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SCOTUS vs. Joe Biden
A total smackdown
The Supreme Court threw out the Biden administration’s plan to forgive student loans held by 40 million Americans, ending a $430 billion program the White House considers a crucial way to cement the president’s support among younger Americans.
The 6-3 decision by Chief Justice John Roberts said that while Education Secretary Miguel Cardona holds some power under federal law to alter the terms of student aid programs, the massive plan he approved last year vastly exceeded the authority Congress delegated to the executive branch.
The Heroes Act, which permits the secretary to modify the programs to respond to emergencies, doesn’t permit him “to rewrite that statute from the ground up,” Roberts wrote, joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
Writing in dissent for the court’s three liberals, Justice Elena Kagan said the majority had read into the law a restriction that wasn’t there.
The law’s text doesn’t expressly limit the secretary’s judgment about the waivers or modifications needed to deal with an emergency, she wrote. “That may have been a good idea, or it may have been a bad idea. Either way, it was what Congress said,” she wrote, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson.
Beyond its financial implications, the case brought to the fore vastly different views of executive power espoused by the White House and the Supreme Court.
President Biden has at times sought to take aggressive actions in response to economic, immigration and other crises as partisan divisions hobble Congress.
The court, with a conservative majority skeptical of federal regulatory power, has blocked several administration initiatives and limited agency authority to act on new situations that existing legislation might not have anticipated.
The Supreme Court sided with a Colorado web designer’s claim that the First Amendment entitles her to refuse commissions for same-sex wedding announcements, providing a victory for religious conservatives still smarting from the court’s 2015 ruling granting marriage equality to gay and lesbian couples.
Lorie Smith, an evangelical Christian who runs 303 Creative, a web-design company in Littleton, Colo., filed suit in 2016 to get a federal court order declaring her business exempt from state antidiscrimination law should any same-sex couple seek her services. A federal appeals court in Denver, like other federal and state courts confronting objectors to same-sex marriage, found no constitutional right to disregard state law requiring that businesses open to the public treat customers equally without regard to sexual orientation.
Writing for the court, Justice Neil Gorsuch said Smith’s First Amendment free-speech rights—in this case, the right to not express a view supportive of same-sex marriage—took priority over a Colorado law forbidding discrimination based on sexual orientation.
By the time the US Supreme Court agreed to hear the Harvard and UNC cases, “diversity” had long since escaped its original context to justify unjustifiable practices in college admissions. The concept of diversity was applied to every aspect of education, including the curriculum. It jumped in the late 1980s into corporate America. It also grew into the “diversity consulting” business. It was swallowed wholesale by the arts, churches, sports and even greeting card companies. “Diversity” became a watchword for cultural sensitivity in all contexts, though it always had something of a double life. To a mainly white audience, it offered absolution in the form of overcoming racial division. “Diversity is our strength,” et cetera. But to a mainly black audience, it meant gaining access to formerly segregated spaces while being able to maintain a separate identity. This conflict in expectations played out in campus after campus. My colleague Dion Pierre and I wrote a close account of it at the ground zero of racially preferential admissions, in our book, Neo-Segregation at Yale.
Eventually both the word and the concept began to wear out. When something becomes too common to confer distinction, it is time for an upgrade. Hence “diversity” became “diversity, equity and inclusion” (DEI) and the rhetoric of integration and judging people by the “content of their character” was retired completely, replaced by “anti-racism” and inexpungable white guilt.
What does any of this have to do with the Roberts court decision in Students For Fair Admissions, Inc. v. President and Fellows of Harvard College? More than I can say here. For one thing, I have not had time to fully read and digest the 237 pages of the decisions, the concurring opinions and the dissents. I know that didn’t stop President Biden from giving a ten-minute critique of the decision an hour or so after it was issued. He is plainly a faster reader than I, and someone who can cut to the heart of the matter. He later observed, “I think that some on the court are beginning to realize that their legitimacy is being questioned in ways that it hasn’t been questioned in the past.”
Doddering Toward History
In The Spectator, I write on Joe Biden’s interview with Nicolle Wallace:
MSNBC’s Nicolle Wallace conducted an interview with Joe Biden (if you can call it that) that came across more like twenty minutes of a middle-aged daughter trying to help dad remember where he is. It was a rarity for Joe — nearly all of his conversations with the media of any length these days are pre-taped, not live — and it did not end well. In fact, it was so awkward that the video posted by the network cuts off abruptly so as not to show Biden wandering off the set as if seeking a bowl of porridge and a nightcap.
At this stage in his obvious mental decline, Biden can only manage about fifteen minutes of unscripted remarks before he slips into broken sentences, impossible to diagram, that meander between fond personal memories and aw shucks “it ain’t your father’s Republican Party” bullet points hammered so deeply into his psyche that he leans on them in moments of confusion.
If Biden were capable of more awareness, he’d understand that many of those bullet points are directly at odds. He reiterates he’ll be a president for all Americans, then calls all Republicans extremists. He says, “remember when I said we could still do bipartisan things and they said we couldn’t do it? Well, we didn’t get a lot, but we got a lot of bipartisan things done.” He remarks, “Like I said, I’m going to be down there to congratulate him” with no apparent indication who he’s imagining he’s going to congratulate, or what for, or where, or when.
Keep in mind that Biden is still just eighty — he’ll be eighty-two next November. As of now, Americans are likely to see a slap fight between a seventy-eight-year-old who seems like he’s running out of gas, sorting through golf shirts and war plans and old copies of the New York Times where he’s circled things with a Sharpie, and an eighty-one-year-old who stumbles from one gaffe to another, and meanders around television sets like a gray ghost of Christmas past, and needs to be hooked up to an oxygen tank so regularly that it leaves indents on his face.
Other than that, things are going pretty well.
Merrick Garland’s Cheap Talk
The attorney general was insistent in a Friday press conference that Justice Department brass hadn’t interfered in the probe into Joe Biden’s son, and that Mr. Weiss was “given complete authority to make all decisions,” including “to prosecute any way in which he wanted to and in any district in which he wanted to.” He said Mr. Weiss had never asked him for special-counsel authority, even as he claimed the Delaware prosecutor has “in fact more authority” than that of a special counsel.
Mr. Garland’s statements are completely at odds with testimony from IRS whistleblower Gary Shapley. That investigator says prosecutors working for Mr. Weiss wanted to charge Hunter with felony tax offenses in the District of Columbia and California. But he says Mr. Weiss surprised him and others in an October 2022 meeting by saying he was “not the deciding official on whether charges are filed,” and explained that the Biden-appointed U.S. attorney for the capital, Matthew Graves, wouldn’t allow charges to proceed. Mr. Shapley said that Mr. Weiss “stated that he subsequently asked for special counsel authority from Main DOJ at that time and was denied that authority” and was “told to follow the process.”
Mr. Shapley documented this exchange in an email he sent to his supervisor—who was also at the meeting and who verified Mr. Shapley’s account of it in the email. Mr. Shapley says he later found out that Mr. Weiss had been blocked from pursuing charges in California by another Biden appointee, Martin Estrada. The New York Times this week confirmed the California episode—although it buried that confirmation deep in a story about these “competing accounts.”
The Times seemed more interested in fogging the air, suggesting the whole thing may come down to “miscommunication” or “clashing substantive judgments among agencies over how best to pursue a prosecution.” Expect more such obfuscation from Mr. Garland’s defenders and the Justice Department itself. But don’t be taken in. There are only two relevant questions here, both of which will have documented answers. First, is it true that the president’s appointed attorneys refused to bring charges against the president’s son in their districts, defying a team that had spent years building a case? Second, was Mr. Weiss ever given formal authority to bring those charges on his own?
The answer to the first question already looks to be yes, and it alone constitutes a scandal. If the team appointed to investigate Hunter wanted cases prosecuted in certain jurisdictions, and those cases failed to proceed on the say-so of Biden appointees, it destroys Mr. Garland’s claims that the case was insulated from politics. And no one will have to rely solely on Mr. Shapley’s word or emails, already partly backed by the Times reporting. His attorneys provided the names of others present at that October meeting, and they’ll testify. Assuming the U.S. attorneys did block the effort, there will be an extensive document trail: travel vouchers by those who presented the cases in Washington and California, documents from those presentations, emails about the decision. The department might try to block production of those documents from Congress, but federal inspectors general are now also on the case.
Items of Interest
“If trouble comes when you least expect it then maybe the thing to do is to always expect it.”
— Cormac McCarthy