There Oughta Be a Law

It’s natural when one feels disgust for a political movement to develop some sympathy for its enemies.

Natural but wrong, I should add. All political movements deserve a healthy amount of fear and loathing, however obnoxious their opponents might be.

But there’s a reason many anti-Trump conservatives have evinced a Strange New Respect for Democrats and their policies since 2016. Given a choice between being governed by a would-be American Putin or a neoliberal geezer, a patriotic right-winger might find himself rationalizing his preference by musing that, truth be told, not all of the libs’ ideas are terrible.

I spend so much time whining about Trump that one of my own Dispatch colleagues seemed surprised recently to learn that I don’t share the progressive view of whether transgender children should be allowed to alter their physiology with parental approval.

But I’m not a lib. I just sound like one because this newsletter is preoccupied with how repulsive the populist right has become. Of the two sides, at this moment in history, the left is more likely to defend America’s civic norms.

Which is why I’m grateful for days like today, reminding those of us inclined to cut them too much slack of how eager liberals are to topple norms when they want a particular political outcome badly enough. Joe Biden and his party deserve nothing but contempt for purporting to forgive $10,000 in loans for student debtors by royal proclamation.

I’m happy to supply it.

The Party of Norms has had a rough week in court.

It started off well enough on Tuesday, when John Roberts and five other justices rejected a Republican argument that would have made it easier for red-state legislatures to midwife the next Trump coup attempt. Liberals and classical liberals cheered.

But things took a turn on Thursday when another six-vote majority led by Roberts declared that race could no longer lawfully be considered in college admissions. (Unless it’s smuggled into the process via application essays, that is.) Had President Donald Trump suffered a judicial setback as momentous as that, he would have set about trying to delegitimize the court. You know him—there’s no institution he won’t petulantly undermine if it gets in his way.

President Joe Biden, on the other hand, as leader of the Party of Norms, reacted to the decision by … doing the same thing, basically.

A court that had received three cheers (well, one cheer) from the norms police just 48 hours earlier saw itself banished to the land of the abnormal by the commander in chief following one disfavored ruling. Never mind that the American public seems to find John Roberts’ view of affirmative action far more “normal” than Joe Biden’s.

Things got worse for Democrats on Friday morning when another 6-3 majority ruled that someone who works in a creative industry can’t be compelled by antidiscrimination laws to create expressive works featuring a message with which he or she disagrees. If you, a t-shirt manufacturer, oppose gay marriage, you can’t be forced to make a t-shirt with a slogan celebrating gay marriage.

Almost instantly, however, certain self-appointed norms-enforcers misinterpreted the decision to mean that creative businesses could refuse to serve gay customers entirely, irrespective of the message those customers sought to express. Among them was … Sonia Sotomayor.

That wasn’t the only error in her dissent. One important norm that Trump often violated and that Democrats should be keen to defend, I would think, is to not brazenly lie to make it easier to prosecute the political case against one’s opponents.

All of this was just a prelude to the final decision of the term, though.

One last 6-3 majority led by John Roberts held that the president’s obviously unlawful student loan forgiveness plan is in fact unlawful, abusing the power granted to the Secretary of Education to waive or modify regulations related to student debt in times of emergency. “Waive or modify” means waive or modify in specific cases, as individual circumstances warrant, Roberts wrote. To read the statute as broadly as Biden does, treating “modify” as a license to create a new blanket policy that applies to millions, would amount to letting the president rewrite federal law unilaterally.

And it’s the legislature that’s supposed to write laws, not the executive.

It wasn’t so long ago that the Party of Norms acknowledged that. In 2021, before Biden had issued his royal decree on loan forgiveness, then-Speaker Nancy Pelosi scoffed at progressive arguments that he had the authority to do such a thing. “People think that the president of the United States has the power for debt forgiveness,” she told reporters. “He does not. He can postpone, he can delay, but he does not have that power. That has to be an act of Congress.”

Until this morning, I had forgotten she said that. John Roberts did not forget.

Pelosi’s skepticism notwithstanding, Biden and his staff eventually concluded that, whether or not the law actually permitted him to make it rain on debt-burdened young college grads, he was going to assume that it did and dare the Supreme Court to tell those college grads otherwise. But he couldn’t keep the logic of his own power grab straight. The “emergency” that supposedly justified forgiving student debt en masse was the pandemic—but there he was in September of last year chattering excitedly about the pandemic being over.

I don’t think he expected or necessarily even intended for the policy to survive judicial scrutiny. I think he embraced it against his better legal judgment under pressure from his highly educated base believing that doing so was a no-lose proposition politically. Either he’d win in court and earn the gratitude of twentysomethings otherwise apathetic about his presidency or he’d lose and campaign against the judiciary in 2024, creating a rallying cry for his base. Take back the court. Student debt relief now.

Pursuing a policy you believe to be unlawful in hopes of demagogically exploiting the aftermath when you don’t get your way is considerably more “Trump” than “norms,” no?

John Roberts saw it coming. His majority opinion this morning ended with a plea addressed to no one in particular to respect the court’s legitimacy. “Reasonable minds may disagree with our analysis—in fact, at least three do,” he wrote, referring to the three Democratic-appointed justices in dissent. “We do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country.”

It’s not going to work out for him, I fear.

We’re hours removed from the ruling being handed down as I write this and already the competition for the most hysterical progressive spin on the outcome is stiff.

“Nobody is $10k poorer because of SCOTUS. You’re $10k poorer because you took out a loan for $10k that YOU promised to pay back,” one person replied, rightly enough. We might also spare a thought for the many Americans—most without a college degree—who, thanks to the court, won’t be made poorer by having to bear the extra fiscal burden created by a massive giveaway to the most upwardly mobile people in society.

But to debate the financial niceties of the decision, like whether anyone was made “richer” by a policy that never actually took legal effect, is to miss the point. What’s striking about Hayes’ tweet and others like it is the total indifference they betray toward separation of powers. Should the president be able to seize Congress’ power of the purse and shower cash on a favored constituency by “creatively” interpreting a new executive power into existence?

“He should if I sympathize with that constituency,” Hayes seems to answer, seemingly unbothered by what President Donald Trump might do with that precedent.

The most one can say for his logic is that he isn’t arguing for greater judicial deference to all emergency power grabs by the president—which, God help us, some seem to be doing.

It’s one thing for MSNBC talking heads to react this way, though, and another for honest-to-goodness legislators to agitate against Roberts’ decision. Having just had their supreme authority over federal lawmaking vindicated by a conservative court, some of the brightest lights in the Senate wasted no time trying to forfeit it back to his highness, the president.

You know what Schumer and Warren could do if their hearts are set on breaking the chains of one of the least sympathetic debtor classes in American society?

They could pass a law.

That’s what Congress did with COVID relief initiatives like the Paycheck Protection Program. That’s also what it did with major fiscal packages like the Trump tax cuts and the Inflation Reduction Act. There oughta be a law, Americans used to say about injustices that should, in their estimation, be prohibited but weren’t.

Want to pay a $400 billion electoral bribe to a core Democratic constituency like college grads using taxpayer money? You can absolutely do it, today’s court decision affirms.

But there oughta be a law.

Neither party likes to be told that there oughta be a law when they’re in power since laws are harder for Congress to pass than they used to be. Partisan polarization is worse than it was decades ago and the filibuster is a daunting obstacle to contentious legislation. But that’s not an argument for punting the matter over to the White House to see if the president’s lawyers can work some interpretive voodoo on an extant federal statute.

It’s an argument to win more elections and commit to the hard work of negotiating with the other side.

Democrats can do it! They controlled both chambers of Congress as recently as New Year’s Day. The probability of Trump leading the GOP to another electoral Waterloo in 2024 is high and rising. And Senate Republicans haven’t been as reluctant to deal under Biden as they were under Obama. The president’s list of bipartisan accomplishments is surprisingly long, as he’d eagerly tell you.

Yet today we’re subjected to inanity like this, in which the court rather than Joe Biden supposedly usurped Congress’ power to make law.

If the president wants to make fiscal policy, if he thinks there oughta be a law, he should resign and run for Senate again. That’s the way laws are made according to constitutional norms.

And I know he, Bernie, and the rest care deeply about norms.

If, however, it turns out that there’s simply no legislative deal to be made on this matter that can attract 60 (or even 50) votes, perhaps it’s because the policy stinks on ice. Which it does: The student loan forgiveness program isn’t just legally dubious, it’s morally indefensible.

In this case, there ought not be a law.

Brian Riedl made a comprehensive case against it in a piece last month for The Dispatch. Lay aside the legal niceties, he argued, and digest what Biden and his party are asking us to do. They’re demanding an exorbitant partial federal bailout of a cohort with higher earning potential than most Americans while leaving in place lending practices that’ll necessitate future bailouts. If their program took effect they’d end up redistributing wealth upward, risk another surge in inflation, and be left having to explain to the majority of voters who didn’t go to college why this group of debtors, uniquely, had to be prioritized for federal largesse over all others.

There’s no moral universe in which forgiving student debt is more sensible than forgiving, say, medical debt. The student debtor assumes his burden willingly, investing the proceeds in an education that should reward him with greater income throughout his life. The medical debtor is a victim of calamity whose earning potential might end up ruined by bankruptcy or infirmity or both. With the court’s rulings this week on affirmative action and anti-discrimination laws, the left at least had sympathetic minority groups it could point to as having been “victimized” by the decisions. With the student loan ruling, the victimized group is, among others, aspiring lawyers and doctors.

The argument for sending student debtors to the front of the line is political, not moral. Democrats need every member of their college-educated base at the polls next fall, especially the younger ones who might otherwise find little to motivate them about another four years of Slow Joe. The White House’s solution is, essentially, to drag a sack of money through America’s campus dormitories and hope that a chase ensues.

Was their solution, I should say.

A legal failure, a moral disaster, but a political success: That’s the case for Biden’s student loan program. In theory.

I’m not sold on the idea that it’s a political winner, though. Watch this.

Parties usually can’t go wrong with a little pre-election base-pandering, particularly ones whose leader is unpopular. There was logic to his Publishers Clearing House Sweepstakes approach to shoring up the college vote.

But he already has most of those votes in his pocket. The votes he needs to compete for, especially with Trump looming, are those of working-class people who have borne the brunt of inflation.

If he spends the next 18 months whining that SCOTUS wouldn’t let him have Christmas in July for college grads by sticking blue-collars with the tab, does that get him closer to the presidency or further away—bearing in mind that there are many more voters in the U.S. who haven’t attended college than have?

Bear in mind too that Biden’s likely opponent has many, many (many) flaws but one thing he’s good at is goosing working-class resentment about being scammed by well-heeled elites. “Free cash for the professional class!” is a Democratic message Donald Trump can work with.

And because liberals—especially college-educated liberals—already hate Trump intensely, just having him on the ballot should do much of the work of motivating them to turn out that Biden was hoping his student loan giveaway would achieve. Realistically, how many left-leaning college grads were planning to shrug at the end of Roe and the return of Trump in 2025 by opting not to vote next year but will now dutifully turn out to punish the court for having quashed a steal-from-the-poor-and-give-to-the-rich scheme?

I think John Roberts did him a favor. Had he and the court upheld Biden’s debt relief program, the president would be stuck defending the legal and moral merits until Election Day. As it is, there’s been no harm done; he can pound the table, vow to explore other legal avenues, and hope that supporters of his plan will feel more energized about it than opponents will. They probably will. How outraged can the right be, really, about a plan that’s already gone down in flames before SCOTUS?

There oughta be a law, Joe Biden says—but, as of this morning, there isn’t. He should send Roberts some flowers and a thank-you card.