Live from Music Row Tuesday morning on The Tennessee Star Report with Michael Patrick Leahy – broadcast on Nashville’s Talk Radio 98.3 and 1510 WLAC weekdays from 5:00 a.m. to 8:00 a.m. – host Leahy welcomed constitutional attorney Jonathan Emord to the newsmaker line to discuss his recent Townhall piece and the cancellation of student debt by the Biden administration.
Leahy: We are joined on the newsmaker line by Jonathan Emord, a great constitutional attorney, and he’s got a column up at Townhall about Joe Biden canceling student debt. How can that be canceled? We’re talking with Jonathan Emord. Good morning, Jonathan Emord, thanks for joining us.
Emord: Good morning. How are you?
Leahy: What’s it like being actually an attorney who abides by the Constitution in today’s world?
Emord: You’re in an extreme minority because there’s this massive rush to expand federal power and to do it as rapidly as possible before the end of Biden’s term. He’s a puppet whose puppetmaster is a socialist or perhaps even a communist.
Leahy: I agree completely with that. You’ve been practicing law since 1985. A terrific track record. The practice of law, it seems to me, is becoming increasingly difficult, as the judges seem to be, many of them, imbued with, shall we say, unconstitutional attitudes.
Emord: That’s true, although I’ve taken quite a bit of heart because of the Supreme Court. We’ve seen recent changes that bode well for the long term, and I pray for their safety, because I certainly don’t see any serious moves by the Biden administration to protect them, despite the fact that they are under threat constantly.
I’m talking about the conservative justices of the Court. But if we can protect them and keep them safe and they can remain in their positions, we’re going to see a revolution in the law in the right direction, restoring constitutional limits on government power.
Leahy: I’m all in favor of that. You write in your column at Townhall the following: “President Biden’s unilateral act via his secretary of education to waive over $500 billion in debts owed on student loans violates the very section of the Heroes Act cited by Department of Education for its authority to waive some 80 percent of all student indebtedness. Biden’s action is an abuse of discretion.” Tell us more.
Emord: Well, the Heroes Act section they’re talking about, 1098bb, was never intended to be used in this way. And what they’ve done is really a gross violation of that act. In the name of the act, they say that they have this inherent authority, if there’s a national emergency declared by the president, to eliminate student debt.
Well, not so fast, because the act itself requires them to prove that the individual who is going to receive a waiver is entitled to it because the financial position of that person is adversely affected by the very thing that is – in this case, the pandemic – such that they would have difficulty paying their loans.
And this is a direct economic hardship proof, which means that you’d have to show, first, that a kid was adversely affected by the pandemic; secondarily, that that affected their ability to pay their loan.
And you’d have to discount or eliminate all other factors, such as their parents paying for it, Joe Biden’s suspension of the need to pay your student loan. It’s virtually impossible to satisfy the degree of proof unless you were to do it on a case-by-case basis and certainly, because $500 billion is an enormous figure, Congress plainly did not intend to be waived by this act.
You really have to go back to Congress, of course. There is no statutory foundation for such an enormous grant and therefore the “major questions doctrine” arises again as it did in the West Virginia versus EPA case, that is, an agency or department of government may not act unilaterally without express statutory authority if it will have a major economic impact such as this.
So they’re flouting the law, they’re doing it intentionally. It’s too cute by far their interpretation, and the result is disastrous. And that’s precisely in line with the whole litany of actions undertaken, virtually every action undertaken by this administration has been disastrous and ruinous to the economy and to the security of people’s lives and their liberty and their property.
Leahy: You write in your conclusion, “If standing to challenge this in court is found, and federal courts follow the statute and the Constitution, they will hold Biden’s patently crashed political gambit unlawful and strike it down.” But the key question there, the key word in that is if standing is found; some on the Left think that no one will have standing. Your thoughts?
Emord: I think that someone will have standing. In particular I think that loan servicers are likely to have standing if they will sue. And I think undoubtedly there’s a loan servicer who’s disgruntled out there, and I suspect that that person will find support for a suit and would probably not even have to pay the cost of it because there’s such an enormous interest in preventing us from suffering the inflationary effects of $500 billion.
The inflationary effects will not only cause kids going to school to have to pay a lot more for school, but it will also cause a general rise in prices. $500 billion is an enormous amount, and the taxpayers are going to pick up the tab.
The administration won’t admit where that debt is going to be paid, but the reality is that, of course, it has to be ultimately paid by the taxpayers and that’s what will happen.
Leahy: Can you unravel a mystery for me? You’ve been practicing law since 1985. I don’t know if this is the case but it seems to me the courts increasingly use a standard for standing, that is the right to bring a lawsuit, it seems to be increasingly aligned against conservatives. Do I have that right, or what’s the mystery of standing going on in the courts these days?
Emord: When, for example in part of the nadir of liberal jurisprudence in the ’60s and ’70s they began this movement to constrict access to the courts by members of the general public.
So for example, one would think that while taxpayers ought to have a right to sue in this instance we’re talking about, but in point of fact the court has ruled that if an injury suffered is not unique to an individual but is rather generalized or characteristic of an entire population – here taxpayers – then you don’t have a right to sue.
And of course, that really limits the ability of individuals to sue the government. And of course, it’s the purpose of the advocates of big government to not only expand government in unconstitutional ways but to get away with it.
And that means that if they are successful in getting the courts, as they seem to have been in constricting standing, to sue the government, then they’ll be able to get away with a lot more. And that’s what the Biden administration is counting on.
And I think that it’s repulsive. Every aspect of this is repulsive. It’s a very crass political move to gain votes for the midterms. But I think people are seeing through it, and I think people are more offended by the inflationary impact and the gross violation of the law that is attendant to this than they are impressed by the relief that is being supplied to kids who ought to pay their own debts.
Listen to the interview:
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Tune in weekdays from 5:00 – 8:00 a.m. to The Tennessee Star Report with Michael Patrick Leahy on Talk Radio 98.3 FM WLAC 1510. Listen online at iHeart Radio.
