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Clark Neily

Last Thursday, the Supreme Court struck down President Biden’s student loan forgiveness program, finding that it was not plausibly authorized by statute and that the State of Missouri had standing to challenge the program via a state‐​created loan‐​servicing entity that would lose tens of millions of dollars in fees if the program took effect. This post will explain why Cato filed its own, now‐​moot challenge to the loan forgiveness program, followed by some thoughts on the increasingly pernicious role of “avoidance doctrines” such as standing, ripeness, and mootness in public‐​policy litigation.

The great miltitary strategist Sun Tzu famously said that the acme of skill in war is to subdue the enemy without fighting. For government lawyers, the acme of skill is to shield unlawful policies from judicial review by persuading courts that there is some procedural bar against challenging them. Last week, the Supreme Court rebuffed the Biden administration’s attempt to employ that precise stratagem to forestall a judicial determination as to whether the president has the power to forgive nearly half‐​a‐​trillion dollars worth of student loans without express congressional authorization. Surprising no one, the Court’s answer to the substantive question was a resounding “no.” But constructing a legal challenge that would ensure the judiciary reached the merits of that question was a dicey proposition. Why? One word: Standing.

In brief, standing is a court‐​created rule that says only certain people can challenge a given policy in court. To have standing, the would‐​be plaintiff must have suffered a concrete injury that was caused by the policy at issue and can be fixed (or “redressed”) by the courts. Thus, for example, I do not have standing to challenge the Justice Department’s sweetheart plea deal with Hunter Biden, both because I’ve not been personally injured by it (mere outrage is insufficient) and because there’s really nothing the courts can do about DOJ’s propensity for coddling VIPs.

Like so many judge‐​made legal rules, however, standing is both amorphous and prone to abuse. It’s amorphous because it lacks clear doctrinal parameters and can be easily enlarged or constricted as a matter of judicial whim. And of course that makes it prone to abuse, since judges can simply declare that a given plaintiff either does or does not have standing depending on whether they do or don’t want to reach the merits of the case at hand. To be clear, not all standing inquiries represent such an exercise in procedural roulette, but an increasing number of them do—particularly as poliymakers become more conscious of their ability to defeat judicial review through strategic legerdemain.

Thus, the key question in the loan‐​forgiveness case was not so much the legality of the program itself, but instead whether the Biden administration and its lawyers could persuade the judiciary that the executive branch can expend nearly half‐​a‐​trillion dollars in unappropriated funds without causing a sufficiently concrete injury to confer standing on any individual or entity affected by that program. As we learned last Thursday, the answer is no. But boy, was it close.

Without delving too much deeper into federal standing doctrine, the basic problem here was that the Supreme Court has generally rejected the concept of “taxpayer standing”—that is, the idea that any given person who pays taxes can sue the government simply because it is (arguably) spending that revenue unlawfully. Accordingly, when President Biden announced his intent to forgive student loans without express congressional authorization, there was a scramble among people and groups who opposed that policy to identify a concrete and individualized theory of standing that might pass muster with a judiciary that tends to be more comfortable rubber‐​stamping challenged government programs than striking them down—especially when they involve things like the proper scope of federal power, economic regulations, property rights, or tax policy.

As noted, Missouri and a handful of other states led with the theory that a blanket student loan forgiveness policy would deprive them of fees generated by their respective loan‐​servicing entities. Another suit was filed by two college graduates from Texas who challenged the Department of Education’s failure to follow proper administrative procedures, which they said might have resulted in better debt‐​forgiveness terms for each of them.

At the time, it was unclear whether either of those standing arguments would prove viable, and additional complaints were filed by other groups, each asserting a different theory of standing. This included a lawsuit brought on Cato’s behalf by the New Civil Liberties Alliance, which alleged that Biden’s blanket loan forgiveness program would prejudice non‐​profit employers like Cato, for whom Congress had created a more targeted policy called the Public Service Loan Forgiveness Program that was designed to give non‐​profits a recruiting edge by providing loan‐​forgiveness to their employees after ten years. Whether legitimate or illegitimate from a policy perspective, the advantage conferred on charitable employers by that program would be eliminated by across‐​the‐​board debt forgiveness, which represents a cognizable injury that is redressable by the courts—et voila: standing.

As it turns out, the Supreme Court held unanimously that the two Texans lacked standing to challenge Biden’s loan forgivness program while ruling 6–3 that the states (or at least one of them, which is all that mattered) did have standing. Bottom line, it was a close call, and it was fortunate that Cato and others were waiting in the wings with their own unique—and potentially more persuasive—standing theories. But those other cases, including Cato’s, are now moot in light of the Court’s decision to find standing in the states’ challenge and strike down Biden’s loan forgiveness scheme.

In retrospect, the half‐​dozen lawsuits filed against that program may seem like overkill. But as a colleague at my first law firm used to say of a judge in one of his cases, “You never know on any given day what’s going to get his attention: Will it be the red rubber ball, the shiny metal object, or the baby rattle? So you bring ‘em all.” And so it is when seeking to overcome the slew of avoidance doctrines routinely deployed in public‐​policy litigation by government lawyers like ink from a fleeing squid. If standing, ripeness, and mootness can fairly be compared to a game of craps—and they can—then it makes sense for both sides to get as many chips on the table as possible.

If that sounds like hyperbole, consider the following examples, which represent merely the barest hint of the jaw‐​dropping bad faith with which avoidance doctrines are asserted by government lawyers and employed by judges to make potentially troublesome cases go away:

Cato v. SEC (DC Cir. 2022). This case involved a First Amendment challenge to the SEC’s policy of imposing a lifetime gag order on defendants in civil enforcement actions as a condition of settlement. Cato sued on behalf of an author who wrote a memoir about being caught up in that process that it was unlawful for him to publish due to the gag order. As a would‐​be publisher of that work, Cato asserted the well‐​established theory of third‐​party standing, but the DC Circuit held that the “redressability” requirement for standing was not met on the premise that all of the challenged gag orders had been incorporated into judicially enforceable consent decress around the country that judges in DC were powerless to disturb. Besides being incorrect on the law, that holding was based on a demonstrably false factual premise: Contrary to the DC Circuit’s completely baseless assertion—that was supported nowhere in the pleadings or the record because it was false—all gag orders (including the very one at issue in this case) had not been incorporated into judicially enforceable consent decrees—a fact that Cato pointed out repeatedly throughout the litigation and again in its petition for rehearing, which the DC Circuit ignored.
Parker v. Heller (DC Cir. 2007). Another example of standing gamesmanship from the DC Circuit arose in the Second Amendment challenge to the District of Columbia’s gun laws brought on behalf of six DC residents by me, former Cato board chair Bob Levy, and Alan Gura. In blatant and acknowledged disregard for Supreme Court precedent, the DC Circuit invoked its special law of standing for guns and held that five of the six plaintiffs lacked standing because they had not yet violated the law and received a specific threat of prosecution—actions that are never required in any other setting to establish standing. Only Dick Heller was ultimately found to have standing because he had made an entirely futile attempt to register a handgun in DC and was denied—an act that the DC Circuit risibly (but correctly, as a matter of circuit precedent) held supplied an alternative basis for standing.
Alvarez v. Smith (2009) and NY State Rifle & Pistol Ass’n v. City of New York (2020). These are both examples of “strategic case mooting,” a common practice whereby government lawyers will vigorously defend an unconstitutional policy in the lower courts and then moot the case if it looks like the challengers might win on appeal and thereby establish favorable precedent. Alvarez was a challenge to Illinois’ unconstitutional civil forfeiture procedure, which the state defended below but then mooted when the case got to the Supreme Court by returning the plaintiffs’ unlawfully seized vehicles. NY State Rifle & Pistol involved a challenge to a New York City ordinance that severly constrained people’s ability to move a lawfully registered pistol from one location to another (e.g., from an apartment in Manhattan to a cabin in upstate New York), which the City defended vigorously in the lower courts but then repealed immediately after the Supreme Court granted certiorari, in a transparent (and ultimately successful) effort to derail the case. So much for all the assertions the government made in the lower courts about the supposed importance of the law, the momentous safety issues involved, etc.—all of which turned out to be cynical, disingenuous prattling.

As suggested above, the list could go on almost indefinitely. But the takeaway is this: When it comes to the willingness of government lawyers and judges (a wildly disprportionate number of whom were themselves courtroom advocates for government before taking the bench) to employ standing, ripeness, mootness, and other “avoidance doctrines” in order to derail challenges to plausible allegations of unlawful governemnt action, there is no bottom.

And that’s why Cato joined the fray over President Biden’s unlawful student loan forgiveness scheme—not because there was every any doubt about the merits; but instead to help make it as difficult as possible for the judiciary to sweep that unlawful power grab under the rug with the handy‐​dandy standing‐​broom. 

Jeffrey Miron

This article appeared on SubStack on July 3, 2023.

Last week Maine legalized the sale—but not the purchase—of prostitution services, becoming the first state to enact such a law. (Nevada allows legal prostitution in counties with fewer than 700,000 residents; Rhode Island had no law against indoor prostitution between 1980 and 2009.)

Maine’s policy is a step in the right direction, but as with laws that legalize drug possession but not production or sale, removing criminal penalties from only one side of the market is a minor step that can be worse than no legalization at all.

Under partial legalization, the prostitution market remains underground, with all the attendant negatives: violence, corruption, and poor “quality control,” meaning greater transmission of sexually transmitted diseases.

De‐​criminalizing only the supply side improves the well‐​being of prostitutes. The risk, however, is that when other evils of underground markets continue, some observers assert that legalization has failed. This happens repeatedly in debates over decriminalized drug markets.

The ideal policy is therefore full legalization of prostitution that involves consenting adults. Child prostitution and trafficking are different stories, since both involve coercion (presumptively for children, as with statutory rape laws, or explicitly for children and adults when traffickers use deception and force). The most effective way to eliminate these components of the market is full legalization of adult, voluntary transactions.

David Boaz

Here we go again. Another “obituary” for libertarianism. While Salon Magazine declares that we all live in a “libertarian dystopia,” and a new brand of big‐​government conservatives promise to free the Republican party and American government from their libertarian captivity, Barton Swaim declares in the Wall Street Journal that a new book “works as an obituary” for libertarianism. That’s not a characterization that I think the authors—Matt Zwolinski and John Tomasi—would accept of their book, The Individualists: Radicals, Reactionaries, and the Struggle for the Soul of Libertarianism.

Swaim notes that the book surveys many different kinds of self‐​styled libertarians over the past two centuries, and that the authors lay out six “markers” that libertarians share: property rights, individualism, free markets, skepticism of authority, negative liberties, and a belief that people are best left to order themselves spontaneously. Not a bad list, significantly overlapping with the list of seven key libertarian ideas that I laid out in the first chapter of my own book, The Libertarian Mind.

He goes on to argue, following the authors, “In the 21st century, the movement in the U.S. has consisted in an assortment of competing, often disputatious intellectual cadres: anarchists, anarcho‐​capitalists, paleo‐​libertarians (right‐​wing), ‘liberaltarians’ (left‐​wing) and many others.” Somehow he leaves out actual libertarians, such as those who populate the Cato Institute, Reason magazine, the Objectivist world, and much of the Libertarian Party. Indeed, a few lines later he cites the “diversity” of “the priestess of capitalism Ayn Rand, the politician Rand Paul and the billionaire philanthropist Charles Koch”—none of whom would fall into any of the esoteric categories that he suggests make up modern libertarianism and in fact belong to actual libertarianism or its penumbras.

The whole review is ahistorical. Swaim never mentions classical liberalism, the revolutionary movement that challenged monarchs, autocrats, mercantilism, caste society, and established churches beginning in the 18th century. Liberalism soon swept the United States and Western Europe and ushered in what economic historian Deirdre McCloskey calls the “Great Enrichment,” the unprecedented rise in living standards that has made us moderns some 3,000 percent richer than our ancestors of 1800. The ideas of the classical liberals, including John Locke, Adam Smith, and the American Founders, are those that animate modern libertarianism: equal rights, constitutional government, free markets, tolerance, the rule of law. Zwolinski and Tomasi say that “what sets libertarians apart is the absolutism and systematicity” with which we advocate those ideas. Well, yes, after 200 years of historical observation and philosophical and economic debate, many of us do believe that a firmer adherence to liberal/​libertarian ideas would serve society well. We observe that the closer a society comes to consistent tolerance, free markets, and the rule of law, the more it will achieve widespread peace, prosperity, and freedom.

Swaim insists that libertarians do not engage “with ultimate questions—questions about the good life, morality, religious meaning, human purpose and so on.” He’s wrong about that. Adam Smith wrote The Theory of Moral Sentiments. F. A. Hayek stressed the importance of morals and tradition. Ayn Rand set out a fairly strict code of personal ethics. Thomas Szasz’s work challenged the reductionists and behaviorists with a commitment to the old ideas of good and bad, right and wrong, and responsibility for one’s choices. Charles Murray emphasizes the value and indeed the necessity of community and responsibility. Libertarian philosophers of virtue ethics find the case for limited government to be based on the search for the good life. Swaim would be on more solid ground to say that libertarianism does not presume to tell individuals what to believe and how to live. Separation of church and state and all that. As I wrote in a letter to the Journal (not yet published), Swaim refers to the “studiously amoral philosophy of libertarianism.” A popular summary of libertarianism, “don’t hit other people, don’t take their stuff, and keep your promises,” is just the basic morality that allows human beings to live together in peace.

As for his claim that libertarianism is dead, that this book is an obituary, I refer Swaim again to all the people who complain that we’re living in some sort of libertarian world. Libertarians often feel depressed; they believe the world is on “the road to serfdom.” But in fact the world is far freer in this century than ever before in history. Free markets and free trade, an end to slavery and caste societies, representative government, and the rule of law now govern the Western world and much of the rest. Most of the Cato Institute’s website comprises complaints about the malfeasance of the U.S. government. But in the bigger picture, libertarians have had much success. In the roughly 50 years since I started thinking about politics, one could point to such successes as:

the end of conscription in the United States
social, economic, and political equality for women
dramatically lower marginal tax rates
freer trade
deregulation of major industries such as airlines, trucking, communication, and finance
the almost total demise of communism
and the consequent discrediting of socialism and central planning
the reorientation of antitrust policy to a consumer welfare standard
expanded First Amendment protections
expanded Second Amendment protections
the progress of gay rights and gay marriage
growing opportunities for school choice
a slow erosion of the war on drugs

I could go on. None of these are total victories. No ideology achieves all of its sweeping vision, at least not without a military conquest of the government and the ability to rule by decree—and those experiments are nothing to emulate. In various parts of the world bad ideas are back—socialism, protectionism, ethnic nationalism, anti‐​Semitism, even industrial policy. The libertarian challenge is to join with other liberals—Reaganite conservatives, free‐​speech liberals, people who are “fiscally conservative and socially liberal”—to push back against these bad resurgent ideas. But this record of accomplishment is no obituary.

Thomas A. Berry

Today the Supreme Court rejected President Biden’s massive debt‐​forgiveness plan, holding that it was not authorized by the statute the administration invoked. The decision is a welcome reaffirmation of the principle that when the president wants to enact a policy, he must convince Congress to do so, rather than hunt for old statutory language that cannot bear the weight of a massive policy change.

To understand the government’s argument, it is necessary to understand the law that the government invoked. In 2003, Congress enacted the HEROES Act (“HEROES” stands for Higher Education Relief Opportunities for Students). As implied by its name and timing, the law was enacted as a reaction to the Iraq War. Several of the floor statements from members of Congress reveal that a primary motivation for the Act was to ensure that military members could have their student loan payments deferred while serving their country.

But last year, the Biden Administration attempted to use the HEROES Act to achieve a policy goal that was far different, and far more sweeping, than anything the law had been used for in the past. The administration announced that after a nearly three‐​year pause on federal student loan payments, certain borrowers meeting an income cutoff would receive $10,000 to $20,000 in debt forgiveness on their principal student loan balance. While the total cost to taxpayers from this program was uncertain, the Congressional Budget Office estimated it to be around $400 billion.

To enact this massive debt‐​forgiveness plan, the administration relied on a section of the HEROES Act that gives the Secretary of Education authority, in certain circumstances, to “waive or modify” provisions of law applicable to federal student loans. The Secretary may do so “as may be necessary to ensure that…recipients of student financial assistance” who are affected by war or national emergency “are not placed in a worse position financially in relation to that financial assistance because of their status as affected individuals.”

The administration argued that this section grants the Secretary the authority to forgive billions of dollars in student loans across millions of borrowers. It argued that some borrowers will default on their student loans once payments finally resume after the multi‐​year pandemic pause. And it further argued that forgiving some (or all) of millions of borrowers’ principal balances would lower their monthly payments and thus lower their overall risk of default, ensuring that their risk of default is no worse than it was before the pandemic.

But the Court today rejected that statutory argument. In an opinion by Chief Justice John Roberts, writing for six justices, the Court held that the administration did not “modify” or “waive” provisions of federal law at all—it instead wrote an entirely new law. The Court noted that the administration’s plan “specifies particular sums to be forgiven and income‐​based eligibility requirements. The addition of these new and substantially different provisions cannot be said to be a ‘waiver’ of the old in any meaningful sense.”

The Court thus held that the authority to “waive or modify” statutory provisions is limited to eliminating or modestly altering various distinct requirements. It is not an authority to “draft a new section of the Education Act from scratch by ‘waiving’ provisions root and branch and then filling the empty space with radically new text.” Although another section of the HEROES Act mentions that there may sometimes be “terms and conditions to be applied in lieu of” waived or modified statutory text, the Court held that “the Secretary’s ability to add new terms ‘in lieu of’ the old is limited to his authority to ‘modify’ existing law.” And that authority in turn is limited to modest changes, in line with the dictionary definition of “modify” as “to change moderately or in minor fashion.”

Although the Court rested its decision on an analysis of the plain text “waive or modify” alone, the Court also noted that if the interpretive question were at all close, the Major Questions Doctrine would resolve it the same way. The Court stressed that under “the Government’s reading of the HEROES Act, the Secretary would enjoy virtually unlimited power to rewrite the Education Act.” Under the Major Questions Doctrine, congressional authorization for such power is not lightly assumed. The Court held that the statute lacks the clear statement necessary to clear that hurdle.

In a concurrence, Justice Amy Coney Barrett explained her view that the Major Questions Doctrine is not in tension with normal principles of textualism, but rather in harmony with the principle that text must be interpreted in proper context. Justice Barrett offered several examples from everyday life of how permission is interpreted based on context, such as how “an instruction to ‘pick up dessert’ is not permission to buy a four‐​tier wedding cake.” Cato’s amicus brief began with several similar examples making the same point: statutes are directives made by elected representatives on behalf of the people that must be interpreted faithfully and in context, not self‐​servingly.

In dissent, Justice Elena Kagan wrote for three justices and argued that the Court should not have even reached the merits. The majority found that Missouri could sue because the debt‐​forgiveness program injured the loan servicing corporation MOHELA, an “instrumentality” of the state of Missouri created by state law. But the dissent argued that since MOHELA’s finances are separate from the state’s finances and since MOHELA has the authority to sue on its own behalf, the state could not pick up MOHELA’s mantle as a hook to obtain standing.

Although Justice Kagan would not have reached the merits, she also made clear that she disagreed with the majority on the merits. Justice Kagan stressed that the HEROES Act is only triggered during emergencies, which places limits on executive authority even if the term “waive or modify” is read broadly. But if and when an emergency occurs, Justice Kagan argued that Congress expected the executive branch to take actions in proportion to the emergency. She argued that the only reason the HEROES Act had never before been used for such a consequential program is because since 2003, the country had never faced as serious an emergency as the COVID-19 Pandemic.

Based on the Court’s reasoning, it seems clear that there is now no avenue for this or a future administration to use the HEROES Act to enact a loan‐​forgiveness program, since any such program must involve not just waiving and modifying statutory provisions but also establishing new guidelines for eligibility and the amount forgiven. Whether the Biden Administration will attempt to use a different statute entirely to enact a loan‐​forgiveness program, such as the Higher Education Act, remains to be seen.

Colleen Hroncich

LeDonna Griffin spent nearly 30 years in Omaha public schools as a teacher and administrator. So she’s seen it all—the good, the bad, and the ugly. She knew the challenges in the system, and she was pretty sure she could help families create better options for their kids.

“One of the powerful things I often saw was that children were in their safest place—I mean emotionally, physically, ability to learn new information—in the home,” says LeDonna. “With COVID happening and parents feeling very flustered in marginalized communities and looking for alternatives, Leaders to Legends came into existence out of a need. It was a need first. And then it all naturally took place.”

Leaders to Legends started out as a consulting company assisting families with various education issues. The homeschool co‐​op came about from parents who were frustrated and told LeDonna “I can no longer have my child experiencing a lack of success.” She started with one family asking for homeschool support and it grew from there. “We began in the public library at no fee and started to meet with multiple families. Within three months’ time, we outgrew the library and are now housed in a building that we call the Parent Resource Center,” she recalls.

The co‐​op currently meets three days a week, Tuesday through Thursday, year round. The families have a lot of control over the co-op—they vote on which curriculum to follow in each subject as well as different aspects of how the co‐​op is run. The school day often starts with affirmations, where they talk about why they attend Leaders to Legends—to grow to be their best self and make the world a better place. “Our whole model is based around ‘how can I make the world a better place?’” LeDonna explains. “We have a whole mission and vision of building a healthy community that goes out and builds other healthy communities. So it just becomes a natural thing and doesn’t take work—it’s just ‘this is who we are.’ And that is the goal of Leaders to Legends.”

The co‐​op also covers traditional academic subjects. For history, they typically use some type of unit study. “We just completed a George Washington Carver unit study,” LeDonna says. “And then we had an open house where parents were invited, and they explained to the parents everything they learned—although parents are learning right along with them and doing some of the curriculum at home. It was a great way for them to practice public speaking.” Each day there’s a different special class, too: martial arts is on Tuesday, Wednesday is music class, and sewing is on Thursday. For music class, the students got to pick which instruments they’re learning—half chose piano and half chose drums.

In this past school year, there were seven families with 17 children participating. LeDonna is hosting homeschool information sessions over the summer and has had quite a bit of interest. She expects to have 15 to 20 families enrolled by August. “The tides are definitely turning where parents are saying my child deserves a quality education and this is how I’m going to get them there,” she says.

When asked what advice she would have for anyone who is considering starting a homeschool co‐​op, LeDonna doesn’t hesitate. “The nature of homeschool itself is parent driven, right? My advice would be to allow the parents to drive this thing. Parents have a lot to say; it’s unfortunate that not often enough are they asked. Coming from the public school sector, not often enough are they asked. If they’re given that space, you’d be amazed what they can do and put together and invest in providing a quality education for their child.”

Walter Olson

The Supreme Court’s decision today in 303 Creative, LLC, v. Elenis correctly applies First Amendment law to vindicate one of the most important dimensions of human liberty: the right not to speak. The Court reviewed a Colorado law that would compel Lorie Smith to create websites celebrating weddings of which she does not approve. The two sides stipulated that custom web design is an expressive service, and the Tenth Circuit agreed, even in ruling against her, that the law “compels [her] speech,” going on to declare that the law nonetheless passes the exacting strict scrutiny test. But as the Court confirmed today, it doesn’t. You may disagree with Lorie Smith’s views—I do—but we should applaud the Court today in making clear, to quote Justice Gorsuch’s majority opinion, that Colorado cannot compel her “to create speech she does not believe.”

Had Smith lost, the Court would have implicitly approved a string of even more obvious rights violations. From the majority opinion (citations omittted):

Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty. The government could require “an unwilling Muslim movie director to make a film with a Zionist message,” or “an atheist muralist to accept a commission celebrating Evangelical zeal,” so long as they would make films or murals for other members of the public with different messages. Equally, the government could force a male website designer married to another man to design websites for an organization that advocates against same‐​sex marriage. Countless other creative professionals, too, could be forced to choose between remaining silent, producing speech that violates their beliefs, or speaking their minds and incurring sanctions for doing so. As our precedents recognize, the First Amendment tolerates none of that.

The Court cited earlier, related cases such as Hurley (Boston Irish parade as expressive association) and Dale (Boy Scouts as expressive association). And it makes the vital point that accepting compensation for an expressive service does not destroy First Amendment rights—if not, most publishing and art would be unprotected.

Note carefully that the Court recognized a First Amendment right to decline to participate only for expressive services, i.e., hired creation of speech, art, music, etc. Ordinary businesses get no such right. Some careless headline writers are already construing the decision as creating a general conscience discrimination exemption for all lines of business, which is plainly false.

Some are also imagining that any old business can escape a law like Colorado’s by asserting that it too is artistic or expressive. In practice, judges will proceed to examine such claims by one or another business and if experience is any indication they will often reject them, even for occupations in an arguably gray area such as photographers.

It is disappointing that three Justices who in other contexts have often taken robust positions in favor of free speech saw fit to abandon that cause here. Justice Sonia Sotomayor’s dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson, spends much of its length on a paean to public accommodations laws that in no way contradicts the contentions of the majority opinion or of any parties. Mysteriously, it also floats a theory that only conduct, as opposed to speech, was at issue here, even though the state of Colorado had stipulated that Smith intended to engage in expressive speech (and had a reasonable apprehension that the law would be enforced against her).

The dissent also attempts to make much of the statute’s communication provision, governing whether accommodation owners can express a public intent to discriminate, even though Colorado itself acknowledged that the provision stands or falls with the principal part of the statute and thus made little use of the point. (Not that such communications provisions are free from First Amendment dangers themselves.) The dissent also attempts to hypothesize some way in which scriptwriters, visual artists, and so forth might escape the law’s compulsion by not “holding out” their services. This can hardly stand when Colorado itself forthrightly asserts that its law covers any creator who accepts any commissions from the public. Finally, and most confusingly, the dissent asserts that if the law is upheld a creator “remains free under state law to decide what messages to include or not to include.” Gorsuch’s response is devastating: “if that is true, what are we even debating?”

The majority opinion closes on another correct note, that of pluralism as a dimension of liberty. “Tolerance, not coercion, is our Nation’s answer. The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands.”

Thomas A. Berry and Neal McCluskey

Today the Supreme Court issued a decision striking down President Biden’s unprecedented student‐​loan forgiveness program.

Statement from Research Fellow in Constitutional Studies Thomas Berry:

“The Court’s decision today is a victory for the separation of powers and the rule of law. The Court correctly held that the power to ‘waive or modify’ a provision of law is not a power to draft an entirely new law. The Biden Administration attempted to use the ‘waive or modify’ authority in the HEROES Act to create a new $430 billion debt‐​cancellation program, but creating a program of such breadth and scope is a job for Congress, not the executive branch. The Court correctly held that when Congress gave the executive branch the power to ‘waive or modify’ certain provisions of law, it did not grant the power to make basic and fundamental changes that transform federal student‐​loan policy. The Framers designed our system so that such fundamental questions would be debated and decided in Congress, and that is where such decisions must be made.”

Statement from Director of the Center for Educational Freedom Neal McCluskey:

“This is great news for future students and taxpayers. For future students, because allowing sweeping, presidentially decreed student debt cancellation would have signaled to all future borrowers to take on more debt than they otherwise would have—much will just be cancelled. And that would enable colleges to raise tuition at even faster rates. It’s great news for taxpayers because much debt that was supposed to be repaid to the federal government actually will be. And remember, the average person with a bachelor’s degree will make roughly $1 million more over their lifetime than the average person with just a high school diploma. Graduate degree holders—who hold a disproportionate amount of student debt—will earn even more. Cancellation would have largely helped economic winners.” 

Vanessa Brown Calder

“Housing First” homeless policy is drawing new critical attention. A NYTimes article reports the predominant homeless policy philosophy is drawing criticism from Republican policymakers, conservative think tanks, as well as groups (like programs that require sobriety) that have been denied funding by the no‐​strings‐​attached permanent housing philosophy.

Meanwhile, a new Politico article details how red and blue state policymakers are desperate to avoid becoming another San Francisco, “with rents and home prices that are unaffordable for many residents and intractable waves of homelessness” and so are proposing or adopting zoning reforms to increase supply and reduce rents.

It is a good thing that Housing First is receiving a closer look by researchers and policymakers, because Housing First has sailed along for the last 20 years or so with minimal scrutiny. As we detail in a recent Housing First study, Housing First locations like California and Utah have been unsuccessful in reducing homeless counts under the policy. On the contrary, chronic homelessness in these states has grown substantially (93 percent and 95 percent) since policy adoption.

Moreover, the most recent reporting indicates that Housing First continues to fail at reducing homelessness in these places. Yesterday, a NYTimes article reported that the homeless population in Los Angeles had grown another 9 percent compared with a year ago, and a new report from Utah’s Department of Workforce Services found that chronic homelessness nearly doubled since 2019.

Comprehensive regulatory reform to increase housing supply is an important part of the answer to homelessness. But although many policymakers are considering pro‐​housing, there is a long way to go. The Washington Post reports that “many ‘progressive cities’ have cracked down on unsheltered homeless adults…without ‘addressing structural issues, like lack of housing.’” Some policymakers, like Colorado Governor Polis, have proposed a variety of excellent regulatory reforms, so far without successful adoption.

Lack of affordable, available housing is an important factor driving homelessness. Though Housing First prioritizes permanent housing subsidies for the homeless, it doesn’t prioritize the policy reforms needed to keep housing accessible and affordable so that people stay in their homes to begin with. From this perspective, “Housing First” is a misnomer and policymakers would do well to rethink it.

Anastasia P. Boden

Today was a watershed moment in Fourteenth Amendment jurisprudence. For all intents and purposes: racial preferences in higher education are no longer allowed. Over the course of 237 pages, the nine Supreme Court justices traded barbs over affirmative action, with Chief Justice John Roberts writing the majority opinion. But Justice Thomas’s concurrence was the star.

As expected, the majority opinion in Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina was written by Chief Justice Roberts, who has long authored vigorous decisions defending race‐​neutrality in government policymaking. He coined the (depending on who you ask) much lauded or much mocked phrase, “the best way to get rid of discrimination on the basis of race is to get rid of discrimination on the basis of race.” He included a similar statement in this case, remarking that “Eliminating racial discrimination means eliminating all of it.”

In typical Justice Roberts fashion, the Chief never explicitly overruled Regents of the University of California v. Bakke or Grutter v. Bollinger, the two primary Supreme Court cases permitting race‐​based college admissions for the purpose of “obtaining the benefits that flow from a diverse student body.” Instead, he concluded that the challenged admissions programs failed to satisfy those opinion’s safeguards. For instance, they amounted to quotas, relied on stereotyping, penalized some students based on race, and had no ending point in sight. Though Chief Justice Roberts never explicitly said so, the implication is that the diversity rationale is no longer permissible, since preferences will always act as a negative for some students (after all, admissions is a zero‐​sum game) and the diversity rationale is inherently stereotypical (because it assumes that students bring something to the table by virtue of their race alone).

Justice Thomas’s individualist concurrence, by contrast, was a strident show‐​stopper that beautifully defended the principles of equality before the law and individualism. His opinion began with a lengthy history of the Fourteenth Amendment and concluded with a whopper of a line accusing Justice Jackson of engaging in racial determinism.

The concurrence covers a lot of ground beginning with an Originalist analysis of the original public meaning of the Equal Protection Clause. Though the dissenting justices argue that the Clause does not require race‐​neutrality, Justice Thomas persuasively demonstrates that the Clause was passed to forbid “all legal distinctions based on race or color,” including purportedly benign ones.

He also wrote at length about the inherent arbitrariness of racial classifications (covered in David Bernstein’s new book, Classified), mismatch theory (which posits that affirmative action perpetuates stereotypes by placing in classes where they are “less likely to succeed academically relative to their peers”), and the pernicious effect race‐​based admissions has had on Asian students, who are placed at a significant disadvantage by Harvard’s and UNC’s preference system. But he reserves the most powerful language for rebutting Justice Jackson’s assertion that racial preferences can be justified as a remedy for societal discrimination.

Justice Thomas begins his rebuttal by noting that there’s a difference between genuine remedial measures for racial discrimination (which are permissible under the Equal Protection Clause) and racial balancing for its own sake. To prevent the former from becoming the latter, proponents of government sponsored racial classifications must demonstrate a traceable link to government perpetuated discrimination. Justice Jackson has no such evidence and instead relies mainly on statistical disparities. Or, as Justice Thomas puts it:

As she sees things, we are all inexorably trapped in a fundamentally racist society, with the original sin of slavery and the historical subjugation of black Americans still determining our lives today. The panacea, she counsels, is to unquestioningly accede to the view of elite experts and reallocate society’s riches by racial means as necessary to “level the playing field,” all as judged by racial metrics. I strongly disagree.

As Justice Thomas notes, not all disparities can be ascribed to race, let alone discrimination. Disparities can arise from socio‐​economic status, geography, and myriad other factors. And while Justice Jackson focuses on group outcomes, Justice Thomas focuses on individuals. Even where disparities exist, they don’t exist for everyone in the group. But “[e]ven if some whites have a lower household net worth than some blacks,” Justice Thomas says, “what matters to Justice Jackson is that the average white household has more wealth than the average black household.” He continues:

This lore is not and has never been true. Even in the segregated South where I grew up, individuals were not the sum of their skin color. Then as now, not all disparities are based on race; not all people are racist; and not all differences between individuals are ascribable to race. Put simply, “the fate of abstract categories of wealth statistics is not the same as the fate of a given set of flesh‐​and‐​blood human beings.” T. Sowell, Wealth, Poverty and Politics 333 (2016). Worse still, Justice Jackson uses her broad observations about statistical relationships between race and select measures of health, wealth, and well‐​being to label all blacks as victims. Her desire to do so is unfathomable to me. I cannot deny the great accomplishments of black Americans, including those who succeeded despite long odds.

To the extent individual Black Americans have fewer means, or poorer health, or any of the disparities Justice Jackson describes, universities can take those factors into account. What it can’t do, says Justice Thomas, “is use the applicant’s skin color as a heuristic, assuming that because the applicant checks the box for ‘black’ he therefore conforms to the university’s monolithic and reductionist view of an abstract, average black person.” In other words, individuals are more than the skin color they are born into.

He uses as an example Justice Jackson’s hypothetical regarding John and James, two applicants competing for admission to UNC. John is a white, seventh‐​generation legacy at the school and James is black applicant would be the first member of his family to go to UNC. Putting aside that the university could take into account James’s first‐​generation status rather than his race, Justice Thomas asks, “why is it that John should be judged based on the actions of his great great‐​great‐​grandparents? And what would Justice Jackson say to John when deeming him not as worthy of admission: Some statistically significant number of white people had advantages in college admissions seven generations ago, and you have inherited their incurable sin?” As Justice Scalia wrote elsewhere, “under our Constitution, there can be no debtor or creditor race.” Instead, “in the eyes of the government, we are just one race here. It is American.”

Contrary to the dissenters’ view of equality, which seeks equality based on group outcome, Justice Thomas emphasizes individual traits over group membership, noting that “All racial groups are heterogeneous, and blacks are no exception—encompassing northerners and southerners, rich and poor, and recent immigrants and descendants of slaves. Eschewing the complexity that comes with individuality may make for an uncomplicated narrative, but lumping people together and judging them based on assumed inherited or ancestral traits is nothing but stereotyping.”

Contrary to being mere products of their race, “Individuals are the sum of their unique experiences, challenges, and accomplishments.” Whereas the dissenters considers individuals passive actors in an inherently and inexorably racist scheme, Justice Thomas believes individuals have agency. “What matters is not the barriers they face, but how they choose to confront them. And their race is not to blame for everything—good or bad—that happens in their lives. A contrary, myopic world view based on individuals’ skin color to the total exclusion of their personal choices is nothing short of racial determinism.”

Justice Thomas concludes that “the great failure of this country was slavery and its progeny. And, the tragic failure of this Court was its misinterpretation of the Reconstruction Amendments, as Justice Harlan predicted in Plessy.” He’s right. Some of the biggest injustices have occurred because of the Supreme Court’s narrowing of civil rights under the Fourteenth Amendment (looking at you, Slaughter‐​house and Cruikshank) and its upending of equality before the law. If we want all people to achieve the American Dream, the Court must protect individuals’ liberty and prevent government created barriers from getting in the way.

It’s true, of course, that society has never been colorblind, but as Justice Thomas says, the government must be—lest we start a vicious and self‐​perpetuating cycle of race‐​based balancing. So will it be, given today’s opinion?

There’s a very real possibility schools will just drive their discrimination further underground. It took a great deal of discovery to get to the bottom of Harvard’s and UNC’s systems, which though multi‐​factored on their face amounted to quotas in practice. There will likely be litigation over covert racial balancing or the use of “neutral” proxies in the future. But for now, the Court has affirmed its commitment to treating people without regard to race or other immutable characteristics, which is a win for our individualist Constitution.

David Boaz

In 2009, as the federal government was rolling out the $700 billion Troubled Asset Relief Program and preparing to spend another $787 billion in President Obama’s “stimulus” package — both with little serious examination by Congress — I wrote a blog post titled “How to Spend a Trillion Dollars without Waste and Fraud.”

The first line of my post was “You can’t.” And I noted that the federal government knew that, because both Neil Barofsky, the special inspector general for TARP, and Gene Dodaro, the acting comptroller general, had told a House subcommittee — after the passage of both bills — that the government’s experiences in the reconstruction of Iraq, hurricane‐​relief programs, and the 1990s savings‐​and‐​loan bailout, along with the lack of written policies in the new programs, did not bode well.

As Dodaro noted, it wasn’t the first such example. Nor would it be the last. Reports are now rolling in about massive waste and fraud in the government’s Covid‐​relief spending, begun in 2020 under President Trump and increased under President Biden.

“An Associated Press analysis found that fraudsters potentially stole more than $280 billion in COVID-19 relief funding; another $123 billion was wasted or misspent. Combined, the loss represents 10% of the $4.2 trillion the U.S. government has so far disbursed in COVID relief aid.” Now the Small Business Administration’s inspector general reports that more than $200 billion may have been stolen from the Paycheck Protection and COVID-19 Economic Injury Disaster Loan programs.

Linda Bilmes, coauthor with Nobel laureate Joseph Stiglitz of The Three Trillion Dollar War: The True Cost of the Iraq Conflict, analyzed the massive problems in three somewhat smaller government projects — the Iraqi reconstruction effort, Hurricane Katrina reconstruction, and the Big Dig artery construction in Boston — and found that “in any organization that starts to increase spending very rapidly there are risks of waste, fraud and inefficiency.”

President Obama assured us in 2009 that Vice President Biden would be in charge of monitoring the spending in the stimulus bill and that “nobody messes with Joe.” But that is not in fact a solution to the inevitability of waste and fraud when an unaccountable bureaucracy is spending trillions of other people’s dollars. As the pickpocket says in the opening scene of Casablanca, “This place is full of vultures, vultures everywhere.” Vultures ye have with ye everywhere. And when you’re trying to shovel out trillions of dollars — money created by writing a number on a piece of paper and then writing checks on that sheet of paper — you can’t ask too many questions. The goal was to get money into people’s hands to ward off depression. And all the money did get into people’s hands. Just not necessarily into the intended hands. Some of it, for instance, went to SBA employee LaKeith Faulkner, who was sentenced to 62 months and ordered to pay $10,600,000 in restitution for his role in a scheme to obtain fraudulent PPP loans. And some of it to six Essex County, New Jersey, residents who were arrested for scheming to fraudulently obtain — you guessed it — Paycheck Protection Program (PPP) loans.

David Fahrenthold of the New York Times wrote,

In the midst of the pandemic, the government gave unemployment benefits to the incarcerated, the imaginary and the dead. It sent money to “farms” that turned out to be front yards. It paid people who were on the government’s “Do Not Pay List.” It gave loans to 342 people who said their name was “N/A.”

He calls it “one of the largest frauds in American history, with billions of dollars stolen by thousands of people, including at least one amateur who boasted of his criminal activity on YouTube.”

There are no doubt many more stories for other reporters to pursue. And continuing questions about the net costs and benefits of massive government spending programs, funded by debt and rife with, yes, waste, fraud, and abuse.