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RFK Jr Off NY Ballot & Is Student Loan Forgiveness Over? · Bloomberg Law

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  Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
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  Speaker 1: I mean, in this video from California this morning, two,
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  Speaker 1: let you know that I accept this unexpected honor.
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  Speaker 2: When Robert F. Kennedy Junior accepted the nomination to run
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  Speaker 2: as a candidate for the Libertarian Party, he was at
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  Speaker 2: home in California, and a lawsuit claims that Kennedy's actual
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  Speaker 2: residence is in California and that he misled voters by
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  Speaker 2: claiming that his residence was in New York on the
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  Speaker 2: tens of thousands of nominating petitions submitted to place him
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  Speaker 2: on the ballot in that state. Following a short trial
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  Speaker 2: in Albany, judge agreed that the New York address on
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  Speaker 2: the nominating petition was not Kennedy's real residence, but rather
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  Speaker 2: a sham address he used to maintain his voter registration
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  Speaker 2: and to further his political aspirations, and on Monday, Judge
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  Speaker 2: Christina Reba invalidated Kennedy's New York state nominating petition, ruling
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  Speaker 2: that quote using a friend's address for political and voting
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  Speaker 2: purposes while barely stepping foot on the premises does not
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  Speaker 2: equate to residency under the election law. In an interview
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  Speaker 2: with CBS six in Albany, Kennedy compared his situation to
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  Speaker 2: that of his father, the late Senator Robert F. Kennedy,
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  Speaker 2: when he ran for the Senate in New York.
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  Speaker 1: He was also, ironically also called a carpetbagger. In other words,
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  Speaker 1: you know that he didn't really live in New York state.
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  Speaker 1: So sixty years later, now I'm running and I'm being
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  Speaker 1: told I don't live in New York State. My driver's
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  Speaker 1: license here, I vote in this state, my car is
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  Speaker 1: registered here, my law licenses in this state, not California,
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  Speaker 1: my law offices in the state. I pay income tagris
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  Speaker 1: in this state.
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  Speaker 2: Kennedy acknowledged the decision could create problems for him in
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  Speaker 2: other states. He's currently facing challenges in more than half
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  Speaker 2: a day states, some alleging that he falsely listed this
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  Speaker 2: same New York address. He appealed the decision today to
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  Speaker 2: the Appellate Division in Albany. Joining me is elections law
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  Speaker 2: expert Richard Brefald, a professor at Columbia Law School. Rich
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  Speaker 2: how is residency defined under New York law for election purposes.
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  Speaker 3: Residency means domicile, which is the place that you maintain
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  Speaker 3: is your home, and if you are away, you intend
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  Speaker 3: to return to it. New York law recognizes that people
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  Speaker 3: can have multiple residents. You can have a main home
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  Speaker 3: and a summer home and another home, but one of
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  Speaker 3: them has to be the place that is your primary
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  Speaker 3: residence in legal terms, your domicile kind of the place
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  Speaker 3: that you keep as your home and when you are away,
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  Speaker 3: you intend to return to it.
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  Speaker 2: Kennedy listed as his residence a friend's house in Katona,
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  Speaker 2: New York, where he said he rented a bedroom, but
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  Speaker 2: he admitted at trial that he only spent one night
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  Speaker 2: there that was about a month ago in June. There's
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  Speaker 2: no actually.
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  Speaker 3: After he had already filed giving the place as his residents.
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  Speaker 2: There's no written lease. He only made a rent payment
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  Speaker 2: after a New York Post story came out right. He
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  Speaker 2: moved with his kids and his pets except for the
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  Speaker 2: Falcons and the Hawk, to California in twenty fourteen. He
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  Speaker 2: bought a house there and when asked in Trelo if
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  Speaker 2: he lives in California, he said yes, And when asked
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  Speaker 2: to be as a physical presence at the house in Bedford,
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  Speaker 2: he said no. I mean, what is his reason for
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  Speaker 2: claiming New York residency.
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  Speaker 3: Oh, his reason, I think is that his running mate
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  Speaker 3: is a California resident, and under the constitution he went
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  Speaker 3: into electoral votes, the California electors cannot vote for both
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  Speaker 3: of them. In other words, if he somehow carried California,
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  Speaker 3: the California electors are prohibited by the constitution for voting
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  Speaker 3: for two people from their own state. So he had
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  Speaker 3: to have a separate residency from his vice president.
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  Speaker 2: Well, the judge said that he demonstrated a long standing
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  Speaker 2: pattern of borrowing address is to keep up the appearances
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  Speaker 2: of New York residency. I mean, at one point he
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  Speaker 2: claimed residency at a house that his sister had sold
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  Speaker 2: and neither of them lived in anymore.
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  Speaker 3: Apparently he's still registered to vote in New York. He
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  Speaker 3: has a New York driver's license and some other New
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  Speaker 3: York connections, and in some kind of fairness, he was
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  Speaker 3: a New York resident for a long while and had
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  Speaker 3: a lot of connections to New York. But yes, as
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  Speaker 3: I think the judge found, for quite a long period
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  Speaker 3: of time. Recently he's been living in California with his
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  Speaker 3: wife and children and pets, and California has I think
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  Speaker 3: the court found, and it seems reasonable has been his
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  Speaker 3: principal residence for the last several years. So the court said,
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  Speaker 3: you need a specific place for it to be a residence,
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  Speaker 3: not some general geographic area like he's had connections to
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  Speaker 3: New York, but you actually need to have, as the
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  Speaker 3: court has a specific abode in New York in order
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  Speaker 3: for New York to be a residence, and he doesn't
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  Speaker 3: have one.
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  Speaker 2: So some of the reasons he claims residency, or he
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  Speaker 2: has New York state fishing and falconry licenses, a New
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  Speaker 2: York state driver's license and vehicle registration, a New York
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  Speaker 2: state voter registration, a licensed to practice law in New York,
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  Speaker 2: and he pays New York state taxes. Do any of
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  Speaker 2: those count toward residency?
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  Speaker 3: They will all be relevant if he actually had a
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  Speaker 3: home in New York. I mean again, I think if
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  Speaker 3: he had an actual home in New York and as
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  Speaker 3: well as an actual home in California, it would support
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  Speaker 3: his argument that New York is his primary home. But
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  Speaker 3: the problem is he has no home in New York
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  Speaker 3: at all. So I mean, I think those would have
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  Speaker 3: been relevant if it was more of a contest as
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  Speaker 3: to whether or not New York or California was his home,
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  Speaker 3: because as you know, a number of people have homes
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  Speaker 3: in more than one state, and so that would be
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  Speaker 3: relevant to deciding, for example, whether or not if you
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  Speaker 3: maintained one residency is in one state, let's call it
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  Speaker 3: a vacation home or a summer home in a second state,
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  Speaker 3: and you want that to argue that the summer home
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  Speaker 3: was your real home. If you had a lot of
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  Speaker 3: connections to the summer home state, you might be able
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  Speaker 3: to be persuasive that you could choose that is your home.
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  Speaker 3: But in this case, he had none. He had various
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  Speaker 3: legal ties to New York. Put the low requires that
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  Speaker 3: he actually has an actual physical residence in New York,
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  Speaker 3: and that is one thing that he does not appear
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  Speaker 3: to have.
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  Speaker 2: Is the law pretty clear on that.
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  Speaker 3: The language the court uses is your residences is where
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  Speaker 3: you maintain a fixed, permanent and principal home where if
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  Speaker 3: you're temporarily located somewhere else, you intend to return to
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  Speaker 3: that home. So the use of the phrase fixed, permanent
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  Speaker 3: and principal home.
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  Speaker 2: And as far as the spare bedroom that he was
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  Speaker 2: supposedly renting out, court said, quote the court finds Kennedy's
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  Speaker 2: testimony that he may return to that bedroom to reside
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  Speaker 2: with his wife, family members, multiple pets, and all of
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  Speaker 2: his personal belongings to be highly improbable, if not preposterous.
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  Speaker 2: I mean, when you look at his testimony and the
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  Speaker 2: testimony of other witnesses, it seems almost like an open
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  Speaker 2: and shut case, and that the judge didn't have very
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  Speaker 2: far to go to make her finding.
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  Speaker 3: I think that's right, I mean, in some sense. To
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  Speaker 3: judge's first point was how strictly or loosely to I
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  Speaker 3: have to interpret residence? And she says, under New York
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  Speaker 3: state law, under near Court of Appeals decisions, some election
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  Speaker 3: qualifications can be interpreted loosely, but these very formal, specific
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  Speaker 3: ones have to be interpreted strictly so that the courts
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  Speaker 3: are consistent from case to case. So the first that is,
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  Speaker 3: you really do have to show that you're a resident,
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  Speaker 3: and then she went through what that entails. And then
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  Speaker 3: there was extensive testimony from all the people who are
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  Speaker 3: arguably providing him a home, and it was pretty clear
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  Speaker 3: that his connection to the place he's claiming to be
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  Speaker 3: a home is extremely attenuated. As he pointed out, it's
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  Speaker 3: one bedroom in somebody else's house. He's only been there
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  Speaker 3: one night in the entire time he's had a connection
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  Speaker 3: to it. He wasn't paying rent until this case became
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  Speaker 3: a case, and then he paid it retroactively back rent.
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  Speaker 3: And the home itself is under forclosure. And as she
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  Speaker 3: points out, he is an entire household in California, and
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  Speaker 3: it's a seems unlikely that if he were to return
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  Speaker 3: to New York he would be returning to that one
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  Speaker 3: bedroom with his whole household.
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  Speaker 2: He also claimed advice of counsel that his lawyer told
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  Speaker 2: him this.
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  Speaker 3: Was okay, it doesn't work. I mean, he's not being
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  Speaker 3: prosecuted for lying. It's just that he had a fell
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  Speaker 3: out of form and he filled out before him inaccurately.
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  Speaker 2: So he's appealing the decision in New York Appellate court,
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  Speaker 2: and his legal team has said they're going to seek
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  Speaker 2: injunctive relief in federal court, and they're arguing that the
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  Speaker 2: US Constitution's Twelfth Amendment governs the residency of presidential and
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  Speaker 2: vice presidential candidates, not state law. And they made a
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  Speaker 2: similar argument before the judge in New York who rejected it.
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  Speaker 2: What do you think of that argument?
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  Speaker 3: It's kind of a red herring. I mean, yes, New
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  Speaker 3: York State could not require him to be a resident
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  Speaker 3: of New York State. That would be unconstitutional. But New
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  Speaker 3: York State is not doing that because data simply saying
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  Speaker 3: in order to get on the ballot, you have to
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  Speaker 3: fill out a form, and you have to fill out
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  Speaker 3: the form accurately. And the Supreme Court is in the
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  Speaker 3: past recognized that states can set their own rules for
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  Speaker 3: getting on the ballot, provided that they're reasonable, rules that
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  Speaker 3: they're not on duly burdensome, that they're not too hard
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  Speaker 3: to satisfy. You couldn't require somebody to have a humongous
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  Speaker 3: number of signatures in a very short period of time.
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  Speaker 3: That would be too burdensome. But I think a rule
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  Speaker 3: that simply states you have to put down your place
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  Speaker 3: of residence is the kind of rule that would probably
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  Speaker 3: for most candidates, is not on duly burthensome. And the
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  Speaker 3: Court has recognized the right of the states to in
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  Speaker 3: effect require certain forms to be filled out in order
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  Speaker 3: to get on the ballot. So, just to repeat, he
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  Speaker 3: does not have to be a New York resident, but
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  Speaker 3: he does have to fill out the form correctly.
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  Speaker 2: Could this open him up to challenges in other states
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  Speaker 2: because apparently his campaign used the same address to gather
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  Speaker 2: signatures in other states.
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  Speaker 3: You know, that's an interesting question, and I would break
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  Speaker 3: it up into a couple of parts. So in a
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  Speaker 3: number of states, now he is actually on the ballot,
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  Speaker 3: he has been approved by the relevant decision maker, whether
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  Speaker 3: it's the Secretary of State of that state, or possibly
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  Speaker 3: even by a court after a litigation. So one issue
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  Speaker 3: in those states would be can that be reopened once
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  Speaker 3: the person has actually gotten on the ballot, and that
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  Speaker 3: would turn on the law of that state. Second question,
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  Speaker 3: and which would be true both in those states in
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  Speaker 3: the states where the prosegrating on the ballot has not
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  Speaker 3: been resolved, is you know, is this required on their forms?
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  Speaker 3: And how stringently or liberally do they apply the requirements
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  Speaker 3: of their forms. That would be a second question is
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  Speaker 3: so that words, some states might be willing to waive
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  Speaker 3: a mistake. New York was not. So those are really
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  Speaker 3: sort of two big open questions. He's on the ballot now,
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  Speaker 3: and I don't know the exact number, but it's around
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  Speaker 3: twenty states that have been resolved, and that would turn
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  Speaker 3: on what their rules are on reopening a question like that,
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  Speaker 3: and I don't have an answer for that. And the
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  Speaker 3: second would be, you know, was it required in these
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  Speaker 3: states to fill out this form that to stay a
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  Speaker 3: place of residence? That seems like a reasonable kind of
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  Speaker 3: a normal bureaucratic requirement, and it is I think relevant
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  Speaker 3: to the Twelfth Amendment problem of making sure you don't
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  Speaker 3: have two people from the same state, which is all
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  Speaker 3: happens to be your state. But then the question is
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  Speaker 3: how stringently are they going to enforce that rule? And
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  Speaker 3: different state courts might have different policies on how strictly
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  Speaker 3: or loosely they enforced a rule like that.
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  Speaker 2: Okay, stay with me. Rich Coming up next on the
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  Speaker 2: Bloomberg Law Show, I'll continue this conversation with Professor Richard
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  Speaker 2: Brifault of Columbia Law School. We'll talk about Kennedy appealing
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  Speaker 2: to the Appellate Division in New York and broader election
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  Speaker 2: problems that may arise this November. I'm June Grosso. When
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  Speaker 2: you're listening to Bloomberg, Robert F. Kennedy Junior's independent presidential
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  Speaker 2: campaign suffered a blow this week when a judge in
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  Speaker 2: New York invalidated his petition to put his name on
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  Speaker 2: the state ballot, a ruling that could potentially create problems
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  Speaker 2: for the candidate as he faces challenges elsewhere. And Albany
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  Speaker 2: judge said the residents listed on Kennedy's nominating petitions was
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  Speaker 2: a sham address he used to maintain his voter registration
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  Speaker 2: and to further his political aspirations. Kennedy appealed the New
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  Speaker 2: York decision to the Appellate Division. Today, I've been talking
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  Speaker 2: to elections law expert Richard Rfalt, a professor at Columbia
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  Speaker 2: Law School. Rich before the break, you were talking about
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  Speaker 2: the possibility of an appellate court waiving this requirement for him.
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  Speaker 3: It's not out of the question. I mean, you know,
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  Speaker 3: there is a tension between you know, making someone you
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  Speaker 3: know available to the voters. And it's not relevant to
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  Speaker 3: his seriousness as a candidate, either to his eligibility to
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  Speaker 3: be elected or his seriousness as a candidate. It doesn't
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  Speaker 3: affect whether or not he's over thirty five and a citizen.
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  Speaker 3: That's which basically is the eligibility for president. And many
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  Speaker 3: states do require that you gather a certain number of
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  Speaker 3: signatures that either you be nominated by your party or
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  Speaker 3: that if you're running as an independent, you get a
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  Speaker 3: certain number of signatures, or running is a new party
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  Speaker 3: that your new party gets a certain number of signatures,
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  Speaker 3: and those are all designed to establish that the candidate
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  Speaker 3: is serious not trivilous. He's presumably satisfied that. So I
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  Speaker 3: could imagine a court saying that a question that doesn't
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  Speaker 3: bear on his eligibility to serve and seriousness as a
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  Speaker 3: candidate might be one that we would be willing to waigh.
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  Speaker 3: So that would be one possibility, But the other would
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  Speaker 3: be that the court might also stick with what this
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  Speaker 3: lower court said is to some things which are not
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  Speaker 3: that burdensome, it's best to be absolutely strict. Otherwise the
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  Speaker 3: chance of politic explaining a role in different judges applying
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  Speaker 3: the same rule differently in different cases when it's very large.
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  Speaker 3: So there is an argument from consistent application the fairly
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  Speaker 3: straightforward rule that says you should enforce it, versus the
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  Speaker 3: argument that this does not really go to it is
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  Speaker 3: eligibility to serve or his seriousness as a candidate. So
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  Speaker 3: maybe you waive it. I mean, I could see it
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  Speaker 3: coming out either way. So that he is running for
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  Speaker 3: a national office, and there is some argument that Court
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  Speaker 3: should be less restrictive, because I mean, he was going
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  Speaker 3: to be really in contention that having a rule like
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  Speaker 3: this to knock somebody off the ballot, that would affect
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  Speaker 3: a serious national candidate sort off. You don't want individual
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  Speaker 3: states to be doing that. He's a national candidate running
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  Speaker 3: for a national office. So I could see that as well.
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  Speaker 2: Would that be a case for federal court or for
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  Speaker 2: state court or for both?
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  Speaker 3: For both? Really, I mean, state courts can can adjudicate
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  Speaker 3: federal constitutional arguments. And it's a little bit like the
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  Speaker 3: argument in the Trump in the Colorado Trump case about
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  Speaker 3: whether or not Trump was eligible for the ballot because
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  Speaker 3: of his arguable participation in the insurrection, and the US
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  Speaker 3: Supreme Court saying, well, this ought to be resolved. You know,
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  Speaker 3: this is a kind of a federal matter should be
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  Speaker 3: resolved by a federal court. But of course that involved
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  Speaker 3: an interpretation of a federal constitutional prohibition. This one does
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  Speaker 3: involve the interpretation of New York state law. And you know,
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  Speaker 3: one could argue that the only constitutional question, the only
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  Speaker 3: federal constitutional question here is this an unduly burdensome law
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  Speaker 3: or an unduly burdensome interpretation that would have the effect
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  Speaker 3: of impacting a national election, and frankly, requiring somebody to
• 15:24
  Speaker 3: accurately fill out the line place of residence does not
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  Speaker 3: seem unduly burdensome.
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  Speaker 2: And so what's your gut feeling about what an appellate
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  Speaker 2: court might do.
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  Speaker 3: It's very hard to imagine that an impellate court will
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  Speaker 3: overturn this on the fact. But the real question is
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  Speaker 3: what do you do with it? Do you decide to basically,
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  Speaker 3: do you let it go and say, well, you know,
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  Speaker 3: we don't have to interpret it that strictly, or do
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  Speaker 3: you do with the trial court didn't say well, you know,
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  Speaker 3: our presence requires strict application, and then he's not a resident.
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  Speaker 2: This challenge was brought by four voters with the backing
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  Speaker 2: of the democratically aligned The Choice Action. The Democrats have
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  Speaker 2: dedicated a substantial legal and ground operation to challenging third
• 16:09
  Speaker 2: party candidate ballot access.
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  Speaker 3: That's right, Although it's interesting now at least a clink
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  Speaker 3: to recent surveys, it's now unclear from whom Kennedy pulls
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  Speaker 3: more votes, Harris or Trump. So it's true, and he
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  Speaker 3: began obviously he was a Democrat. He comes from an
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  Speaker 3: obviously an extremely distinguished and famous Democratic family. I think
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  Speaker 3: people assume Democrats assume that he's going to draw mostly Democrats.
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  Speaker 3: I guess recent polling surveys suggests that may be closer
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  Speaker 3: to fifty to fifty as whether he's pulling from Trump
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  Speaker 3: or Harris. So it's not one hundred percent clear. This
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  Speaker 3: is a right strategy for the Democrats, but this is
• 16:43
  Speaker 3: the strategy they've been pursuing liberal activists.
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  Speaker 2: Cornell West apparently has been given help from Republican operatives
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  Speaker 2: and getting his name on the ballot in Wisconsin. He
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  Speaker 2: would definitely draw from Harris.
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  Speaker 3: Right, it seems likely, certainly do want to vote. Cornell
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  Speaker 3: West is unlikely voted for Trump.
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  Speaker 2: I also want to ask you, so there are all
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  Speaker 2: these cases from the last presidential election that haven't been
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  Speaker 2: finally resolved. The case is over fake electors and false
• 17:13
  Speaker 2: certifications and all that. You know in different parts of
• 17:17
  Speaker 2: the country. You got the Georgia criminal case. I mean,
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  Speaker 2: are there outstanding questions because of those cases that might
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  Speaker 2: affect or complicate the upcoming presidential election.
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  Speaker 3: I don't think some and I think you know those
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  Speaker 3: are all about I mean, the argument is about the
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  Speaker 3: so called fake electors, is that they were improperly presenting
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  Speaker 3: themselves as electors in order to create chaos in Congress
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  Speaker 3: and under the election, I mean, the states have procedures
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  Speaker 3: for deciding who wins an election and who the electors are.
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  Speaker 3: I think the bigger issue that's going to be coming up,
• 17:48
  Speaker 3: it is an issue at all in the current election,
• 17:50
  Speaker 3: is how much discretion do the state or county boards
• 17:54
  Speaker 3: of elections have to decide not to accept what appears
• 17:59
  Speaker 3: to be the result of the election, after all, the
• 18:01
  Speaker 3: ballots have been calculated and recabulated based on some allegations
• 18:06
  Speaker 3: that there was some fraud or misconduct or mistake, and
• 18:09
  Speaker 3: wanting to hold it up until that's resolved. Traditionally, I
• 18:13
  Speaker 3: mean traditionally and also by law in most states, the
• 18:15
  Speaker 3: vote of the board of Elections or the board of
• 18:18
  Speaker 3: canvases or they very place to place is supposed to
• 18:21
  Speaker 3: be automatic. Once the results have in, they've been you've
• 18:25
  Speaker 3: been tested about that, machines have been run again a
• 18:30
  Speaker 3: here are the results. In twenty twenty, in a number
• 18:32
  Speaker 3: of instances, revolicans tried to stop that and say no,
• 18:35
  Speaker 3: there are questions and we're not going to vote yes.
• 18:37
  Speaker 3: And this happened in Michigan and Wayne County, but ultimately
• 18:40
  Speaker 3: they all went through. This happened again a bunch of
• 18:42
  Speaker 3: times in twenty twenty two in state and local races
• 18:46
  Speaker 3: where local boards simply refused to certify the results because
• 18:50
  Speaker 3: there were conspiracy theories. They were things on the internet
• 18:54
  Speaker 3: saying no, there was fraud, the machines were hacked. It
• 18:57
  Speaker 3: happened I think in a county in Nevada, count in Arizona,
• 19:01
  Speaker 3: and in the end they were basically ordered by their
• 19:04
  Speaker 3: state courts to certify the results. The question that's going
• 19:07
  Speaker 3: to be that may occur coming up after the election
• 19:11
  Speaker 3: is over, is will there be situations like that where
• 19:17
  Speaker 3: local boards that decline to do it? Is historically just
• 19:20
  Speaker 3: been an automatic, a ministerial function to say, here are
• 19:23
  Speaker 3: the numbers. They've been counted and recounted. Here their numbers,
• 19:27
  Speaker 3: and we submit them to the state, and the state says,
• 19:29
  Speaker 3: here are the numbers, here's the winner. Are we going
• 19:32
  Speaker 3: to ask to be seeing county boards or possibly stateboards
• 19:34
  Speaker 3: saying yes, we see these numbers, but we don't trust
• 19:37
  Speaker 3: them and we want to do more of an investigation.
• 19:40
  Speaker 3: And of course the problem with that is it's one
• 19:43
  Speaker 3: thing for it to drag out for a congressional race
• 19:46
  Speaker 3: or center race. It really can't drag out for the
• 19:48
  Speaker 3: presidential case because there's going to be a electoral College
• 19:52
  Speaker 3: vote on January sixth, and it is going to be
• 19:54
  Speaker 3: an inauguration on January twentieth.
• 19:56
  Speaker 2: Thanks so much, rich that's Professor Richard Ruffault of Columbia
• 19:59
  Speaker 2: Law School. Coming up next on the Bloomberg Law Show.
• 20:03
  Speaker 2: Is at the end of the road for student loan forgiveness.
• 20:07
  Speaker 2: This is Bloomberg. The Biden administration has filed an emergency
• 20:11
  Speaker 2: appeal with the Supreme Court asking that justice is to
• 20:15
  Speaker 2: reinstate the President's Safe Plan, which would lower student loan
• 20:19
  Speaker 2: payments for millions of borrowers. The Eighth Circuit blocked the
• 20:23
  Speaker 2: plan last week after Republican states brought lawsuits arguing that
• 20:27
  Speaker 2: the Biden administration did not have authority from Congress to
• 20:31
  Speaker 2: enact the plan, a student loan repayment program that ties
• 20:35
  Speaker 2: how much someone pays each month to their income. The
• 20:38
  Speaker 2: administration is asking the Supreme Court to lift the lower
• 20:41
  Speaker 2: court ruling. My guest is constitutional law Professor Michael Dorf
• 20:46
  Speaker 2: of Cornell Law School. Is the Save Plan different from
• 20:51
  Speaker 2: the program of student debt forgiveness that Supreme Court invalidated.
• 20:56
  Speaker 4: Yes, I mean it had some different details in terms
• 20:59
  Speaker 4: of who is eligible and what you had do to file.
• 21:01
  Speaker 4: But the more important piece in terms of the legal
• 21:06
  Speaker 4: aspect is that it relied on a different set of statutory.
• 21:10
  Speaker 2: Authorities, and a three judge panel of the Eighth Circuit
• 21:13
  Speaker 2: with three Republican appointees called the plan a vast assertion
• 21:18
  Speaker 2: of newfound power. Tell us about that decision.
• 21:23
  Speaker 4: So the court had two issues to decide. It first
• 21:26
  Speaker 4: needed to decide whether there was standing for the plaintiffs,
• 21:31
  Speaker 4: which were a bunch of states that were basically led
• 21:34
  Speaker 4: by Republicans, and there it essentially relied on the Supreme
• 21:38
  Speaker 4: Court case because Missouri is one of the plaintiffs. In
• 21:41
  Speaker 4: the earlier case. The Supreme Court said that Missouri had
• 21:44
  Speaker 4: standing because this corporation that Missouri had chartered to process loans,
• 21:50
  Speaker 4: known as Mochila, could suffer legal injury and that injury
• 21:52
  Speaker 4: would be translated to the states. The sensive on that
• 21:56
  Speaker 4: point in the Supreme Court. But that's sort of what
• 21:58
  Speaker 4: are under the bridge. So there was really no issue
• 21:59
  Speaker 4: about standing for the Eighth Circuit to decide. The heart
• 22:03
  Speaker 4: of the matter was whether this was something authorized by
• 22:08
  Speaker 4: an Act of Congress, and the Biden administration had a
• 22:11
  Speaker 4: decent argument that if you read the literal text of
• 22:15
  Speaker 4: the statute, it does seem to give the Secretary of
• 22:18
  Speaker 4: Education broad discretion to modify loans to delay payments, including
• 22:24
  Speaker 4: on principle. But the Court said two things. First, they said,
• 22:28
  Speaker 4: where there are other parts of the same statutory's team
• 22:32
  Speaker 4: that expressly grant to the Department of Education the authority
• 22:37
  Speaker 4: to forgive loans, and given that Congress did those expressly,
• 22:43
  Speaker 4: it's unlikely that Congress would have intended for the Secretary
• 22:46
  Speaker 4: of Education in this more general language to be able
• 22:50
  Speaker 4: to forgive loans. The second thing they said was the
• 22:53
  Speaker 4: language you quoted, which is that in the last few years,
• 22:58
  Speaker 4: the Supreme Court and especially Justice Roberts, have relied on
• 23:03
  Speaker 4: something that has come to be known as the major
• 23:05
  Speaker 4: Questions doctrine, and the basic idea there is that if
• 23:09
  Speaker 4: an agency is going to be exercising power over a
• 23:12
  Speaker 4: very large part of the economy or our social life,
• 23:17
  Speaker 4: then you need to find authorization for the agency to
• 23:21
  Speaker 4: do so in the express language of Congress. So it's
• 23:24
  Speaker 4: kind of what someone is called a clear statement rule.
• 23:27
  Speaker 4: Although there's some debate among administrative law scholars and even
• 23:29
  Speaker 4: by Justice Barrett questioning whether that's exactly how to understand it.
• 23:33
  Speaker 4: But in any event, that's what the Eighth Circuit said.
• 23:35
  Speaker 4: They said, Look, this is just not the kind of
• 23:38
  Speaker 4: thing that Congress has given you power to do. Maybe
• 23:41
  Speaker 4: Congress could do that, maybe Congress could do it itself,
• 23:44
  Speaker 4: but they haven't.
• 23:44
  Speaker 2: Done in order to issue the injunction. Did the Eighth
• 23:47
  Speaker 2: Circuit find that there was a reparable injury?
• 23:50
  Speaker 4: Yeah, well so that's the interesting thing. Yes, although the
• 23:54
  Speaker 4: core of the decision in the courtes this is likelihood
• 23:58
  Speaker 4: of success on the merit It's really kind of hard
• 24:01
  Speaker 4: to see how there's an irreparable injury to Missouri because
• 24:05
  Speaker 4: they're going to be collecting a little bit less in
• 24:07
  Speaker 4: interest through this entity that they've created to process loans,
• 24:12
  Speaker 4: but that there is not a reparable injury to the
• 24:16
  Speaker 4: hundreds of thousands or millions of borrowers who now have
• 24:20
  Speaker 4: to pay off these student loans when they thought they
• 24:22
  Speaker 4: were going to be eligible for some forgiveness. Court doesn't
• 24:25
  Speaker 4: say that the borrowers don't have an injury or even
• 24:28
  Speaker 4: an irreparable injury. But the court doesn't really get to
• 24:31
  Speaker 4: the question of balancing of the equities, which is typically
• 24:35
  Speaker 4: the last step in one of these decisions, whether the
• 24:38
  Speaker 4: grand injunctive belief, which also applies for pliminary injunction and
• 24:41
  Speaker 4: also applies to the review of an injunctive case.
• 24:45
  Speaker 2: Is this sort of the world with Republican courts post
• 24:50
  Speaker 2: Chevron deference?
• 24:51
  Speaker 4: Yeah, So the interesting thing about this decision is, I
• 24:54
  Speaker 4: mean you're referring, of course, to the Supreme Court's decision
• 24:56
  Speaker 4: in the Low or Bright against Ramondo case earlier this year.
• 25:00
  Speaker 4: There the Court did away with this long standing doctrine
• 25:05
  Speaker 4: we're forty years old that said that courts will defer
• 25:08
  Speaker 4: to reasonable agency interpretations of statute, and certainly, overruling Chevron
• 25:13
  Speaker 4: made it easier for the Eighth Circuit to rule as
• 25:16
  Speaker 4: it did. But remember the Supreme Court invalidated the Biden
• 25:20
  Speaker 4: administration's first student that forgiveness program without having overruled Chevron efforts.
• 25:27
  Speaker 4: They just didn't apply it because they said, you don't
• 25:30
  Speaker 4: even get to that due to the major questions doctrine.
• 25:33
  Speaker 2: Republican attorneys general filed separate lawsuits over the Safe Plan,
• 25:38
  Speaker 2: this one and one filed in Kansas. The Tenth Circuit
• 25:43
  Speaker 2: said the plan could take effect while the court battle continues.
• 25:47
  Speaker 2: So now you have an Eighth Circuit decision contrary to
• 25:51
  Speaker 2: the Tenth Circuit decision. Does this mean that the Supreme
• 25:55
  Speaker 2: Court is going to take up the case?
• 25:57
  Speaker 4: Presumably yes. I mean, the you know what thing about
• 26:00
  Speaker 4: this case and so many other Supreme Court heres these days,
• 26:03
  Speaker 4: is there hasn't been a trial. This is on a
• 26:05
  Speaker 4: preliminary injunction, and maybe you don't need a trial because
• 26:07
  Speaker 4: it's really just a pure question of law. But it's
• 26:10
  Speaker 4: technically what they were doing was addressing whether to keep
• 26:14
  Speaker 4: a stafe pending appeal in place or to modify it.
• 26:18
  Speaker 4: But the bottom line of the Eighth Circuit ruling is
• 26:23
  Speaker 4: that the program is enjoined indefinitely pending Supreme Court reversal
• 26:30
  Speaker 4: or potentially I suppose the case could go back to
• 26:33
  Speaker 4: the district court and somehow the district court could find
• 26:35
  Speaker 4: the case comes out the other way. But you know
• 26:37
  Speaker 4: that would result in reversal almost immediately, because here likelihood
• 26:41
  Speaker 4: of success in the merits means we think the merits
• 26:44
  Speaker 4: favor the challengers, meaning the state.
• 26:47
  Speaker 2: Prepping for this interview, I started looking at the different
• 26:50
  Speaker 2: proposals the Biden administration has come up with in order
• 26:54
  Speaker 2: to try to give student loan relief, and there are,
• 26:57
  Speaker 2: you know, different versions of what they've done, and they're
• 27:00
  Speaker 2: even the Education Department is moving forward with a broader
• 27:04
  Speaker 2: student loan forgiveness plan that it's going to enact in September.
• 27:08
  Speaker 2: I mean, is there any point anymore for the Biden
• 27:10
  Speaker 2: administration to keep trying it gets blocked every time?
• 27:15
  Speaker 4: Well, you know, it depends on what you mean by
• 27:17
  Speaker 4: a point, right, If the point is to actually deliver
• 27:22
  Speaker 4: that forgiveness to borrowers, probably not. You know, you would
• 27:27
  Speaker 4: think that if you want to deliver that forgiveness through
• 27:32
  Speaker 4: existing statutory authority for one of the federal agencies, you
• 27:36
  Speaker 4: would start with the strongest case for doing so, and
• 27:41
  Speaker 4: you know, the backups tend to have somewhat weaker arguments.
• 27:45
  Speaker 4: Although I will say that the argument for the programmer
• 27:50
  Speaker 4: was just struck down didn't rely on the kind of
• 27:54
  Speaker 4: emergency theory that the previous one did. So it's possible
• 27:59
  Speaker 4: that they will eventually hit upon something that the Supreme
• 28:02
  Speaker 4: Court and the lower federal courts accept. I just think
• 28:05
  Speaker 4: it's not very likely.
• 28:07
  Speaker 2: I think in your column you said that, do you
• 28:10
  Speaker 2: think that there's no way that there'll be any kind
• 28:13
  Speaker 2: of debt relief, certainly before the end of the Biden administration.
• 28:18
  Speaker 4: Yeah, I think that's right, just given the case of litigation. Right,
• 28:21
  Speaker 4: so you could throw a hail Mary, you could appeal
• 28:23
  Speaker 4: to the US Supreme Court and hope that they side
• 28:27
  Speaker 4: with the Tenth Circuit rather than the Eighth Circuit. But
• 28:31
  Speaker 4: you know that, again, given how closely the Eighth Circuit
• 28:36
  Speaker 4: logic tracks the logic of the Supreme Court's own opinion
• 28:40
  Speaker 4: in Biden against Nebraska, the earlier case, I don't think
• 28:43
  Speaker 4: that's going to happen.
• 28:45
  Speaker 2: Why are the Republican states so bent, so driven to
• 28:50
  Speaker 2: stop any kind of student loan forgiveness? Is it just
• 28:53
  Speaker 2: because it's a Biden administration initiative or is it some
• 28:57
  Speaker 2: other reason?
• 28:58
  Speaker 4: Well, I think they've got three kinds of reasons. One is,
• 29:02
  Speaker 4: you know, anything your forum against I think that there
• 29:06
  Speaker 4: is some of that going on here. But I think
• 29:08
  Speaker 4: a second piece is that you know they are hostile
• 29:12
  Speaker 4: to executive branch agencies doing things that Congress hasn't clearly
• 29:20
  Speaker 4: authorized because they're hostile to the administrative state. And you
• 29:23
  Speaker 4: saw that in the overruling of Chevron. You've seen that
• 29:27
  Speaker 4: in the Major Questions doctrine. You see that in these
• 29:30
  Speaker 4: suggestions by various conservative justices that they'd like to revitalize
• 29:35
  Speaker 4: the so called non delegation doctrine. I should say that
• 29:38
  Speaker 4: the Republicans in Congress are much more hostile to the
• 29:41
  Speaker 4: executive doing things that aren't very clearly authorized by Congress
• 29:45
  Speaker 4: when it's a Democratic presidents, and they are when it's
• 29:47
  Speaker 4: a Republican president. But that's you know that door swings
• 29:50
  Speaker 4: both ways. That's just generally true. So and then the
• 29:53
  Speaker 4: third thing I'll say is that you know, there are
• 29:56
  Speaker 4: I think legitimate policy reasons to it's not necessarily oppose
• 30:03
  Speaker 4: the student's debt forgiveness. To think about the issue in
• 30:08
  Speaker 4: a broader perspective. So it's true that people who borrowed
• 30:12
  Speaker 4: money to go to college or even to go to
• 30:15
  Speaker 4: grad school or professional school and now are saddled with
• 30:18
  Speaker 4: a lot of debt find that difficult, especially they didn't
• 30:22
  Speaker 4: have you fixed rates, which we typically don't for these things,
• 30:24
  Speaker 4: especially as we've been in a high interest rate environment
• 30:28
  Speaker 4: for the last couple of years. But so do other
• 30:31
  Speaker 4: people right there are you know, if you borrow money
• 30:34
  Speaker 4: to start a business. You could be saddled with a
• 30:36
  Speaker 4: lot of debt. If you went to a less expensive college,
• 30:42
  Speaker 4: then you might have gone to that might have given
• 30:45
  Speaker 4: you a somewhat more prestigious degree because you didn't want
• 30:48
  Speaker 4: to be saddled with debt, and you paid for your
• 30:51
  Speaker 4: education out of pocket, or you got loans that aren't
• 30:54
  Speaker 4: covered by one of these relief programs. Then you might say, well,
• 30:57
  Speaker 4: I'm similarly situated to the people whore get this relief, I
• 31:01
  Speaker 4: should get the relief as well. And there is of
• 31:03
  Speaker 4: course a revenue hit to the federal government, which means
• 31:06
  Speaker 4: either you're going to run larger deficits or you're going
• 31:09
  Speaker 4: to have to cut somewhere else. So it's not as
• 31:11
  Speaker 4: though student debt forgiveness is a slam dunk on the
• 31:16
  Speaker 4: policy side. And so I think it's quite possible that
• 31:19
  Speaker 4: some Republicans, probably even some Democrats, think that while this
• 31:24
  Speaker 4: may or may not have certain political impacts, and it's
• 31:26
  Speaker 4: certainly valuable to the people who get the forgiveness, and
• 31:30
  Speaker 4: they certainly you could use it, it's not necessarily the
• 31:34
  Speaker 4: best policy of all things considered.
• 31:36
  Speaker 2: Next step, I guess we'll see if the Supreme Court
• 31:38
  Speaker 2: takes the case. Thanks so much, Mike. That's Professor Michael
• 31:41
  Speaker 2: Dwarf of Cornell Law School. And if you're one of
• 31:44
  Speaker 2: the millions of borrowers under the saf program, the Education
• 31:48
  Speaker 2: Secretary said, the department will place all borrowers enrolled in
• 31:52
  Speaker 2: SAVE in an interest free forbearance while the Biden administration
• 31:56
  Speaker 2: continues to defend the plan in court. And that's it
• 31:59
  Speaker 2: for this of the Bloomberg Law Show. Remember you can
• 32:02
  Speaker 2: always get the latest legal news on our Bloomberg Law podcasts.
• 32:05
  Speaker 2: You can find them on Apple Podcasts, Spotify, and at
• 32:09
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• 32:14
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• 32:17
  Speaker 2: at ten pm Wall Street Time. I'm June Grosso and
• 32:20
  Speaker 2: you're listening to Bloomberg