to be. Brett Kavanaugh was basically likening debt cancellation to Japanese internment. Fast forward a little bit there.

 

Kate Shaw This is why I actually think that Thomas is.

 

Melissa Murray We’re becoming as unhinged as this argument.

 

Kate Shaw Okay, A fair point.

 

Leah Litman Let’s get this train back on track. Back to standing. So part of the reason why I don’t think there are five votes to say no standing is at various moments. It seemed like several of the justices were suggesting that because this was such a major policy, they had to have a way to invalidate it. Like basically and Justice Jackson did a nice job highlighting like how crazy that is. That is how insane it seemed to be that some of the Republican justices seem to be using their view of the major ness of the underlying merits issue as a reason to find standing. You know, that’s essentially what the chief was kind of asking about earlier. And, you know, it was his first question.

 

Kate Shaw Right? That was his very first question I think you’re talking about. Right?

 

Melissa Murray It’s it’s like using bigness or major ness as a proxy for an injury. Like anything that is big is inherently injurious.

 

Leah Litman It’s it’s like straight out of Anchorman. Like, “I don’t know if you know this, but I’m kind of a big deal” and, you know, like, this is what they’re doing. And here to as with the Alito question that I was saying like this is pretty much giving up the game. If you say, yeah, there are rules, but this case strikes me as unfair or kind of a big deal, so I’m not going to follow them. Right. There are no rules. And you’re making clear like what kinds of cases you think are a big deal, which are any popular Democratic initiative.

 

Melissa Murray I think it’s more subtle than that. I actually do think they’re trying to make a different kind of claim that anything that is big or major in this way necessarily provokes an injury justice. And it doesn’t matter who the person injured is, it’s like it’s so sweeping that everyone’s in combat.

 

Kate Shaw You’re making it sound more principled, though. I think that in fact is I actually think I.

 

Melissa Murray Don’t think that’s principled at all.

 

Kate Shaw But at least that that is sort of like it’s comprehensible in terms of the standing categories that they have set forth. I actually think that they are doing because of the way that Roberts framed that first question. I don’t I think he’s basically saying injury in the traditional sense is out the window. We don’t care. What matters is the separation of powers. And in order to protect this vision of the separation of powers, we have to be able to check this action because otherwise there will be no checks. So it feels to me like a total paradigm shift, like we don’t care about injury anymore. That’s no longer the relevant question.

 

Melissa Murray So that’s the Ron Burgundy school of standing right now.

 

Leah Litman And Justice Jackson was having none of it. So let’s play that clip here.

 

Clip All right. And I also have a big picture question about standing. You’ve been arguing that standing here would be a reach if we were to, for example, find that, you know, Mohela somehow losses to it count for the purpose of the state based on established standing principles. And what I’ve been mulling and wondering is whether the same concerns about the political significance of this case that the Chief pointed to could be a reason for us to hold the line in terms of thinking about our standing doctrine and whether or not we should expand it in this area. I understood that the standing bar really, you know, as applied in a case like this, would allow the political branches to hash this out without interference, you know, from a torrent of lawsuits brought by states and entities and individuals who don’t have a real personal stake in the outcome. And in some ways, it’s not unlike a case we heard last week where people were very concerned about, you know, lawsuits against tech companies and how they might hobble these companies if we allowed them to go forward. And I guess I have that same worry about the operation of the federal government and its ability to govern. If we look at our standing doctrine in cases like this, and we find that, you know, even the most minor state interest, a dormant fund that hasn’t been. You know, funded or used by the state in 15 years, if that can be the basis for standing. I guess I’m concerned that we’re going to have a problem in terms of of of the federal government’s ability to operate. So my question is, is this a legitimate concern? And should we be thinking in cases like this about that type of concern as we ponder whether to expand our standing doctrines?

 

Kate Shaw She was so effective there. I thought.

 

Melissa Murray Let’s get back to the chief justice. And I actually do think this was the biggest oral argument that he’s had for the entire term, like the most active and the most actually unhinged. So in the second case, which I think we should also talk about, because that was really interesting, too. Roberts was really gunning to get to the merits of the underlying question, even though the procedural bar, the standing question was even worse in that case than it was in the case involving the state. So here the question is whether the individual plaintiffs who got some debt relief or didn’t get any debt relief, whether they were injured, because the program that the Biden administration put in place didn’t meet their particular needs. And it just seems like this is the kind of generalized grievance that we talk to our students about in one election law. And yet the chief justice seemed unmoved. So here briefly is Solicitor General Prager trying to explain to the justices why these individual private plaintiffs do not have standing.

 

Clip Across the board at Brown and Taylor’s arguments in this case run counter to precedent and principle on standing respondents asserted injury is a complete mismatch for the relief they seek. They claim to want greater loan forgiveness than the plan provides, but they ask this court to hold that the Heroes Act doesn’t authorize loan forgiveness at all. A win on that theory would mean that no one could get any Heroes act relief, not Brown, who would get nothing for herself, not Taylor, who would lose $10,000 and not any of the millions of borrowers who need this critical relief. Respondents lacked standing to seek that result.

 

Melissa Murray And yet, here’s Chief Justice John Roberts trying to compare these litigants to plaintiffs in sex equality cases because feminism.

 

Clip Understand your argument on standing. And I know this isn’t directly on point, but when I saw it, it’s sort of like the equal protection cases, you know, where discrimination between men and women on the level of pensions and the women, the widows get more and the widowers get less and the challenges brought and the argument was, well, if you win, we’re going to take the excess away from the widows, so you’re not going to get anything so you don’t have standing. Why is that case? I appreciate the way in which it’s different, but why isn’t that at least some authority on which they can rely?

 

Clip I think that the equal protection cases are fundamentally different because they’re your injury is your complaint of unequal treatment. And so whether you level up or level down, your injury is being redressed. You’re no longer being subject to unequal treatment and instead everyone is being subject to the same treatment. But this case stands in a very different posture because here their argument is our injury is we’re not getting loan forgiveness, and that the relief they’re seeking, which is a declaration that the Heroes Act doesn’t authorize loan forgiveness in the first place, doesn’t redress that injury one bit to.

 

Leah Litman He is making a strong play for second biggest feminist on the Supreme Court. He’s like, you know, I think I can hang with Brett on this issue. And.

 

Melissa Murray I too am a father of daughters.

 

Leah Litman I really appreciated Pink Pussy hat wearing John Roberts viewing as the modern day civil rights heroes like Akin to the plaintiffs who dismantled sex based hierarchies that view women as unfit for the workforce or view women as like perpetually in need of paternalistic protections like, you know who those people are today, people trying to end student debt cancellation.

 

Kate Shaw Those are the heirs of their forefathers.

 

Leah Litman Natural heirs.

 

Melissa Murray And here is Justice Sonia Sotomayor stepping in to say maybe this isn’t the kind of feminism we need.

 

Clip Sure. You as a student wants the Heroes act. Your $10,000 student. Yeah. Is going to get nothing. He’s not going to get 20,000. You strike it down, he gets nothing. Neither does your person who wants something. This is so totally illogical to me that you come into court to say, I want more. I’m going to file a suit to get more, but I know I’m going to get nothing.

 

Kate Shaw So we should say these private plaintiffs are seeming to make, like, just this completely non judicially cognizable claim that we want a different sort of debt relief. They are also, just to be fair, making some kind of procedural argument along the lines of, yes, the secretary relied on this statute, the Heroes Act. And yes, that act specifically does not require the government to go through a notice and comment process where members of the public can weigh in. But the secretary didn’t have authority to do this debt relief the way that he did, but he should have granted relief in a different way and in a way that would have allowed public comment. And if he had, we could have commented and maybe gotten broader relief. You know, again, this is one of these arguments that just to describe, I think, illustrates the preposterous ness of it. But just again, because we are a relentlessly fair podcast, I wanted to at least voice the fact that they have another standing theory, which I’ve just given air quotes to. So that’s the other theory of standing that actually got a little play in the arguments.

 

Melissa Murray But why Kate? I mean because like even if that is the theory of standing, don’t you have a redress ability problem? How is the court dealing with this going?

 

Kate Shaw So there’s a notice it. Oh, yeah. No, you’re assuming I mean, the court has in other cases where it’s less interested in getting to the merits, said if you have all of these like this very speculative chain that both as to kind of the causation of your injury and any possible redress ability, what you’re just pointing to, Melissa, literally strike this down and then hopefully the secretary will go about this a different and better way and then I’ll have a chance to sort of be heard and then maybe that will yield a better outcome. There are so many steps in that narrative, and so it has to be the case that that argument gets rejected. But I think that’s true about all of the standing arguments in this case. And I genuinely don’t know, except if we’re going to be like pull back and just give some general thoughts on standing. I already said my piece, which is I do think the ladies are likely to find there is no standing. But the big question for me is where you find a fifth vote and Roberts, who is often a place you look for a fifth vote in these moments, is clearly in some ways, I think the I think Roberts is the least likely true about Alito, true about Kavanaugh. Gorsuch asked one standing question of log or about the census citizenship case, but actually didn’t seem that hostile. So I’m not sure I would totally pull Gorsuch out. So I am going to retain a glimmer of optimism about the possibility that both of these cases get kicked on standing grounds. And I am going to suggest I think there will be four votes for that outcome. I’m not confident about a fifth.

 

Leah Litman Just to be clear, I’m not laughing at what Kate is saying. I am laughing at Melissa’s reaction to what Kate is saying.

 

Kate Shaw I wasn’t even looking. I was to busy bracing myself for the response. What what was Melissa’s reaction?

 

Leah Litman She was just giving you a skeptical look.

 

Kate Shaw Got it.

 

Melissa Murray You sweet summer child. Kate, this is why you’re here. This is. I mean, we’re by ourselves, Leah and I can just tip into nihilism, but here you are.

 

Kate Shaw Guys, even on Barrett, you guys think I’m wrong on Barrett?

 

Leah Litman Yeah, I think, you know, like 60-40, she finds standing, but, you know, not as clear as Roberts and Alito were. But again, like, I just don’t know where the fifth vote comes from. And it’s, you know, in some ways.

 

Kate Shaw Like, does it matter?

 

Leah Litman Whether she did say a ton on standing? And so it just doesn’t matter. Yeah.

 

Kate Shaw All right.

 

Melissa Murray But she’s broken your heart before, Kate. That’s all I’m going to say. SBA when you thought like she seemed to have, like, you know, some principles around Ex Parte Young and there there she was with the majority. She broke your heart.

 

Kate Shaw Just silently. Yeah. No, it’s that’s that. That’s right. So we’ll see. But let’s try.

 

Melissa Murray Right. Kate, don’t call up wanting to commiserate when she does it. Where we told you to break up with her and you just won’t. You keep going back for more, Kate.

 

Kate Shaw Oh. I’ll be curled up in the. Well. I actually don’t even.

 

Melissa Murray We might DoorDash you some ice cream, but we’re not going to hear about it. We’re not going to listen to you talk about it.

 

Kate Shaw Okay, I’ll. If I find my comfort elsewhere.

 

Melissa Murray [AD]

 

Kate Shaw So let’s turn to the merits, because we, unlike John Roberts, really did try to keep those two somewhat separated. Let’s start with the ever expanding major questions doctrine. And this is a doctrine that was once a narrow exception to what’s known as the Chevron Doctrine, the idea that courts should defer to an agency’s interpretation of a statute that they administer. Now, the major questions doctrine over the course of the last couple of terms has become the Supreme Court’s most potent deregulatory tool, and its power just keeps growing. So we have seen the court use the major questions doctrine to strike down pandemic interventions like the CDC eviction moratorium and the OSHA test or vaccine mandate, and then to strike down the Clean Power Plan in West Virginia versus EPA. Leah and Dan Deacon have a fantastic article about the major questions doctrine if you want to read more and get more background. But it was all over this argument.

 

Melissa Murray The argument here, it seems to be that the student debt relief plan is too big and too expensive and maybe too politically controversial. And for all of those reasons, if Congress was to authorize it, they actually had to write something that very clearly and explicitly authorizes such a program in the statute than it did. Now, remember, the statute was enacted in 2003 before we even knew about the pandemic. But, you know, Congress, like Dionne Warwick can see the future, and it should have predicted the pandemic and noted it specifically. And the prospect of this kind of sweeping debt relief in the terms of the statute. Otherwise, the major questions doctrine is implicated and this goes down. So do I have that right? Like Congress must read minds.

 

Leah Litman Even though Congress is expected to read minds. I mean, Congress did kind of read minds here, like they wrote a statute pretty clearly authorizing a debt relief, you know, on these facts or so it seems. And we’ll get into this in a little bit. But on major questions doctrine specifically, you know, from the argument, it seemed as though they are trying to inject another layer or another dimension or variation on the politically controversial part of the major questions doctrine, which is they appear to want to say that if a policy strikes John, Sam, and or Brett as unfair, then the policy is major and presumptively illegal. And this is definitely what we in the business call serious legal analysis that is super principled and likely to play out super well.

 

Kate Shaw So just to add a slight addendum to that. So it may not just be if this is a policy that strikes John, Sam, and Brett as unfair, but also, you know, Slash, if the serious news network that these guys watch has inveighed in a particular way against a policy, that too is a factor in ascertaining major ness. It did seem and you mentioned John, Sam, and Brett, it did also seem to me as though those three Roberts, Alito and Kavanaugh maybe are a little upset that Neil is getting so much press as the leading proponent of this major questions doctrine. It’s something that he was viewed for a long time as leading the charge on, and they want in on the action. Right. So they were incredibly vocal on this point from the very beginning of the first argument. So let’s start with the chief and, you know, really how he started out by just kind of ignoring actual words in the statute which says the secretary can waive or modify, but really focusing on just the word modify. So let’s play that clip here.

 

Clip In an opinion we had a few years ago by Justice Scalia, he talked about what the word modify means. And it’s he said modified in our view, connotes moderate change. He said it might be good English to say that the French Revolution modified the status of the French nobility, but only because there’s a figure of speech called understatement and a literary device known as sarcasm. We’re talking about half a trillion dollars and 43 million Americans. How does that fit under the normal understanding of modifying?

 

Melissa Murray I mean, we are literally parsing whether canceling student debt relief is the same as waiving it, which is kind of canceling it and modifying it. I mean, there’s a lot of textual healing. Ladies in. Justice Kagan also seemed to agree that this was a bridge too far. So she really was pushing back on these invocations of the major questions doctrine and against this really literal, myopic focus on the word modify. So here she is.

 

Clip General Campbell, I mean, it says waive or modify any statutory or regulatory provision applicable to the student financial assistance programs. And then it says the secretary can add terms and conditions to be applied in lieu of such statutory and regulatory provisions. So it’s really quite clear here. It’s like you can waive or modify the old ones and then you can add new ones in lieu of the old ones. So, you know, Congress could not have made. This much more clear. I mean, Congress didn’t say exactly the circumstances in which it wanted the secretary to use this as the authority. Of course not. This is this is a bill about like what happens when you have an emergency. So what Congress said is what happens when you have an emergency is the secretary has the power to take care of emergencies. And it has that power by way of waiving or modifying any provision and adding others in lieu of them.

 

Clip A couple of responses at the adding in lieu of language that has to be understood to mean adding along the lines of a modification. It can’t be adding just anything the Secretary wants. It has to be read in context with the terms or.

 

Clip A waiver or modify or. And you know, it’s not just modify, it’s waived. So it’s modify. Even if we take a kind of MCI type reading of modify or, you know, through more major changes all the way up to waive, and then you can say what terms and conditions should be applied in lieu of those provisions. And Congress doesn’t get much clearer than that. We we deal with congressional statutes every day that are really confusing. This one is not.

 

Leah Litman And then just moving down the list, we have, Sam, you know, seemingly suggesting that the way to decide this case would be to take a Twitter poll.

 

Clip General,, let’s say that nobody in Congress was aware of it. There is such a thing in our case law called the major Questions Doctrine. So put that out of their minds. And you simply polled every member of Congress and asked that person whether in the ordinary sense of the term they would regard what the government had proposes to do with student loans as a major question or something other than a major question.

 

Clip Well, I certainly acknowledge that in a colloquial sense. You could characterize this as a major policy. We’re not disputing that point.

 

Melissa Murray Justice Alito was also eager to resist the prospect that there might be any limitations one could place on the so-called major questions doctrine. So General Prelogar offered an argument that maybe the major questions doctrine, which they’re stuck with, treating as a real thing in these arguments, and that’s got to be hard for her. But she suggested that maybe it should apply differently or not at all in the context of benefits programs as opposed to regulatory programs. And I have to say, Justice Alito did not seem to be super excited about this particular intervention. So here he is getting mad.

 

Clip So I don’t know any conceptual reason why the major questions doctrine should apply to most regulatory matters, but not to the not to benefits programs.

 

Clip The reason we think it shouldn’t apply in the same way to benefits programs is because it doesn’t involve that corresponding trade off on individual liberty interests. The Court in some of the prior cases in this area has expressed concern that if the government is claiming an extraordinary power to regulate, that means it can encroach on the lives of individuals, the affairs of businesses, and quite directly impose onerous burdens on them.

 

Melissa Murray Awkwardly, for the justices efforts to announce a rule that specifically invalidates the actions of Democratic administrations and only Democratic administrations under the major questions doctrine is the unfortunate fact that this policy grows directly out of an earlier Trump era policy initiated by then-Secretary of Education Betsy DeVos. So here is General Prelogar pulling out her CVS receipt to show the justices that major questions were doubted and weren’t necessarily called out in the Trump years.

 

Clip Well, of course, we think Congress did address this expressly here, and Congress directed that in the context of a national emergency. That is the limitation of the Heroes Act. So the secretary can’t invoke this whenever he wants. There has to be that predicate war or military operation or national emergency in that context, in line with Congress’s limitations on who can count as an affected individual by that in an emergency in line with the purposes that relief has to serve. Congress said you can waive or modify any title for provision in order to get relief to borrowers. And Justice Alito, I would point to the forbearance policy that’s been in place for the prior three years, put into place right at the beginning of the pandemic by then Secretary Davos. That has been an economically significant program. It’s currently costing the federal government more per year than this loan forgiveness plan would cost the government annually.

 

Kate Shaw And as Leah suggested earlier, in many of the questions there was there seemed to be less of an effort to kind of cloak in the language of neutrality or law what these justices were really after. There was a moment when Solicitor General Campbell were not Prelogar, but the state solicitor general came. Close to explicitly suggesting that it was cool when a Republican administration did something like this, but that this was not okay. He did later sort of realize what he’d said and then insisted it didn’t matter what administration it was. But I kind of thought that the damage had been done by that point. So let’s play that clip here.

 

Clip If I can go through the timeline to explain. So the first seven days on March 20th, 2020, Secretary Davos waved but didn’t indicate what legal authority she was using. I have no way to assess that because I just don’t know what what authority she was using. Then Congress came in seven days later and enacted the CARES Act. The CARES Act, put a payment pause in place for six months. At the end of that six month period. Secretary Davos extended it for three months. I think arguably that was a legitimate use of the Heroes Act because taking a congressionally created six month program and extending it for three months seems like it might be a modification. But now there were two years down the road. We’re beyond a modification. And not only that, the connection to the national emergency has become even more tenuous.

 

Leah Litman Ladies, is it law to say Democrats can’t do it but Republicans can? I don’t know. We’ll find out.

 

Kate Shaw Definitely checks out.

 

Leah Litman And then, you know, comes the moment I alluded to earlier, which is Brett Kavanaugh decided at one point, you know, the court maybe needed to put a stop to this debt cancellation because it was on par with like some of the worst abuses of executive authority in history. And this would put the court’s decision invalidating student debt cancellation among the canon of the court’s most important moments, which are curbing executive authority. So let’s play that clip here.

 

Clip Broadening it out and thinking about you mentioned emergencies, the history of this court with respect to executive assertions of emergencies. Some of the biggest mistakes in the court’s history were deferring to assertions of executive emergency power. Some of the finest moments in the court’s history were pushing back against presidential assertions of emergency power. And that’s continued not just in the Korean War, but post-9-11 in some of the cases there. So given that history and there’s a concern, I suppose, that I feel at least about how to handle an emergency assertion, you know, so many amicus briefs. One of them from a professor says this is a case study in abuse of executive emergency powers. So I’m not saying I agree with that. I’m just saying that’s the assertion.

 

Leah Litman And it’s like I just want to know in what galaxy brain like canceling student debt is in the same universe as forcibly interning American citizens of Japanese descent. Because the great legal mind of Brett Kavanaugh seems to think like these are related and reminds me of that exchange we highlighted from one of the oral arguments in the district court proceedings challenging the student debt cancellation, where another Republican trial judge suggested that debt cancellation was like The German law is empowering Hitler. And it seems like Justice Kavanaugh is just a foaming at the mouth, waiting to have his Justice Jackson moment. Justice Jackson is one of the justices who dissented in Korematsu when the court upheld the internment of American citizens. And also, like, where was this energy in the Muslim Ban case? Like challenging executive authority is the court’s finest moments. I just I don’t recall. I don’t recall.

 

Melissa Murray I mean, Leah, they did repudiate Korematsu in the Muslim ban case.

 

Leah Litman That’s right. In the court of history, Korematsu was repudiated. So I guess that was one of the court’s finest moments um my be.

 

Kate Shaw So while Kavanaugh is indulging these insane, strained historical analogies, Kagan is very effectively kind of concretely grounding her discussion and her questions in real world examples regarding actual statutes passed by Congress or hypothetical statutes passed by Congress to really probe whether Congress actually can in any conceivable world, as these challengers imagine it, pass laws authorizing administrative officials to respond to emergencies. So. And, you know, it’s a colloquy that ended with, I thought, a real mike drop moment. So let’s play that here.

 

Clip Could the secretary say, well, there was this terrible earthquake and lots of people’s houses were destroyed, so I’m going to discharge the loans of people whose houses were destroyed in this terrible earthquake?

 

Clip Your Honor, it sounds to me like creating a new program. I don’t think that that would be okay under the Heroes Act. Now, what I would say.

 

Clip And I guess, you know, this is an emergency provision. There’s an emergency. It’s an earthquake. You don’t think Congress wanted to give and not just wanted It’s not what Congress thought and it’s what Congress said to give the secretary power to say, oh, my gosh, people have had their homes wiped out. We’re going to discharge their student loans.

 

Clip Your Honor, when it comes to taking that ultimate step to discharging loans. Congress wanted to preserve that for itself. And I think we know we Congress acts.

 

Clip Where do you see that in the statute? I mean, the provision of the statute says any statutory or regulatory provision applicable to the student loan program, you can waive you can add another to deal with an emergency. This isn’t a massive delegation to the secretary of education. It’s it’s designed to deal with emergency conditions. You have a lot of power in emergencies. When those people’s homes are destroyed, you have the power to to discharge their loans.

 

Clip But Congress still has a voice in emergencies. And we see that through the CARES.

 

Clip Congress used its voice. Congress used its voice in enacting this piece of legislation.

 

Kate Shaw So if things already seem to be going off the rails late in the second argument is when the lawn company entered the chat. So let’s first play the Chief Justice here.

 

Clip Since we’re dealing in the case with individual borrowers or would be borrowers, I think it appropriate to consider some of the fairness arguments. You know, you have two situations. Both two kids come out of high school, they can’t afford college, One takes a loan, the other says, well, I’m going to, you know, try my hand at setting up a lawn care service. And he takes out a bank loan for that at the end of four years. We know statistically that the person with the college degree is going to do significantly financially better over the course of life than the person without. And then along comes the government and tells that person, you don’t have to pay your loan. Nobody’s telling the person who was trying to set up the lawn service business that he doesn’t have to pay his loan. He still does, even though his tax dollars are going to support the forgiveness of the loan for the college graduate who’s not going to make a lot more than him over the course of his lifetime. Now, it seems to me you may have views on fairness of that, and they don’t count. I may have views on the fairness of that, and mine don’t count. We’d like to usually leave situations of that sort. When you’re talking about spending the government’s money, which is the taxpayers money to the people in charge of the money, which is Congress. Now, why isn’t that a factor that should enter into our consideration under the major questions doctrine, again, where we look at things a little more strictly than we might otherwise when we’re talking about statutory grants of authority to make sure that this is something that Congress would have contemplated.

 

Leah Litman This is what I was alluding to, you know, in the intro, is elitist like perversion of the major questions doctrine, which is like steadily devouring everything. Like if it strikes King John as unfair. It’s a major question. And if it’s a major question, it’s illegal. And apparently, like things that strike John Roberts as unfair, our student debt cancellation and this idea of like it’s unfair therefore we court have to strike it down was picked up on by Sam Alito because of course it would be picked up on by Sam Alito. And Justice Alito was like definitely having a normal one during these arguments. So let’s play let’s play some evidence of that here.

 

Clip All right. So he decided to do what he did and must have had reasons for for doing it. And some of them are on the record. Some may not be. But the secretary, if you’re right, then the secretary presumably could do more. And therefore, I think it’s a fair question to say what is. Your client’s view about the fairness question that some people have posed, and that was reiterated for you by the Chief Justice.

 

Clip The view of the department is that this why is it fair printed?

 

Clip Why is it fair?

 

Melissa Murray So we’re going to also play a clip of Justice Kavanaugh, who also could not wait to get into this grievance fest. But can I just say a little something about, you know, my view of how these grievances here relate to other grievances? It goes back to the point you were making earlier about if John Roberts finds this unfair, then it’s a major question. And I mean, again, the kind of male grievance that underlies this case is just really it’s more subtle than it has been in other cases, but it’s still very prevalent. And again, I’m reminded of students for Fair Admissions versus Harvard and UNC. And I mean, they’re very different cases, obviously. But one of the things I kept thinking about here when the chief justice was talking about the lawn care company and all these people who don’t go to college but want a fair shake and everything is just we live in a country where people of color have been told that education is an engine of economic mobility and this is good debt. And this is the kind of debt that can take you out of poverty and launch you into the middle class. And they’ve done it. And it hasn’t always cashed out that way. In fact, because of predatory universities like Trump University and whatnot, a lot of people have been saddled with crushing debt that this attempts to address. And instead what you have here is that, like they just made poor choices. They made poor choices. And there are other people, non minorities, ostensibly, who may not go to college, may be trying to like, you know, make it the old fashioned way, and they’re completely foreclosed by this. And then you have students for Fair Admissions versus Harvard and UNC. And again, this idea of keeping conduits for access to education open because they have been engines of mobility is just completely foreclosed because certain groups find themselves or believe themselves to be negatively impacted and disadvantaged. And that’s I mean, this is all about the politics of male grievance and white disadvantage. I mean, it’s more subtle, but it’s all there.

 

Kate Shaw No, it’s right there. But the forgotten sort of lawn service entrepreneur like is this kind of forgotten white man that Scalia would invoke. And Alito has been invoking. Yes.

 

Leah Litman Yes. And it goes back to like Bakke and Justice Powell, like the farm boy from Iowa. From Iowa, Right. That like he’s going to contribute to this school, too. It just has this powerful grip on like the powerful decision makers at the court.

 

Melissa Murray Which is why it was so fantastic that Justice Brett Kavanaugh, who got a kosinski’s clerkship because he played pickup basketball with a Yale law professor, had this to say.

 

Clip But then you’re thinking about contextually how it all works. It fits together the fact that there will be winners and losers, big winners and big losers, relatively speaking, if the executive branch has this kind of authority, people who didn’t go to college, as the chief justice said, or people who had just pay, who had paid off their loans, who say that what they did to pay off their loans and they’re getting no relief because of the timing of the situation.

 

Leah Litman We love a Meritocracy. I did it on my own.

 

Kate Shaw So Justice Sotomayor, Justice Kagan, were having none of this. So let’s play them coming in on this question right now.

 

Clip There’s inherent unfairness in society because we’re not a society of limited resources. Every law has people who encompass it or people outside it, correct?

 

Clip That’s correct.

 

Clip I mean, Congress passed a statute that dealt with loan repayment for colleges, and it didn’t pass a statute that dealt with loan repayment for loan businesses. And so Congress made a choice, and that may have been the right choice or it may have been the wrong choice, but that’s Congress’s choice. And you’re saying that the secretary implemented his powers under Congress’s choice, which gave him authority over loan repayment. That definitely did not give him authority over loans for lawn care.

 

Kate Shaw Pivoting to Gorsuch, who I have to say was not on the same grievance train as the others, so far as I could tell. But, you know, it was conspicuous that Gorsuch, who usually so confident about what words in statutes mean, was suddenly at a loss when the words pretty clearly seemed to support the Democratic administration.

 

Clip I just wanted to make sure I understood your position with respect to some of the gnarly language in the statute, which is waive or modify affected individuals to ensure they’re not placed in a worse position financially because of the COVID crisis.

 

Melissa Murray When textualism isn’t healing.

 

Kate Shaw And you know, one thing I thought Prelogar really effectively said repeatedly in response to this line of questioning was, okay, if these fairness considerations as as they exist in your imagination and like other considerations, were not given sufficient attention by the Secretary of Education, there is actually a vehicle for trying to assert such an argument. And that is challenging this decision as arbitrary and capricious, which might include having failed to consider some relevant factors like maybe the unfairness to the lawn service entrepreneur. But that actually wasn’t an argument made in the Brown case. They didn’t even raise an arbitrary and capricious challenge. So there wasn’t a basis in law in the second case for these justices to surface these fairness considerations, which I think made the whole thing so much more unhinged.

 

Leah Litman Lawi s for losers, Kate. They’re winners here. They’re winners.

 

Melissa Murray Why let pleading get in the way of a good time? I don’t think, like, why should you have to plead these things?

 

Leah Litman So I wanted to highlight one exchange which caught my attention just because of something that is happening in the backdrop as we are waiting for a possible ruling in the case challenging the FDA’s approval and certification of mifepristone. So the background here is in some previous cases, there was a long exchange, including in United States versus Texas, involving the D.C. Circuit fraternity. That is the justices who previously served on the D.C. Circuit. And they got really indignant about the federal government’s suggestion that lower courts did not have the power of what is called vacant heard, which is the power to set aside on a nationwide basis a federal administrative policy. And here, Justice Kavanaugh asked General Prelogar about it and whether the administration would be bound both within an entire circuit and maybe outside of it. You know, if hypothetically, a court did this. So let’s play that clip here.

 

Clip If it were party specific relief and it went up to the court of appeals in the court, and you had sought an emergency injunction in the court of Appeals. The Court of appeals ruled against the government on that. Would you then follow that in that circuit or not?

 

Clip I think as a practical matter, we generally do follow that in the circuit. I want to be careful here because it might not in the future. Right.

 

Clip Well, you know.

 

Clip You can admit it.

 

Leah Litman The reason this caught my attention is I you know, there have been some calls, including from at least one senator, for the administration to possibly ignore a ruling by the district court. If that district judge, Judge Kazsmaryk, actually does attempt to revoke, you know, the FDA certification of mifepristone. And I just thought that was interesting context for the exchange.

 

Kate Shaw And also interesting that actually Gorsuch, who first brought this up in this argument, seems pretty sympathetic to the, you know, pretty textually grounded argument the Biden administration is making that actually maybe lower courts don’t have this long assumed authority to issue these vaquitas on a nationwide basis. So I have no idea how such a claim with respect to a press donor injunction of the approval would fair. But it is interesting that that at least is someplace, at least one conservative, certainly not Kavanaugh. Kavanaugh seemed really hostile to it, but that Gorsuch at least, is really interested in this idea. Okay, so before we leave this topic, I feel like our overall assessments have come through in the telling. But do we want to take any additional final beats? I mean, one thing we are you said at the outset how good Prelogar was. I honestly thought her we’re not playing it because we’ve already played enough. But her little short rebuttal in the first case was like one of the best 3 minutes of oral advocacy that I have maybe ever heard. I thought she was incredible. There were a couple of moments at the end of the second argument when she sort of was giving one word answer as to Kagan and Sotomayor. I thought she could have elaborated more, but I thought otherwise. She was just superb and it still might not be enough. But I thought she was incredible.

 

Melissa Murray Wait, a woman performing at the top of her game and it might not be enough.

 

Kate Shaw I know kel surprise is usually your line, but I’ll go with kel suprise here.

 

Leah Litman  Yeah, um she. She gets a gold medal.

 

Melissa Murray Gold medalist. Gold medalist tied for silver. I actually I know that you all think that Jackson and Kagan were the only silver medalist here. I’m going to put Justice Sotomayor in here, too, for that really, I think, poignant point in the oral argument where she talked about who would be impacted by this. I mean, like truly centering the individuals who have called for thought they were voting for student loan relief and will be absolutely devastated both emotionally and financially when it doesn’t come through.

 

Leah Litman Last place goes to John Roberts ugh and.

 

Melissa Murray The tin medal goes to John Roberts. Tin medalist, John Roberts.

 

Kate Shaw It’s useful to be reminded, as he occasionally seems like the most reasonable of the six member super majority of conservatives, that that’s not always the case. And, you know, this was like the John Roberts of Shelby County, to my mind a decade ago, who has seemed more reasonable in some intervening cases. But.

 

Leah Litman This is what’s known as the Overton Window.

 

Kate Shaw Oh, absolutely. Yeah. No, it was more reasonable for or not reasonable, but but his performance was the craziest, I thought even more than Alito, more than Kavanaugh.

 

Melissa Murray I actually think there could be a platinum lining in this for the Biden administration if they choose to play it right. I mean, this goes back to what we have said since 2020 in the presidential election. Make more of the courts. Why didn’t you talk about the courts in the State of the Union? Why didn’t you foreshadow this? Like my student loan cancellation policy is right now pending before the Supreme Court while those guys were sitting right there. They need to make this a campaign issue going into 2024. Like I tried to do this for you and I can’t. Because this court is captured by conservative interests that don’t care about democracy unless it’s a woman’s uterus voting and like that’s what this is.

 

Kate Shaw Or law. They don’t even care about law. Yeah, no, I think I think that’s right there. I don’t know what the sort of how things shake out politically if the court strikes down, but I think it’s right that it actually on balance, it will be terrible for borrowers. But there could be some political advantage for Biden and the Democratic Party.

 

Melissa Murray Well, I mean, there has to be a political advantage to it because what was the point in this going down otherwise? I mean, they literally are going to have to explain to people who don’t pay attention to the court, You told us this is going to happen and then suddenly it wasn’t happening. And like the only way to explain that is to talk about this court. They need to start talking about it and messaging it now, and it needs to be better than what happened with Dobbs, where we had a preview for what this court was going to do. And they were flat footed. This oral argument should have everyone in the White House on red alert. This is going down unless Lady Safe Haven can make feminist Brett Kavanaugh jump on board for standing. And that’s not going to happen. So start figuring out how you’re going to message this. And there’s plenty of reporting about all of the for cook dinners and Michigan ness that’s around this court and people buying buildings. And Leonard Leo has eight houses. That’s how you should be talking about this. Sorry. Yeah, sorry. I am a little workshop.

 

Kate Shaw Yeah, that’s right.

 

Leah Litman [AD].

 

Leah Litman So should we go on to other arguments? Just briefly?

 

Melissa Murray Were there other arguments?

 

Leah Litman There were. There were. There were.

 

Melissa Murray Okay. Let’s talk briefly about some of these other arguments. There was another case that the court heard on Monday involving federal identity theft law, Dubin versus the United States. The facts of the case kind of describe the issue in the case so we can walk through it pretty quickly. David Dubin, who is the defendant, overbilled Medicaid by $101 by basically misquoting or misclassifying the psychological evaluation his company provided to a patient. Basically, he said, a psychologist rather than a psychological associate did the test. And that resulted in a $101 higher reimbursement. And he said the test was performed in May rather than April, and that it took 3 hours and actually it took 2.5 hours. So a little sloppy. Some mistakes were made.

 

Kate Shaw Okay. Sloppy mistakes. But somehow the government thinks that all of this adds up to aggravated identity theft. And if you’re puzzled about why this might constitute aggravated identity theft, if all you’re doing is getting $101 more for Medicaid because of the way you have described or coded the services rendered, that would be reasonable. But basically the idea here is that the defendant listed a patient’s name when he listed the services provided, and because the defendant used the name in conjunction with a falsehood, that is apparently identity theft.

 

Leah Litman If this is right, I am personally scared to ever say Sam Alito’s name again. Like, is that identity theft? I don’t know. I don’t know. We’ll find out.

 

Melissa Murray It’s. Well, it’s better than being scared of, as we usually are saying. His name’s three times like Candyman and having the words. So it’s like an improvement. Anyway, this case obviously depends on your reading of the statute. And the text in this case is relatively broad. So it says whoever juror, you know, in relation to any felony violation enumerated in subsection C, knowingly transfers, possesses or uses without lawful authority, A means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of two years.

 

Leah Litman So to me, this case fits together with a bunch of cases where the court seems to perceive a risk of over prosecution or overcriminalization, and in response to that, cuts back on federal statutes that are being applied in ways that seem to stretch their purposes or anticipated or expected applications. And that’s interesting to me, in part because the court seems to be channeling a mode of statutory interpretation that it’s rejected in other cases like Bostock. So Bostock was a Title seven case where the court said that Title seven, which prohibits discrimination on the basis of sex, prohibits discrimination on the basis of sexual orientation and gender identity. And there the court said, we don’t really care what Congress intended to do when it enacted the statute or what it thought it was doing when it enacted the statute. We just asked whether the best reading of the language of the statute covers this behavior.

 

Kate Shaw But in some federal criminal cases, the court has actually balked at that move and said, yeah, maybe the text covers this or could cover it, but it just seems weird or surprising or not what Congress was getting at to reach that conclusion. You can think of a case like Yates, which was a case in which the court said that a provision of the Sarbanes Oxley Act, which grew out of the Enron scandal and really is meant to target financial crimes and the destruction of financial records didn’t prohibit someone from destroying a fish as a great case involving an undersized grouper. But basically the court found a fish wasn’t a tangible object because the statute under which this individual was charged was really intended to prohibit the destruction of documents, not undersized groupers. And the cases, I think, can be reconciled, but probably with reference to ideas about when and under what circumstances these consideration should be relevant, not based on Neil Gorsuch, his rules for word science.

 

Leah Litman Yeah. So at the argument in this case, it seemed like the justices were clearly uncomfortable with the government’s interpretation or application of the statute here to this defendant, but it’s unclear if they’re ready to adopt a test to determine exactly what lawful authority means here. There were lots of questions like, well, if the defendant had built for cancer services, would it count? Or if a waiter paid off, you know, their mortgage with a customer’s credit card, would it count? And those seemed like, yes, the court was okay with and they’re not really okay with what happened here. But it’s unclear what the dividing line is. The court might adapt between these cases.

 

Kate Shaw Yeah, you know, I had assumed going in that the court was going to conclude that this was an obviously absurd application of the statute. But the justices were harder, including the liberal justices were actually harder. On Dubin’s lawyer, who was the always great Jeff Fisher than I expected. And maybe because this guy, like, wasn’t a corrupt politician, right. Where the court’s empathy is almost always activated when we’re talking about these broadly worded criminal statutes. But I actually really wasn’t sure coming out, even though I thought going in that the individual charged under the statute would prevail. So we’ll see. Let’s move on to a few other important developments in and around the court. So the first thing we wanted to flag was that the court has requested a briefing in the independent state legislature case. Moore versus Harper. So basically the Supreme Court is asking the parties to the case to take a position on whether the newly constituted North Carolina court’s decision to rehear the state case means that the Supreme Court no longer has the authority to decide this case. I’m really curious about what the parties are going to say. Since this was a suicide bond order, none of the parties filed anything asking for it. So when we see what they filed, we will get a good sense of how the parties in the case are feeling about punting versus, you know, hanging in and hoping for a good result in this case.

 

Melissa Murray Aren’t we also going to get a sense of whether the court just finds an offramp for this?

 

Kate Shaw Yeah, no, I mean, but I think the court is going to do what it’s going to do. I am really curious, honestly, to see like what the parties ask for. But yes, if they want an offramp and maybe it’s just just a clear signal, they want one. But this issue is not going away.

 

Leah Litman The nightmare continues.

 

Kate Shaw Oh, yeah.

 

Melissa Murray Speaking of nightmares, the court granted certiorari in a case out of the Fifth Circuit regarding the constitutionality of the Consumer Financial Protection Bureau, the CFPB, the CFPB. We hardly knew you. This is a case in which the Fifth Circuit ruled that the CFPB funding structure, which is outside of the ordinary appropriations process, is unconstitutional. The case is likely to be argued next term, and I guess that means don’t get attached to the CFPB. Probably not going to be around much longer. It was nice while it lasted.

 

Kate Shaw Really was.

 

Leah Litman This is the reasoning. I’m sorry, I’m about to talk about another Fifth Circuit decision, but I’m just remembering that this is the Fifth Circuit decision that had suggested Congress’s appropriations power is so exclusive that the Fifth Circuit gets to tell Congress they can’t use their funding power to, like, fund an agency in this way. It’s just like some real galaxy level reasoning. Okay, because this really could be a Fifth Circuit podcast. Also wanted to flag that the Fifth Circuit. That’s a court of appeals covering Texas, Mississippi and Louisiana. That court amended its decision in Rahimi. That is the February opinion striking down under Bruen. The Supreme Court’s Second Amendment case from last term, Section 922 gun restrictions and that is the federal law that disarms individuals under domestic violence orders of protection. It says they cannot possess a firearm. So Judge Ho expanded his concurrence to say much more ostensibly, that one of the key problems here was that these domestic violence restraining orders of protection were sometimes civil in nature. And he focused on the fact that the orders are used strategically in divorce. This is like straight up men’s rights in a court of appeals opinion to invalidate a federal law. I mean, not so subtle Subtext is like women lie to disarm poor men. Therefore, Congress cannot prohibit people subject to domestic violence, restraining orders from possessing firearms. You know, this is, again, what is known as originalism and history and traditions, analysis and how, you know, it definitely does. That is he cites a People magazine article about David Letterman. Right. That’s originalism.

 

Kate Shaw Wait. And so Melissa has this incredibly brilliant article called The Jurisprudence of Masculinity. But I don’t know if you still have time to revise the article to include, you know, concurrence. Please tell me you do.

 

Melissa Murray I do. I do.

 

Kate Shaw Oh great.

 

Melissa Murray And I will. Already on it, actually. Yeah. I mean, everyone knows that at the founding, women couldn’t divorce their abusive husbands. They probably shouldn’t be allowed to now, honestly, if we’re taking originalism seriously.

 

Leah Litman Because you know what? They lie. They lie. Those nasty women lie.

 

Melissa Murray They lie.

 

Leah Litman No divorces for you. No divorces for you

 

Melissa Murray Not going to happen. Not on my watch.

 

Leah Litman Nope.

 

Melissa Murray We also learned this week that Walgreens, the drugstore chain, has announced that it plans to stop dispensing medication abortion in some states, even states where abortion ostensibly remains legal. And again, we need a cadre of lawyers who can work with entities like this on advising them at the moment about the threats of legal action, because it seems that part of what is animating Walgreens to take this quite significant step is that they are worried that they are going to be subject to litigation from certain states that are prohibiting abortion or whatever the fallout is for interstate travel to seek abortion care. And so these pills are legal in some of the states where Walgreens will no longer be dispensing it. And so this is sort of a kind of market end run around this state by state settlement. And it’s enormously concerning. One might wonder if consumers could register their displeasure by boycotting Walgreens and if they did, would that be considered cancel culture or democracy? I genuinely want to know.

 

Leah Litman I have a guess.

 

Kate Shaw The threat of liability is going to be enough to further erode access if there isn’t a strong sort of counter mobilization, I think, by lawyers to support these multi state entities.

 

Leah Litman Well, even if there is a strong cadre of lawyers like this is partially the lesson of SBH, like the aggressive anti abortion legal movement coupled with the current composition of the Supreme Court and the federal courts is a deterrent, right? Like you don’t know whether they’re going to say a federal law. The Comstock Act actually prohibits these entities from dispensing medication abortion like you just don’t. Right. They could do that. It is clear they are just like unbound by law and all of these other things. And so, like, I think that is a big part of what’s driving this.

 

Melissa Murray I wonder what would happen if other chains like CVS, for example, or Rite Aid, also follow suit, or whether some kind of intervening consumer action would deter the other major drugstore chains from also acting in this way. I mean, this seems like if there is going to be any kind of intervention, it has to be at the grassroots level on this.

 

Kate Shaw Yeah.

 

Leah Litman So in closing, as we are coming to grips with the astonishing power grabs that this court is gleefully engaging in, it is worth it, as it always is, to think back to how this court came to be. And along these lines last week, Politico ran a deeply reported and pretty troubling story about the dark money campaign that helped produce this reactionary court.

 

Melissa Murray So the story is written by Heidi Przybyla  for Politico. The story focused on Leonard Leo, who, as we know, is one of the head honchos of the Federalist Society and later in 2016 became a judicial advisor to the Trump administration when the administration outsourced much of its judicial nominations activity to Leo. The reporting details how the network of political nonprofits that Leo created and led put at least $43 million into a new firm, a for profit firm that he created and is now leading. It’s a consultancy called CRC Advisors. The nonprofits paid 43 million to the for profit CRC advisors, consulting companies, and these nonprofits apparently both solicit donations to support ideological Republican appointments and also to engage in a ton of advocacy to push these appointments. It’s not entirely clear what kinds of services CRC advisors performed for the nonprofits, nor do we have a sense of what the scope of work was such that it warrants a $43 million payment. But I will just say in the reporting also notes that these kinds of questions are usually the kinds of things that trigger an IRS inquiry, and that of course, has not happened here. Query why that hasn’t happened yet because it seems like a red flag. The report also details how during the period between 2016 and the present where this new for profit entity is being formed. Leonard Leo also happens to accumulate a fair amount of new personal wealth. So some of the things that make clear this new accumulation of personal wealth. He now owns a wine locker or rents a wine locker at Morton’s and has, I guess, a wine coach to help him with the storing of wine in said locker.

 

Kate Shaw Do you guys not? You don’t have a wine coach?

 

Melissa Murray I mean like I still enjoy Boone’s Farm, so probably not.

 

Leah Litman I know. I only drink Moscato so also no.

 

Kate Shaw Melissa. I have a lot of affection for Boone’s Farm. We should pull together.

 

Melissa Murray I really, like strawberry. Strawberry Hill is, like, amazing, like Wild Island.

 

Kate Shaw Bartles and James. Just bring it on

 

Melissa Murray So in addition to this wine locker and the wine coach, he also acquires four new cars, hundreds of thousands of dollars in donations to various Catholic charities. He purchases two new mansions in Maine, one of which is worth over $4 million. And he’s paying off these homes just after he hosts some big events, like a fundraiser for Senator Susan Collins, whose support put Justice Coach Kavanaugh on the court after Justice Kennedy’s retirement. So all of this is looking really, really, really like fortuitous timing.

 

Kate Shaw Yes. And part of the story is the overlap and the network between the nonprofits in Leo’s world, nonprofits that spend a lot of money and a lot of time pushing for ideological Republican appointments to the court and the for profit consulting firms that Leo runs. And the nonprofits are shielded from tax consequences and enjoy other benefits. And these two sets of entities share not just Leo, but also financial officers and other staff members as well.

 

Leah Litman So there are about a million other details in this story that are worth reading to understand. The network that exists to create, you know, this current court and that is working to keep it. And I think it’s just helpful to understand that. So definitely check it out.

 

Melissa Murray It’s also worth. Thinking about the story in conjunction with the Joe Becker and Jodi Kantor reporting in The New York Times about the campaign of influence around the court. I mean, all of this is very, very weird and shadowy as as our former strict scrutiny Super fan, super guests, Senator Sheldon White board, White House would say follow the dark money.

 

Kate Shaw Right.

 

Leah Litman Also, just kind of curious, like, does it take $43 million to befriend a Supreme Court justice? Like, if I paid $43 million, would one of the Democratic appointees go to a Taylor Swift concert with me? Is this like kind of how it works now? This is a question that that these stories provoke anyways.

 

Melissa Murray I think that’s all we have time for. That’s a lot. We’ve we’ve covered a lot today.

 

Leah Litman That was. So before we go, a big reminder that the important work of political and civic engagement doesn’t just happen every two years. Vote Save America’s “No Off Years” program is here to help you stay engaged throughout 2023 is critical elections, starting with the must win Supreme Court seat in Wisconsin, which we have been talking about for a long time now and are going to continue talking about for the near future. Visit Vote Save America dot com right now to donate to help get out the vote in Wisconsin ahead of their April election.

 

Melissa Murray April is in a month.

 

Leah Litman I know it is literally.

 

Melissa Murray It’s in a month

 

Leah Litman Yeah. By the time this episode airs, the election is going to be less than a month away. It’s really.

 

Melissa Murray It’s go time. It’s go time.

 

Leah Litman It is happening people.

 

Melissa Murray It’s go time.

 

Leah Litman It is happening. So sign up to join the no off year’s campaign to stay in the loop on what’s happening and how you can get involved via remote and in-person volunteer opportunities, targeted donations and more. That’s Vote Save America dot com.

 

Kate Shaw Also, don’t forget to follow Crooked Media on Instagram and Twitter for more original content, host takeovers, and other community events. You can also find us at Strict Scrutiny underscore, and then each of us individually on Twitter and Instagram. And if you have lots of opinions like we have lots of opinions, please consider leaving us a review in your favorite podcast app.

 

Melissa Murray Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, me, Melissa Murray and Kate Shaw. It’s produced and edited by Melody Rowell with Audio Engineering by Kyle Seglin Music by Eddie Cooper. Production support from Ashley Mizuho, Michael Martinez, Sandy Girard and Ari Schwartz with digital support from Amelia Montooth. We’ll see you later.