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Walter Olson

In Trump v. US, a majority of the Supreme Court has laid down an astonishingly broad view of presidential immunity from criminal prosecution over official actions, even those taken for heinous motives and with no show of justification. We should heed the warnings of dissenting Justice Sonia Sotomayor, joined by Elena Kagan and Ketanji Brown Jackson, who charge the majority with concocting an “atextual, ahistorical, and unjustifiable” array of immunities that will too often place above the law a president bent on criminal misuse of his powers of office. 

Nowhere in the Constitution is there mention of executive immunity, which was a topic of peculiar interest to the Founders and Framers. Alexander Hamilton wrote in Federalist 69 that unlike the “king of Great Britain,” the chief executive of the United States would “be liable to prosecution and punishment in the ordinary course of law,” and in Federalist 77 named “subsequent prosecution in the common course of law,” in addition to impeachment, as checks on “abuse of the executive authority.”

Notwithstanding this history, it was probably foreordained that the court would find some degree of presidential immunity. The US Justice Department under administrations of both parties has long taken for granted an immunity of some dimension or other, and the current Department, former President Trump’s adversary here, did not retreat from that view in this case. Although the court had never had to rule on criminal immunity, a 5–4 majority in the 1982 case of Nixon v. Fitzgerald had recognized an immunity from civil claims, such as for wrongful dismissal, over official presidential actions.

However, the Fitzgerald Court explicitly recognized that immunity from criminal prosecution would raise entirely different issues because the public welfare is far more deeply implicated when a president commits a crime than when he may happen to commit, say, a tort.

The shock was not that the majority led by Chief Justice John Roberts recognized some zone of immunity, but that at one key decision point after another, it seized on any half-plausible ground (and some perhaps less than half-plausible) to expand both the formal and the practical scope of immunity. Here is an incomplete list:

For a range of actions exercising core executive authority, including conversations with subordinates such as the attorney general, pardons, and appointments, immunity is absolute, even if actions were taken for a corrupt purpose or as part of a conspiracy otherwise criminal.
Exercise of less-than-core executive authority is still immune, the majority writes, “unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’” The use of “no” rather than, say, “no more than minimal,” means that lawyers for a criminal ex-president need only establish a scintilla of danger of intrusion on executive function to defeat a prosecution over the gravest misuse of official power. If the court was making up this standard as it went along, why not make up a standard friendlier to public liberty?
Unofficial actions by a president, all agreed, are not immune. But how to define them? “In dividing official from unofficial conduct, courts may not inquire into the president’s motives,” the court declared. And yet motive and intent often make the difference in whether a course of action constitutes a crime—most especially by establishing the prerequisite of a guilty mind (mens rea). And motive and intent go to the core of whether a chief executive acted with presidential duties in mind, or in pursuit of, say, his interests as a candidate. It’s an arbitrary limitation that will derail otherwise well-grounded prosecutions.
The court then offers guidance on how to distinguish official from nonofficial conduct—but keeps suggesting that almost every kind of misconduct alleged of Donald Trump might count as an official action. Was it unofficial for Trump to lean on a Georgia official to “find” votes for him? Well, presidents in the course of their duties naturally speak to many government officials, so maybe yes, the majority seems to think. Was it unofficial—speech taken in his interests as a candidate, not as a chief executive—for Trump to harangue a crowd shortly before violence broke out at the Capitol? Well, presidents in the course of their duties give speeches all the time, so again, maybe yes. By this standard, what isn’t an official act?
Even if a prosecution somehow clears these hurdles, more hurdles lie ahead. The majority decreed that evidence relating to immune acts must not be allowed into evidence even if highly probative as to the commission of other crimes for which there is no immunity. (Justice Amy Coney Barrett declined to join this part of the opinion.) For good measure, the exclusion of communications with a president’s subordinates will often forestall the best way of establishing what happened.

Singly, these are instances of doubtful solicitude toward the Executive. Together, they combine into something more and worse. This is not what the Framers wanted. It is not what we should want either. 

Patrick G. Eddington

This week, in a 6–3 decision, the Supreme Court issued an opinion that appears to have the effect of fully legally immunizing the current and any future chief executive from giving exactly the kind of order then‐​Defense Secretary Mark Esper said then‐​President Trump tried to give during the 2020 summer Black Lives Matter protests. This is Esper discussing that incident with Norah O’Donnell of CBS News just two years ago:

As the dissents written by Justices Jackson and Sotomayor (joined by Justice Kagan) have already received extensive coverage in multiple outlets, I see no reason to rehash them here. Suffice it to say that I share every objection and concern they raised.

I will offer this one additional observation: perhaps letting a previous US president conduct a lethal, due process‐​free drone strike on an American citizen overseas (admittedly a bad actor but still a citizen of this country) was an incredibly bad precedent to just let slide.

The question for the rest of us is this: Should any US president order American troops into the streets with “shoot to kill” orders regarding those peacefully protesting a given administration’s policies, what are supporters of a constitutional republic prepared to do in response?

David J. Bier

The immigrant share of the US population is approaching near‐​record highs of about 15 percent nationwide. However, this share is still significantly lower than two‐​thirds of other wealthy countries, including Canada, Australia, and New Zealand. Moreover, the immigrant population in the US is more evenly dispersed between states today than during the high immigration periods in the 19th and 20th centuries. As a result, despite the near‐​record high nationwide, only seven US states were at historical peaks in 2022 (the most recent American Community Survey year).

This means that it is easy to imagine a world in which the United States permitted a much higher share of immigration relative to its population than it does today because 43 states have already experienced that world. If every state currently had its peak historical immigrant share, the total US immigrant population would be twice as large as it was in 2022. This would mean an additional 46 million immigrants, resulting in a total immigrant population of 92 million and a nationwide immigrant share of 24.2 percent—comparable to current levels in Canada and New Zealand.

Of course, unless 46 million immigrants arrive overnight, the country will not reach an immigrant share of 24.2 percent. Over time, many immigrants leave, and the ones who stay often have children, increasing the native‐​born population. In reality, tens of millions more immigrants would need to come to reach this population share.

Even the seven states that were already at their historic peak in 2022 should not sweat it. None of them are anywhere near the record share for any US state. Indeed, fourteen states have had immigrant shares double the current US nationwide share or higher. They not only survived but thrived as a result of those immigrants and their descendants.

Americans should not fear immigrants who come to contribute to this country. They will be the workers, consumers, taxpayers, entrepreneurs, and community members who will help grow America into the next century. We should welcome them to immigrate legally with the knowledge that US history has repeatedly shown that immigrants are a source of strength, not weakness.

Thomas A. Berry

On June 28, the Supreme Court’s Loper Bright decision overruled the 40‐​year‐​old Chevron doctrine. My immediate reaction to the decision is here, and I discuss the case on the Cato Daily Podcast here. Law Professors Christopher Walker and Ilya Somin have also written thoughtful summaries and analyses of the majority opinion by Chief Justice John Roberts, the dissenting opinion by Justice Elena Kagan, and the concurrences by Justices Clarence Thomas and Neil Gorsuch.

In this post, I’ll address one claim in the dissent that has received particular attention: the claim that overruling Chevron will move policy decisions to the politically unaccountable judicial branch.

First, a quick recap of the (now overruled) Chevron doctrine. In Chevron v. NRDC (1984), the Supreme Court announced a new “two‐​step” framework for resolving disputes over the scope of an agency’s statutory authority. Under this standard, a court must first consider “the question whether Congress has directly spoken to the precise question at issue.” This first question should be “the end of the matter” if “the intent of Congress is clear,” because courts “must give effect to the unambiguously expressed intent of Congress.” At this stage, courts must employ “the traditional tools of statutory construction” to ascertain whether “Congress had an intention on the precise question at issue.”

It was the second step that would make Chevron a landmark case. If a court finds that “Congress has not directly addressed the precise question at issue,” then under Chevron the agency’s interpretation can become determinative. In this situation, Chevron instructed that a court should “not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation.” Instead, courts should ask “whether the agency’s answer is based on a permissible construction of the statute.” If the answer is yes, Chevron required that the court defer to the agency’s interpretation.

It is this second step that Loper Bright eliminated. The premise underlying Loper Bright is that the second Chevron step is incoherent because there is always a single best reading of a statute. “In an agency case as in any other, … there is a best reading all the same—‘the reading the court would have reached’ if no agency were involved.” As the majority put it, “statutes, no matter how impenetrable, do—in fact, must—have a single, best meaning.” And if that is so, then it “makes no sense to speak of a ‘permissible’ interpretation that is not the one the court, after applying all relevant interpretive tools, concludes is best. In the business of statutory interpretation, if it is not the best, it is not permissible.”

Throughout the Loper Bright majority opinion, the court reiterated that Chevron was about who decides legal questions, not policy questions. “It is reasonable to assume that Congress intends to leave policymaking to political actors. But resolution of statutory ambiguities involves legal interpretation.” The majority opinion reassured readers that overruling Chevron will not change how courts review those statutes that do delegate policymaking decisions to agencies. “[S]ome statutes ‘expressly delegate[]’ to an agency the authority to give meaning to a particular statutory term. … Others empower an agency to prescribe rules to ‘fill up the details’ of a statutory scheme … or to regulate subject to the limits imposed by a term or phrase that ‘leaves agencies with flexibility,’ … such as ‘appropriate’ or ‘reasonable.’” In those situations, the opinion instructs courts to “effectuate the will of Congress … by recognizing constitutional delegations,” just as they have before.

Justice Kagan’s dissent rejected the majority’s premise that the types of questions decided under Chevron have only one best answer. In Kagan’s view, it is often the case that “a statutory phrase has more than one reasonable reading. And Congress has not chosen among them: It has not, in any real‐​world sense, ‘fixed’ the ‘single, best meaning’ at ‘the time of enactment.’”

Kagan’s dissent argued that Chevron deference “rests on a presumption about legislative intent.” As she put it, Congress “knows that [regulatory] statutes will inevitably contain ambiguities that some other actor will have to resolve, and gaps that some other actor will have to fill. And it would usually prefer that actor to be the responsible agency, not a court.”

The majority’s implicit response to this criticism is that Congress may always draft any individual statute so that its “best reading … is that it delegates discretionary authority to an agency.” Or, if Congress disagrees with the policy that results from a court’s interpretation, it is “always free to act by revising the statute.”

Put another way, the court’s opinion in Loper Bright set no limitations on Congress’s ability to explicitly delegate policy choices to the Executive Branch (the extent to which such delegations may be limited by the Nondelegation Doctrine is a question for another case). Loper Bright was not about cases where a statute has delegated authority to an agency to choose the most “reasonable” public policy. Instead, Loper Bright was about those cases where the Executive Branch was previously allowed to decide quintessentially legal questions like what a word or phrase meant at the time of a statute’s enactment. It is those types of questions that should be answered by courts, not agencies. “By forcing courts to … pretend that ambiguities are necessarily delegations, Chevron [did] not prevent judges from making policy. It prevent[ed] them from judging.”

Romina Boccia

What if the story we were told about Social Security’s financing was just a myth? As the program faces increasing financial strain, it is imperative that we are clear‐​eyed about how Social Security’s spending impacts American workers and the federal deficit. Every year Social Security runs a cash‐​flow deficit, it exacerbates our nation’s fiscal challenges, threatening Americans with higher future taxes or an unsustainable debt. Social Security’s cumulative $4.1 trillion deficit over the next 10 years underscores the urgent need for reform, not in 2033 when the ‘trust fund’ will be depleted, but ASAP.

“Understanding is the first step to acceptance, and only with acceptance can there be recovery,” wrote bestselling author J.K. Rowling, on the importance of facing facts and dealing with difficult truths, in Harry Potter and the Goblet of Fire. The root of the problem arises from Social Security’s pay‐​as‐​you‐​go nature in combination with an internal governmental accounting ledger referred to as the Trust Fund.

This structure has created a common myth about Social Security: that the Social Security Trust Fund contains real savings that can be used to pay future benefits. Many people believe that the payroll taxes they pay are set aside in individual accounts or in a secure fund that will be there for them when they retire. Politicians have perpetuated this myth for decades, including Senator Bernie Sanders who claimed, “Social Security has a $2.8 trillion surplus in its trust fund and can pay out every benefit owed to every eligible American for the next 19 years.” However, this is not how the system actually works.

In reality, Social Security operates on a pay‐​as‐​you‐​go basis. This means that the payroll taxes collected from current workers are immediately used to pay benefits to current retirees. Any surplus funds are credited to the Social Security Trust Fund, but these are not cash reserves; they are special‐​issue Treasury bonds, which are essentially IOUs from the federal government.

When Social Security runs a deficit—meaning it pays out more in benefits than it collects in taxes—it must redeem these bonds to cover the shortfall. The federal government then has to come up with the cash to honor these IOUs, either by raising taxes, cutting spending in other areas, or borrowing more money. Thus, the Trust Fund does not contain real, liquid assets but rather a promise that the government will pay itself back, which ultimately depends on the federal budget’s overall health and fiscal policy.

This myth gives a false sense of security about the program’s financial stability and obscures the urgent need for reforms while the “trust fund” has a positive balance, to be depleted by 2033. This is the critical misconception: the existence of the Social Security Trust Fund does not make it easier to pay benefits when they come due. The Trust Fund’s assets are not tangible savings but IOUs from the federal government to itself. When Social Security needs to redeem these bonds to cover benefit payments, the Treasury must find the money somewhere other than from the trust fund—either by collecting more in taxes, redirecting other spending, or increasing the national debt.

The implication is that Social Security’s cash‐​flow deficits directly contribute to the federal deficit. Each dollar redeemed from the Trust Fund is a dollar the Treasury must come up with, exacerbating our fiscal imbalance. The below figure shows how Social Security cash‐​flow deficits plus associated interest costs will add about $4.1 trillion to the federal government’s deficits over this decade.*

This situation is unsustainable, especially given demographic trends that are increasing the number of beneficiaries relative to the number of workers. There’s also the specter of higher future inflation and a slower‐​growing economy (so‐​called stagflation) that would increase benefit costs automatically through cost‐​of‐​living adjustments as Social Security’s tax base dwindles should wage growth fail to exceed higher prices.

Waiting until 2033 to address these issues is a perilous gamble. Delaying reforms only magnifies the problem, requiring more drastic measures down the road. Early intervention allows for more measured, gradual adjustments that can be phased in to minimize disruption and spread the burden more equitably across generations.

So, what can be done? Lawmakers have several options, though none are politically easy. One approach is to gradually raise the retirement age, reflecting increases in life expectancy. This would reduce the number of years individuals receive benefits, helping to balance the system. Another option is to adjust the benefit formula to slow the growth of future benefits, particularly for higher earners. This could take the form of indexing initial benefits to prices, rather than wages, or moving to a universal benefit formula based on average wages, rather than individually earned income.

President Biden has suggested eliminating the payroll tax cap for wage earners who make more than $400,000 a year. The amount of revenue raised would be a far cry from resolving Social Security’s financing issues. Even eliminating the payroll tax cap entirely would merely stave off Social Security deficits for five years.

Comprehensive, bipartisan reform will likely involve a combination of spending reductions and tax hikes. The sooner inevitable changes are made the better, spreading the impact and addressing the red ink before it presents a long‐​term double‐​whammy of higher debt plus interest costs.

The bottom line is clear: Social Security’s financial challenges are a significant contributor to the federal deficit, and the Trust Fund’s existence does not mitigate this impact. Legislators must act now to reform the program, ensuring its sustainability for future generations without imposing undue burdens on current workers or resorting to excessive borrowing. The time for political courage is now, well before the 2033 deadline forces legislators’ hands. By addressing these issues proactively, we can preserve Social Security’s promise to keep seniors out of poverty without undermining the economic future of younger generations.

*The figure shows Social Security’s Old‐​Age and Survivors Insurance (OASI) cash‐​flow deficits or contributions to the federal deficits from 2024 to 2033 (the year of the trust fund’s exhaustion), based on the CBO’s updated Budget and Economic Outlook. Calculations exclude intragovernmental transactions, such as interest earned on the OASI trust fund’s balances. Estimates also exclude administrative expenses, consistent with the CBO’s approach of distinguishing the costs of benefits from the program’s operational costs when calculating Social Security’s contribution to deficits. Projections include the interest costs of cash flow deficits, calculated using the CBO’s interactive interest cost calculator, but exclude the program’s legacy costs (any interest incurred based on past deficits).

Adam N. Michel

A recent G20 proposal for a globally coordinated wealth tax on the world’s billionaires highlights an under‐​discussed risk of the tools being developed by the Organisation for Economic Co‐​operation and Development (OECD). Its new system for international corporate tax harmonization sets a precedent for additional global taxes on individuals and other economic activities.

I’ve written extensively about the fundamental problems with the OECD’s proposals to raise taxes on American businesses and how its plan to rewrite international tax rules will destabilize the global tax system and depress international investment. This current OECD work program is cause enough for Congress to zero out the organization’s US funding and instruct the president to withdraw from the organizing convention.

However, the long‐​run threat of the OECD’s corporate tax project extends beyond corporate taxes. If the Inclusive Framework’s progeny—Pillar One’s redistribution of taxing rights and Pillar Two’s global minimum tax—are seen as successful, it will embolden future efforts, using similar tools, to force global tax increases on personal income, investment wealth, and politically unpopular energy sources.

In a recent article for Geopolitical Intelligence Services, I highlight how international tax activists are already shifting their focus from corporate taxes to other sources of potential revenue. In preparation for the G20 summit hosted by Brazil,

the finance and economy ministers of Germany, Spain, Brazil and South Africa proposed a global minimum tax on the world’s wealthiest families to pay for transnational redistribution and “social justice” programs. The EU Tax Observatory, a European Union‐​funded advocacy group for higher taxes, developed the proposal. France’s finance minister agreed with the thrust of the proposal, saying that “by 2027, we should have a global agreement on … taxation of the wealthiest people.”

Most recently, a group of progressive US lawmakers endorsed the G20 proposal in a letter to President Joe Biden and Treasury Secretary Janet Yellen, who has voiced skepticism of the idea. For more on the folly of wealth taxes and their economics, see Cato’s Chris Edwards’ bulletin “Taxing Wealth and Capital Income.” 

The Tax Observatory’s global wealth tax report praises the OECD’s efforts over the past 15 years to reduce administrative hurdles to implementing a global wealth tax. It notes, “the world is in a better situation to successfully implement the proposal” today due to the erosion of financial privacy and increased cooperation on international taxpayer information reporting.

This is the OECD’s long game: incremental reforms that grease the wheels for more intrusive tax and regulatory systems on ever‐​expanding types of economic activity. For the last two decades, the OECD has laid the groundwork for a multi‐​pronged global tax system to support additional wealth redistribution and centralized economic planning.

As I noted in my July 2023 testimony for the Ways and Means Committee:

today’s OECD has largely devolved into a taxpayer‐​funded advocacy group for higher taxes, more intrusive government, burdensome regulation, and climate activism. The OECD’s recent work spans numerous projects that recommend very progressive, primarily government‐​centric interventions in labor markets, housing markets, and private associations…. The OECD has also expanded its work on climate policy…. Its solution is a centralized multilateral tool to ensure that every country meets the OECD’s climate goals.

The OECD doesn’t stop at suggesting new supranational tax schemes; it also recommends higher domestic taxes on Americans at home. Dan Mitchell summarizes the recent recommendation for higher taxes made by the OECD in its Economic Survey of the United States:

OECD bureaucrats think “higher taxes” is the answer for almost any question…. Everything from higher corporate tax rates to increased double taxation of dividends and capital gains. As well as higher individual tax rates, busting the wage‐​base cap, and expanding the death tax…. The bureaucrats also want a carbon tax and an increase in the payroll tax rate.

The Economic Survey also recommends modest spending reforms but pairs them with additional welfare spending, childcare subsidies, and a new paid parental leave entitlement.

The OECD has outlived its useful life. Allowing the OECD’s two‐​pillar tax system to advance without challenge will only encourage those who wish to use similar tactics to implement other, more aggressive global tax hikes. The United States should not fund or be a member of an organization that consistently advocates for one‐​size‐​fits‐​all “whole‐​of‐​government strategies” that increase costs, reduce economic mobility, and limit individual freedom. 

Thomas A. Berry

Three years ago, Texas passed a law declaring that large social media services are “common carriers” subject to onerous regulations dictating what speech they must disseminate. The law prohibits services from removing, demonetizing, or blocking a user or a piece of content based on the viewpoint expressed. Services found to violate this requirement face liability for each piece of content they remove.

The law was soon challenged by NetChoice and CCIA, two internet trade associations whose members operate a variety of websites covered by the law. Although a federal district court held that the Texas law violated the First Amendment, a panel of the Court of Appeals for the Fifth Circuit reversed that decision by a 2–1 vote. The panel held that the law does not inflict a First Amendment injury because the websites “are free to say whatever they want to distance themselves from the speech they host,” and thus would not be falsely identified as endorsing the speech they are forced to disseminate.

Meanwhile, Florida passed a similar law around the same time as Texas, which was also challenged by NetChoice and CCIA. In that case, the Court of Appeals for the Eleventh Circuit struck down key portions of the law as violating the First Amendment rights of the websites.

Today, the Supreme Court issued a single opinion for the two cases jointly, and its decision is a victory for the free speech rights of online platforms.

Although the court did not resolve the cases due to the need for more factfinding on the full scope of the laws, the high court completely rejected the Fifth Circuit’s misguided holding that social media platforms have no First Amendment right to control the content of their feeds. As the court put it, “the editorial judgments influencing the content of those feeds are, contrary to the Fifth Circuit’s view, protected expressive activity.”

As Justice Elena Kagan explained, writing for a majority of the court, social media platforms have the same First Amendment rights as newspapers, magazines, and others who compile and present speech. Social media platforms “include and exclude, organize and prioritize—and in making millions of those decisions each day, produce their own distinctive compilations of expression. And while much about social media is new, the essence of that project is something this Court has seen before.” As the court summed up, the principle that the First Amendment protects editorial freedom “does not change because the curated compilation has gone from the physical to the virtual world.”

Two points are particularly important in the Supreme Court’s opinion. First, the court rejected the theory proffered by Florida and Texas (and accepted by the Fifth Circuit) that the government has an interest in regulating the balance of speech on a private platform. The court explained that it “has many times held, in many contexts, that it is no job for government to decide what counts as the right balance of private expression—to ‘un‐​bias’ what it thinks biased, rather than to leave such judgments to speakers and their audiences. That principle works for social media platforms as it does for others.”

As the court explained, this principle holds true no matter how biased a speech marketplace may be, because the “cure” of governmental regulation will be worse than the disease. “However imperfect the private marketplace of ideas, here was a worse proposal—the government itself deciding when speech was imbalanced, and then coercing speakers to provide more of some views or less of others,” wrote Kagan. Put simply, “a State may not interfere with private actors’ speech to advance its own vision of ideological balance.”

Second, the court agreed with the key point that the Cato Institute made in its amicus brief supporting NetChoice, that “the major social‐​media platforms do not lose their First Amendment protection just because no one will wrongly attribute to them the views in an individual post.” The court explained that its decisions have “never hinged a compiler’s First Amendment protection on the risk of misattribution.” Instead, the court clarified that the relevant question is whether the “host of the third‐​party speech was … itself engaged in expression.” This holding will go a long way toward ending lower courts’ expansion of the so‐​called PruneYard doctrine, which the Fifth Circuit and other courts have wrongly relied on when forcing private entities to host speech.

These cases will now go back to the Fifth and Eleventh Circuits for further factfinding because the laws were challenged “facially.” As the court explained, the lower courts will have to determine what effect these laws have on other websites besides classic social media feeds. The courts will then have to weigh the legitimate applications of the laws (if there are any) against the unconstitutional applications to decide if they should be struck down in full.

While there remains uncertainty about the ultimate outcome of these facial challenges, today’s guidance from the Supreme Court ensures that the free speech rights of private platforms will endure into the digital age.

Andrew Gillen

Note, this post updates last month’s post. The biggest changes from last month include:

Update on the lawsuits regarding the SAVE plan to reflect the court injunctions.
Update on the prospects of the SAVE and HEA plan in light of the Supreme Court overturning Chevron deference.
Added an estimate of the cost of the student loan payment pause from new academic research.

Mass student loan forgiveness is terrible policy (see this report for a comprehensive list of reasons), but that hasn’t stopped the Biden administration from trying to forge ahead. While the Supreme Court overturned the Biden administration’s student loan forgiveness plan, every few weeks, the administration announces another batch of loans that have been forgiven.

In fact, the administration recently celebrated that since taking office, it has succeeded in forgiving $167 billion of student loans for 4.75 million borrowers by transferring the financial burden from the students who took out the loans to taxpayers who did not. And they aren’t going to stop—the administration’s spokeswoman declared, “President Biden has vowed to use every tool available to cancel student debt for as many borrowers as possible, as quickly as possible.” And President Biden himself stated, “I will never stop working to cancel student debt—no matter how many times Republican elected officials try to stop us.”

But if student loan forgiveness lost in the Supreme Court, how are so many student loans still being forgiven? The answer is that there isn’t a student loan forgiveness plan, there are many plans, some of which are already up and running.

Previous laws had already left many methods to forgive student loans, and many of those laws may allow the Secretary of Education to expand those programs. The administration also claims existing law allows it to create new ways to forgive student loans. So the student loans the Biden administration already has or wants to forgive are a combination of existing programs, existing programs the Biden administration has expanded, and new programs the administration is seeking to implement.

Here’s a rundown of the administration’s student loan forgiveness plans and actions, which I’ll update monthly.

HEROES (New plan – overturned in court)

This was the big plan that got a lot of attention in 2022 and 2023. The plan was to forgive $10,000 for borrowers making less than $125,000, and $20,000 for borrowers who received a Pell Grant, at a total cost of $469 billion to $519 billion. The alleged authority for the plan was the 2003 HEROES Act. While designed to alleviate loan‐​related hardships for soldiers and reservists serving in Iraq and Afghanistan, the law also covered national emergencies, and the Biden administration argued the COVID-19 emergency gave it the authority to forgive virtually everyone’s loans. Most observers were skeptical of this supposed authority, but it was not clear who had standing to sue (standing is the requirement that those filing the suit have a concrete injury from the policy). The companies that service student loans would be the most obvious injured party, but there was a perception that the Biden administration would punish any servicer that challenged the policy in court, a perception that now appears accurate.

Fortunately, the Supreme Court ruled that Missouri had standing to sue (due to a quasi‐​public student loan servicer that would lose revenue under the plan) and that the plan violated the major questions doctrine (which holds that there needs to be clear congressional authorization for programs of substantial economic or political significance), preventing the policy from being implemented.

Higher Education Act (New plan – forthcoming)

Immediately after losing on HEROES, the Biden administration announced a new effort that would use authority under the Higher Education Act. The administration announced the new plan, which would

Waive unpaid interest.
Forgive debt for those who have repaid for 20 years (25 years if there is debt for graduate school).
Forgive debt for those who attended a low‐​financial value program (e.g., programs or colleges that fail the Cohort Default Rate or Gainful Employment).
There is also a plan to release additional regulations soon that will forgive debt for those undergoing financial hardship.

There are a several problems with this plan, which the Penn Wharton Budget Model estimates will cost $84 billion. The public comment window on the proposed regulations recently concluded, and the administration is now considering those comments and will issue final regulations, with a goal to start forgiving debt this fall. Once finalized, this plan will likely be overturned by the courts for two main reasons. First, it is likely to run afoul of the major questions doctrine, just as the HEROES plan did. Second, the Supreme Court recently overturned Chevron deference, which held that courts should defer to executive agencies when a statute was ambiguous.

With major questions and no Chevron deference, it is very hard to imagine the courts allowing the administration to stretch vague clauses in old laws into vast new powers authorizing billions of dollars in forgiveness. However, much of this forgiveness is easy to implement, so a key question is whether a court injunction will come fast enough to prevent the administration from forgiving billions of debt before the courts can determine whether the regulations are legal.

SAVE (New plan – still active)

Before diving into this one, it is important to understand the concept of income‐​driven repayment (IDR). Under traditional (mortgage) style loan repayment, the amount and length of repayment are fixed (e.g., $200 a month for 10 years). For the past few decades, the federal government has been introducing IDR plans, in which the amount repaid each month varies based on the borrower’s current income and the length of repayment varies based on how fast they repay their loan. The key features of an income‐​driven repayment plan are:

the share of income owed each month (e.g., 20 percent);
the income exemption that is protected from any repayment obligation (e.g., the poverty line); and,
the cap on length of repayment (e.g., twenty‐​five years)

IDR is a great idea, providing borrowers with better consumption smoothing across their lifetime and flexible repayment which helps avoid defaults due to short‐​term liquidity constraints.

But we’ve also botched the implementation. To begin with, a cap on the length of repayment is completely inappropriate. Income‐​driven repayment ensures that payments are always affordable, and borrowers who make so little they do not repay will receive de facto forgiveness even without the cap, so there is no justification for a cap on the length of repayment.

The other problem with how we’ve implemented income‐​driven repayment is political—the plans are tailor‐​made to allow politicians to give constituents big benefits today while sticking future taxpayers with the bill. It is therefore no surprise that these plans have gotten more generous over time. The first IDR plan, introduced in 1994, had an income exemption equal to the poverty line, a share of income owed of 20 percent, and a cap on length of twenty‐​five years. Very few borrowers would receive forgiveness under these terms, and of those who did, they really wouldn’t have been able to repay regardless of whether they received forgiveness or not. The Obama administration introduced plans with an income exemption of 150 percent of the poverty line, a share of income owed of 10 percent, and a cap on length of payment of twenty years.

The Biden administration’s Saving on a Valuable Education (SAVE) plan took an existing plan (the REPAYE plan) and made it much more generous. It changes the share of income owed from 10 percent to 5 percent, increases the income exemption from 150 percent of the poverty line to 225 percent, and caps the length of repayment at as little as ten years for some borrowers. By cranking every possible lever to the most generous settings in history, this plan would impose massive costs on taxpayers, estimated at $475 billion for just the next ten years.

The legal questions facing this plan are the reverse of the HEROES plan. For the HEROES plan, the main obstacle was standing. Once that hurdle was cleared, it was fairly obvious that the plan was well beyond what Congress had authorized. But for the SAVE lawsuits, this is reversed. Standing is easily established (for Missouri at least), but the plan does have a much stronger argument for being within the parameters of the law. Mark Kantrowitz thinks SAVE will be upheld, while Michael Brickman did yeoman’s work digging up details on page 18,909 of the 1993 Congressional Record that may lead to SAVE being scrapped.

Parts of the SAVE plan have already been implemented, and full implementation was scheduled for July 2024. The plan has already forgiven “$5.5 billion for 414,000 borrowers.” However, two lawsuits seek to overturn the plan, one by Kansas and ten other states (though a court ruled that only three of the states had standing to sue), and another by Missouri and six other states. Ironically, an injunction pausing further implementation was issued by courts in both cases on the same day. The injunctions affected different parts of the plan. “The Kansas order suspended parts of the program that were not already in place, including a big drop in monthly payments for people with undergraduate debt — to 5 percent of their discretionary income from 10 percent… The judge in Missouri blocked any new debt cancellation achieved through the SAVE program.” Thus, the only big change from the SAVE plan that is currently in effect is the increase in the income exemption from 150 percent to 225 percent of the poverty line. Unless successfully appealed, these injunctions will freeze further implementation of the SAVE plan until courts have determined whether the plan is legal.

The Supreme Court’s overturning of Chevron deference is also likely to affect these cases in a major way. Now that courts are no longer required to defer to executive agencies when statutory language is ambiguous, it will be much harder to convince courts that the president spending close to half a trillion dollars over the next ten years on this plan is consistent with congressional intent.

Student Loan Payment Pause (Existing and extended plan – now expired)

When COVID-19 hit in March 2020, student loan payments were paused. The pause was supposed to last two months, but ended up lasting three and a half years after Trump extended it once and Biden extended it six times. A pause would not normally result in massive student loan forgiveness as it would delay, but not waive, repayment. There would still be a cost to taxpayers (driven by the government’s cost of borrowing), but it wouldn’t be huge. But recall that IDR plans (unnecessarily) cap the length of repayment, and the pause counted towards that cap. In other words, for any student that does not fully repay before they hit the length of repayment cap, payments weren’t paused, they were waived. We won’t know for many years how many students had their payments forgiven rather than postponed, but the current estimates range from $210 billion to $240 billion.

New research from Sylvain Catherine, Mark Pérez Clanton, and Constantine Yannelis finds that the substantial inflation and counting the pause towards the cap on repayment reduced the present value of future student repayments by around 25 percent.

There is virtually no chance for this burden on the taxpayer to be reversed. The only good news is that the payment pause ended, with most borrowers restarting payments in October 2023.

Public Service Loan Forgiveness (Existing and extended plan – still active)

The Public Service Loan Forgiveness (PSLF) program was established during the George W. Bush administration and allowed for public and nonprofit workers to receive forgiveness after ten years of repayment when they used an IDR plan. While I object to PSLF in principle (as a distorting and non‐​transparent subsidy for the government and nonprofit sectors) and due to the windfalls these borrowers receive (an average of over $70,000 per beneficiary), since PSLF legally exists, it should operate as seamlessly as possible.

The Biden administration granted many waivers and other changes to increase the number of borrowers who could benefit under PSLF. For example, the administration introduced a waiver that allowed for payments made under non‐​IDR plans to count toward the payment limit (previously, only payments made while enrolled in an IDR plan counted). Some of these changes were good in the sense that they more faithfully implemented the law, but the administration crossed some lines too. In particular, it started counting some types of deferment as payments (borrowers can get deferment when they cannot afford to make payments, which generally allows the borrower to temporarily postpone payments though interest continues to accrue). The whole point of deferment is to temporarily avoid making payments. So for the Biden administration to give borrowers credit for making payments when they were in deferment is logically, morally, and potentially legally wrong (Cato was part of a lawsuit seeking to end this abuse, but the case was thrown out when a court ruled the policy didn’t directly affect Cato enough to satisfy standing requirements). The administration also waived income requirements, making more people eligible for the program. 

The Biden administration has forgiven “$68 billion in forgiveness for more than 942,000 borrowers” under these programs, which works out to around $72,000 per borrower. By comparison, a formerly homeless student who receives the maximum Pell Grant for four years would get less than $30,000 in Pell Grants. Some of this would have been forgiven even if the administration hadn’t made any changes to the program, but not all of it. In the future, these burdens on the taxpayer can be reduced by rolling back some of the administrative changes, but eliminating the program entirely would require legislation.

Borrower defense to repayment (Existing and extended plan – still active, though recent changes are paused during a court case)

When a college engages in fraud or severely misleads students, borrowers can have their debt forgiven under borrower defense to repayment. This is reasonable, as victims of fraud should have some recourse. It is also extremely rare because a college would not just need to dupe a student but would also need to fool a state, an accreditor, and the US Department of Education, as all three are required to sign off on the legitimacy of a college before its students can take out student loans. As the House Committee on Education & the Workforce noted, “for the first 20 years of the rule, there were 59 claims.”

However, the federal government can claw back debt forgiven from the responsible college. This makes borrower defense to repayment an incredibly powerful tool for progressives in their war on for‐​profit colleges. If a for‐​profit college can be declared to have substantially misled students, they can be ruined financially by the claw backs. Indeed, new regulations from the Biden administration would make it much easier to conclude a college engaged in misconduct. As the White House gloated, “Less than $600 million in debt relief had been approved through borrower defense, closed school discharges, and related court settlements from all prior administrations combined, compared to the $22.5 billion approved under the Biden‐​Harris Administration alone.” Some of this was done outside the law. For example, $5.8 billion of debt for Corinthian Colleges students was forgiven even if students didn’t submit a borrower defense claim. The administration has promised to forgo claw backs on much of it (likely in part to avoid giving affected colleges standing to oppose the changes in court).

The good news is that any further forgiveness under the new regulation is on hold due to an injunction from the 5th Circuit Court of Appeals (this injunction applies to the closed school discharge plan as well).

Closed School Discharge (Existing and extended plan – still active, though recent changes are paused during a court case)

Borrowers whose school closes while they are still enrolled or shortly after they have withdrawn can have their student loans forgiven. The Biden administration imposed new regulations that loosened the requirements and has used this as an excuse to forgive other loans as well. For example, Biden forgave $1.5 billion in debt for students from ITT Technical Institute, even if they didn’t qualify for a discharge. Further forgiveness under the new regulations has been paused by the 5th Circuit Court of Appeals until courts determine whether the new regulations are legal. However, the administration can still forgive loans under the previous iteration of these regulations.

Total and Permanent Disability Discharge (Existing and extended plan –active)

Borrowers who are unable to work due to a permanent disability can have their loans forgiven. Historically this was very rare. And to protect against fraud, the income of borrowers who had their debt forgiven was monitored to ensure that they really couldn’t work. The Biden administration both expanded eligibility and dropped fraud detection efforts. In particular, in 2021, regulations were introduced that “provided automatic forgiveness for borrowers who were identified as eligible for a total and permanent disability discharge through a data match with the Social Security Administration. The Department had been using such a match for years to identify eligible borrowers but required them to opt in to receive relief.” Switching to the opt‐​out model dramatically increased the number of borrowers receiving forgiveness. As a result of these changes, forgiveness under total and permanent disability discharge to spike from negligible amounts to $14.1 billion.

Waiving Interest

Another method the Biden administration is using to forgive loans is to waive interest. This plan is somewhat unique in that it is usually a component of another forgiveness plan, but the goal and methods are unique enough to warrant its own category.

Waiving interest has been implemented primarily through three mechanisms. The first was the student loan payment pause, which as noted above waived interest for three and a half years. The second were regulations that took effect in July 2023 that “ceased capitalizing interest in all situations where it is not required by statute (87 FR 65904). This includes when a borrower enters repayment, exits a forbearance, leaves any IDR plan besides Income‐​Based Repayment (IBR), and enters default.” And the third is the SAVE repayment plan, which waives any unpaid interest.

Conclusion

In sum, Biden’s administration has been the most aggressive in history regarding student loan forgiveness. Despite many setbacks, the administration has cancelled a massive amount of debt ($167 billion and counting), with most of the burden on taxpayers still to come from future repayments that will no longer be made. And while many of its attempts to forgive student loans have been stymied, there are still many active plans in play, with more on the horizon.

Jeffrey Miron

Bump stocks are devices that enable semi‐​automatic weapons to fire faster—although still slower than—fully automatic weapons. Bump stocks became the target of legal and public scrutiny after a gunman used them in the 2017 Las Vegas mass shooting, after which then‐​President Donald Trump called for a ban. The Bureau of Alcohol, Tobacco, and Firearms (ATF) responded by reclassifying bump stocks as machine guns, effectively banning them.

The Supreme Court recently reversed the ban, arguing that it lacks specificity and puts any accessory that makes firearms easier or safer to shoot at risk of an ATF ban. Supporters of the now‐​defunct ban are therefore arguing for Congress to explicitly ban bump stocks.

A new ban, however, is unlikely to reduce the harm from mass shootings. Bump stocks can easily be made at home, via 3D printing or improvised devices produced from standard household items.

Bump stocks make semi‐​automatic weapons significantly less accurate than automatic weapons because of the recoil movement of the gun. The bump stocks used in the Vegas shooting may actually have reduced the number of fatalities.

Lemoni Matsumoto, an undergraduate at the University of Chicago, contributed to this article.

Thomas A. Berry

In April, President Biden signed an unprecedented law that required TikTok to either “divest” from its parent company ByteDance by January 2025 or cease operations in the United States. Such divestment would likely be infeasible because ByteDance owns much of TikTok’s code and employs many of the engineers who make TikTok run. And even if it were feasible, American TikTok users would lose access to content from outside the country, fundamentally changing the platform.

The law contained an unusual provision requiring that any legal challenges be brought directly in the US Court of Appeals for the DC Circuit, bypassing the federal district courts. Pursuant to that requirement, three lawsuits have been brought in the DC Circuit challenging the law, one by TikTok itself and two by various TikTok users. And Cato has now filed an amicus brief in the DC Circuit supporting these challenges.

In our brief, we address two justifications for the law that were repeatedly invoked by lawmakers: that TikTok is a platform for “propaganda” and that it is a platform for “misinformation” and “disinformation.” As our brief explains, neither of these arguments can justify the law, because there is no First Amendment exception for either “propaganda” or false speech.

The TikTok divestment bill is not the first time Congress has enacted a bill infringing on speech rights to combat foreign “propaganda.” In the 1960s, members of Congress used strikingly similar rhetoric to that used by lawmakers today when they passed a similar bill. That 1960s law mandated screening of incoming foreign mail for “Communist political propaganda.” If a government official determined that a piece of mail contained such propaganda, the mail would only be delivered if its intended recipient promptly returned a form affirmatively requesting its delivery.

The Supreme Court rightly struck down this “Communist propaganda” law in Lamont v. Postmaster General (1965). As the court explained, the “Communist propaganda” law was “at war with the ‘uninhibited, robust, and wide‐​open’ debate and discussion that are contemplated by the First Amendment.” As the court later reaffirmed in Hustler Magazine v. Falwell (1988), “the ultimate good desired is better reached by free trade in ideas … the best test of truth is the power of the thought to get itself accepted in the competition of the market.” If the government disagrees with speech that it views as harmful “propaganda,” the government can use its own voice to rebut that speech. But the government does not have the power to censor or burden disfavored views. It is up to the people to decide which ideas win out.

Nor can the government justify censorship on the grounds that it is merely fighting falsehoods. In United States v. Alvarez (2012), the Supreme Court struck down a law criminalizing false claims of having won a military medal. As Justice Anthony Kennedy explained, “our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.” Instead, “the remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight‐​out lie, the simple truth.”

Placing the power to arbitrate the truth in the hands of the government would be dangerous, both because government officials make mistakes and because they can be motivated to suppress disfavored speakers, using falsehoods only as a pretext. Such motivation may well have been behind Congress’s choice to single out TikTok and not address other social media sites with comparable levels of “misinformation.”

As our brief notes, non‐​content‐​based concerns over hacking and data‐​tracking could hypothetically justify government action against a platform, but the government has not proffered public evidence that meets the burden necessary to support this justification either. Congress has targeted TikTok because of the viewpoints it carries (or that it is perceived to carry). That is a core First Amendment violation, and the DC Circuit should block the law from taking effect.