The Higher Principle

It has become fashionable for extremists on both right and left to argue that broad principles and time-honored institutions should be shoved aside when they get in the way of some policy goal of the moment.

So the hard-right would trash our system of free and fair elections anytime their candidate loses. The hard-left would trample on free speech when it causes “harm” to any of the hyper-sensitive folks who spend their days looking for reasons to be harmed.

It’s a rare thing when someone speaks up for a principle that produces an outcome they don’t like. Let me be rare.

The case in point is Pres. Joe Biden’s student loan forgiveness plan. I hate it. Absolutely hate the whole damn thing. It’s unfair to those who didn’t go to college or who responsibly paid off their debts, it’s a huge wealth transfer from less well-off to wealthier Americans, it doesn’t address the problem of rising college costs and it addresses a “crisis” that isn’t a crisis at all. I could go on and I have.

Beyond the monumental problems with the merits of the policy, what Biden did was both illegal and unconstitutional. It’s illegal because he invoked the HEROES Act which was intended to aid veterans and requires the finding of a national emergency. Biden’s program would hand out money to everybody with a college loan regardless of their public service or lack thereof. And the national emergency Biden cites is COVID, which he himself declared to be over right about the time he was forgiving these debts.

Establishing standing in court can be a high hurdle. Photo by Bryce Carithers on Pexels.com

And Biden’s action is unconstitutional because he’s appropriating somewhere in the neighborhood of a half a trillion dollars without authorization from Congress. If you think this is a good idea, check in with me when Pres. DeSantis decides to spend a half trillion on a border wall.

But here’s where things get complicated. The only way to stop this is for a court to intervene. If a court could get to the actual merits of the case this thing would probably be dead in the water. But in order to get to the merits a plaintiff first needs to establish standing. And there’s the rub.

Several suits have been filed, but none have gotten to first base yet because plaintiffs haven’t been able to get over the standing bar. The Wisconsin Institute for Law and Liberty (which does the Lord’s work when it’s not doing the devil’s) tried to establish standing on behalf of a taxpayers group. But three federal courts denied them entry because alleging taxpayer harm isn’t specific enough. The last court to turn them down was the U.S. Supreme Court through conservative Justice Amy Coney Barrett. Barrett didn’t say why she wouldn’t grant the injunction WILL sought, but it’s likely due to the standing issue.

In Indiana a plaintiff alleged that he was harmed because debt forgiveness he didn’t want would result in a state tax liability. The Biden administration side-stepped that one by saying that nobody needed to take the relief if they didn’t want it.

Six states have challenged the plan on the basis of harm that would be done to their state-run loan servicing agencies, which would lose fees. The administration responded by exempting those loans from forgiveness and a federal court tossed the case. Now a federal court of appeals in St. Louis has granted a temporary restraining order while it sorts out the issues, but it hasn’t ruled on the crucial standing question yet.

The bottom line is that a vast expenditure of taxpayer dollars, done illegally and unconstitutionally, in the name of horrible public policy could go forward on the basis of what looks like a technicality. At this point, I’m supposed to be outraged. But I’m not and it gets back to my point in the first paragraphs above.

Standing is no technicality. The standard exists to uphold the integrity of separation of powers. As WILL’s president Rick Essenberg explained nicely in a recent article in National Review, the principle behind standing is that the courts’ job is not to make policy but to interpret the law when real conflicts arise. If anybody could just show up in court and ask for a ruling just because they didn’t like a law, courts would quickly be in the business of doing what Congress and state legislatures are supposed to do.

Of course, I’d be naive to suggest that courts don’t wind up making policy at times. In fact, partisans on both sides are constantly attacking “activist judges” who “make policy from the bench.” It’s a messy world. But the idea of standing is important and we shouldn’t toss it out just because every court doesn’t always follow it to the letter.

Look, I hope some smart lawyers figure out a way to get beyond the standing hurdle and make their case on the merits. But if they don’t — despite my avid and acrid disdain for student loan forgiveness — I can live with that. The principle of separation of powers is more important than the issue at hand, no matter how strongly I might feel about it.

I’ll support an outcome I hate to protect a system I love. If you didn’t like the outcome of the last election, can you say the same thing?

Published by dave cieslewicz

Madison/Upper Peninsula based writer. Mayor of Madison, WI from 2003 to 2011.

16 thoughts on “The Higher Principle

  1. “… a system I love” That attitude IMHO is a far bigger problem. It tends to give systems a far longer lifespan than they should have. I have come to not like our election system because it incentivises bad behavior. You have to promise everything to everybody to get your foot in the door. And student loans … whether they are forgiven or not the evil players (Fed Govt and Universities) are still at it, bending over another generation.

    More people need to question their assumptions about everything, especially our sacred cows and yes that includes “Democracy”.

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    1. I used to look at things that way. Now I’ve come to the conclusion that what’s needed is a recommitment to our system, to institutions, to traditional standards of behavior in public life, to political norms. I’ve had enough of “disruption.” I’m looking for stability.

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      1. To paraphrase Oliver Wendell Holmes,

        “For the stability on this side of disruption, I wouldn’t give you a fig. But for the stability on the other side of disruption, for that I would give you anything I have.”

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    2. One Eye,
      I’m curious about your viewpoint towards democracy. While I agree that the way it is implemented in the US is terribly flawed, in my view the solution is to get closer to true democracy. I interpret the attitude of the American Right to be a movement yet further away from true democracy. I’m not sure what your view is.

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      1. I just think our Democracy has had a natural lifespan and now it is off the rails entirely. Not a fan of what the Federal govt has become. Maybe we need a Monarchy. Maybe the Chinese got it right. Maybe economic hard times will fix many of our problems (in long run).

        What changes would you make to move towards a true democracy?

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      2. The details of changes are too much for typing out on a cell phone, but broadly it would be limiting concentrated power and diffusing power among all people. Make it viable to have many many more political parties and viewpoints – force compromise. Get money out of politics. Encourage the political participation of everyone. Have more direct referendums.

        I don’t believe the anti-democracy viewpoint is being taken as seriously as it should by regular people. It seems to me that most of the current American Right does not wish to live in a democracy. This should be alarming.

        A story of the United States is that high ideals such as democracy inspired the founding, and despite not achieving it to start the arc of our history has been the path of always changing and getting closer to those ideals.

        Another story of the United States is that a specific vision of the country was created at the founding, and the changes since then have perverted the founders’ intents.

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  2. The administration knew that the plan was a bad idea, but it has generated 22 million applicants, a.k.a. “voters”. From their point of view it has been an outstanding success.

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  3. Hey Dave, My husband and I went to college, (UW, 1973), got tuition help from our parents, paid off our debts, including college loans, and we are both grateful for our chance to get an education at our taxpayer funded state land grant college. According to you, we should be resentful. Not only are we NOT resentful, but we see the logic of the loan relief program. Our reasons are too long to put into words here, but we would like to invite you to come to our house and share a Manhattan with us (I have walnut bitters) next time you’re in the Richland County neighborhood. And bring your wife. (I’m sure you can give us some tips on how to make a really good ones–we’re still amateurs). So, let us know, Dave, and if we don’t get together, let me just say that times have changed, and what might have been a giveaway years ago is now an acceptable solution to a problem. As a quilt of an old pickup tooling along said in all its embroidered glory hanging in a quilt shop just east of Oshkosh, DON’T LOOK BACK–IT’S NOT THE WAY YOU’RE GOING. Now our opinion is a separate issue from whether student loan forgivement is illegal or if it will help Ron Desantis become (choke) the next president. My husband and I enjoy your columns and most times agree with you. Thanks, Mary Bard

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  4. Dave, I basically agree with you regarding student loan forgiveness (and I have a son who would directly benefit from the program), Besides the unfairness of it, I just don’t think it’s good politics, in that it will piss off more people who will see Dems as once again catering to the “elites” than it will motivate people to decide to vote blue when they may have been on the fence before.
    However, there is one argument in favor of the program that some people might find compelling: In a nutshell, is it unfair to previous generations who, for example, lived before Medicare or Social Security that people today benefit from these programs? I’ve also seen this argument phrased that is it unfair to generations who lived before the polio vaccine or advances in cancer treatment that people today don’t have to worry about polio?
    I personally don’t find this persuasive AT ALL; surely no one bemoans progress, whether in science and health or in public policy (although I’m sure I could think of GOP-ers who might). But, from a raw political calculation perspective, I think this plan is a loser.

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  5. I initially came here to comment on the substance of the post until I saw someone say democracy was a “sacred cow” we should now question as a governing model. Hogwash, a complete and total thing of foolishness. I am so sick of people arguing against democracy as if they have discovered something profound or stumbled onto a new or original thought. News flash One Eye, you haven’t. Plenty of places don’t have democracy and it’s terrible. Much of human history was spent living without democracy and it was terrible. The fact is our form of republican democracy is the BEST system full stop. You question it because it has been sabotaged for years through gerrymandering and careful manipulation of norms and the constitution. Our system and the liberal democratic order of republican democracy is the only ideology that has existed in human history that has benefited so many so rapidly. Talk of democracy having outlived its usefulness is silly, childish, wrongheaded and un American.

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    1. My God man step away from the John Phillip Sousa!

      I don’t think you realize how young our democracy really is. Is it possible democracy contains it’s own seeds of destruction? Seems to work that way for successful corporations. Ford and GM are the best car makers FULL STOP – ha ha.

      You may be right but it is far too early to make that call with such confidence. I suspect ego and historical ignorance is at play here.

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  6. As if successful corporations are at all similar to democracies – clearly they are more akin to monarchies.

    Anyway, feel free to have your views and I hope all readers understand what is happening in the US: an open attack on the concept of democracy from one of 2 political parties and about a third of our population.

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    1. Corporations on the way up are definitely like monarchies. Then they become big and turn into bureaucracies. Readers should understand that our political system attracts the worst sort of people regardless of party. The perverse incentives guarantee it.

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      1. I totally agree with your statement “our political system attracts the worst sort of people regardless of party. The perverse incentives guarantee it.”

        I disagree that the answer is to reduce democracy, I think the answer is to increase it. The basic principle of the concept is minimizing the concentration of power in any single person/group. The issue you identify is a product of the perversion of democracy in that our system incentivizes power concentration and minimizes the power our votes have on the system.

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