5-4 x Bloc Party: Michael on How the Dems Flopped on Debt Relief

Hey everyone, this is Leon from Fiasco and Prologue Projects.

This week, 5-4 is sharing Michael's appearance on an episode of Block Party, a show about the fight for the soul of the Democratic Party.

Michael is joined by host Waleed Shaheed and the debt collectives Elaine Shermer to talk about student debt cancellation.

He'll get into the progress of two cases at the Supreme Court that could sink President Biden's efforts entirely and how we we got here in the first place.

This is 5-4 on Block Party, a podcast about how much Congress and the presidency also suck.

I'm Walied Shaheed, and I'm Amir Hassan.

Just kidding, Amir is not here right now.

It's just gonna be me, and I'm going insane.

You're listening to Block Party, a show about

what's the show about?

It's about progressive movements transforming America to give material benefit.

We do class warfare from 9 to 5 p.m., everybody.

So, today we invited two guests to join us today to talk about the ongoing fight that has made, somewhat surprisingly, all the way to the Supreme Court, the student debt cancellation saga.

And this is our, we've had a couple episodes on this now where we've talked about it, but we're joined by a very special guest, Michael from the 5-4 podcast.

Excellent podcast on the history and legacy of the Supreme Court.

And Elaine from the Debt Collective, who you have heard from before on Block Party on this topic.

So first you're going to hear Michael and I talk about the state of the Supreme Court today and how the Supreme Court is an institution that enshrines minority rule and anti-democratic practices in these United States of America.

And we're going to talk about why that matters.

It is a place that is trying to uphold supremacy over the other branches of government in ways that haven't always been true in our history.

Then we're going to bring in Elaine to help us break down what happened during the oral arguments heard before the Supreme Court in late February regarding student debt cancellation.

They heard two cases that are currently trying to strike down Biden's student debt cancellation initiative and we want to know what happened in those cases, what's at stake, and what to expect next.

So Michael and Lanyard are going to help us out with that.

So first, here's Michael.

In the DMs today, we're joined by Michael.

Michael is a lawyer and one of the three hosts of the 5-4 podcast.

The podcast tagline is a show about why the Supreme Court sucks.

Hey, Michael, thanks for joining us.

Thanks for having me.

I'm really excited to be on.

We are huge fans of the podcast here at Justice Democrats.

But before we get into why the Supreme Court sucks, we're recording this two days after the Oscars.

Do you have any thoughts?

Do you watch it?

On the Oscars?

I watched some of it.

I find the actual show a little boring.

What was one thing you liked?

What was one thing you liked?

I liked seeing Harrison Ford

and

sorry, K-He Kwan, is that right?

Their embrace on stage.

That was very sweet.

Yeah.

You know, my actually, I am related to the casting director on Indiana Jones and the Temple of Doom.

Oh, my God.

Marcy Lieroff.

She's my dad's cousin.

So I watched that movie like a million times when I was a kid.

And so

that's definitely there's like a lot of nostalgia seeing those two on stage together, embracing.

Wow, so cool.

Yeah.

Well, today we are not here to talk about the revival of K-Hue Kwan's career, although I would love to hear what your casting director, family member, thinks about it.

But

we are here to talk about the Supreme Court.

And,

you know, we've talked on the show a couple times about this concept of minority rule and Republican minority rule.

When you think about a country in which the laws are being created and knocked down by extremely right-wing religious jurists who are making the final decisions about everything in the country.

Most people don't think about that country being the United States.

They think that might be somewhere like Iran or something.

But it's actually this country that's being ruled by right-wing religious jurists.

But Michael, I just want to know, can you tell us a little bit more about the origins of the podcast and what story you're trying to tell with the show?

Yeah, absolutely.

So we started, our first episode came out right in early 2020, January or February, but we started working on it in 2019.

And, you know, our thinking was basically that there is a problem in our politics and how people think about and talk about the Supreme Court.

It's not the only problem in our politics or debatably whether it's like the biggest one, but it is a big one.

It's an important one.

And so we wanted to do something where we could kind of strip away all the facade, all the finery that the court uses to disguise their ideological project and explain in plain English to people in a way that hopefully is fun and engaging what the court has been up to for a very, very long time, which has been,

by and large, no good.

It's been up to a lot of no good.

I wanted to ask you about a big premise of our work at Justice Democrats is that there is a

majority in this country that wants multiracial democracy and wants the basic things that poll pretty well well in this country, universal health care, a ban on assault weapons, for public education to be a right, and that that multiracial majority,

there are various ways in which that majority is stifled from being expressed democratically, whether it's through gerrymandering, whether it's through single-member districts, whether it's through the malapportionment of the Senate toward giving Wyoming equal number of senators as California.

But for us, the Supreme Court is also one of these places where this multiracial majority, especially in the last few years, has been quelled from being politically expressed, democratically expressed.

And I'm wondering if that's how you see it, or maybe you see it a little differently, or you use different terms.

No, I think that's right.

And I think they feed into each other as well.

It's absolutely the case that I think a particularly vivid example of what you're describing is the Voting Rights Act, which is

one of the key legislative accomplishments of the last 60 plus years.

And I think a very strong expression of what you're describing, this idea of at least striving for a multiracial democracy.

And the Chief Justice of the Supreme Court is,

it's been his lifelong project to undo it, right?

There are memos of him in the 80s in the Reagan administration talking about fighting the Voting Rights Act and gutting the Voting Rights Act.

And then he is authoring an opinion not too long ago called Shelby County v.

Holder, where they really kneecapped the Voting Rights Act and the ability of the federal government to enforce it.

And I think that's just one of many examples of when you scratch and you claw and you fight to get finally something passed, something big and robust.

That's not the end, right?

That's a lot of times that's just the start.

Then you have to do all this rearguard action in protecting it and hopefully expanding it.

And the court is often a place where reactionaries will go to fight back.

And it is, they feed each other, though, right?

Because the court is picked by the president, which is selected not by the popular vote, but by the Electoral College, which we've seen twice in the last 20 plus years, president who did not win the popular vote being seated.

You know, and it's confirmed by the Senate, which, as you said, is malapportioned and heavily tilted towards rural white states.

And so there is a sort of democratic patina on the court that it's selected by elected representatives, but

there's still a very retrograde aspect to even that process.

So it's not surprising that the court is both an output of

those processes and itself engaging in some of this anti-democratic behavior.

Two of the places we go to a lot for historical examples of some sort of parallel to the moment we're in is the crisis of democracy in the 1850s around centering around slavery and also the crisis of the depression in the 1930s.

And in both those eras, President Lincoln and President Roosevelt FDR had very complicated, thorny, and often oppositional relationships to the Supreme Court.

And Kate Shaw had this great op-ed in the New York Times last month where she was asking for Joe Biden to clarify and narrate who the Supreme Court is and who they're acting on behalf on for the American public to understand a bit more that this is a political body and not a nonpartisan or the way that you're you learn about it in civics class that it's their jurisdiction and so I'm wondering like yeah I'm wondering if there are things from those periods or what you think about what you think about those two pivotal moments in our country's history and the role of democracy versus the court then.

Yeah, you know, I think that's absolutely right.

And those are important times to be thinking about.

You mentioned like how we learn civics, right?

The phrase that stuck with me forever that I learned in, you know, middle school or high school was that in America we have majority rule with minority rights.

And what I was taught was that minority rights are protected by the Supreme Court, which is empowered to do that because they have life terms and so are insulated from the political pole of the majority.

That is at odds with almost the entire history of how the Supreme Court has actually functioned, right?

Like if you actually look at the history of the United States, there's maybe a 15 or 20 year period where the court seemed very interested in protecting minority rights.

But in fact, if you look at these big moments, it has been large social movements.

It's been war.

It's been massive electoral victories that are ushering in big social change, often running up against or running over the Supreme Court as an obstacle, as the case may be.

And I think both those are perfect examples, right?

Like one of the most infamous cases in Supreme Court history helped set off the Civil War by denying the personhood and humanity of enslaved Americans.

Yeah, I wanted to read you this quote from President Lincoln's inaugural address in 1861, where he's talking about the Dred Scott decision.

And he says, if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the people will have ceased to be their own rulers.

And, you know, obviously there's a huge difference between that decision and the overturning of Roe last year, but that was not the rhetoric that President Biden or even Democrats used, the aggressive defense that Lincoln is making that actually the people are the ones who should decide and not this unelected body.

I'm curious what you make of that.

In academia, they talk about this stuff.

They talk about this idea of what they call judicial supremacy versus departmentalism.

And judicial supremacy is the idea that the court has the last word on the Constitution and constitutional meaning.

Whereas departmentalism is more like all the different branches of government engage in constitutional interpretation, and there's no reason to believe that the Supreme Court has any more claim to authority on that than Congress or the executive.

And so I think it's not surprising to see that strong leaders in the past have been asserting this sort of departmentalist view where I run the executive branch.

This is a major part of the government.

I have a role to play as, you know, the people's representative in interpreting the Constitution.

And yeah, the court doesn't get the final say on that.

There are things to be said for judicial supremacy, but I think a lot of its popularity now on the left comes from sort of a backfilling rationalization from people who grew up in the shadow of the 60s in the Warren Court, which was a very liberal court that was expanding minority rights, the rare period in history where the court has been an engine for positive social change.

And sort of saying, well, look, it's the Supreme Court.

They have the final say.

If they say you have to integrate schools, then you have to integrate schools and have sort of built a whole ideology around protecting this institution because of all these important gains that came within the institution.

But now the institution is totally captured by right-wing reactionaries and protecting their power is not useful.

It's not socially useful or helpful at all.

And it's not a helpful way to think about things.

It's a damaging way to think about things.

It seems like you're saying the way that the court helped with the gains of the civil rights movement was more an exception to the rule than the rule itself, but that era particularly.

Yeah, I mean, I think I sort of knew that before we started the podcast, but it is

when you do a podcast where we're doing a new case a week and we've done like 150 plus, it starts to get overwhelming when you really wrap your arms around what a regressive force the Supreme Court has been in American politics for almost the entirety of its existence in almost every area of law, right?

It's not even just like some areas and others.

There are very few areas where the court has been consistently expanding rights.

Maybe the First Amendment.

That's it.

Like off the top of my head, that's that's for corporations.

Yes.

Expanding the First Amendment for Bain Capital.

So Michael, since I have you here, I I have to ask you, who is your current least favorite justice on the Supreme Court?

My least favorite justice.

That's hard.

I would probably say Clarence Thomas.

He is a deceptively persuasive writer, which makes him a formidable opponent, right?

And he's somebody who's been hacking away at his vision for decades in a way that I wish liberals were as sort of ambitious and outspoken about their vision of the Constitution as he is.

His is incredibly retrograde and reactionary and scary.

But I do, in a sense, admire how he's gone from like this lonely voice writing single concurrences on the outside to being sort of the ideological leader of the current court.

I hope for one day to be saying something similar about a Justice Jackson.

People would be, I think people would be very surprised to know that Clarence Thomas's views on a lot of topics are more right-wing than Donald Trump's views on a lot of topics.

Oh,

God.

Yeah.

And it's bracing, too.

It's like he doesn't.

It's one of those things where I don't even know why I continue to be surprised by how depraved some of his opinions can be, but like he talks about when you're talking about the rights of students in public education, he's harkening back to when corporal punishment was a normal thing in education.

Like, yeah, we should be wrapping students on the head or the knuckles or whatever.

Like every

his war on terror jurisprudence is like fascist, like period.

Like there's no other word for it.

He's talking about the president being able to lock people up and throw away the key without any judicial process.

He's insane.

He's absolutely nuts, which makes him very scary.

Thank you, Michael, for reminding us one more time of one of the top 10 worst Americans to ever serve on the Supreme Court.

We're going to take a quick musical interlude and then bring Elene into the group chat.

Joining the group chat now, well, I guess it wasn't a group chat, now it's a group chat, officially, is Elene.

Welcome back to the pod.

You had a new piece in The New Yorker.

That was a follow-up to a piece we interviewed you about on the podcast.

And we actually got to reveal the punchline of your latest New New Yorker piece on that last episode.

You helped to get our very own Jeremy Flood's grandma's debts canceled.

How do you feel about that?

How are you doing?

And how do you feel?

Well, I'm ecstatic for Betty and I'm ecstatic for Jeremy.

It's great.

When I was talking to Jeremy about this story, I was asking him, like, how did you feel when you found out that your grandma's debts got canceled?

And he told me this great story that unfortunately got clipped from the piece, but it was my favorite part, which is he was traveling with some friends at the time that I shared this news with him.

I texted him or whatever, and he just went and he told his friends, and they all just started yelling and jumping up and down and whooping, yelling, money, it's fake.

Money, it's fake.

And I think that's pretty much the headline, especially given what we just saw happen over the weekend with Silicon Valley Bank bailout.

Money, it's fake.

Jeremy was right.

Yeah, that's right.

Yeah.

It won't cost the taxpayers a dime.

That's right.

Not a dime.

Not a dime.

Not a major question at all.

I just wanted to get a quick, I mean, this is an impossible task, Eleney, but a quick 101 in two minutes or less on how we got here in the first place from the Biden campaign to these two Supreme Court cases.

Well, you know, the last time I was on the show, it was about, it was this, this very fatal period in this policy, which was about maybe a month after Biden announced his plan to cancel debt.

That was the end of August.

He announced a policy plan.

He was going to unroll an application to verify people's income.

People who made $125,000 or less would be eligible for $10,000 to $20,000 of relief, depending on if they received Pell Grants, which is a grant for low-income folks in college.

Well, it took six weeks for the Biden administration to make the announcement and release the app.

And I think that my reading is that was a very fatal six weeks.

In that time, at least six different lawsuits were filed to challenge this policy.

And four of them were thrown out.

Two of them stuck.

They got the right judges in the lower courts and they stuck.

And I think the application for folks, as soon as it was released on a Friday afternoon and like within hours, they had millions of people who responded.

And it was really simple.

It was like your name, your birthday, your social.

That was it.

And so it's hard to sort of imagine what they were doing in those six weeks if they were like, do we do drop down menus,

check boxes?

Like, do we like the police font?

You know?

Yeah, totally.

Like, what was exactly what was the, what were they piloting in those six weeks?

Not sure.

There was even a first fatal flaw, which is that they needed an application to begin with.

There's no reason why they couldn't have just announced we're canceling across the board $10,000 of everybody, $20,000, everybody's dead, everywhere.

But they needed an application that was going to slow things up and that they didn't have an application ready upon announcing and they didn't immediately start discharging debt.

I mean, I just think what we saw happen over the weekend with the Silicon Valley Bank, what we saw happen was that, like, on a Friday afternoon over a weekend, Congress got on a Zoom and decided, okay, boom, boom, boom, boom, boom, we're going to have the Fed step in to bail out this bank and we're going to go ahead and do it and then figure out the fallout afterwards.

They could have done that with student debt cancellation.

They could have said, okay, we're automatically going to cancel debt and then come at us, Republicans, with your shots.

Then come at us and try to tell us to re-impose debts that we have already canceled.

And they didn't.

They didn't take that shot.

They didn't have that strategy.

And I think that they...

Well, Laney, student debt holders don't make enough campaign contributions to get that return on investors.

That's right.

That's right.

They're just, they're not really investors.

They're just takers.

Yeah, it's frustrating to see how mainline Democrats haven't yet internalized this lesson, right?

That like it's it would be much harder for the court to be ordering people to like pay back $20,000 to the federal government than simply enjoining the federal government from canceling that debt in the first place.

And also this idea that, oh, well,

you have to

means test, you need these applications and these stringent guidelines and all this stuff to make it seem like we're being fiscally responsible.

The administrative costs are almost always like at least put a dent in, if not completely cancel any sort of savings you're getting.

Just eat it.

You say, yes, all right, somebody who doesn't need cancellation is going to get cancellation.

That's okay.

You know, they're also, as we can see, you are able to grit and bear it and give some people who don't really deserve relief, relief when it comes to people who have $30 million in uninsured deposits of venture capital money in Silicon Valley.

That's right.

Right.

Those people are super deserving of relief.

That's what you're telling me here, right?

Like, come on.

Exactly.

Exactly.

It just, like, it makes my blood boil.

You know, it's just, it's so.

I hold the Biden administration partially responsible for this.

That I don't think that they were hostile.

I think they didn't care enough to think about putting a strategy together, you know?

Like, they just didn't care enough.

to think about, okay, how do we make sure this goes through and we win the game.

We don't just say we played the game, you know?

Yeah.

You know,

I had seen, I had even wondered myself if they were dragging their feet through the first two years purposefully so that this could be like something they do in September, October before the midterms to help

turnout, which

may have been true.

But

if that's the case, then you have two years to make sure that you are like getting it right.

If you're like,

this is something we're going to do right before the midterms to hit a home run in the midterms, well, then it should be, when you announce it in September, October, it should be a home run.

Like it should be buttoned up, yeah.

You know, what they should have said was, we're announcing a policy.

Everybody, check your email.

We have just canceled your debt, you know, and they cancel and then announce.

That's if they had wanted to play to win, that's how they would have done that.

Or done it, as you said, like in the first year before we had the major questions doctrine really kind of get solidified.

Yeah.

Yeah, I feel like with this student debt case, it brings up so many questions that are related to other things, whether it's the nature of what money is for when it comes to the SVB bailout or the role that the Biden administration has to its campaign promises, the major questions doctrine that I want to get into more.

But first, I wanted to ask both of you about these two cases we're talking about today that were brought before the Supreme Court in late February.

Biden versus Nebraska and Brown versus Department of Education.

Would love to hear you.

Let us know why these cases are important to this discussion about where the administration is going to go on student debt cancellation for people beyond the floods.

Michael, do you have a favorite of these two charming cases?

I wouldn't say I have a favorite.

I'm happy to talk about either.

I'm a little more familiar with the state-led case than the individual-led case.

Yeah.

Let's start there.

Yeah.

So the state-led case, Biden v.

Nebraska, is a collection of states with Republican attorneys general who are challenging the student loan debt cancellation.

They have a lot of very sort of

questionable claims to standing here.

But the meatiest one is that the state of Missouri has this private sort of corporation called the Mohila, the Missouri Higher Education Loan Authority, which stands to lose money because it's getting some debt canceled.

And so Missouri is saying, well, this is our corporation and it owes us some money and we're not going to be be able to recover it.

It's a bunch of bullshit.

It's total bullshit.

And

their claim is even more wild for two reasons.

One is there's actually good reason to believe that Mohila will actually gain money.

from canceling debts.

They get a payout every time they close an account.

So something like 20 million people will have their debts totally closed up, buttoned up, tucked away, gone forever if Biden's policy will to go through.

And some number of those people will have their loans held by Mohila.

So Mohila will get a payout upon cancellation.

So it's not totally true.

And that was kind of glazed over.

Some people were very unhappy with Nebraska's lawyer in the Supreme Court hearing for glossing over what are probably not truthful realities of what exactly, if the question of is Mohila really going to lose money, and if Mohila loses money, how will that affect Missouri?

Those are the two questions that aren't really truly answered.

The question of how Mohila losing money will impact the state of Missouri is super bizarre because I think in like 2007, the governor of Missouri wanted to sell Mojila.

They were like tired of having this corporation in their state.

And Mohila, for whatever reason, didn't want to be sold off.

And they made this bargain that if they agreed to contribute something like $320 million to a fund for the state of Missouri, the Lewis and Clark Fund, that could be used to leverage other debt from the state of Missouri to fund do capital development on universities and colleges.

It was like a reserve fund.

They paid up, I think between 2008 and 2009, they paid up like, I don't know, $200, $250 million into this fund.

And there's a remaining

roughly $100 million that they owe the State.

In exchange for Mohila making this contribution, what would happen is that Mohila would have access to the State of Missouri's bonding authority, which would mean basically that they, Mohila, could issue a bunch of bonds at very, very low interest rates, which then they could use to make other student loans.

So they were contributing to it.

It's just like when you start looking at this, it's like almost hard to understand because there's so many layers of debt on debt, on debt.

It's like creating one fund so they can leverage more debt.

Mohila wants access to get cheaper borrowing so they can issue loans to put more students in debt.

In 2010, the tides kind of change.

Obama changes the federal loan policy, and Mohila, now the loans don't get issued directly from the servicers.

Like Mohila, they get issued by the federal government.

So all of a sudden, Mohila doesn't really care whether it has access to this, the bonding authority, because it's not the one issuing loans anymore.

So they have really no incentive to pay back this loan, and they begin pushing it off, pushing it off, pushing it off.

They make in their financial statements over and over, like, yeah, yeah, yeah, we have this debt.

They've stopped even carrying it over on their books.

The State of Missouri has granted them a payment extension until at least 2024.

Like, everybody's forgotten about this debt.

And yet, this like old, small debt

held by the nation's debt collector is potentially the holdup for millions of people having their debts totally eliminated or significantly reduced.

And I think an analogy to help disentangle this is like if Eleni lent me $2,000 and I was putting off paying her back and then I got a divorce.

It's like her having standing to litigate my divorce because

the outcome of that will impact my ability to pay her back, right?

It's a bizarre concept that it wouldn't fly in any other context at all.

But here it's Republican attorneys general in Republican states.

The fact that we're talking about Mohila, which is Missouri, and yet the case is Biden v.

Nebraska, and it was Nebraska's attorney arguing before the court should tell you just how badly the states want to hide the ball on this.

This is their strongest hook for standing, and they are running from it.

They're absolutely running from it.

It's like it was the big question:

well, why aren't we talking to Missouri?

Why aren't we talking to Mohila?

Right?

They're the proper party.

They are able to sue and be sued.

Why aren't they suing?

Why isn't this Mohila v.

Biden, right?

That's right.

Well, even Justice Barrett brought up several times, kind of surprisingly, that this question of standing in this case.

Those who don't know what that legal term means, it just simply means does the person or organization involved in the case have the legal grounds to make a claim about how that case affected them?

And a lot of Supreme Court cases have revolve around this question of standing.

Does ex-organization or ex-person actually have a legal claim to be adversely affected by the case in question?

That's called a question of standing.

Yeah, you you know, it's interesting because standing is

that's how courts limit access to the judicial process.

And it's a long conservative project to limit standing in general, to close the doors of the courthouse to as many people as possible.

So there's a weird tension here.

There's this like very recent line of cases starting from 2007, Massachusetts versus EPA, where the court said that states get special solicitude when it comes to having their claims heard.

And so now there's this question of whether, like, do states just get to challenge any federal policy they dislike?

And so there are conservatives who are coming out saying, look, we don't like this debt forgiveness and we don't even think it's lawful, but we need to pump the brakes on this like recent trend of just states suing the federal government constantly.

It's like hundreds of cases in the last decade.

Depending on the administration, it's Republican states suing Democratic presidents or vice versa, right?

And so there's a real tension in the conservative legal movement here about like what's more important, this little win on student debt or closing the doors of the courts even further.

There was an op-ed in the Times two days ago by Stephen Vladek about this question of standing and who can sue and

basically how conservatives were betraying in this case all of their legal principles around standing.

I read the article and I was like, well, obviously, because this is a political, ideological case, and like none of the principles ever matter other than what your end political goal are.

But I don't know, maybe that's too obvious of a point.

No, I mean, I think, like, you know, in law school, I learned that, you know, standing is often just a cover for the merits.

And I think that's a very common thought in the legal academy and amongst lawyers and judges that, you know, courts just use standing to get to the merits in ways that they don't want to explicitly talk about the merits, or to dispose of cases where they don't want to get to the merits, right?

That being said, I think Vladek tends to think that the courts are generally consistent, except on the margins, right?

I saw him saying on Twitter, I think that he's like, he doesn't think this is a marginal case, right?

He thinks this is a core standing case, which is why it would be a very extreme departure and maybe too obvious political hack job for even this Supreme Court.

We'll see.

Even, I mean, regardless, it's almost like

the point has already been made in the fact that it's already the ridiculous standing claims within these cases were filed in November and they got a Supreme Court hearing in February.

Like the ridiculous standing cases made just kind of were whisked up to the Supreme Court in really in a matter of weeks.

It was like

almost as twice it took twice as long for the Supreme Court to hear the case as it did take Biden to make the application for relief to happen.

So, in some ways, the standing, like the

ideological project is already being waged.

How they're going to decide on it and if they're going to nail in the last nail, I don't know.

We'll find that out in a few weeks or months.

Yeah, you know,

I was a little admittedly sanguine about the opportunity here for the right when they first started filing these cases.

I was like, the standing seemed super weak, the claims seemed super weak.

But this was, you know, before the election.

And

I think this is a litmus test for them.

They have traditionally been,

even the arch conservatives have at times been a little hesitant about sparking too much backlash, going too far, too fast.

I think you see this especially with Justice Roberts.

But he often got the other conservatives to go along with him in like a slower approach to things and a more restrained approach.

But, you know, they overturned Roe v.

Wade and

there were protests in the streets and there was electoral backlash.

I think there's like pretty good evidence now that there was strong electoral backlash to that.

But also, you know, they weathered that storm, right?

To

Waleed, your earlier point, Biden wasn't using that FDR and Abe Lincoln language about being combative with the court.

The idea of

actually

any sort of court reform in response to Dobbs was like immediately taken off the table.

And it was just, well, we are going to codify Roe v.

Wade.

And, you know, if they strike that down, then we can think about more extreme actions.

But this very sort of measured approach, they were skeptical of and even bad-mouthing quote-unquote activists in the papers, at least in the first few days after the decision.

And yeah, so I think the Supreme Court, if you're a conservative, you got to be sitting there being like, well, We're not in any danger, right?

Like we just, totally, we just stepped on one of the supposed third rails of American politics and we sparked sparked this huge backlash and nobody came for us.

And Democrats don't even have a trifecta anymore.

And so what do we have to be worried about?

And so now we get to see

just how unencumbered they feel, right?

And because this would be extremely radical.

Finding standing here and then holding on the merits to strike down this

student debt cancellation would both be very radical acts and material acts taking money out of people's pockets which is like you know that is ballsy it's really ballsy I want to come back to student debt in a second but to stay with this point on President Biden I think it's interesting because his whole campaign and his ethos is about this return to normalcy and

like he's very like norm core, be normal.

Is that in that GAPS motto?

And so this idea that he would do something extraordinary, which would be to be be the first president in a very long time to criticize the Supreme Court's legitimacy to be the last to have judicial supremacy, like he's not there ideologically or constitutionally, or like that doesn't fit his way of like, I'm just,

I think he thinks the Supreme Court is probably one of these places that is supposed to be like a place that restores normalcy.

But I think the 5-4 podcast and many advocates are arguing that we are beyond that point.

But it doesn't seem like President Biden will be that democratic leader

who will point out the contradictions there between you might have to transform the institution for us to return to normalcy.

I'm curious if you have thoughts on that or whether we should be more open to the idea Biden would

maybe do something bigger on this, either rhetorically or in policy.

I mean, I had the same question.

Maybe within a day or so after the Supreme Court hearing on the debt cancellation policy, Biden's quotes were quite telling.

On the one hand, he said, I'm fully confident that

this policy is 100% legal, and I'm not confident that the Supreme Court will uphold it.

And that is, I think, like, okay, so what are you going to do?

After that,

exactly.

It's just like he, it's like he's like one plus one.

Yeah.

That's it.

He's not getting to the equals to part of things.

Yeah, it's very strange.

You know?

It's funny.

I was actually, I was going to bring up that exact quote.

That's like, and that is probably the most radical thing he said about the Supreme Court.

It's a real shift for him, right?

This is a guy, remember, who was like on the Judiciary Committee in the Senate for decades, right?

Like the court has been an area of importance and an area of his expertise in Wheelhouse for a long time.

But I do think he's also, yeah, like I think he's a Democrat, you know, in the sense that like he's always sort of just moved with the party.

And I think the party and the base have become more ideological.

They've been waking up to this and are demanding more.

And so I don't think he'll ever be the leader on this front.

I'm not sure he would be a huge obstacle either.

I think the Senate might be a bigger obstacle in terms of actually

doing something about the court, right?

But, you know, I saw the other day, like Adam Schiff and Katie Porter are in the start of a heated primary.

And I saw Adam Schiff talking about court reform.

And I think it's good that establishment mainline Democrats and blue states feel like they have to be pro-court reform in order to be able to win a contested primary, right?

Like that's, that's a good sign for the future, I think.

There's also just this other kind of like creepy residue in this about the concept of just executive authority.

Is executive authority by nature the problem?

And this was one of the notes ringing in the, certainly in the Amicai brief, where groups that were on the hard right from Americans for Prosperity who are saying that executive overreach is like they, it's quite rich of them to conclude that it's going to challenge democracy after they've beaten back every kind of electoral reform they could buy.

They're saying, you know, this is going to really do harms to this is going to really do harms to democracy if the president is acting in executive overreach.

And then you get even more moderate groups, groups that formed in the wake of Trump's presidency, who are concerned about the quote-unquote authoritarian overreach of the executive office, saying that they, while they think that student debt is a crisis and needs to be addressed, they oppose the executive action on it.

And

this is just like baffling to me.

Student debt cancellation is the gateway drug to internment camps is basically how the formula goes in these people's minds.

It's like, how will we know when we've canceled the debt and when we've interned people unjustly is the sort of the question.

If executive action has been used to do both of those things, how will we know when it's been used for good or for evil?

And it's curious to me how the president is going to respond to that, because it undermines basically, why would we even have a president if we don't believe in the concept of executive actions?

Yeah, you know, and there is, I think it's interesting because Congress has been kind of dysfunctional for a while.

And as a result, that has been pushing the executive to be seizing more and more power.

But also, the courts have been engaged and the Supreme Court has been engaged in, you know, commandeering more and more power for itself.

So there's like a lot of, I think, I don't want to be too like goo-goo government type, but I think there's a lot of resistance to institutional reforms.

But like making Congress function better would be just so

useful, right?

Getting rid of the filibuster, getting rid of gerrymandering, like multi-member dish.

There's so many things you could do, bringing back pork.

I'm a strong believer in pork because it gets people to vote for things right it gets congress to pass bills this podcast unfortunately has two muslim co-hosts so we're not a pro-pork pro-pork podcast i don't eat pork

but in in in government i i support pork um

uh yeah it we need a functional legislature to start asserting its interests and reclaiming some of its power for itself and doing so i think would solve a lot of these problems Yeah.

Well said.

Well said.

Yeah, I think it's what's interesting to me is that with this example about the California Senate primary, that this change is going to happen from below.

And if Biden is accountable to the median Democratic senator, the median Democratic senator isn't there in rhetoric or in action on the court.

There will be this new generation of Democrats who replace that 1970s, 80s, 90s old guard very soon.

And

the cases are likely to get worse when it comes to basic, whether it's the Dreamers, whether it's student loan debt, whether it's Roe.

I think it'll continue to get chipped away.

And the contradiction in the Democratic Party's rhetoric and action around it, there will have to be equals to eventually.

It's impossible to avoid.

Yeah, you know, sorry, one more thought, one more thought.

Because I think

we've had a real like wasted 20 years on this.

Like starting with Bush v.

Gore, there have been a series of really unpopular decisions that the left, broadly speaking, like center left, Democrats, partisan Democrats, more Democratic socialists or whatever, could have been rallying around to argue for a more, you know, democratically responsive court, one that's more reined in.

And you had Republican appointees stealing an election.

I voted in that election in Florida.

It was my first election.

It's a radicalizing experience for me.

Hanging chads.

Yeah, yeah.

I didn't check my chads.

In Broward County, I don't know if my vote was counted.

You had Citizens United, which was wildly unpopular and remains wildly unpopular, right?

Like we talked earlier about Shelby County.

The Voting Rights Act is one of the more popular pieces of legislation.

There's just, there have been so many points, and now we have Dobbs and maybe student load cancellation.

So many points where

these could have been rallying cries, organizing points, places to build political power.

And instead, it's been

sort of, you know, kneecapped.

And then there was like

people tried to like almost speedrun it in the last few months leading up to the election.

We're like, oh, we might win this.

We might get a trifecta.

We got to pack the court.

They're out of control.

Ruth Bader Ginsburg died.

And

all that stuff is true, but it's like, I mean, to be fair, to be honest, we didn't do the work.

We didn't do the work in the last 20 years.

And so we need to do the work now so that the next time we have a trifecta,

it's a foregone conclusion, right?

That it's just they're going to do it because we've put in the work now.

I think it's easy to get discouraged now and be like, well, the moment passed, the moment for reform passed and let up.

But now is when the work gets done.

Put the reps in.

I wanted to ask, we haven't gotten to talk about Department of Ed versus Brown yet, and I wanted to hear a little bit more about what are the arguments in that case and what's at stake in that case.

Well, that one I think is generally regarded as a little bit less of a serious threat, mostly because the standing claims are even more ludicrous.

It's two plaintiffs.

So the first one is basically States v.

Biden.

This one is Students versus Biden.

It's two students who brought their suit with the support of the Job Creators Network.

It's a right-wing billionaire foundation.

The owner of Home Depot is a big backer of this Job Creators Network.

They managed to find two plaintiffs who were either ineligible for student debt cancellation, one of them, Myra Brown, I think, has privately held loans and therefore this federal policy to discharge it doesn't touch her debt.

And the other one, Alexander Taylor, wasn't a Pell Grant recipient, so he's only eligible for some of the cancellation, not the full cancellation.

And they were together claiming that the program was unjust because they weren't either written out of it or not receiving the maximum amount.

And so their claim was basically they were denied an opportunity to bring forward these issues.

There wasn't a negotiated rulemaking process in this affair.

So they advocated for universal debt cancellation.

Right.

They advocated for canceling universal.

Yeah, right.

They advocated everybody should have all of their debt cancels as well.

Right.

Would have made sense.

No, they did the opposite.

Yeah, you can see why this is a weaker case.

I mean, it's ridiculous.

Canceling this doesn't doesn't actually get someone who's getting $10,000 worth of cancellation, $20,000 worth of cancellation, right?

Or make somebody who is ineligible eligible, right?

It just ends benefits for everyone.

So it's pretty obvious.

But also, like, the very attenuated redressability claims is like, yes, but.

You know, the argument they made in oral argument was like, yes, but this is a priority for the Democrats.

And so if you cancel this, they'll go back and they'll try to cancel student loans under a different statutory authority, which will have to go through the more onerous notice and comment rulemaking period where we will get to comment and then they will see the wisdom of our enlightened comments and cancel $20,000 for us as well.

So the redressability issue here would basically be conceding that Biden could still cancel debt for an even larger group of people, which I doubt the conservatives are going to come out and

prejudge and say, yeah, go cancel it under HEA instead of the HERES Act.

That's good.

It's ridiculous on its face, and it would require sort of prejudging the constitutionality of a different avenue for canceling student debt, which I just don't think conservatives will do.

But both cases, like the merits turn on this thing called the major questions doctrine, which is...

Yes, the major questions doctrine, Michael.

I almost forgot that we had talked about this like 15 minutes ago, but I did want to loop back to this, the character we introduced.

Yeah, the major questions doctrine, this made-up bullshit, which basically says, you know, sometimes when Congress passes a law that creates an agency, they use language that's pretty clear and says the agency can do X, Y, and Z, but we still don't think the agency can do it.

That is the major questions doctrine.

in a nutshell.

That sounds ridiculous, but that's what it is.

They say, well, if it's a major question of vast political and economic significance, well, then we want really clear language from Congress to show that they contemplated this situation in specific, which is just, it's just slippery bullshit.

Anything can be vast political and economic consequences, right?

This came up in COVID vaccine mandates.

A few years ago, vaccine skepticism was mainly a creature of sort of left-wing hippie types in Northern California and where I live, live, New Mexico, up in Taos and stuff, right?

Like crystal healing and stuff like that.

Pretty bipartisan skepticism of anti-vax stuff, and that wouldn't have been a big political question.

But now it is, right?

It is because Fox News made it a big political question.

And so is the Supreme Court just being led around the nose by like Alex Jones?

Like that's sort of what the major questions doctrine.

says is yes.

It's so patronizing, you know, like you need a special permission slip from Congress saying that you can go to the bathroom

when you're I mean the case that kind of opened the gates for this, the famous EPA West Virginia case, it's like the environmental protection agency as an agency doesn't have the authority to protect the environment.

Right.

It's it's nuts.

And it's especially nuts.

I mean, I'm skeptical of the political utility of calling out hypocrisy in general, but the hypocrisy is just

unbelievable, right?

Like, you know, Gorsuch is one of the biggest believers in this.

And he was signing a dissent in King v.

Burwell, which was like an old Obamacare case, where they were arguing that like because of some like little language tucked into like some subsection of some subsection of Obamacare, like actually there nobody in the country was eligible to buy insurance on the exchanges.

And so it's like when Congress is like passing a bill that's like, this is to make insurance exchanges, they're like, well,

if you have one misplaced modifier, tough shit in your 2,000-page bill.

But when Congress is like, yeah, the Secretary of Education can entirely waive or modify any provision, I'm not sure that was sufficiently clear to explain that Congress really meant you should be able to cancel student loans.

It's

obvious bullshit.

Like it's unbelievable bullshit.

I wanted to ask which about these two cases, which justices we should be paying attention to, and what arguments have they already made in these cases?

I think the swing justices are Kavanaugh and Barrett.

That was my take.

Andy Coney Barrett seemed very skeptical of the standing issues for the states as well as the individual plaintiffs.

Both cases.

She was like very pointed questions, which is a decent indicator.

It's not like the best indicator, but it's better than nothing.

And Kavanaugh, you know, he was to the point about major questions.

He was saying like the language in this is pretty clear, right?

Like, like, it's like, I'm looking at the statute here and I'm like, this doesn't seem like a close case, which is why you need this major questions doctrine just to like even have this discussion.

But he wasn't like, I would say hostile.

Yeah, you could imagine someone arguing him out of his position, but at least on the first draft, he was like, no, waive or modify seems like

you could just wipe it down.

Yeah, yeah.

And it seems like this is what this was for, right?

The statute was like passed in the wake of 9-11, and it's pretty clear.

It's like in cases of national emergency, the secretary can waive or modify provisions to make sure that borrowers aren't screwed, right?

That's the gist of this act, and that's what we have here.

We have a national emergency, a pandemic, and an effort to make sure that borrowers aren't screwed when the economy has been completely upended and rebuilt and unpausing payments now could lead to big economic consequences for a lot of people.

So I don't know.

I mean, the other thing is, I don't know if this is going to give us a bellwether about what happens, and I'm not even sure it's the most important thing, but I do think it was pretty powerful to hear the Solicitor General arguing forcefully and very convincingly about the legality and the necessity to cancel debt As a representative of the Biden administration, to have her arguments amplified by the liberal justices is just that alone

is pretty, I think we've come a long way.

Even in the last year, I'm not sure the Biden administration themselves was still sort of towing the line of are we going to do this, can we do this?

There was this whole debacle of the memo with their authority that they

whether or not they are willing to square up to their authority that they had the power to cancel debt.

Are you saying that this administration has previously not been this assertive, or Democratic administrations have been this?

Exactly.

That even just, you know, in the last year,

year and a half, this administration was waffling on its own ability to do this.

And now, in front of the Supreme Court, they were arguing

this is 100% legal and we need to do this, don't get in our way.

And the liberal justices were saying, This is 100% legal.

We need to do this, don't get in the way, which is what debtors and advocates have been saying for a long time, but were laughed at saying it.

And now they have the power of the state behind them and arguing it.

And whether or not how the Supreme Court will respond to that is sort of like, God, it's stupid that we have to think about that, that we've come to that point.

But the argument has gotten a lot of legitimacy and traction.

I think that's really important to foreground.

Yeah, you know, I thought Proligar was fantastic.

I thought she spoke really powerfully.

It was a very persuasive oral argument.

I mean, to the point where if they manage to squeak out a win here, I think she deserves some some credit or a lot of credit for it.

But it does, yeah, it does feel like they've taken this very maximalist position as they should, but it'll be hard to walk back from that.

Right.

I don't know how you argue this stuff so prominently.

And then if it is struck down, how you don't turn around and try to cancel it under the HEA instead, right?

Like, right.

I mean,

my opinion, you go bigger, right?

Like, I would say go bigger or bolder.

Say like, this is, you keep, you're going to be a thorn in our side.

You're going to regret it, right?

Like, that's right.

And take a more combative stance with the court.

So far, when the court has sort of taken the job of obstructing the Biden administration's like administrative action, they've generally

acquiesced, right?

They did with like the vaccine mandate stuff, even though there was language in those opinions that could have let them sort of remain combative with the court and continue to fight out their authority on

masking and vaccine mandates.

and they've just acquiesced.

I think that would be harder after how high profile this case is, the positions they took in court.

I think they're sort of

committed.

Yeah, I mean, this is the central question with the Biden administration is like, do they want to say the second half of that sentence that what the Supreme Court is doing is illegal and therefore we're right.

And I'm skeptical that Biden will go there, but it's very difficult to maintain that position as more and more of his administration and Democratic bills get knocked down by this right-wing Supreme Court.

And I mean, some of the arguments that the justices are making in this transcript are just very cynical and insane and not rational.

So there was something in the transcript about Justice Roberts bringing up his comparison to lawnmower debt.

Oh, my God.

One of you wants to

explain that to us

Inside the metaphors of the Supreme Court justices.

The argument went something like this.

There's two people from working class backgrounds who finish high school.

One of them borrows $30,000 to go to college.

The other borrows $30,000 to start a lawnmower company.

Research shows that the earnings on collegegoers over a lifetime are higher than the earnings on non-collegegoers.

So why would we if we're going to cancel debt, why would we cancel the debt of the college goers while meanwhile all the lawnmowers

working are out here just sweating under the sun with no debt relief?

What's fair about this?

That was the question that he raised.

There's 17 things that are so dumb about this argument.

The first is that there actually are quite a few debt relief programs for small business owners.

The PPP loan is like the most famous one, but there's a lot of other ways.

What we saw happen this weekend, where investors get all kinds of relief in the event of financial mishap.

So like the fairness isn't really a point.

If we really believed in this capitalist system then presumably if the lawnmower business was productive the lawnmower would be able to pay their debts back after 30 years and it wouldn't be a problem.

And if they didn't well then maybe it wasn't the business that the world needed and it should be left to field.

Also those debts are able to be discharged under bankruptcy.

Student debts are not.

That's why we have cases like Betty Ann, who's 91 years old with 300,000.

Most people believe that their student debt will only be exited by coffin is really the situation that we've come to.

The other thing, this is I think a really important point too, is that we live in an employer-based welfare state.

If you want things that come just free and naturally in a lot of other countries, developed countries, like health insurance, you have to have, by and large, an employer who provides your health insurance for you.

So to get access to a job that will enable you to have health insurance, your best shot is to have a college degree.

It's tough to find a job with health insurance with a GED.

So, in a lot of ways, college is a glorified health insurance access program, is like a way we could think about higher education.

And the fact that people don't prosper from that, that the returns are not high, is a function of the shitty labor market and not the risk-taking of

the scholars who want to get a college degree.

Right.

And I think the last point I would make, because that

covered a lot, that's pretty comprehensive, is just that he's asking how is this fair, but I'm not going to say it is or isn't fair.

I'm just going to say it's a fairness determination that Congress has already made, right?

Congress made this fairness determination when they passed the HEROES Act and said, we are going to recognize that we have this special power with student borrowers who have federal loans, and we're going to empower the executive to pause or forgive them when needed in times of emergency.

That was a congressional judgment on fairness.

The PPP loans, also a congressional judgment on fairness.

Congress could get together tomorrow and be like, you know what, there's way too much medical debt in this country and pass a bill.

eliminating half the medical debt in the country if they wanted to.

They could.

They're not going to.

Those are congressional determinations, right?

The statute is clear, right?

Like nobody debates the statute is clear.

That's what's insane.

It's like that's everybody agrees that the statute is clear, that the the statute empowers the secretary to do this.

The question is whether or not the court's gonna say, yeah, but Congress didn't really mean that.

The lawnmower metaphor would just make me it just is classic conservative whataboutism where it's like we shouldn't give asylum seekers health care.

And then it's like, okay, because there's a lot of Americans to take care of.

And then you're like, okay, we should give Americans health care, right?

They're like, no, no, that would be socialism.

Yeah.

But

that's like their argument about everything.

Right.

I mean, I don't think anybody should have to go into debt to have a job.

So if that means we need to cancel lawnmower debt, sure, let's go.

Any other favorite moments from the transcript before you wrap up?

Well, this wasn't a favorite moment from the transcript, but it was a weird moment from the hearing.

I was listening to it.

And

I think it was shortly after Barrett kind of

took the Nebraska attorney to task on standing, and I got a notification on my phone that was like, justices seem deeply skeptical of Biden's debt relief program.

And it just made me wonder.

They've clearly never met like.

a teenager before if they thought that was deeply skeptical.

It was just this like they were really ready to, the mainstream media was really ready to say, that's it, there's no future forward, and kind of excuse a plan of no action, which I think was A, just like not inaccurate listening to the hearing.

I think whether the courts will, what they'll do, I don't know.

I'm not particularly hopeful that they're going to let this program stand, but there was, you know, some interesting arguments in it.

And also, it just was a, it was a

moment of anger at the mainstream, a lazy narrative from mainstream media.

Yeah, no, I agree with that.

And I think it's frustrating because it...

I think that hampers the ability to organize around this, right?

And it's just like, oh,

yeah.

It's done.

It's gone.

It's done.

No hope.

And forget about it.

I don't know.

I think there are different ways to frame what happened.

Like I said,

I didn't leave optimistic, but I left thinking there's a chance, right?

I left thinking that there's probably four votes to at least say that they don't have standing to challenge this, and maybe a fifth with Kavanaugh.

That was how I left thinking.

That's not, you know, I'm not like holding my breath or anything.

But yeah, that sort of fatalism, I don't think, is helpful.

Totally.

It almost makes it seem like, yeah, and rightfully so.

You know?

Exactly.

And like Biden was really sticking his neck out here or whatever, even if they don't say it.

Exactly.

The headline could have been like justices may decide to rule on their, like, break away from what the statute says and not do their job to uphold statue and reinterpret statue or whatever.

You know, like that could be the headline.

There are a lot of ways to frame this that are more useful, but I think the media is very lazy when it comes to covering the court yeah which is why five four is so much fun that's way too much

so as we wrap up this conversation michael when do you think we can actually expect a ruling from the court on these cases it's interesting because usually they wait till the end of the term for controversial cases but uh they have been sort of hearing this on an expedited basis so i i don't know i it's a good question i would i would say probably may at the earliest I don't know that it's going to be like one of these last day of the term cases, but I would think probably we still have another six weeks would be my guess.

Soon.

Yeah.

And Eleni, the number one question I get asked at parties, hangouts, bars, when people find out I work in politics is what's happening with my student debt?

What should I be telling people?

Is there a plan B

if it gets rescinded at the court?

Yeah, I mean, you know, the first thing is that the debt collective has been organizing a debt strike, which is basically getting people to pledge to sign up to not pay back loans that the president promised to cancel.

So you can go to the debt collective website and join this strike pledge, which will build this power.

The president promised to cancel these loans.

Like, we shouldn't have to pay them back.

People have their financial lives sort of hanging in the brink.

We haven't even been granted the dignity of a return.

We have an ambiguous payment start date.

We haven't even been given the dignity of a firm date of when payments are going to go back on.

So I think I am glad people are asking that question.

I think people are worried, and hopefully, we can transform that worry into anger about this, because there is absolutely no reason the President has full authority to cancel this debt.

The Solicitor General argued this in front of the Supreme Court.

And if the President decides not to do that, I think then it is going to be really time to think about what other strategies.

We are trying to come up with what are other venues, how do do we build pressure to push the President to use every authority he has to act as boldly, as Michael was saying, like really uncompromising and unapologetic to just go hard on this.

That's what we're looking at right now, figuring out what are these other ways, how do we be more creative with this?

The other thing that's like a little bit, this is in the weeds and hanging in the background, but in the coming months, the Department of Education is going to unveil revisions to its income-driven repayment plan.

And the income-driven repayment plan is like notoriously flawed.

It's like we're on like version seven of the income-driven repayment plan because the theory is that people who are working on low-paying jobs can reduce their payments instead of proportionate to their balance, proportionate to their income.

So if you make a low amount of money, you just lower your balance.

And then after a certain number of years, in theory, the debt will be wiped away.

And in practice,

a few dozen people have actually had this program work for them.

It's really, really just like terrible.

But they are making some changes to it, which seems like it's going to make it easier easier for people to get safely to a $0 payment option.

So if you're not paying anything a month, you could say you're defaulting on your loans.

You could also say you're striking on your loans.

So I think just encouraging people as that kind of comes into focus, I think we're going to be trying to figure out how do we use that as cover to push the political program of striking on these loans, not just getting to $0 a month payments.

And how do people get involved in the debt collective?

We have a great Twitter feed.

We have a great TikTok and a website.

It's a union of debtors, so we depend a lot on members to join and follow.

And we run a series of education, new member calls, organizing events.

So definitely check out our website and our Twitter.

We'll stay pretty active there.

Michael Alani, thank you so much for joining the block party.

It was great to have you both.

It was really fun.

Thank you.

It's a lot of fun.

Thank you,

yeah.

All right, that's the show.

Our mixed engineer is Rocky Rousseau.

Our producers on this episode were Sophie Capp and Emma DeSow.

Special thanks to Elaine Shermer and Michael from the 54 podcast.

You can follow Michael at the excellent54 podcast at five4pod.com.

And you can follow the fight for debt relief at debtcollective.org.

See you on the block.