The Bell Tolls Long Conference

From the first legal challenge to President Biden’s student loan forgiveness program to a bad ...

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From the first legal challenge to President Biden’s student loan forgiveness program to a bad precedent in the making involving the NRA, from nation-wide injunctions to budding Supreme Court friendships — today’s show is packed with non-Trump content! (For a hard look into the ex-president’s legal woes, tune in again on Monday!). Also: Sarah and David put on their tin foil hats as they try answering once and for all whether our devices are listening in on us.

Out of context: “I don’t like this outcome, Sarah.”

Show Notes:

–Frank Garrison v. Department of Education

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  1. Avatar photo
    J B

    I cannot wait to hear about The Onion’s Supreme Court amicus brief…

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    Chris Lynch

    Similar to your suggestions for improving the Electoral Count Act, I would love to hear a discussion on whether anything could be done in the area of standing. Just as under the existing ECA, it is too easy to object to Electoral Count votes, maybe existing rules of standing make it too difficult for American citizens and their elected representatives to bring action enjoining other parts of the government that are exceeding their authority. Perhaps there is no way of liberalizing this without unleashing a blizzard of litigation, but maybe that validates the notion. I.e., there is so much of it going on, that our system is seriously out of kilter.

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  3. Paul

    A question about J. Cannon's most recent order. The special master directed Trump to place his claims of executive privilege into 2 categories: (1) documents that cannot be disclosed to people within executive branch and (2) documents which cannot be disclosed to people outside executive branch (like Congress). It sounds to me that those categories go to the scope of the privilege being claimed. J. Cannon would not go for that. But she did order that Trump had to include in all claims of EP a “sufficient description of the rationale and scope of he assertion [of EP].” As to scope: what does “scope” mean if not whether the documents for which privilege is claimed fall into the categories in the govt’s request? Just what does the judge mean by “scope” here?

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  4. UpNorth

    EDIT: It looks like the PLF lawsuit was dismissed, so even the opt-out was considered enough to toss the case.

    It seems to me the Biden administration has an easy out for the student loan issue: Just make everyone affirmatively apply for it in early October, even those whose loans it already knows are eligible for cancellation. If they wanted to make the process easier for those who they know already qualify, they could easily do a targeted communication with an individualized code (all student account holders have one assigned already) for an affirmative opt-in.

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    PaulH

    Even if the Indiana lawyer has standing, I am not sure he is entitled to an injunction. Injunctions are usually reserved for a situation where some irreparable damage will be done to the plaintiff if a law is allowed to go into effect. In this case, the Indiana lawyer is facing solely monetary damages. If he wins the case, the federal government can just pay him the few hundred bucks of extra tax he had to pay. It is true that allowing the law to go into effect will cost the US taxpayers several hundred billion dollars that they will not be able to recoup, but they are not parties to the suit so I am not sure that is relevant.

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  6. James Angelichio

    David and Sarah ignored the fact that , if you allow only the DC Circuit to issue nationwide injunctions, you are giving the Democrats carte Blanche to impose NIs while eliminating the possibility that Republicans will ever get one. NIs for me but not for thee.

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    E. Asbenson

    There are apps that listen passively (FB). I was explaining to someone that my sister-in-law had a vegan hors d'oeuvre wedding reception with a watermelon "cake." I, never having married those words together before--much less typed them--was the next day offered ads for "Vegan hors d'oeuvre recipes!" My husband, from a family of TRW & Intel engineers, was unsurprised.

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  8. Jon

    Great episode. Can you clarify one thing. It would seem to me that with the Student loan forgiveness the party that should clearly have standing is Congress. After-all if the Executive is usurping the Legislature's power there is a clear direct harm there. Who currently has the right to bring suits on behalf of the Legislature in general.

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    1. Mathew A

      Yes I think congress should have the ability to sue on things like this. There needs to be a check on the executive. And this would be better than just giving EVERYONE standing.

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    Cgoldb

    The New York official was not engaged in “free speech”. Banking and Insurance are regulated industries. When the Regulator (whose interpretations of the law receive deference c.f. Chevron) gives direction in formal Guidance, the regulated industry is obligated to follow it. It is no mete press release…

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      Cgoldb

      *mere*

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  10. Darren Ritchie

    With the DOE discovering an opt-out and also now excluding private student loans, it seems like this policy will continue magically shape-shifting to evade valid standing claims as they emerge. I get that not all evils have legal solutions, but this (like the Texas private right of action on abortion) is particularly vexatious, as Jonah might say.

    Would Congress (e.g. the ranking member of the House Ways and Means Committee now, or the House as a body if the GOP takes control in November) have standing to intervene? If the Executive is usurping legislative budgetary authority, is that not a cognizable injury? I get that it might be a political question, but it is an injury, and SCOTUS granted standing in somewhat similar cases, e.g. when they let the House defend DOMA when the Obama Admin refused to. I don't love the idea of the branches suing each other whenever they disagree on the constitutionality of a particular action, but to push the case to the extreme, imagine a one-party Congress passed a "budget" saying the President can spend however much he wants on whatever he wants. It seems absurd that *no one* would have standing to challenge that.

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