As Puerto Rico reels from the impact of Hurricane Fiona, a ship laden with 300,000 barrels of diesel fuel from Texas has arrived off the island’s southern coast that could help supply the island’s numerous power generators. Thanks to the Jones Act, however, unloading the valuable and timely cargo would be illegal. Passed in 1920, the Jones Act restricts the waterborne domestic transport of goods—such as the transportation of diesel fuel from Texas to Puerto Rico—to vessels that are U.S.-flagged, U.S.-built and mostly U.S.-crewed and owned. But the tanker transporting the U.S. diesel fuel, like over 99 percent of the world’s nearly 54,000 ships, does not meet these requirements. And so both it and the people of Puerto Rico must wait and hope that the Biden administration grants a waiver of this law—something that by the letter of the law can only be done for national defense.

This is the Jones Act’s harm in real-time.

On August 24, 2022, President Joe Biden announced a long-anticipated plan to cancel $10,000–$20,000 in federal student loans for all borrowers below an income cutoff. My colleague Neal McCluskey has explained why student loan cancellation would be very bad policy. This post will focus on two additional questions: Is the plan legal? And can anyone challenge it in court?

Is Biden’s Debt Forgiveness Plan Legal?

The Administration’s Argument in Favor of Legality

While the debt cancellation plan has not been formally implemented yet as of this writing, we already know how the administration is likely to defend its legality in court. That’s because the Office of Legal Counsel in the Department of Justice (OLC) has released a memo concluding that student loan forgiveness can be implemented via a 2003 law called the Higher Education Relief Opportunities for Students (HEROES) Act. This section will first summarize the OLC memo’s argument and then explain why it fails to persuade.

As implied by the name and year of the HEROES Act, the law was enacted as a reaction to the Iraq War. Several of the floor statements from members of Congress when the HEROES Act was introduced reveal that a primary motivation for the act was to ensure that military members didn’t fall into default on their student loans while serving their country.

But the HEROES Act extends eligibility for its benefits to more than just members of the military. The law refers to people potentially eligible for relief as “affected individuals,” and that term is defined to encompass several categories of people beyond just service members, including anyone who “resides … in an area that is declared a disaster area … in connection with a national emergency.” The federal government has declared the Covid-19 pandemic a national emergency and has also declared the entire United States a disaster area in connection with that emergency, which means, according to the memo, that every resident of the United States is currently an “affected individual” as defined by the act.

The HEROES Act allows for several potential benefits for “affected individuals.” The one which OLC relies on to justify nationwide debt cancellation is an authorization for the secretary of education to “waive or modify any provision” of law applicable to federal student loans “as may be necessary to ensure that … recipients of student financial assistance… who are affected individuals are not placed in a worse position financially in relation to that financial assistance because of their status as affected individuals.”

OLC argues that the requirement to pay back the principal balance of a federal student loan is a “provision” of federal law that the secretary of education may “waive” for affected individuals. Thus, the argument goes, the secretary may forgive any amount of federal student debt for any residents of a disaster area, so long as that forgiveness is “necessary to ensure that” the individuals “are not placed in a worse position financially in relation to that financial assistance because of their status” as residents of a disaster area.

That leaves the question of whether loan forgiveness for some or all U.S. residents would in fact ensure that this goal is achieved. OLC argues that this could plausibly be so (while declining to endorse any specific plan, since one has not been implemented yet). First, to establish that debt forgiveness could at least sometimes be necessary to ensure that this statutory goal is met, OLC posits a hypothetical example involving military service: “[T]he Secretary might reasonably find that debt cancellation would ‘ensure’ that a soldier permanently disabled in a military operation and unable to work was ‘not placed in a worse position financially in relation to [her] financial assistance because of’ her military service.” In cases like this, OLC argues, “the aggregate financial harm suffered by borrowers as a result of their status as affected individuals might make cancellation of some or all of their federal student indebtedness appropriate.”

OLC next suggests that the secretary of education could plausibly determine that the Covid-19 pandemic is also a case where the cancellation of some student loan debt for U.S. residents is appropriate. While the memo does not spell out how this might be justified, the analogy to the hypothetical disabled soldier makes the logic clear: Many Americans earned less over the last two years than they would have if not for the pandemic, whether due to job loss, covid-related inability to work, or simply the general economic downturn. While the average American’s lost earnings may not be as dramatic as the hypothetical disabled soldier, debt cancellation equal to those lost earnings would similarly place an individual back in an equivalent financial position.

Of course, it is only possible to speak here of averages; it is obviously not true that every single student loan recipient has earned less than they would have without the pandemic. But, as OLC points out, the HEROES Act explicitly notes that the secretary “is not required to exercise the waiver or modification authority … on a case-by-case basis.” OLC argues that this gives the secretary discretion to provide identical relief to a large category of people, “even though categorical rules by their nature entail a degree of imprecision.” Thus, OLC suggests that it would be acceptable to grant an identical amount of loan forgiveness to each of a large class of people, even though this will inevitably include some who are no worse off financially for having lived through the pandemic.

The Flaw in OLC’s Argument

Where is the flaw in this legal argument? The OLC memo takes a wrong turn when it postulates the hypothetical disabled soldier and argues that the HEROES Act could authorize debt forgiveness as compensation for “the aggregate financial harm” of lost income. The problem with this reading of the act is that it effectively ignores an important portion of the statutory text: all waivers must ensure student loan recipients “are not placed in a worse position financially in relation to that financial assistance” (emphasis added).

OLC’s reading would be much more plausible if Congress had instead written that a waiver must ensure borrowers “are not placed in a worse position financially,” period. If that were the law, then the education secretary could treat loan forgiveness as simply a mathematical equation; if a borrower has lost $10,000 by virtue of living in a disaster area, the secretary could forgive $10,000 in debt to make it a financial wash.

But that is not what the HEROES Act says. It’s a fundamental tenet of statutory interpretation that all portions of the text should have some meaningful effect, so the qualifier “in relation to that financial assistance” must place some additional limit on the secretary’s discretion. And the historical context in which the HEROES Act was passed gives a clear indication of what this statutory text was understood to mean.

As the OLC memo acknowledges, the discussion of the HEROES Act in Congress consistently focused on giving the secretary the power to forbear loans and defer payments for service members, and the power to ensure that service members did not lose eligibility for any loan forgiveness programs that might otherwise require making consecutive minimum payments. In essence, Congress did not want those serving in the military and temporarily unable to make payments on their loans to leave the service and find that their principal balance had gone up (by accruing interest) or that they had lost eligibility for relief programs for which they were previously eligible. In both of these scenarios, service members would have found themselves not just in a worse financial position generally, but in a worse financial position specifically in relation to their loan status.

This suggests a narrow but plausibly well-defined reading of the HEROES Act provision at issue: that the education secretary can grant modifications or waivers only to ensure that an affected individual’s loan balance does not go up or to ensure that the individual does not lose eligibility for any federal aid programs. Under this reading, the secretary can grant a loan forbearance for as long as affected individuals have lost work due to their status as affected individuals, but the secretary can’t go further to actually decrease the individuals’ principal balances. (Indeed, the HEROES Act has already been used multiple times during the Covid-19 pandemic to grant a nationwide student loan forbearance without legal challenge, which under this reading of the statute is a much more plausible use of its authority.)

There are two potential rebuttals to this narrower reading of the statute, but both would likely be unsuccessful in court. First, suffering a loss of earnings could be understood as being put in a worse financial position in relation to one’s student loans, because lost earnings mean an individual has less money to put toward paying off those student loans. A loss of earnings could mean that one’s principal balance is not as low as it otherwise would have been, and debt cancellation could bring that principal balance down to where it otherwise would have been. Thus, the argument goes, debt cancellation is still tied to an individual’s financial status in relation to his student loans, because the focus of relief is on the principal balance of his student loans, not of his bank account.

The problem with this argument is that it proves too much, and it would lead to an interpretation of the HEROES Act that is functionally identical to a version of the law missing the “in relation to that financial assistance” language entirely. To be sure, losing $10,000 through lost work or an economic downturn would mean that, if all other expenses stay the same, a borrower would have $10,000 less to pay toward his principal student loan balance. But it is equally true that losing $10,000 puts an individual in a worse position financially in relation to any other potential expense.

If someone with such an economic loss had been hoping to buy a motorcycle, and had kept all other expenses constant (including student loan payments), then he would be $10,000 further from being able to afford the motorcycle. Thus, it could just as truthfully be said that such a person is in a worse position financially in relation to the planned motorcycle purchase as it could be said that he is in a worse position financially in relation to his student loans. Since money is fungible, reading the HEROES Act expansively to include a loss of money that could be used to pay down student loans is effectively no different from reading the law to allow compensation for any financial harms.

The OLC memo appears to acknowledge that the “in relation to” language does serve some limiting function. The memo concedes that “no matter how much financial harm a borrower may have suffered because of a national emergency, the Secretary can use the HEROES Act only to offset that portion of the harm that has a ‘relation to’ the borrower’s [federal student loan] assistance.” But the memo never grapples with what this relation must look like, and the memo seems to endorse a reading of the act in which this additional requirement would have little chance of offering any meaningful roadblocks to debt cancellation.

Second, the narrower reading of the HEROES Act could be criticized as harmfully and unnecessarily cabining the authority of the education secretary to help borrowers who are in dire circumstances out of their control. Congress clearly intended for the HEROES Act to be a boon for military members who have federal student loan debt, and Congress chose to extend the benefits of the law not just to military members but to others affected by national emergencies. One could argue that the HEROES Act is already sufficiently cabined because, of course, any waiver can only be granted to those who have outstanding federal student loans. Rather than an all-purpose grant of authority to make the victims of natural disasters or wartime injuries whole, the law could be understood as a congressional choice to give special priority for relief to those who participated in federal student aid programs.

Based on recent trends in statutory interpretation, however, the Supreme Court would be likely to reject this argument. In a still-developing doctrine known as “major questions,” the Supreme Court has recently stayed or struck down three separate executive actions that were based on novel and expansive readings of longstanding laws. And one common theme of these decisions is particularly relevant to interpreting the HEROES Act: the Court’s skepticism of finding novel powers in one agency that would make more sense assigned to a different agency.

Perhaps the clearest example of this approach was when the Supreme Court stayed the nationwide “vaccine or test” mandate imposed by the Occupational Safety and Health Administration (OSHA). As the Court explained, the statute at issue consistently addressed only workplace hazards; it did not “address[] public health more generally, which falls outside of OSHA’s sphere of expertise.” Noting that a vaccine mandate is unlike the regulations OSHA typically imposes, the Court held that such a mandate “is simply not ‘part of what the agency was built for.’” Supporting this view of OSHA’s powers was the fact that OSHA had “never before adopted a broad public health regulation of this kind.”

The Biden administration argued that Covid-19 was, literally speaking, a hazard in the workplace (among many other places), but the Court rejected this argument: “Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.” In the same way, permitting the Department of Education to offer compensation for all economic harms arising from national emergencies, simply because those economic harms can affect student loan payments, would expand the department’s powers well beyond their previously understood bounds and well beyond the department’s area of expertise.

The Supreme Court expressed a similar skepticism of novel agency powers when it stayed the nationwide eviction moratorium imposed by the Centers for Disease Control (CDC), which relied on a statutory authorization to impose regulations preventing the interstate spread of disease. As the Court noted, the CDC had “imposed a nationwide moratorium on evictions in reliance on a decades-old statute that authorizes it to implement measures like fumigation and pest extermination.” Again emphasizing the novelty of the action, the Court recounted that the law at issue had “rarely been invoked—and never before to justify an eviction moratorium.”

The Court also stressed the tenuousness of the connection between housing regulations and the agency’s focus (public health), describing the chain of logic necessary to justify the moratorium as follows: “If evictions occur, some subset of tenants might move from one State to another, and some subset of that group might do so while infected with COVID–19.” The Court rejected the administration’s reliance on this “downstream connection between eviction and the interstate spread of disease,” and it likely would similarly reject an argument based on the downstream connection between the economic harm of the pandemic and student loan payments.

Finally and most recently, the Court again returned to the themes of novelty and lack of agency expertise when it struck down the EPA’s claim of authority to impose a regulation that would have limited the amount of electricity produced by coal plants nationwide. The Court noted that predicting nationwide “trends in areas such as electricity transmission, distribution, and storage” requires “technical and policy expertise not traditionally needed in EPA regulatory development.” The Court remarked that when an agency lacks “comparative expertise in making certain policy judgments, … Congress presumably would not task it with doing so.” (Cleaned up.) Once again rejecting a Biden administration textual argument that rested on an extended chain of cause and effect, the Court pointed out by analogy that it “would not expect the Department of Homeland Security to make trade or foreign policy even though doing so could decrease illegal immigration.”

Similarly here, the education secretary’s expertise much more plausibly lies in understanding the rules, nuances, and finances of various federal educational aid programs. It is certainly within the secretary’s wheelhouse to decide when some eligibility rules for these programs should be loosened or waived, for example. But the education secretary is much less plausibly equipped to calculate the monetary harm of wartime injuries, long term disease, or economic downturns, and to provide full compensation based on those calculations. Even though such compensation is necessarily limited to the full amount of an individual’s federal student loans, that does not fix the core problem that calculating and compensating such harms at all is an unusual and unlikely power to have been placed in the Department of Education.

In a nutshell, it is plausible that Congress would be in favor of providing compensation to injured soldiers, but it is much more plausible that it would assign that task to the Department of Veterans Affairs than to the Department of Education. There is no evidence in the text or history of the HEROES Act that Congress thought it was authorizing the Department of Education to assume that power as an alternative to the VA. Nor is there evidence that it was authorizing the Department of Education to become a natural disaster compensation service. Applying the major questions doctrine, courts would likely rule that the HEROES Act does not clearly grant the education secretary the authority to compensate individuals by means of loan cancellation for any and all economic harms arising from national emergencies.

The Further Legal Problems Raised by the Income Cutoffs

For the reasons just given, the HEROES Act does not authorize waivers of principal loan balances as compensation for financial harms, whether on an individual level or for a class of people. But even assuming, for the sake of argument, that the act does allow such waivers in some circumstances, there is an additional problem with how the Biden administration intends to implement its nationwide debt waiver. As explained in the White House announcement, the $10,000 in loan forgiveness (or $20,000 for those who have previously received need-based Pell Grants) will only go to those who fall below an income cutoff, either $125,000 for individuals or $250,000 for married couples.

OLC is correct that the HEROES Act allows relief to be granted on a classwide basis, rather than case-by-case. Even so, the choice to exclude some people from the definition of that class must have some relation to the justification for the relief. In other words, the choice to exclude some people from the class must be made because the secretary believes doing so will better tailor the relief to the statutorily prescribed goal of ensuring individuals “are not placed in a worse position financially in relation to [their] financial assistance.” Otherwise, the choice to affirmatively exclude some people from the class would not be consistent with this statutory requirement. Indeed, a legal memo recently issued by the Department of Education appears to concede this point, advising that “[t]he Secretary’s determinations regarding the amount of relief, and the categories of borrowers for whom relief is necessary, should be informed by evidence regarding the financial harms that borrowers have experienced, or will likely experience, because of the COVID-19 pandemic.”

In this case, since the administration’s justification for the classwide relief is based on a worsened financial position after two years of the Covid-19 pandemic, any limitation on that class must be an attempt to exclude individuals who did not suffer the same level of financial harm from having lived through covid as did those included in the class. But a flat income cutoff is not plausible as a means of line-drawing intended to narrow the class of relief to those who have suffered greater financial harm from covid. Nor is the additional cutoff restricting the larger $20,000 cancellation to those who have received Pell Grants. Both class definitions instead seem clearly intended as choices based on the administration’s preferred policy, and perhaps also based on perceived political popularity.

But even if income cutoffs may be more popular politically than granting nationwide debt relief regardless of income, the cutoffs will raise an additional legal problem for the Biden administration. Courts will likely ask the administration to show that both the $10,000 and $20,000 amounts and the class definitions were chosen based on an attempt to roughly compensate for economic losses from Covid-19 as best as possible. (And the calculation of net financial harm will also have to take into account the fact that during the pandemic borrowers have benefited from zero student loan interest and from zero-dollar minimum payments counting toward public service loan forgiveness.) If the administration cannot make such a showing, and if the evidence instead indicates that both the amounts and class definitions were chosen based on policy or political concerns, then courts will be more likely to find that the action did not follow the standards set by the HEROES Act, even if classwide debt cancellation might be permissible in some circumstances.

Who Has Standing to Challenge Loan Forgiveness?

Even if loan cancellation under the HEROES Act would indeed be illegal, the action can only be struck down if it is successfully challenged in court. And doing so requires not just a winning legal argument on the merits, but also a plaintiff who satisfies the legal test for “standing” to challenge the action.

At its most basic level, the doctrine of standing comes from the Constitution’s limit on the judiciary to deciding only cases or controversies. At a bare minimum, constitutional standing requires that a plaintiff have been injured by the challenged action and that this injury would likely be remedied by the relief sought (in this case invalidating the debt cancellation). But over time, the Supreme Court has added various additional requirements to these basic constitutional benchmarks. Most relevant to this case is that the Supreme Court has, with rare exceptions, denied standing to taxpayers to sue to stop allegedly illegal uses of tax dollars.

Given that the most obvious harm from an illegal spending program is the misuse of taxpayer dollars, the unlikelihood of taxpayer standing makes finding a valid plaintiff trickier. Indeed, when student loan forgiveness was being widely debated but before the Biden administration announced its plan, a Virginia Law Review Online essay argued that no one would have standing to challenge a federal loan cancellation. In the essay, author Jack Hoover argued that courts would find a lack of standing for each of the five most likely types of plaintiffs challenging loan cancellation: taxpayers, former borrowers who had already paid off their loans, Congress, state governments, and loan servicers.

Hoover’s essay is thorough and well worth reading, but in one important respect it is already partially out of date. Like most commentators, Hoover expected that the Biden administration would legally justify student loan cancellation based on a provision of the Higher Education Act (HEA). The Biden administration’s choice to rely instead on the HEROES Act (as signaled by the OLC memo) took most observers by surprise. (Ilya Somin has explained why reliance on the HEA would have had its own legal flaws.) And most relevant here, the administration’s choice to rely on the HEROES Act undercuts the strongest argument against loan servicer standing.

As both Hoover and Ilya Somin have explained, loan servicers are federal contractors who receive small monthly fees (currently $2.85 per borrower) to collect student loan payments from borrowers for the government. While their payment per borrower is small, these fees add up across the millions of Americans making monthly student loan payments. Eliminating those payments entirely for borrowers with principal balances of $10,000 or less (who are below the cancellation income cutoff) would mean immediate lost income for these servicers. Indeed, the Biden administration estimates that roughly 20 million borrowers would have their full balance canceled under the plan.

For this reason, Hoover concedes that loan servicers would satisfy the baseline constitutional standing requirement of suffering an injury that would be redressed by blocking the loan cancellation. But, Hoover argues, loan servicers would fail to hurdle an additional requirement known as prudential standing that applies to challenges brought under the Administrative Procedure Act (APA). This requirement is based on the text of the APA, which allows a plaintiff to challenge an agency action if the plaintiff was “adversely affected or aggrieved by agency action within the meaning of a relevant statute.” (Emphasis added.) The Supreme Court has interpreted this text to mean that a plaintiff may sue under the APA if the plaintiff’s interests “fall within the zone of interests protected by the law invoked.”

The Supreme Court has noted that when applying this test, “the benefit of any doubt goes to the plaintiff,” and the test “forecloses suit only when a plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress authorized that plaintiff to sue.” But as Hoover recounts, the Court has occasionally blocked suits for failing even this lenient test. And one hypothetical example of a suit that would fail this test, posited by Justice Antonin Scalia, may at first blush sound reminiscent of a potential loan servicer lawsuit:

[T]he failure of an agency to comply with a statutory provision requiring “on the record” hearings would assuredly have an adverse effect upon the company that has the contract to record and transcribe the agency’s proceedings; but since the provision was obviously enacted to protect the interests of the parties to the proceedings and not those of the reporters, that company would not be ‘adversely affected within the meaning’ of the statute.

Hoover argues that the HEA similarly lacks evidence that the interests of loan servicers were intended to be considered whenever the education secretary exercised her waiver powers under that act. But whether that is true or not, there is strong textual evidence that Congress did intend the HEROES Act to protect loan servicers’ interests. The provision which OLC relies on authorizes the education secretary to waive or modify legal provisions to ensure one of five goals, only one of which is the “not placed in a worse position financially” goal discussed above. Another one of these five statutory goals is to ensure that “institutions of higher education, eligible lenders, guaranty agencies, and other entities participating in the student assistance programs … that are located in areas that are declared disaster areas … may be granted temporary relief from requirements that are rendered infeasible or unreasonable by a national emergency, including due diligence requirements and reporting deadlines.”

Thus, loan servicers who are located in a disaster area (which, again, is currently the entire United States) are one of the entities meant to be protected by the HEROES Act; the law explicitly contemplates granting them relief from administrative requirements that may become burdensome during an emergency. Based on this textual evidence, loan services should have a winning case for prudential standing under the HEROES Act. The law grants the education secretary the authority to grant relief to all participants in the student loan process during an emergency, and each has an interest in ensuring that this authority is not illegally used to benefit some of them while harming others.

Since loan servicers will likely be found to have both constitutional and prudential standing, they represent the most clear-cut (though not necessarily the only) valid challengers to debt cancellation under the HEROES Act.

Conclusion

The HEROES Act of 2003 is an implausible vehicle for a nationwide debt cancellation plan, and a careful examination of the act’s text reveals no clear congressional intent to authorize such a sweeping plan. The Biden administration’s student loan cancellation will be challenged in court by many plaintiffs, at least some of whom are likely to have standing. And when the action is challenged, it is likely to fall, just as several other dubious claims of statutory authority have fallen over the last two years.

In September of last year, Texas passed a law declaring that large social media platforms are “common carriers” subject to onerous regulations over who and what they can host. The law prohibits platforms from removing, demonetizing, or blocking a user or a piece of content based on the viewpoint expressed. Platforms found to violate this requirement face liability for each piece of content they remove.

NetChoice, a trade association of online businesses, sued to block the law on First Amendment grounds, among other claims. A federal district court in Texas ruled in favor of NetChoice and preliminarily enjoined the law. Texas appealed to the Fifth Circuit, where Cato filed an amicus brief supporting NetChoice. After the Fifth Circuit let the law go into effect without a written opinion, NetChoice filed an emergency petition to the Supreme Court (which Cato again supported), and the high Court put the stay back in place by a 5–4 vote.

Last Friday, however, the Fifth Circuit finally issued a written opinion on the merits and lifted the stay once again, holding (by a 2–1 vote on the key issue of the speech-hosting requirements) that the law complies with the First Amendment.

The Fifth Circuit’s opinion is notable and startling for its complete rejection of a First Amendment right to editorial freedom, a right that the Eleventh Circuit recently affirmed in a decision blocking a similar Florida social media law. Indeed, on this crucial issue, the Fifth Circuit got exactly wrong what the Eleventh Circuit got right, and the implications could ripple far beyond just social media.

The key Supreme Court case that has been understood to establish a right to editorial freedom is Miami Herald v. Tornillo (1974), which struck down a Florida law mandating that newspapers print responses to negative editorials about political candidates. The Tornillo opinion concluded with this crucial passage, which summed up its holding:

The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials—whether fair or unfair—constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time.

This holding, along with that of other cases which built on Tornillo, led the Eleventh Circuit to find that “a private entity’s decisions about whether, to what extent, and in what manner to disseminate third-party-created content to the public are editorial judgments protected by the First Amendment.”

But the Fifth Circuit has now interpreted Tornillo much more narrowly than the Eleventh, holding that editorial discretion is not its own right but merely “one relevant consideration when deciding whether a challenged regulation impermissibly compels or restricts protected speech.” On that view, forcing a newspaper or a website to host content is not a First Amendment violation per se; it only rises to the level of a First Amendment violation if such forced hosting compels the host itself to speak (or interferes with its speech).

Under the Fifth Circuit’s approach, whether compelled hosting rises to the level of compelled speech depends on whether the platform at issue implicitly endorses the value of the speech it chooses to host: “[W]hen a newspaper affirmatively chooses to publish something, it says that particular speech—at the very least—should be heard and discussed. So forcing a newspaper to run this or that column is tantamount to forcing the newspaper to speak.”

The Fifth Circuit concluded that social media platforms do not give similar endorsements to the speech on their sites because they “exercise virtually no editorial control or judgment” over the posts that they host. For that reason, the Fifth Circuit held that forcing a social media site to host content does not raise a compelled speech concern.

There are several problems with this reasoning. First, it seems to endorse what then‑D.C. Circuit Judge Brett Kavanaugh once called a “use it or lose it” theory of the First Amendment, namely the theory that platforms which exercise too little editorial discretion can lose their right to do so in the future. As Judge Kavanaugh explained, this theory makes little sense even on its own terms, since a “‘carry all comers’ decision itself is an exercise of editorial discretion.”

In addition, this test will raise difficult and unanswered line-drawing problems with enormous First Amendment implications. How many submissions does a newspaper have to reject to be understood as implicitly endorsing the worthiness of everything it runs (and thus adopting it as its own speech)? At what point might a social media company’s algorithm become aggressive enough in rejecting posts to reach the threshold necessary for compelled hosting to become compelled speech? And most relevant to the social media platforms at issue in this case, can the decision (whether by algorithm or human) to prioritize or deprioritize certain posts on social media ever qualify as protected speech? These questions are left unanswered.

But more fundamentally, the Fifth Circuit’s test is asking the wrong questions because its conclusion rests on two false premises. First, editorial freedom is a distinct form of free expression protected by the First Amendment; it is the right to curate and present a unique mix of speech in a distinct arrangement and order. Social media platforms do engage in such editorial expression, both when they bar some posts as against their rules (even when those rules are lenient) and when they present each user with their own “feed” arranging others’ posts in a particular order. Websites do not need to pass an “appearance of endorsement” test to have this right.

Second, the Fifth Circuit raises too high a bar for finding a compelled speech violation, which also does not require an appearance of endorsement. After all, the Supreme Court held in Wooley v. Maynard (1977) that a state may not force a driver to carry a motto on his license plate, even though no one would assume that the driver endorsed the message. And the Supreme Court has repeatedly held that compelled funding of others’ speech is a form of compelled speech, even though, once again, such funding would not be perceived by others as endorsement.

To be sure, the Supreme Court has not been as clear and consistent on the issue of compelled speech as it could have been. In Pruneyard Shopping Center v. Robins (1980) (a case heavily relied on by the Fifth Circuit), the Supreme Court held that a state may force a private outdoor shopping center to host political pamphleteers. In my view, Pruneyard was wrongly decided and is inconsistent with Maynard and other compelled-speech cases. But even though it remains binding precedent, Pruneyard has never been extended by the Supreme Court to apply to a media company that hosts and presents speech as its very reason for existing, as opposed to a shopping center or other piece of real estate open to the public that primarily exists for some other purpose.

There are many other questionable conclusions and leaps of logic in the Fifth Circuit’s opinion, too many to list here. But given the fundamental incompatibility between the holdings of the Fifth and Eleventh Circuit, one thing seems certain. As Fifth Circuit Judge Leslie Southwick notes near the end of his partial concurrence and partial dissent, “The Supreme Court will, as always, have the final word.”

Required statements on diversity, equity and inclusion (DEI) are fast becoming a part of admissions and hiring at universities and professional schools. “A review of the admissions process at 50 of the top-ranked medical schools found that 36 asked applicants their views on, or experience in, DEI efforts,” according to a recent report by Laura L. Morgan for the advocacy group Do No Harm.

Controversy has mounted over to the extent to which these requirements, in the words of Princeton’s Keith Whittington, function as “political litmus tests, requiring that scholars pledge themselves to believe and advance a set of contested political values.” DEI statements vary widely; some may serve as desirable or innocuous ways for applicants to signal that they are involved with their communities, or that they believe they can study and work successfully with persons from cultural backgrounds different from theirs.

On the other hand, reports Morgan, many medical schools “were overt in asking applicants if they agreed with certain statements about racial politics.” Among questions asked: “We are interested in combating all forms of systemic barriers, and would like to hear your thoughts on opposing specifically: systemic racism, anti-LGBTQ+ discrimination, and misogyny. How will you contribute?” (University of Pittsburgh School of Medicine) “Please share your reflections on, experiences with, and greatest lessons learned about systemic racism.” (University of Minnesota School of Medicine). “What have you done to help identify, address and correct an issue of systemic discrimination?” (University of Miami Miller School of Medicine). “Without limiting the discussion to your own identity, please describe how you envision contributing to the core values of diversity and inclusion at our School of Medicine, and in the medical profession.” (University of Maryland) Some of these would appear to approach tests of belief and intensity of commitment to belief. “Academics seeking employment or promotion will almost inescapably feel pressured to say things that accommodate the perceived ideological preferences of an institution demanding a diversity statement, notwithstanding the actual beliefs or commitments of those forced to speak,” Janet Halley of Harvard Law has written.

The question naturally follows whether the U.S. Constitution permits public institutions such as state universities to make the chances of acceptance turn in part on avowals of belief. Eugene Volokh, the UCLA First Amendment expert, recently debated UC Davis law professor Brian Soucek on the subject. Volokh offers the following analogy:

[Suppose] we get involved in another war. Much of the country, including [the university system], very much supports the war effort. So the University decides to offer faculty members and prospective faculty members an opportunity to mention their work related to the subject for purposes of evaluation, promotion, and hiring.

If, for instance, some professors joined the National Guard, which takes extra time, that could be used in deciding whether they were being productive enough scholars (just as other faculty might get extra time for tenure evaluation if they took semesters off because of illness or for parental leave). If they put on programs that helped returning soldiers, that would be counted as a form of “service” (faculty generally being evaluated on scholarship, teaching, and service, roughly in that order), even if normally service would otherwise focus on other subjects (such as service on university committees, or writing op-eds or blogs educating the public on the faculty’s areas of expertise). If the History department decided that military history hadn’t been taught enough, then indicating that one is teaching military history or is about to do so might count for extra teaching credit. I don’t think this would violate the First Amendment or academic freedom principles. A university is entitled to set and recalibrate its priorities in these ways.

On the other hand, say the university said (following UC Davis) that “applicants seeking faculty positions … are required to submit a statement about their past, present, and future contributions to promoting [the war effort] in their professional careers,” and did the same for existing faculty as well. This doesn’t expressly forbid people from criticizing the war, or from just avoiding matters having to do with the war. Perhaps even behind closed doors the university might try to deal with this fairly, maybe even weighing scholarship or public commentary that comes to an anti-war conclusion equally with scholarship or public commentary that comes to a pro-war conclusion.

But wouldn’t the message be quite clear—if you want a job here, or if you want to keep your job (especially if you’re untenured), or if you want a promotion, you’d be wisest to express pro-war positions, or at least keep your anti-war positions to yourselves? And is that consistent with the First Amendment and academic freedom principles?

Food for thought, especially since support for war efforts along with concepts such as “100% Americanism” have been considerations in university employment at various points in American history. A couple of related posts: Ontario bar effort (from which it backed off following a membership revolt) to require lawyers to “promote” equality, diversity, and inclusion; and David Boaz on a “right to remain politically silent.”

Last week the Tennessee Department of Health reported that overdose deaths from synthetic opioids classified as nitazenes have increased four-fold between 2019 and 2021. Nitazenes, like fentanyl and its analogs, are synthetic opioids that were originally developed to treat pain. They are anywhere from 10 to 20 times more potent than fentanyl. As with overdoses from fentanyl and other opioids, overdoses from nitazenes can be reversed by administering naloxone, although the antidote might need to be given repeatedly to the victims.

The first nitazenes were developed in the late 1950s by the Swiss drug maker CIBA. None of the nitazene compounds were ever approved for marketing. The World Health Organization reported that isotonitazene began appearing in forensic toxicology reports in Belgium, Canada, Estonia, Germany, Latvia, Sweden, the U.K., and the U.S. in early 2019. Because law enforcement and health officials have only recently become aware that nitazenes have made their way onto the street, most labs have not been testing for it in overdose victims.

News reports about the growing presence of nitazenes among the mix of street drugs should come as no surprise to anyone familiar with what has come to be known as “the iron law of prohibition.”

A application of what economists call the Alchian-Allen Effect, the concept was applied to prohibition (alcohol, cannabis, and other illicit substances) by Richard Cowan in the 1980s, who stated it simply: “The harder the enforcement, the harder the drugs.”

Drug prohibition incentivizes the creation of more potent and powerful forms of the drug to create better efficiencies for the business model. Smaller packages of the drug make smuggling easier. And more potent forms can be subdivided into several more portions to sell, improving drug dealers’ risk/​benefit ratio. The “iron law” is why cannabis has grown in THC concentration; it’s why powdered cocaine brought crack cocaine; it’s why amphetamine brought methamphetamine.

As I have written numerous times, even as far back as 2017, non-medical opioid users preferred to use prescription pain pills that were “diverted” to the black market. As policymakers wrongly concluded that doctors were creating a new population of opioid addicts—despite the fact that the addiction rate has been essentially unchanged this entire century—law enforcement clamped down on opioid prescribing and manufacturing, in turn reducing the supply of diverted opioids. Because of the “iron law,” overdose deaths from heroin surged and overtook those from diverted prescription pain pills. Then fentanyl—50 times the potency of heroin—eclipsed heroin deaths. Supply chain issues related to the COVID pandemic made fentanyl—which doesn’t need to be processed from the opium poppy and can be easily made in clandestine labs— more economically attractive to drug cartels. Now fentanyl is responsible for roughly 90 percent of opioid-related overdose deaths.

Back in July 2020 I wrote, “Waging a war on drugs is like playing a game of Whac‐​A‐​Mole... As efforts are underway to crack down on illicit fentanyl, don’t be surprised if isotonitazene is the next big thing.” Sadly, it appears my premonition was correct. But unless we end drug prohibition, there will be more “next big things” after nitazenes. The “iron law of prohibition” cannot be repealed.

Yesterday, the Senate Committee on the Judiciary voted 15–7 to advance the worrying Journalism Competition and Preservation Act (JCPA).

This bill would carve out an antitrust exemption for news media, enabling journalistic groups to band together as “joint negotiation entities” to demand payment from major digital platforms (such as Meta and Google) for links to and previews of their publications. If the joint negotiation entity cannot reach an agreement with the platform, the journalists would be able to force independent arbitration to set the payment level.

Last month, we explained why this amounted to a government-sanctioned local newspaper industrial policy. Big tech platforms would be forced to pay to subsidize journalists, with arbitrators compelled to ignore any value that digital platforms granted news outlets for sharing their content.

But two weeks ago, it looked as if the bill might die. Republican Senator Ted Cruz succeeded in adding a content moderation amendment, which would prevent digital platforms from adding conditionality to their payments by asking news outlets to take down certain content, such as political speech. Senator Amy Klobuchar, the bill’s sponsor, immediately withdrew her support, noting that the compromise between her and her Republican colleagues had been effectively “blown up” with the prospect of tech companies having to pay for unsavory sites’ output.

But yesterday, the JCPA returned and took its next step towards a full Senate vote. Cruz and Klobuchar struck a deal and proposed SIL22B36, effectively swallowing the same content moderation amendment that was added two weeks ago. Specifically, it prevents the negotiating parties from discussing how they “display, rank, distribute, suppress, promote, throttle, label, filter, or curate” content. The bill picked up a few more conservative votes with the addition of these content moderation provisions.

Despite this, a majority of the Republican members still opposed the JCPA. Democratic Senators Alex Padilla, Jon Ossoff, and Patrick Leahy voted in favor while maintaining significant reservations too. They noted, as we documented before, that the bill would do nothing to promote competition. It’s instead about forcing a transfer from Big Tech to a favored industry whose revenue was eaten into by the rise of targeted online advertising.

This type of legislation has been dubbed a “link tax” overseas. In 2014, Spain enacted a copyright law that required Google and other news aggregators to pay fees to the Association of Editors of Spanish Dailies. Last year, the Australian Parliament passed the News Media and Digital Platforms Mandatory Bargaining Code which delineated the terms of negotiation between media companies and digital platforms. The JCPA, similarly, uses technology companies as a scapegoat for the difficulties of local newspaper journalism, which has seen its traditional content unbundled as a result of the internet.

As we concluded before, the JCPA would deliver a one-sided carve-out from antitrust law – and only to a specific industry. It forces platforms to engage in negotiations in “good faith,” subject to final and binding arbitration if no deal can be reached, while banning the platforms from simply delisting forms of content. This will open up a legal minefield, but the impulse is clear: to force payments to journalists from tech companies. As such, this bill is incompatible with free markets and voluntary, mutually beneficial negotiation.

The Enhancing American Retirement Now (EARN) Act includes a troubling provision that has received very little media coverage. An ABLE account amendment would increase spending on means-tested welfare programs by circumventing federal asset tests.

When the original ABLE Act emerged back in 2014, my then-colleague at the Heritage Foundation, Robert Rector, and I wrote:

While the upfront cost of the ABLE Act is not enormous by Washington standards, the precedent of weakened asset limits in multiple welfare programs may well lead to huge costs in the future. Welfare spending did not balloon to nearly $1 trillion dollars annually overnight. It slowly grew via small, incremental expansions of benefits and eligibility like those contained in the ABLE Act.

And here we are, eight years later, and the ABLE Act may be undergoing a major expansion. Just like we predicted.

Many federal means-tested programs (including Medicaid, the Supplemental Nutrition Assistance Program (SNAP), the Earned Income Tax Credit, the Supplemental Security Income (SSI) program, and Section 8 housing) have asset tests, limiting individuals with other financial resources from becoming eligible for benefits.

The purpose of asset tests is to ensure that individuals use their own resources before relying on taxpayers for support. This is only fair. Working-class American families should not be subsidizing more affluent individuals who can afford to pay their own bills. In the case of the ABLE Act, a National Disability Institute report from 2015 predicted that “these account holders will most likely come from families earning over $90,000 per year.”

The original ABLE Act passed in 2014. It created tax-preferred savings accounts for people with disabilities to save for a broad range of qualified expenses. More importantly, the law exempts ABLE account assets and distributions from being counted against federal means-tested benefits, such as Supplemental Security Income (SSI) and Medicaid.

Individuals who wouldn’t normally qualify for these welfare benefits — because they have significant financial resources they could draw on to support themselves — are able to continue to receive welfare support for as long as those assets are held in a designated ABLE account.

ABLE accounts can be opened in 43 states and the District of Columbia, shielding up to $16,000 in annual contributions, made by anyone on behalf of the beneficiary, from asset tests. Working beneficiaries may contribute an additional amount up to the individual Federal Poverty Level.

There are no limits on how much someone can accumulate in an ABLE account. Once accounts exceed $100,000 in value, account holders would lose their SSI cash benefits. However, Medicaid beneficiaries can keep their benefits, regardless of how high their account balances grow.

Currently, only children and adults whose disability occurred before age 26 and who meet federal program disability standards are eligible to open an ABLE account. The amendment included in the Senate EARN Act would make ABLE accounts available to individuals who experienced their onset of disability before age 46. According to a news release by Senator Bob Casey (D‑PA) this change would expand ABLE account access for 6.2 million individuals.

This policy may incentivize more individuals on federal disability programs to work, with associated benefits to themselves and their communities. There’s also the risk that looser eligibility standards will motivate more individuals to apply for federal disability programs when they otherwise may have continued to work. The latter would drive up federal government spending on benefits.

To qualify, individuals must be entitled to federal disability benefits under the Supplemental Security Income program (a means-tested welfare program that pays monthly benefits to people who are disabled, blind, or age 65 or older) or the Social Security Disability Insurance program (a program that provides monthly cash benefits to workers who meet the statutory definition of disability and have achieved insured status).

Both programs are poorly administered and subject to fraud and abuse. They have loose eligibility standards and inconsistent determination processes, which result in excess benefit payments. Unreliable disability determination processes make the ABLE Act expansion more troubling, because this asset test loophole will increase incentives for individuals to apply for federal disability programs.

Alternatively, individuals can also qualify by presenting a “disability certification” confirming documentation of a physician’s diagnosis that the individual meets the functional disability criteria in the ABLE Act.

The EARN Act, including the ABLE Age Adjustment Act amendment, is reportedly being considered for passage during a lame-duck deal later this fall.

The Congressional Budget Office should first produce a score of the fiscal impact this massive expansion of ABLE accounts would have on the federal budget.

It would be further instructive for the Congressional Research Service to produce a report on current ABLE account usage, including the income level of participating families.

Working-class taxpayers have a right to know who benefits from welfare programs that are intended for those who need them most.