Excellent analysis of the absurd lengths some of these Trump and other right-wing judges will go to in order to get their partisan way!!! Not real judges at all, just partisans in robes!!

A Constitutional Republic Demands a Constrained Judiciary: | Laurence H. Tribe https://verdict.justia.com/2022/11/14/a-constitutional-republic-demands-a-constrained-judiciary
#RightWingJudges
#PartisanJudges
#PartisanCaptureOfJudiciary

"But if it was the HEROES Act that failed to accord the plaintiffs the right to argue for a more generous program of student debt relief, what if that Act itself was unconstitutional? No such claim has ever been made, none was made in this case, and none could ever succeed. There’s nothing even arguably unconstitutional about that Act.

All that remained was a possible claim that, although the plaintiffs had been denied nothing by way of process to which they could claim any entitlement, and although the law that made that fact crystal clear was perfectly constitutional, perhaps neither that law nor any other gave the Department of Education the statutory authority to forgive student debt at all?

After all, nobody claimed that President Biden, or the Executive Branch he heads, has inherent presidential power to forgive debts owed to the United States, a kind of fiscal parallel to the “pardon power” that Article II, Section 2, expressly confers on the President to “Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” That’s a power unpleasantly familiar to most of us after the one-term presidency of Donald J. Trump, but has no relevance in this situation—where the power of the purse is implicated and where all agree that, because Congress alone wields that awesome power under Article I, Section 8, Clause 1 of the Constitution, an agency providing relief from debt owed to the United States Treasury can do so only where a federal statute so authorizes.

But the argument that DOE was acting beyond its statutory authority here is, on the face of it, quite a stretch. The text of the HEROES Act expressly authorized relief from student indebtedness triggered by the presidential declaration of a Covid-related emergency—a declaration that then-President Trump had made in March 2020 and that President Biden has not rescinded. The only arguments Judge Pittman could muster to overcome that express authority were the rather lame legalism that the Act spoke only of power to “waive or modify” loans and didn’t use the words “loan forgiveness” as such; a legally irrelevant aside that the “COVID-19 pandemic was declared a national emergency almost three years ago and declared . . . by the President as ‘over’” in remarks during a television interview aired ”weeks before the [DOE] program” was officially launched; and the observation that the Education Department’s reliance on a “rarely invoked statutory provision” warranted enough “skepticism” to justify finding it beyond the agency’s delegated power in light of this past June’s Supreme Court decision in West Virginia v. Environmental Protection Authority, requiring that some delegations—those raising “major questions”—must be not only clear but clairvoyant, specific enough to spell out in advance the precise program an agency has put in place pursuant to the law Congress enacted.

Explaining why, in my view, the delegation of loan forgiveness authority to DOE is not in fact subject to the special requirements of that Supreme Court ruling and why, even if it were subject to them, it would meet them, is beyond my aim in this brief comment.

At most—even if I were wrong in that view and Judge Pittman were right in his contrary conclusion about the legality of the plan—that would show only that some other court, in a case properly brought by those who actually have standing to challenge the loan forgiveness program because it injures them in a way that the judicial relief they seek can redress, might vindicate the rule of law by trimming the Education Department’s sails and putting the ball back in Congress’s court to legislate with greater specificity whatever debt relief it deems wise and just. But, as the Supreme Court has unanimously affirmed many times, however strong the merits of a claim, federal courts must always scrutinize and find jurisdiction before considering it."