Shownotes
In this episode of Unwritten Law, NCLA President Mark Chenoweth and Senior Litigation Counsel John Vecchione are joined by Russ Ryan to discuss a recent oral argument before the U.S. Court of Appeals for the Sixth Circuit challenging the federal government’s student loan payment and interest pause.
The case, Mackinac Center for Public Policy v. U.S. Department of Education, focuses on the executive branch’s decision—under both the Trump and Biden administrations—to extend a moratorium on student loan payments and interest accrual long after Congress’s limited authorization expired. Russ explains why those unilateral extensions wiped away billions of dollars in interest without statutory authority.
The discussion zeroes in on standing: how nonprofit public-interest employers benefit from Congress’s Public Service Loan Forgiveness program, why administrative action that reduces outstanding student debt can unlawfully diminish that congressionally granted subsidy, and how Supreme Court precedent—most notably Clinton v. City of New York—supports the theory that loss of a subsidy is a concrete injury.
Mark, John, and Russ also unpack the judges’ questions at oral argument, the Sixth Circuit’s prior rulings, and why this case could clarify when organizations may challenge executive actions that override Congress’s spending decisions.
Transcripts
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Unknown
If you think that unwritten law doesn't affect you, think again. Whether you're a business owner or a professional, just an average citizen, you are unknowingly going to fall under vague and unofficial rules. And when bureaucrats act like lawmakers, they're really restricting your liberty without the consent of the governed.
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John
Welcome to Unwritten Law. This is John Vecchione. I'm here with Mark Chenowith, and we are joined by our colleague Russ Ryan to discuss a recent oral argument before the Sixth Circuit. Welcome, Russ. Thanks for having me. So, what's the name of the case? And where were we? Then the
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Russ
case is Mackinaw Center for Public Policy against the Department of Education. And it arises from the student loan, bailout during the Biden
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John
And, we've had a number of these, cases. And the basis of them is that, Congress has a number of loan programs that they've passed into law. And yet the administration because, you know, I think it's because it's politically attractive, waives away loans, illegally, not in those various programs. Right. So that's the that's the basis of a lot of these cases.
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John
And, what what
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Mark
and who can challenge that? And, and. Yeah, we're about to get to that. Okay. So on the on the basic
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John
thing
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Russ
if you ask me, it's a back to a way to get money to academia, which is one of the favored, the most reliable constituencies
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Mark
for certain parties.
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Mark
Well, not to mention the 18 to to 30 voting group, which is another favorite constituency. That is probably true, but I see the Trump administration's
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John
doing it as well.
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John
So it's not I he so it could be an own goal. Who knows. So but nonetheless, what is the theory of the case? And I'll just say we've lost on standing. They said that that our client did not have standing to bring
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Mark
this case. What is this in district court? What
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John
is the theory of standing? Yeah. So let's
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Russ
first of all, let's separate this case from the Biden against
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John
class, right.
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John
To have
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Russ
a much larger student loan giveaway, a couple of years ago.
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Russ
This deals with what we call the pause in payment and interest obligations that, persisted from the beginning of the Covid, crisis through for approximately three years. So when Covid hit, Trump was still in office, the Trump administration unilaterally decided we're going to pause, temporarily pause, the need for students, borrowers to pay back their loans.
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Russ
the time. And this was March:00;03;18;10 - 00;03;39;17
Russ
, basically through September:00;03;39;20 - 00;03;45;18
Mark
people should be paying their bills or not, but Congress did it. As an institution, we're fine with
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Russ
that.
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Russ
Congress did it the right way, passed a bill, president signed it. So there's a six month pause in payment obligations and in interest accrual. What happened after that when as September rolled around is what we have a problem with. And what we have a problem with is the Trump administration as September was approaching, just decided, well, the statute says this thing ends in September, but we think we need to go on.
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Russ
So they extended it to December and then they
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Mark
extended it. Then they extended it to January until January.
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Russ
but basically then the Biden administration came in and extended it again and again and again and again. So in total, two different administrations extended this moratorium on payments and interest accrual for I think they did it.
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Russ
They extended it eight times after the CARES act period expired. And it basically caused like $5 billion a month to the US Treasury because that's a lot of money. There's a lot of loans out there. And if you're not accruing interest on them, that's basically waiving a lot of money over a three year period. And our problem was that's not that wasn't
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John
it wasn't okay. And to paraphrase Dirksen, 5 billion here, 5 billion there. It adds up to real money, right? So,
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Russ
Congress enacted, I think, in:00;06;02;04 - 00;06;08;23
Russ
And so the whole purpose of that was to help public service organizations
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John
like Mac and particularly, yes, we you know, when you come out of law school particularly, there's an awful lot of loans.
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John
It's even more than college, right? I yeah, when I said 5 billion amount,
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Russ
if you look at the statistics and a lot of economists have looked at it, it disproportionately benefited people with
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Mark
professional degrees and post-graduate, especially law and medicine.
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Mark
So your average community college or
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Russ
four year degree person maybe was benefiting a few, you know, a few thousand dollars a year? Whereas doctors and lawyers
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John
section 250 300.
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John
Right in time. Yeah. So it was
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Russ
really a regressive I think that's the word the economist was you, a regressive thing.
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Russ
But going back to standing. So our, our view is that, public service employers like Mackinaw like and clay, for that matter, benefit from the public service loan forgiveness program. But by.
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Russ
But they benefit
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John
based on the size of outstanding student debt. Explain that. More debt that's out there,
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Russ
the more people are incentivized to seek that, pot of gold at the end of the ten year rainbow by going to a public
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John
service and I'll just I'll just encapsulate that. Let's say you have $10,000 worth of debt. Well, if you go to Wall Street, you know that 10,000 is nothing if you're going to if you come straight out of law school and you make it 250,000 a year, you know, it's not a big deal.
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John
But if you have 300 and $400,000 in debt and you go into public interest, it gives an incentive. The public interest, outfits can't pay as much as, you know, wallet or somebody like that. So, but it gives a huge incentive for people who have a lot of debt. Right. And
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Russ
it's it's, you know, whether you look at it on the basis of individual debtors, the bigger their outstanding debt, the more enticing it is to try to get it wiped away by going to public service or student loan debt collectively, there's a market, you know, that's, there's a market out there and a competitive one to, hire college educated talent.
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Russ
And if you can hold this carrot out there for student loan debtors that. Look, come work for me. And after ten years, all your outstanding student loan debt vanishes. That's a huge incentive that you can wave in front of recruits and your own personnel to
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Mark
entice them to stay.
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Mark
It's a it's a free deferred compensation incentive for the employer, essentially. So any time an
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Russ
administrator, tinkers with my statutory benefit under the self assignment, that's a problem if it's reducing student loan debt.
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Russ
And this one did, because it wiped away all that interest that would have otherwise accrued over those three that three year period. And as I said, I think it was something like $5 billion a month. So now you're talking real
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John
money over 36 months. Now, the other thing I want to say. So now, we had brought a previous case and the district court was very hyped up on that previous case, I
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Mark
think, because it was before the same judge.
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Mark
Yes. And, and and
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John
it was also, in the Sixth Circuit.
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John
Why don't you talk about that? What happened there? This is Janet, Ludington
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Russ
in the, in Michigan. Our first case a few years ago was slightly different, but,
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John
it's importantly different.
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Russ
yeah.
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Mark
And materially different, one might say. Yes. So, yeah, that was the essence.
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Russ
of
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John
the. I want to bring lawyer
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Mark
talking here. But
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Russ
But Judge Ludington summarily dismissed our first case a few years ago. Didn't even wait for an answer.
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Russ
Just said, look, there's no standing here. We went took it up to the sixth
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John
Why?
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Russ
He said that basically, you can't show that you're suffering any kind of competitive injury, and you can't show that you had any of your employees actually leave you because of this, or you can't show that anybody turned down an offer simply because their student loan debt was
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John
And in fact, in that case, that we had focused more, I think, on for reasons that I think they'll come clear on competitive injury in that, in that case, we had said that we'd suffered a competitive injury from the loan program that was in that the loan forgiveness program.
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John
That was in that case. This is a different one. And here we we still had competitive interest in injury, but we also hit, because I think the Sixth Circuit came out with an opinion after all the briefing. Right. We can't this is a subsidy, right? This is clearly a subsidy to, nonprofit employers and government employers.
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John
The government can do it as well, but it's obviously a subsidy to those who are not, you know, working for the pharmaceutical
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Mark
companies, big tech and and defense. Right. It's it's it's that's the one in big law and big law.
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Mark
But I'm
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John
I'm saying the big law people who represent those
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Mark
in those. Oh I see we're saying yeah. Yeah. Okay. So so the so the fact
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John
is this is a subsidy and, and to subsidy to, all the, all the non profits.
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John
And we focused
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Mark
on that, but he still dismissed it. And I
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John
was a little, on standing grounds and I was a little, it seems to me that losing a subsidy is obviously standing and has been for a long time. This isn't like a new concept. So what happened below? And then what was our well, what was our answer to it?
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John
Well, Lovington
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Russ
pretty much followed, his earlier decision and he was emboldened by the intervening Sixth Circuit decision in our first case, and basically said, once again, you have not shown sufficient competitive injury here. He didn't really focus on the fact that it was the loss of a subsidy.
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Mark
and or the fact that it was a different program altogether that we were suing over.
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Mark
Yeah, I think that's right.
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Russ
And so again, we got dismissed. We took it up to the sixth circuit. We briefed it last summer for the most part, and had the argument,
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John
and we went out there to the freezing cold Cincinnati, I will say, and, explain to us who was the panel and what were the questions. The the
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Russ
panel was judge Nalbandian, flanked by Judge Boggs and, Judge Mathis.
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John
And Judge Mathis wrote the other Sixth Circuit opinion that that we lost on. He did, although
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Russ
to his great credit, he was genuinely inquisitive. About, you know, how do we distinguish
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Mark
this, what are the differences? He wanted to know.
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John
So
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Russ
I think marks always already mentioned it was a different program, but in the first case, we really couldn't say that the effect of what the Department of Education did actually lowered student loan balances.
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Russ
And so we had to focus on the competitive injury that it made, nonprofits like Mac and, less attractive when they're out there trying to recruit and retain, college educated
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Mark
for potential employees.
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Mark
It was really focused solely on potential employees instead of current employees.
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Russ
This is different because it actually did reduce student loan balances across the board and in a material way.
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Russ
Yes. It was only the interest that got swept
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John
away the that's real interest free rate loans. They advertise them when they do it for cars or two months, two years without
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Mark
interest, you know, it's the reason it's an incentive.
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Mark
Yeah. In the first case we really couldn't say
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Russ
we, we had our subsidy impaired by the, by the department. We had to say that the department had inflicted competitive injury because it made us harder to recruit,
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Mark
made it harder to write. It made our subsidy less valuable because it gave a subsidy to other people, too, who didn't have it before.
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Mark
Yeah. Yeah, that's basically right. This case, it was
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Russ
sidy that Congress gave us in:00;15;39;06 - 00;15;39;15
Russ
And
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John
it's it's an obscure area of what was the subsidy in that case?
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John
Do tell us. So,
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Russ
it dealt with, the ability of farmers cooperatives to purchase food processing companies and, and doing so where the, the food the owner of the food processing company could get a tax benefit, but only if they sold it to the farmers cooperative.
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Russ
And the farmers cooperative said, hey, when when President Clinton line item vetoed this tax benefit, I was about to well, the tax benefit that my sellers were about to get. That hurts me too, because those sellers are going to go away. And now they're no longer going to be interested in selling to me. They're going to sell it to somebody else.
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Russ
So that subsidy that the tax benefit was supposed to give both the seller of the companies and me as a buyer, because it's sort of a dollar for dollar. That's injury to me. And the the court
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Mark
said, yes, that is okay. And, and can I just say that's one of the things I felt like the district court didn't understand here.
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Mark
He really felt like Congress was giving the benefit to the students, not the organizations. And I think I mean, going to legislative history and everything else, it's quite clear that, no, no, no, Congress was trying to benefit the public interest organizations during the oral
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Russ
argument, that was one of the, you know, one of the things that I was encouraged by that as the argument went on, it seemed like the judges were I mean, they probably got it beforehand, but they seemed to be warming up to that notion that you can have multiple beneficiaries of a subsidy that, you know, you can have and as a result, you can have more than one person injured when that subsidy is taken away
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Russ
unlawfully. And so, you know, I didn't think the Department of Justice lawyer did a great job explaining why this is any different than
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John
and end, in fact. So let's go get into that because, the, the, oral argument, was aggressive, but maybe not as hostile as we thought going in. So why don't why don't we get why don't we get to that?
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John
Because the Clinton case and that was the line item veto case. Right. So people saying, oh, this is a this is big I mean striking down the line item veto. That's why that was what the standing was for in the farm case in the Clinton v New York. So it wasn't like a small thing got done with that amount of standing.
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John
Right. Big thing got done. And in this case, it does strike me that, the subsidy and, and, and I think the subsidy and the benefit Congress, as Mark was saying, is more direct than it was in that case. So, what were the questions? What it what did the panel say to you? Well,
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Russ
I don't think I got more than
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John
three sentences now
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Russ
And, the judges, starting with Judge Nalbandian, understandably wanted to know why isn't this case controlled by our earlier decision in, in your own case, basically. And so right from the jump, I was having to explain why this case is different, why the injury is different. I don't know if I convinced them or not.
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Russ
You never know. But I, you know, we did our best to to explain that,
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John
and, you know, it's it's frustrating to me because, I mean, cause of action.
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John
And I had these young people coming to me all the time, every year I had to sign that they had been they had been in the job and had been doing it because they wanted to rack up those years. It was very important thing was it wasn't even known to me when I got into the job, but it became pretty obvious that a lot of people were relying on it and working for us for that reason.
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John
So it's not some airy fairy
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Mark
thing. I've seen it with my own eyes. Yeah. Same here. And and so, so it's just
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John
it's just crazy that there's even a question about it. But the, the, inquiries, I thought, from all the j even even, who wrote its previous case contraries. Right. Yeah. But the previous case is called contraries.
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John
I'm
00;20;02;15 - 00;20;06;16
Mark
our previous case is McKenna also. Yeah. No, no, no, but who is it again? You
00;20;06;19 - 00;20;27;01
John
Cardona. Cardona? That's the that we call it Cardona because we have to mack in all cases. So exactly. So the Cardona so so I I've been calling it Cardona. I thought it was interesting that he says well how is different because I think that he I, he did want to know why we're doing it again.
00;20;27;05 - 00;20;44;25
John
Right. And so, he did he did take an interest and he was not it was not the sort of sometimes judges. And I think you said to his credit, sometimes judges are like, you're you're going against my case. You know, they they have like, he didn't have any of that. He was like, okay, so why is this different?
00;20;44;25 - 00;21;03;07
John
And and I was I was a little nervous about that. But he, he did have the, the intellectual, questioning of, well, how the facts different because it matters. Facts matter and stuff like that was the impression I got. So that's pretty good. And then we haven't discussed box,
00;21;03;09 - 00;21;08;17
Mark
so I will. That name sounds familiar. Yes, from I've been, but,
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John
he, he had some questions for the government particularly about how this differs from Clinton.
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John
He did he he has that and abandoned was followed up on it. So the questions to the government were all about clean v New York and how this differs and why, this is this is any different. And I don't think she knew. One of the things that I hope is correct is that the, the department just a couple of months ago, maybe 4 or 5 months ago, came out with, to follow up on an on a new executive order.
00;21;43;22 - 00;22;12;06
John
The, Trump administration wants to cut back and not allow the subsidy to certain nonprofits that work in the immigration area, saying they're undermining American law and that they're doing illegal things and they should not get the subsidy. And they wrote right out of the department that this is a subsidy to these nonprofits. So it's right there. It's an admission, I think, and I don't think that was handled well at all.
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John
I mean, she she didn't know about it. You brought you brought up, I think originally, but certainly on rebuttal. She didn't have a chance to do it then. But I think that admission by the defendant is a big deal. And hopefully it'll be a big deal for them. But at the end, I'll just. I'll just wrap up, I think what was the last question?
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John
It was from Boggs, and I found it, amusing. So go ahead. And I
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Russ
disagree about what he was, what
00;22;38;10 - 00;22;41;04
John
the. He was asking. Okay. The basic question
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Russ
was, well, from what I've, from what I can gather, your organization.
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Russ
I thought he meant nclat.
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John
I thought he meant Mackinaw. But it's both of them. Let's face it.
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John
Yeah, it's basically
00;22;53;12 - 00;23;13;28
Russ
a limited government, pro liberty, and implying that, well, maybe we should be anti-government subsidy. I think maybe I misinterpreted the question. I thought he was just, you know, saying, you know, isn't this inconsistent with your own
00;23;14;02 - 00;23;16;06
John
interests? Yes. What he
00;23;16;06 - 00;23;17;23
Russ
meant nclat.
00;23;17;25 - 00;23;34;14
Russ
I said, well, no, we're a nonprofit two, so we're similarly situated to Mackinaw, maybe smaller than Mackinaw. And so maybe the impact is a little smaller. But, we're completely aligned with Mackinaw on this, and I don't know, you
00;23;34;14 - 00;23;47;25
John
got. So here's my. So I thought so what he said was I thought he meant our client. But the fact of the matter is, he, he said maybe this is off topic. And, and he starts out maybe this is off topic.
00;23;47;25 - 00;23;50;25
John
And I was like, yes, it's very off topic, but
00;23;50;25 - 00;23;54;16
Mark
you know, but on brand you have it. Yeah. So do you
00;23;54;16 - 00;24;01;25
John
have to is there some tension between your stated mission in this and, and, what I really thought I was going to say,
00;24;01;26 - 00;24;04;16
Mark
listen, Cato uses this subsidy, okay?
00;24;04;21 - 00;24;06;21
Mark
The Cato Institute.
00;24;06;23 - 00;24;10;05
Mark
Yeah. Hires people signs their thing because we
00;24;10;05 - 00;24;16;10
Mark
all operate under the law. We have. But but they don't like it. They don't like it. I can see
00;24;16;14 - 00;24;20;17
John
I I'm sure they're over there. Here we go. But taking advantage of
00;24;20;17 - 00;24;26;28
Mark
yet another subsidy. I'll sign your subsidy, but no promotion to Cato for you anyway, so. Yeah.
00;24;27;03 - 00;24;27;21
Mark
Well, I,
00;24;27;26 - 00;24;29;05
John
may not, agree
00;24;29;06 - 00;24;30;07
Russ
with all government
00;24;30;10 - 00;24;32;12
John
and it looks like that,
00;24;32;14 - 00;24;34;01
Russ
but as I get toward
00;24;34;04 - 00;24;48;18
Mark
retirement age, and everything that, you know, entitled. Well. And look, the reason, the reason insulate cares about this is because Congress is the one who put this in place, and the administrative state does not have a right to counteract what Congress did.
00;24;48;22 - 00;24;52;13
Mark
So that's what's at stake here. It's right in our
00;24;52;15 - 00;25;00;14
Russ
in terms of Congress gave me something. Some bureaucrat took it away without legal authority. And I'm
00;25;00;16 - 00;25;02;06
John
change the plan again.
00;25;02;08 - 00;25;13;11
John
And we did and so did Mackinaw. And I was I was very heartened. I the one the government didn't use up all their time. Right. So there wasn't too many hard questions for the government. But
00;25;13;14 - 00;25;17;24
Mark
other than that, because they were so clearly wrong. John,
00;25;17;27 - 00;25;28;25
John
I certainly I certainly believe that you did a great job. And I think that, it's very heartening, particularly particularly in this time when people say, oh, judges, just to have this view or that view.
00;25;28;28 - 00;25;40;25
John
It's interesting to see that however it comes out, they didn't just double down on their previous decision. And, that's good judging right there. So it was
00;25;40;28 - 00;25;43;12
Russ
I was impressed that they even
00;25;43;12 - 00;25;46;22
John
gave us all fearful, especially
00;25;46;28 - 00;25;56;26
Russ
since a lot of time elapsed after the last brief was submitted that they were just going to decided, you know, summarily on the briefs, and we'd never even get a chance.
00;25;56;26 - 00;26;08;18
Russ
But, they scheduled it for argument. And as you said, I think they were genuinely inquisitive and open minded. So it was to that extent encouraging.
00;26;08;20 - 00;26;18;28
John
and we'll let you know, what happens in this case, that when it comes out on unwritten law. Thank you for being with us. You.
00;26;19;01 - 00;26;26;21
Unknown
As we like to say here at Nclat, let judges judge, let legislators legislate and stop bureaucrats from doing either.
