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Google Antitrust & Student Loan Relief Blocked · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
0:09
Speaker 1: It was the biggest antitrust showdown between the federal government
0:13
Speaker 1: and a US tech giant in a quarter century, and
0:17
Speaker 1: a stunning defeat for Google when a federal judge ruled
0:20
Speaker 1: last week that it's a monopolist and that the search
0:24
Speaker 1: giant broke the law by exploiting its dominance to squash
0:28
Speaker 1: competition and stifle innovation. The finding that Google illegally monopolized
0:33
Speaker 1: the market for general search services and search text advertising
0:38
Speaker 1: is just the first part. Next comes a trial to
0:41
Speaker 1: determine what the consequences will be for Google, and that
0:44
Speaker 1: could be anything from a breakup to unwinding its exclusive deals.
0:49
Speaker 1: Of course, Google says it will appeal the decision. Joining
0:52
Speaker 1: me now to discuss the case is Jonathan Canter, Assistant
0:55
Speaker 1: Attorney General for the Department of Justice Anti Trust Division.
1:00
Speaker 1: What does the Google decision signify for the Justice Department?
1:04
Speaker 1: Is it a game changer or something less?
1:07
Speaker 2: The Google decision usb Google signifies that the anti trust
1:11
Speaker 2: laws apply to the Internet. This is the biggest case
1:14
Speaker 2: about the Internet since the Internet, and so to the
1:17
Speaker 2: extent there are any questions about whether in a world
1:20
Speaker 2: where certain parts of a product offered for free or
1:22
Speaker 2: monetized with advertising, or a world where internet technology companies operate,
1:28
Speaker 2: whether the anti trust laws still apply just as they
1:30
Speaker 2: did against Microsoft AT and Standard Oil. I think we
1:34
Speaker 2: have an answer to that question.
1:35
Speaker 1: What kind of changes do you envision this decision will
1:40
Speaker 1: bring about eventually?
1:41
Speaker 2: Well, I think that remains to be determined. The way
1:44
Speaker 2: the process here works is that we first had a
1:47
Speaker 2: trial to address liability to determine specifically whether Google violated
1:52
Speaker 2: the anti trust laws. Once it's determined that Google did
1:55
Speaker 2: violate the ani trust laws, and the court opted to
1:57
Speaker 2: bifurcate the proceedings, which means now there's a second proceeding
2:01
Speaker 2: that will address the appropriate remedies in light of the
2:05
Speaker 2: liability finding.
2:06
Speaker 1: And so there'll be a hearing on the remedies, which
2:08
Speaker 1: could include the breakup of Google to something much more
2:12
Speaker 1: minor what kind of remedies will the Justice Department be
2:16
Speaker 1: asking for.
2:17
Speaker 2: So the process is ongoing. The court has ordered a
2:20
Speaker 2: hearing in early September, and we're going to respect that process.
2:24
Speaker 2: And so I can't speak specifically about the remedies that
2:27
Speaker 2: we will seek or that the court will likely order
2:30
Speaker 2: in this particular case. But what I can say is
2:32
Speaker 2: that generally we take remedies very seriously and in all
2:35
Speaker 2: of our cases, we want to make sure that any remedy,
2:38
Speaker 2: whether it's in a monopolization case or other cases, meet
2:41
Speaker 2: the market where it is today and have an impact
2:44
Speaker 2: in light of the conduct, both in terms of how
2:46
Speaker 2: the market functions today but also how it's likely to
2:49
Speaker 2: function in the immediate future.
2:51
Speaker 1: Can you tell us what kind of remedies are available
2:53
Speaker 1: so the.
2:54
Speaker 2: Courts have a wide range of discretion in terms of
2:56
Speaker 2: ordering remedies. I think there's a long line of cases
3:00
Speaker 2: going back many many years that may out the different
3:03
Speaker 2: range of remedies. And in an anti trust case, you
3:05
Speaker 2: can have remedies as broad and it's severe as a
3:07
Speaker 2: breakup of a company, or you can have remedies that
3:10
Speaker 2: prohibit a company from engaging in certain kinds of practices
3:14
Speaker 2: and everything in between.
3:16
Speaker 1: One thing that came up at trial was that Window users,
3:21
Speaker 1: when they were defaulted to Microsoft's Edge browser and bing Search,
3:26
Speaker 1: eighty percent of them chose to switch to Google Search anyway.
3:30
Speaker 1: So how much of an impact on consumers do you
3:35
Speaker 1: think this decision could have? If it's upheld.
3:38
Speaker 2: Well, I think in any decision, whether it's in this
3:40
Speaker 2: case or any other, has to consider both the evidence
3:43
Speaker 2: that was put forward a trial, but also the market realities.
3:46
Speaker 2: And so one of the things that we discussed in
3:48
Speaker 2: a pretty innovative way in the trial is we put
3:51
Speaker 2: on the stand a behavioral expert, someone who can explain
3:55
Speaker 2: the power of defaults and help particulate how consumers behave
4:00
Speaker 2: in light of certain things that they might see on
4:02
Speaker 2: a screen.
4:03
Speaker 3: And so all of those.
4:04
Speaker 2: Kinds of questions are likely to be relevant in this
4:06
Speaker 2: or any other case.
4:08
Speaker 1: Do you think the decision is appeal proof?
4:12
Speaker 2: That's not a decision for us to make. We feel
4:15
Speaker 2: very confident in the outcome, and the decision is very
4:18
Speaker 2: thoughtful and deliberate. And you know, if there's something that
4:21
Speaker 2: we need to address as part of an appeal by Google,
4:24
Speaker 2: then we'll do tone writing.
4:26
Speaker 1: So the federal government has launched a series of cases
4:29
Speaker 1: against Google, Meta, Amazon, and Apple. You're going to trial
4:33
Speaker 1: against Google, I believe a second time next month in
4:36
Speaker 1: a related case, and your anti trust lawsuit against Apple
4:40
Speaker 1: bears some similarities to the Google search case. Does the
4:44
Speaker 1: Google case give you a blueprint in any respect for
4:48
Speaker 1: how to handle these other cases.
4:50
Speaker 2: Yeah, I think it's important to take a step back,
4:52
Speaker 2: and I trust monopolization cases brought by the Department of
4:56
Speaker 2: Justice against companies is not something that happens every day.
5:01
Speaker 2: The last case before USB Google was USB Microsoft, which
5:06
Speaker 2: was filed in nineteen ninety eight. Both were victorious, and
5:09
Speaker 2: both were significant, not just because they involved massive companies
5:14
Speaker 2: that have a major impact on society, but because they
5:18
Speaker 2: represent an opportunity for courts and companies to understand how
5:23
Speaker 2: antitrust law is applied in these markets, these technology markets,
5:28
Speaker 2: and how they are applied against the backdrop of a
5:30
Speaker 2: modern economy. So absolutely, given the significance of the case
5:34
Speaker 2: in terms of size and scope and the rarity of
5:37
Speaker 2: a case like this being decided by a court, it's
5:40
Speaker 2: going to, i think hopefully, be an important statement on
5:44
Speaker 2: the state of the antitrust laws today and its applicability
5:47
Speaker 2: to companies in today's markets.
5:49
Speaker 1: Do you think the Justice Department has sort of a
5:52
Speaker 1: momentum here with the willingness of JUDGMENTA to crack down
5:56
Speaker 1: on a tech giant. So do you feel a sort
5:59
Speaker 1: of momentum going your way?
6:01
Speaker 2: Well, we feel the momentum is that we have the
6:04
Speaker 2: facts in the law on our side. We brought a
6:06
Speaker 2: case that we believe was the right case to bring,
6:09
Speaker 2: and we made sure to prove that to a court,
6:11
Speaker 2: and we did that. We did that successfully. But we've
6:14
Speaker 2: had a number of successes, and so if you look
6:16
Speaker 2: at the back of our basebook card, you'll see a
6:18
Speaker 2: lot of wins of late, including in merger cases, including
6:22
Speaker 2: on summary judgment motions, including on motions to dismiss. We've
6:26
Speaker 2: had a very significant run of success and I think
6:29
Speaker 2: that's because we're picking our cases carefully and we were
6:32
Speaker 2: litigating them skillfully.
6:33
Speaker 1: So then do you think that the antitrust laws are
6:37
Speaker 1: flexible enough to address the tech giants that you have the.
6:41
Speaker 2: Tools you need, the anti trust laws are flexible enough
6:44
Speaker 2: to address any company in today's modern markets. The anti
6:48
Speaker 2: trust laws have been able to stand the test of
6:50
Speaker 2: time because they address a principle that remains core to
6:55
Speaker 2: our free market system, which is that competition drives companies
7:00
Speaker 2: do better. Competition drives prices down, competition drives wages up,
7:04
Speaker 2: competition drives companies to innovate, and so anti trust protects
7:07
Speaker 2: competition the competitive process, and that's something that continues to apply,
7:11
Speaker 2: and it continues to be central to one of the
7:14
Speaker 2: things that makes our economy so great and so powerful
7:16
Speaker 2: and so significant, not just in this country but world over.
7:20
Speaker 2: And so I do yes, I believe that's the case. Now.
7:23
Speaker 2: At the same time, there are always opportunities to clarify
7:26
Speaker 2: the ani trust laws. The anti trust laws are written
7:28
Speaker 2: by Congress. We enforce them, we don't write them. And
7:31
Speaker 2: it's always the progative Congress to write new laws and
7:34
Speaker 2: to update laws. And we've weighed in, for example, in
7:37
Speaker 2: love of Congress on some updates relating to technology and
7:40
Speaker 2: competition and anti trust. But in the interim, at least
7:43
Speaker 2: until we see anything additional from Congress. Our job is
7:46
Speaker 2: to enforced law faithfully and when we believe it's meritorious.
7:50
Speaker 1: Was there one moment at trial or one piece of
7:54
Speaker 1: evidence that you considered the most important?
8:00
Speaker 2: So listen, these cases are not built on any one
8:03
Speaker 2: witness or any one document, right, good anti trust cases
8:06
Speaker 2: are built on a body of evidence and a wide
8:09
Speaker 2: range of facts. But one of the things that I
8:11
Speaker 2: will point out that I think is significant and innovative
8:15
Speaker 2: is on the first day of trial, we put on
8:18
Speaker 2: the stand a behavioral scientist, and to my knowledge, this
8:21
Speaker 2: is the first time in the US government and an
8:23
Speaker 2: anti trust case has put on the standard behavioral scientists,
8:27
Speaker 2: somebody who is not talking necessarily about dollars and cents,
8:31
Speaker 2: but talking about how people in the real world react
8:36
Speaker 2: to real information, how people behave when they see something
8:39
Speaker 2: on a screen. This is a new important area of science.
8:43
Speaker 2: It's a rigorous area of study that focuses on the
8:46
Speaker 2: realities of how users function in a world where we
8:50
Speaker 2: have screens, and we have prompts, and we have stimuli
8:53
Speaker 2: that may or may not cause us to behave certain ways.
8:56
Speaker 2: And I think, you know, consumers behave often in idiosyncratic
8:59
Speaker 2: ways that might not necessarily be rational according to a
9:02
Speaker 2: standard economic model, but nonetheless it happens because people are
9:07
Speaker 2: again idiosyncratic, they're human. And I think that it was
9:10
Speaker 2: an important aspect of our case in USB Google, but
9:13
Speaker 2: it's an important aspect of our program going forward, which
9:16
Speaker 2: is to say that if we want to be relevant
9:18
Speaker 2: in a modern economy, we have to make sure that
9:20
Speaker 2: we are putting the expertise that we can bring to
9:23
Speaker 2: bear to understand not just how humans behave in theory,
9:27
Speaker 2: but how they.
9:28
Speaker 3: Behave in practice.
9:29
Speaker 1: So does that mean you'll be introducing that kind of
9:31
Speaker 1: evidence at other anti trust trials if.
9:34
Speaker 2: It's relevant, if it helps us in a court understand
9:37
Speaker 2: how markets function and how consumers actually behave in the wild.
9:41
Speaker 1: And absolutely well, thanks so much for joining me on
9:43
Speaker 1: the show. That's Jonathan Canter, Assistant Attorney General for the
9:47
Speaker 1: Department of Justice Antitrust Division, coming up next on the
9:51
Speaker 1: Bloomberg Law Show. The Eighth Circuit has blocked the Save program,
9:56
Speaker 1: a student loan repayment program that ties how much someone
9:59
Speaker 1: pays each month to their income, leaving eight million borrowers
10:04
Speaker 1: with more questions than answers. This is Bloomberg.
10:10
Speaker 2: Starting a day.
10:11
Speaker 1: We're canceling student debts for borrowers who are enrolled in
10:14
Speaker 1: the Save plan and have been paying student loans for
10:17
Speaker 1: as little as ten years. Back in February, President Joe
10:21
Speaker 1: Biden unveiled the Save program, a student loan repayment program
10:26
Speaker 1: that ties how much someone pays each month to their income.
10:30
Speaker 1: But the eight million borrowers currently enrolled in Save have
10:35
Speaker 1: endured up and down legal decisions on the program since June.
10:39
Speaker 1: That's because two lawsuits filed by Republican states, one in
10:43
Speaker 1: Kansas and the other in Missouri, claimed that the Biden
10:47
Speaker 1: administration didn't have authority from Congress to enact the save plan,
10:52
Speaker 1: and on Friday, a panel of Republican judges on the
10:56
Speaker 1: Eighth Circuit blocked the plan. The borrowers already enrolled in
11:00
Speaker 1: the plan don't have to worry at this point because
11:03
Speaker 1: the Education Department is placing all the borrowers in an
11:07
Speaker 1: interest free forbearance while the Biden administration continues to defend
11:11
Speaker 1: the plan in court. Joining me is constitutional law? Professor
11:15
Speaker 1: Harold Krant of the Chicago Kent College of Law. Why
11:19
Speaker 1: this continuing litigation over every Biden administration attempt to reduce
11:26
Speaker 1: student loan debt.
11:28
Speaker 3: I think the courts are the opinion that the Biden
11:31
Speaker 3: administration is trying to circumvent the Supreme Court's decision limiting
11:36
Speaker 3: the range of options that the administration has to either
11:40
Speaker 3: forgive debts or to in essence, to practically limit the
11:44
Speaker 3: amount of payment that needs to be made on student loans.
11:46
Speaker 3: And in the current case, which is technical but based
11:49
Speaker 3: upon this income contingent payment plan, the Biden administration altered
11:54
Speaker 3: threshold which payments can be lessened and they lessen the
11:59
Speaker 3: number of years which individuals would have to pay before
12:02
Speaker 3: the loans could be forgiven, and in essence, the amount
12:06
Speaker 3: that could be forgiven was very equivalent to the same
12:10
Speaker 3: amount that the Supreme Court struck down in the student
12:14
Speaker 3: loans case of last year. And so the courts there
12:17
Speaker 3: was a split right now in the circuits. But some
12:19
Speaker 3: of the courts are saying, wait, the Supreme Court told
12:22
Speaker 3: you can't do that, and you basically tried to do
12:25
Speaker 3: it in another way, But the tools you use aren't
12:28
Speaker 3: going to clearly allow you, the administration to accomplish that goal.
12:33
Speaker 3: It seems to me, and indeed clearly from reading at
12:36
Speaker 3: least the most recently circuit decision, that the courts want
12:40
Speaker 3: to limit the flexibility of the administration has in order
12:43
Speaker 3: to limit student loan debt.
12:46
Speaker 1: Just review for a moment for us the Supreme Court
12:49
Speaker 1: decision the parameters of it.
12:52
Speaker 3: So the Supreme Court rule that a statutory directive to
12:56
Speaker 3: the Education Secretary basically to postpone or to minimize debt
13:02
Speaker 3: was not equivalent to cancelation, and so the cancelation that
13:07
Speaker 3: the administration tried to do did not fall within the
13:10
Speaker 3: terms of the statute. The statute wasn't clear enough, and
13:14
Speaker 3: the Court then use the kind of so called major
13:17
Speaker 3: questions presumption to say that if we aren't clear that
13:20
Speaker 3: Congress intended that an agency to make such a dramatic change,
13:25
Speaker 3: we will read the statute narrowly. And so the Court said,
13:30
Speaker 3: no power to or give loans in that particular satutory scheme,
13:34
Speaker 3: which is slightly different than the one the administration tried
13:37
Speaker 3: to accomplish. Here, there wasn't income based repayment, but it
13:41
Speaker 3: was a contingent repayment system eliminitating the amounts that individuals
13:45
Speaker 3: would have to pay depending upon how much money they
13:48
Speaker 3: earned in the year, and their loans would be forgiven
13:51
Speaker 3: after a period of time. So the question that the
13:54
Speaker 3: Court had to and the Supreme Court likely to rule
13:58
Speaker 3: on this is whether this is really similar to the
14:02
Speaker 3: first case, even though there's slightly different types of plans
14:06
Speaker 3: that basically no administration has ever used this plan to
14:10
Speaker 3: such an extent. It has to an effect to forgive
14:13
Speaker 3: something like four hundred and fifty billion dollars, and that's
14:17
Speaker 3: not what Congress had mine by saying that the Secretary
14:21
Speaker 3: could decide the length of time and the terms upon
14:24
Speaker 3: which the contingent payments should be made to the administration.
14:28
Speaker 3: And yes, there was an open ended delegation. But the
14:31
Speaker 3: question is whether the Supreme Court, if it decides the case,
14:35
Speaker 3: will say that the open ended delegation has to be
14:38
Speaker 3: read in context and meaning like twenty to fifteen years
14:42
Speaker 3: or two hundred and twenty five percent of above the
14:45
Speaker 3: poverty line versus two hundred and fifty percent above the
14:48
Speaker 3: poverty line, and not make such a dramatic change. And
14:52
Speaker 3: what I think that this case reveals is a great
14:56
Speaker 3: administrative conundrum in that Congress often is flexibility to agencies
15:02
Speaker 3: because Congress doesn't know the details itself, and Congress doesn't
15:05
Speaker 3: know what kind of situation the agency will find itself in.
15:09
Speaker 3: And what's the court going to do then, with all
15:11
Speaker 3: of these open ended delegations, Well, piecemeal decide that agencies
15:16
Speaker 3: can't regulate under these open ended delegations when Congress itself
15:21
Speaker 3: hasn't been more clear. And that's the issue that's going
15:24
Speaker 3: to I think, cut across court term after court term,
15:28
Speaker 3: because we simply are in a situation we don't know
15:31
Speaker 3: when Congress is allowed to get away with that kind
15:34
Speaker 3: of open ended delegation. And when it can't.
15:36
Speaker 1: Just going back to the Supreme Court decision for a
15:38
Speaker 1: minute before we move forward, do you think that that
15:41
Speaker 1: was a decision where they knew what they wanted to
15:44
Speaker 1: accomplish and they just worked their way backwards to accomplish that,
15:48
Speaker 1: or do you think that was a fair reading of
15:50
Speaker 1: the statute because I believe that was a six to
15:53
Speaker 1: three decision right with the conservatives and the majority and
15:57
Speaker 1: the liberals and the minority.
15:58
Speaker 3: Yeah, it was. And I think that the Supreme Court
16:02
Speaker 3: read into this idea of deference to agencies a limitation
16:07
Speaker 3: called a major questions limitation, and that is suggesting that
16:10
Speaker 3: if the agency does something unexpected or it seems to
16:13
Speaker 3: exercise more power than was intended, that's a reason to
16:17
Speaker 3: read the delegation narrowly. It's a way, according to the Court,
16:22
Speaker 3: to preserve majoritarian rule and limit the power of administrative agencies.
16:27
Speaker 3: But fast forward, after the student loans decision, the Supreme
16:32
Speaker 3: Court held that this kind of Chevron difference or difference
16:35
Speaker 3: to agency's interpretation of statutes no longer exists as a
16:39
Speaker 3: special function. So the question that is raised by the
16:43
Speaker 3: current Eighth Circuit decision is should this so called major
16:48
Speaker 3: questions limitation Should that be applied to a statute even
16:54
Speaker 3: when there is no question about deference to the agency's interpretation,
16:58
Speaker 3: because now it's the court responsibility to interpret the statute.
17:02
Speaker 3: And so if the statute is open ended, shouldn't the
17:05
Speaker 3: Court read it in a fair way and make a
17:09
Speaker 3: determination that Congress intended a statue to be open ended
17:12
Speaker 3: and flexible, which would mean that they intended to give
17:15
Speaker 3: the agency the flexibility to do what the agency thinks
17:19
Speaker 3: it needs to do. So one of the open ended
17:22
Speaker 3: questions left over the Supreme Court's term this year is
17:26
Speaker 3: whether this so called major questions limitations on delegated authority,
17:31
Speaker 3: should that still be a operative principle given that Chubron
17:36
Speaker 3: deference has been jettisoned. And I think this case illustrates
17:40
Speaker 3: it well because technically you may have a similar type
17:45
Speaker 3: of interpretive canon to use understanding what Congress means want
17:50
Speaker 3: to give such broad delegations to the agencies. But it's
17:54
Speaker 3: not the major Questions doctor anymore, because that should have
17:56
Speaker 3: been thrown to the dustbin of history when the Court
17:59
Speaker 3: got rid of shock.
18:00
Speaker 1: This is extremely conservative court, a panel of three Republican
18:05
Speaker 1: appointed judges, not a surprise since the Circuit only has
18:09
Speaker 1: one Democratic appointee. Explain their reasoning here.
18:13
Speaker 3: Well, the first question was was there standing to challenge
18:16
Speaker 3: this new interpretation by the administration. I think the court
18:19
Speaker 3: correctly held that there was because the same kind of
18:22
Speaker 3: loan handler that had standing in the earlier Supreme Court
18:26
Speaker 3: case for Missouri was a plaintiff in this case as well.
18:30
Speaker 3: The theory is that if there's fewer loans to process,
18:34
Speaker 3: they will lose money. Not the best standing case, but
18:36
Speaker 3: the Supreme Court earlier said it meets the Article three threshold.
18:41
Speaker 3: And then the question is what about this is an
18:43
Speaker 3: injunction case, so what's the likelihood of success? And they're
18:47
Speaker 3: the court, because of the statutory interpretation issue that we raised,
18:51
Speaker 3: held that they didn't believe Congress intended in this Contingent
18:56
Speaker 3: Repayment Plan delegation to the Secretary of Education, that Congress
19:00
Speaker 3: didn't intend for the Secretary to adjust the program so
19:05
Speaker 3: dramatically as to result in four hundred and fifty billion
19:09
Speaker 3: dollars of forgiven loans. And so they said that it's
19:13
Speaker 3: at least a fair not for sure, but least that
19:15
Speaker 3: fair reading would be that Congress did not intend to
19:18
Speaker 3: delegate that much authoritiy agency. And then the third part
19:22
Speaker 3: of the decision is, well, what about the balance of hardships?
19:25
Speaker 3: And the court is mysterious as to the balance of hardships.
19:30
Speaker 3: It seems to say that there's no real hardship to
19:33
Speaker 3: the plaintiff from waiting till the Supreme Court takes the case.
19:38
Speaker 3: The only harm that I think really discern from reading
19:41
Speaker 3: the decision is to the Eighth Circuit itself. The Court
19:45
Speaker 3: said that because the administration is doing a run around
19:49
Speaker 3: its earlier opinion, that itself constituted a harm. That's not
19:54
Speaker 3: a harm to the plaintiff, that's a harm to the
19:57
Speaker 3: self respect of the court. And so that to me
20:00
Speaker 3: was a real head scratcher. At the end of the opinion.
20:03
Speaker 1: What kind of loan forgiveness plans are allowed under the
20:08
Speaker 1: Supreme Court decision? What kind are absolutely allowed?
20:12
Speaker 3: Any So, yeah, sure, the administration is continuing to apply
20:17
Speaker 3: both in this case, the income contingent re payment plan
20:21
Speaker 3: is continuing to apply in the prior case, the income
20:24
Speaker 3: based repayment plan. There was slightly slightly different plans and
20:29
Speaker 3: there's no problem with that. The question is how dramatically
20:33
Speaker 3: they can change the terms under which those student loan
20:37
Speaker 3: programs are administered so as to minimize the amount of
20:43
Speaker 3: and obviously the administration by tinkering with a number of
20:46
Speaker 3: years that someone has to pay on a contingent based program,
20:49
Speaker 3: or by changing at what level of income you want
20:54
Speaker 3: qualifies for these plans, it can make a huge impact
20:58
Speaker 3: upon how much repayment will be made across the board.
21:03
Speaker 3: And so the issue isn't whether the administration can implement
21:08
Speaker 3: the programs. The issues whether the administration can make such
21:13
Speaker 3: changes to the programs as will dramatically change the amount
21:17
Speaker 3: of student debt that needs.
21:19
Speaker 1: To be repaid. Coming up next on the Bloomberg Alaun Show,
21:22
Speaker 1: I'll continue this conversation with Professor Harold Krant to the
21:25
Speaker 1: Chicago Kent College of Law. There's a split in the circuits.
21:29
Speaker 1: Will the Supreme Court take this case? Student loan borrowers
21:35
Speaker 1: could get dizzy from all the sea sawing decisions by
21:39
Speaker 1: the courts. Just last Friday, a Biden administration debt relief
21:43
Speaker 1: plan that could cancel billions in student loans was halted
21:47
Speaker 1: by a federal appeals court in Missouri. The Eighth Circuit
21:51
Speaker 1: granted a Republican led state coalition's request for the court
21:55
Speaker 1: to temporarily block the program while the US Education Department
21:59
Speaker 1: appeals al lower court ruling against the plan. I've been
22:02
Speaker 1: talking to constitutional law professor Harold Krant of the Chicago
22:06
Speaker 1: Kent College of Law. Is this a conservative liberal issue
22:10
Speaker 1: or is this a question of Republican judges not wanting
22:15
Speaker 1: Biden's forgiveness plan to go through.
22:19
Speaker 3: I think the loan forgiveness programs really sort of reveals
22:22
Speaker 3: the sort of sea change we're having now about not
22:25
Speaker 3: trusting administrative agencies, because in these cases, the judges can
22:31
Speaker 3: see the impact of the Ministry of agency's actions so clearly.
22:37
Speaker 3: In the first case, the Supreme Court case, there was
22:39
Speaker 3: something like four hundred and fifty billion dollar estimate of
22:43
Speaker 3: the impact on the economy, and in this case, according
22:46
Speaker 3: to one estimate, the estimate was a four hundred and
22:49
Speaker 3: seventy five billion impact on the economy. And the sea
22:54
Speaker 3: change then, is that the judge are saying, why should
22:56
Speaker 3: agencies be making decisions with such an impact on the economy.
23:01
Speaker 3: Isn't that what Congress is for? And so they're finding
23:05
Speaker 3: ways to limit agency action when there's such a huge
23:09
Speaker 3: impact upon the economy and that stems from distrust of
23:13
Speaker 3: administrative agencies and theoretically from a greater insistence that Congresses
23:18
Speaker 3: do more than posture and actually make hard decisions and
23:22
Speaker 3: give clearer guidance to agencies.
23:24
Speaker 1: So two different sets of Republican states brought lawsuits against
23:30
Speaker 1: the safe Plan arguing that the Biden administration didn't have
23:33
Speaker 1: authority from Congress to enact it, one filed in Kansas
23:38
Speaker 1: and one filed in Missouri. The Eighth Circuit, which handles Missouri,
23:43
Speaker 1: put the injunction in place, but the tenth Circuit, which
23:46
Speaker 1: handles Kansas, did not put an injunction in place, so
23:50
Speaker 1: split in the circuits. Why bring these lawsuits in two
23:55
Speaker 1: different jurisdictions knowing that it could lead to conflicting decisions.
23:59
Speaker 3: No, I think that the states often tried to file
24:04
Speaker 3: broad based actions against the administration in different jurisdictions in
24:07
Speaker 3: the hope that they will get at least one jurisdiction
24:11
Speaker 3: go their way, knowing that if they have one, then
24:13
Speaker 3: there's likely to be at least they split in the circuits,
24:16
Speaker 3: which would then elevate the case to the Supreme Court.
24:19
Speaker 3: And they of course have good reason to believe that
24:22
Speaker 3: if the case goes to the Supreme Court, the Supreme
24:24
Speaker 3: Court will be friendly to their side of the case.
24:27
Speaker 3: So as a strategic matter, it makes a great deal
24:31
Speaker 3: of sense to me, and I would advise the Republican
24:33
Speaker 3: Attorney's General to do the same thing. Is not to
24:36
Speaker 3: bet on just one jurisdiction unless you're in the Eastern
24:38
Speaker 3: District of Texas the Western District detection storry, but instead
24:42
Speaker 3: to fly.
24:43
Speaker 1: The District of Texas it goes to the Fifth Circuit, right.
24:46
Speaker 3: Right, That's true to file in a variety of districts.
24:50
Speaker 3: I mean in this case they were somewhat limited, of course,
24:52
Speaker 3: because they had to find at least one plaintiff with
24:56
Speaker 3: conventional Article three standing. And that's why the mos every
25:00
Speaker 3: planeff was so critical in this particular case, but in
25:03
Speaker 3: other related cases. Again, as a strategy, it makes sense
25:06
Speaker 3: to a file and hope for the best, because if
25:10
Speaker 3: you get explored the circuits, then you have a much
25:12
Speaker 3: better chance of getting Supreme Court review.
25:15
Speaker 1: Do you have one circuit, the eighth Circuit, putting the
25:19
Speaker 1: plan on hold, then you have the tenth Circuit saying
25:22
Speaker 1: it could go forward. I mean, the federal government is
25:25
Speaker 1: just going to follow what the Eighth Circuit said, or
25:28
Speaker 1: why couldn't the federal government just say, well, the Tenth
25:30
Speaker 1: Circuit said, it's okay.
25:31
Speaker 3: If there are those issues. It has to do with
25:33
Speaker 3: the scope of the injunction that is placed. And in
25:37
Speaker 3: a circuit's context, the court issued a injunction that was
25:42
Speaker 3: quite broad, and so that really overlapped with the decision
25:47
Speaker 3: of the Tenth Circuit. So theoretically the Eighth Circuit can't,
25:51
Speaker 3: of course rebut what the Tenth Circuit has said, so
25:55
Speaker 3: that the administration could in fact apply different rules in
26:01
Speaker 3: different circuits. It doesn't like doing that because of the
26:05
Speaker 3: ideal of uniformity. Theoretically, it's possible in those kinds of situations.
26:10
Speaker 3: That's happened many times in the past that different regulatory
26:13
Speaker 3: programs are ministered differently in different circuits. In this case, however,
26:16
Speaker 3: the Education Secretary said that they'll put everything on hold
26:19
Speaker 3: pending for the review. So I think that's probably a
26:22
Speaker 3: rational response and that the administration will join in asking
26:27
Speaker 3: for my guests is joined in asking for a plennary
26:30
Speaker 3: review by the Supreme Court.
26:32
Speaker 1: Yeah, because student borrowers are just confused about all these
26:38
Speaker 1: different court decisions and there are all kinds of different
26:42
Speaker 1: loan forgiveness plans out there, and I'm sure it's mind
26:47
Speaker 1: boggling to try to figure out what's going on.
26:50
Speaker 3: Yeah, there are a guide to the perplexed, and there
26:53
Speaker 3: are certain kinds of sites which try to give help
26:57
Speaker 3: to people. But even to understand the difference between the
27:00
Speaker 3: back forgiveness program as opposed to a contingent income program
27:05
Speaker 3: as in this case, it can be somewhat daunting for
27:07
Speaker 3: the average student loan person to follow in there. So
27:12
Speaker 3: there are hotlines that have sprung up to give advice
27:15
Speaker 3: to students so they know which way to apply in
27:18
Speaker 3: order to either extend the amount of time they have
27:20
Speaker 3: to pay back or limit the amount of money that
27:23
Speaker 3: has to be paid back each term. I'm sure there's
27:25
Speaker 3: some people that get tripped up, but I think the
27:28
Speaker 3: administration and some public interstcruture are doing a great job
27:31
Speaker 3: and trying to help students understand their rights, particularly in
27:35
Speaker 3: light of these conflicting of polic court decisions.
27:38
Speaker 1: I know that it's daunting because I went on some
27:40
Speaker 1: of those websites today to try to see what was
27:43
Speaker 1: going on, and it's very confusing. I mean, it starts
27:47
Speaker 1: out with the safe program is on hold, but then
27:50
Speaker 1: talking about what you can do, so I feel sorry
27:54
Speaker 1: for anyone who's trying to find alternatives. So do you
27:58
Speaker 1: think that the Supreme Court would this split in the circuits,
28:02
Speaker 1: is going to almost have to take the case.
28:04
Speaker 3: Yeah, I think it extremely alctly that the Supreme Court
28:07
Speaker 3: will take up the circuit. There's a lot of money
28:09
Speaker 3: at to take. There's confusion, as you mentioned, and obviously
28:14
Speaker 3: there's a split in the circuits, and that's a great
28:17
Speaker 3: recipe for a CIRT grant.
28:20
Speaker 1: The Education Department is moving forward with a broader student
28:25
Speaker 1: loan forgiveness plan. It's going to send out emails about it.
28:30
Speaker 1: I mean, do you think it's time that they took
28:32
Speaker 1: a breath instead of going forward with these plans that
28:36
Speaker 1: seem to get stuck in the courts.
28:39
Speaker 3: I mean, obviously the Education departments dot asked for my advice,
28:43
Speaker 3: but I think a pause is probably in order to
28:47
Speaker 3: allow the court to give parameters and just give some
28:51
Speaker 3: guidance in the next decision. But on the other hand,
28:54
Speaker 3: the Congress has given the Education Department of a wide
28:58
Speaker 3: variety of tools in terms of what kind of programs
29:01
Speaker 3: exist and what kind of turns to impose on these
29:04
Speaker 3: different student loan programs, and with how choices then students
29:07
Speaker 3: should make in order to limit the amount that they
29:10
Speaker 3: have to pay back. And so the administration is trying
29:13
Speaker 3: to be aggressive in trying to help lift the burden
29:17
Speaker 3: of student debts upon so many people in our country.
29:19
Speaker 3: They're being aggressive. I mean, it's interesting how unaggressive they
29:22
Speaker 3: were at the beginning, right, and now they guess they've
29:25
Speaker 3: seen that they may only have six months left, they're
29:27
Speaker 3: being incredibly aggressive. Yeah, and what tends again, maybe I've
29:30
Speaker 3: missed something, But where is the irreparable harm here? The
29:34
Speaker 3: court doesn't even really talk about it. It's so weird, right,
29:37
Speaker 3: That's one of the standard things in any kind of
29:40
Speaker 3: injunction situation is irreparable harm, and they're just really, isn't
29:45
Speaker 3: any because you know, before a final judgment can come up,
29:49
Speaker 3: there'll be a delay, sure, but that delay isn't going
29:53
Speaker 3: to cause the student loan processor or not going to
29:57
Speaker 3: even cause the taxpayer any kind of a reparable harm.
30:00
Speaker 3: So it's a very I think politically motivated assessment of
30:06
Speaker 3: the standards of women in junction issue.
30:08
Speaker 1: Well, I don't even know. I don't even think the
30:10
Speaker 1: standing is solid.
30:12
Speaker 3: Well already held it.
30:14
Speaker 1: I know they did, but I mean they were reaching.
30:17
Speaker 1: So they won't have as many loans to process.
30:21
Speaker 3: Yeah, so, and they get paid for each loan that
30:23
Speaker 3: they process. That was the first decision.
30:25
Speaker 1: Well, we'll see what happens next. Hel Thanks so much.
30:28
Speaker 1: That's Professor Harold Krent of the Chicago Kent College of Law.
30:32
Speaker 1: And that's it for this edition of the Bloomberg Law Show.
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