As referenced by Judge Pittman, recent years have witnessed egregious expansion of a 'pen and phone' administrative state that violates the Constitution and amounts to creeping tyranny.

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Paraphrasing Rudyard Kipling’s “If,” our nation’s courts are keeping their heads while others about them seem to be losing theirs.  

Amid a zeitgeist of presidential incompetence, Congressional uncertainty, electoral confusion and societal instability, our judicial system offers a more reassuring stability.  

Over the past week, two separate courts independently dealt embarrassing defeats to Joe Biden’s unconstitutional scheme to cancel $400 billion in student loans.  The fact that the Biden Administration rested its arguments more on the question of standing than the legal merits of its scheme betrayed its lack of confidence in its constitutionality.  

The rule of law prevailed, for now.  

That’s an important tribute to conservatives who worked for decades to populate the courts with judges who interpret the laws rather than concoct them, and a reaffirmation of courts’ importance.  Whatever other passing electoral victories or disappointments, that “big picture” perspective offers satisfaction while highlighting the ongoing importance of judicial appointments going forward.  

Late last week, federal Judge Mark Pittman of the U.S. District Court for the Northern District of Texas vacated Biden’s “pen and phone” student loan cancellation effort as unconstitutional in astringent terms:  

Whether the program constitutes good public policy is not the role of this Court to determine.  Still, no one can plausibly deny that it is either one of the largest delegations of legislative power to the executive branch, or one of the largest exercises of legislative power without congressional authority in the history of the United States.  

In this country, we are not ruled by an all-powerful executive with a pen and a phone.  Instead, we are ruled by a Constitution that provides for three distinct and independent branches of government.  As President James Madison warned, “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”  

Then this week, the Eighth Circuit Court of Appeals dealt the Biden Administration a second defeat.  The Court not only granted an injunction against the nearly half-trillion-dollar handout, which requires a showing of likelihood of success on the case’s underlying merits under the Federal Rules of Civil Procedure, but also made its ruling effective nationwide:  

Whatever the eventual outcome of the case, it will affect the finances of millions of Americans with student loan debt as well as those Americans who pay taxes to finance the government and indeed everyone who is affected by such far-reaching fiscal decisions…  

[A]n injunction limited to the plaintiff states, or even more broadly to student loans affecting the states, would be impractical and would fail to provide complete relief to the plaintiffs.  MOHELA is purportedly one of the largest nonprofit student loan secondary markets in America.  It services accounts nationwide and had $168.1 billion in student loan assets serviced as of June 30, 2022.  Given MOHELA’s national role in servicing accounts, we discern no workable path in this emergency posture for narrowing the scope of relief.  And beyond Missouri, tailoring an injunction to address the alleged harms to the remaining states would entail delving into complex issues and contested facts that would make any limits uncertain in their application and effectiveness.  

As referenced by Judge Pittman, recent years have witnessed egregious expansion of a “pen and phone” administrative state that violates the Constitution and amounts to creeping tyranny.  Barack Obama once pleaded helplessness to reform immigration laws because that power rested with Congress.  When Republicans repeatedly expanded their Congressional majorities, however, Obama pivoted to boasting of his “pen and phone” power to remake laws governing everything from immigration to “Net Neutrality” regulation of the private internet service sector. 

Our judicial branch, however, began to take notice.  In recent years courts have dramatically reined in such administrative state abuses, including last year’s U.S. Supreme Court decision in West Virginia v. EPA.  

Now, multiple courts have enjoined Biden’s attempt to wipe out $400 billion in student loans, which constitute welfare for wealthier Americans.   The cancellation would apply to college borrowers earning up to $125,000 annually, which places someone near the top 10% of U.S. income earners, even though college graduates earn more than $1 million over the span of their working years than Americans without college degrees.  For someone without a college degree earning the median U.S. income of $44,225, that imposes a hardship that violates all concepts of fairness or logic.  

Thanks to our judicial branch that remains for the most part steadfast amid societal and political tempest, the program’s illegality is equally clear.