Technically, couldn't they have just allowed the Texas judges ruling to stand if they wanted to keep the program gutted? Or are they adding salt to the wound by taking it up with zero chance of actually ruling in favor of the administration?
To provide an update, the
DOJ filed an appeal of the Texas case today. Part of the brief is the same as the other appeal and ends similarly:
This Court should stay the judgment of the district court pending appeal and pending the filing and disposition of any petition for a writ of certiorari. If, however, the Court is not prepared to grant an immediate stay, it may wish to defer consideration of this application pending oral argument, construe the application as a petition for a writ of certiorari before judgment, grant the petition, and hear this case along with Biden v. Nebraska, cert. granted, No. 22-506 (Dec. 1, 2022).
This district court judge made a substantive ruling when only a procedural argument was made. In fact, the judge actually didn't find issue with the government on procedural grounds (Congress explicitly exempted the HEROES Act from the notice and comment requirements of the APA). I think that's what many people would consider to be judicial activism. Just read this part of the DOJ's brief when you consider what the district court judge did:
Respondents are two student-loan borrowers. Myra Brown is not eligible for relief under the plan, and Alexander Taylor is eligible for $10,000 rather than $20,000 in relief. Respondents alleged that they were improperly denied the opportunity to comment on the plan and represented that if the Secretary had proceeded through notice and comment, they would have urged him to adopt broader eligibility criteria and to provide greater debt relief. The district court rejected respondents’ procedural claim, observing that the HEROES Act expressly exempts the Secretary’s actions from notice-and-comment procedures. Yet even though respondents had raised only a procedural claim and had not argued that the Secretary’s provision of debt relief to other borrowers inflicted any injury on them, the court went on to hold that, as a substantive matter, the plan exceeded the Secretary’s statutory authority. Based on that holding, the court vacated the plan nationwide -- a result that afforded no redress to respondents, and actually cost Taylor $10,000. The court of appeals, in turn, issued an unreasoned order denying a stay pending appeal.
Why would it be going down? This is based on power clearly given to the executive by Congress.
I personally think we should wait until oral arguments before jumping to conclusions, but for the most part, what's past is prologue with this Court and the right-wing judges throughout the judiciary. I see no evidence that the right-wing cares about textualism other than to give credence to preordained decisions. Interestingly though, it is the Biden Administration that posed the questions that are now before the Court. I suppose they'd rather take their chances there than hope for a miracle in the Fifth and Eighth Circuits, not to mention get a faster resolution so they can potentially figure out another plan (if the decision doesn't go their way).
