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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 1: It was the biggest antitrust showdown between the federal government

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Speaker 1: and a US tech giant in a quarter century, and

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Speaker 1: a stunning defeat for Google when a federal judge ruled

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Speaker 1: last week that it's a monopolist and that the search

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Speaker 1: giant broke the law by exploiting its dominance to squash

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Speaker 1: competition and stifle innovation. The finding that Google illegally monopolized

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Speaker 1: the market for general search services and search text advertising

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Speaker 1: is just the first part. Next comes a trial to

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Speaker 1: determine what the consequences will be for Google, and that

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Speaker 1: could be anything from a breakup to unwinding its exclusive deals.

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Speaker 1: Of course, Google says it will appeal the decision. Joining

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Speaker 1: me now to discuss the case is Jonathan Canter, Assistant

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Speaker 1: Attorney General for the Department of Justice Anti Trust Division.

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Speaker 1: What does the Google decision signify for the Justice Department?

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Speaker 1: Is it a game changer or something less?

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Speaker 2: The Google decision usb Google signifies that the anti trust

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Speaker 2: laws apply to the Internet. This is the biggest case

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Speaker 2: about the Internet since the Internet, and so to the

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Speaker 2: extent there are any questions about whether in a world

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Speaker 2: where certain parts of a product offered for free or

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Speaker 2: monetized with advertising, or a world where internet technology companies operate,

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Speaker 2: whether the anti trust laws still apply just as they

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Speaker 2: did against Microsoft AT and Standard Oil. I think we

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Speaker 2: have an answer to that question.

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Speaker 1: What kind of changes do you envision this decision will

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Speaker 1: bring about eventually?

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Speaker 2: Well, I think that remains to be determined. The way

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Speaker 2: the process here works is that we first had a

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Speaker 2: trial to address liability to determine specifically whether Google violated

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Speaker 2: the anti trust laws. Once it's determined that Google did

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Speaker 2: violate the ani trust laws, and the court opted to

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Speaker 2: bifurcate the proceedings, which means now there's a second proceeding

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Speaker 2: that will address the appropriate remedies in light of the

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Speaker 2: liability finding.

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Speaker 1: And so there'll be a hearing on the remedies, which

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Speaker 1: could include the breakup of Google to something much more

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Speaker 1: minor what kind of remedies will the Justice Department be

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Speaker 1: asking for.

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Speaker 2: So the process is ongoing. The court has ordered a

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Speaker 2: hearing in early September, and we're going to respect that process.

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Speaker 2: And so I can't speak specifically about the remedies that

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Speaker 2: we will seek or that the court will likely order

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Speaker 2: in this particular case. But what I can say is

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Speaker 2: that generally we take remedies very seriously and in all

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Speaker 2: of our cases, we want to make sure that any remedy,

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Speaker 2: whether it's in a monopolization case or other cases, meet

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Speaker 2: the market where it is today and have an impact

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Speaker 2: in light of the conduct, both in terms of how

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Speaker 2: the market functions today but also how it's likely to

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Speaker 2: function in the immediate future.

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Speaker 1: Can you tell us what kind of remedies are available

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Speaker 1: so the.

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Speaker 2: Courts have a wide range of discretion in terms of

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Speaker 2: ordering remedies. I think there's a long line of cases

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Speaker 2: going back many many years that may out the different

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Speaker 2: range of remedies. And in an anti trust case, you

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Speaker 2: can have remedies as broad and it's severe as a

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Speaker 2: breakup of a company, or you can have remedies that

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Speaker 2: prohibit a company from engaging in certain kinds of practices

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Speaker 2: and everything in between.

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Speaker 1: One thing that came up at trial was that Window users,

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Speaker 1: when they were defaulted to Microsoft's Edge browser and bing Search,

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Speaker 1: eighty percent of them chose to switch to Google Search anyway.

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Speaker 1: So how much of an impact on consumers do you

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Speaker 1: think this decision could have? If it's upheld.

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Speaker 2: Well, I think in any decision, whether it's in this

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Speaker 2: case or any other, has to consider both the evidence

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Speaker 2: that was put forward a trial, but also the market realities.

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Speaker 2: And so one of the things that we discussed in

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Speaker 2: a pretty innovative way in the trial is we put

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Speaker 2: on the stand a behavioral expert, someone who can explain

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Speaker 2: the power of defaults and help particulate how consumers behave

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Speaker 2: in light of certain things that they might see on

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Speaker 2: a screen.

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Speaker 3: And so all of those.

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Speaker 2: Kinds of questions are likely to be relevant in this

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Speaker 2: or any other case.

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Speaker 1: Do you think the decision is appeal proof?

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Speaker 2: That's not a decision for us to make. We feel

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Speaker 2: very confident in the outcome, and the decision is very

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Speaker 2: thoughtful and deliberate. And you know, if there's something that

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Speaker 2: we need to address as part of an appeal by Google,

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Speaker 2: then we'll do tone writing.

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Speaker 1: So the federal government has launched a series of cases

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Speaker 1: against Google, Meta, Amazon, and Apple. You're going to trial

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Speaker 1: against Google, I believe a second time next month in

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Speaker 1: a related case, and your anti trust lawsuit against Apple

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Speaker 1: bears some similarities to the Google search case. Does the

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Speaker 1: Google case give you a blueprint in any respect for

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Speaker 1: how to handle these other cases.

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Speaker 2: Yeah, I think it's important to take a step back,

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Speaker 2: and I trust monopolization cases brought by the Department of

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Speaker 2: Justice against companies is not something that happens every day.

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Speaker 2: The last case before USB Google was USB Microsoft, which

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Speaker 2: was filed in nineteen ninety eight. Both were victorious, and

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Speaker 2: both were significant, not just because they involved massive companies

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Speaker 2: that have a major impact on society, but because they

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Speaker 2: represent an opportunity for courts and companies to understand how

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Speaker 2: antitrust law is applied in these markets, these technology markets,

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Speaker 2: and how they are applied against the backdrop of a

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Speaker 2: modern economy. So absolutely, given the significance of the case

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Speaker 2: in terms of size and scope and the rarity of

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Speaker 2: a case like this being decided by a court, it's

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Speaker 2: going to, i think hopefully, be an important statement on

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Speaker 2: the state of the antitrust laws today and its applicability

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Speaker 2: to companies in today's markets.

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Speaker 1: Do you think the Justice Department has sort of a

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Speaker 1: momentum here with the willingness of JUDGMENTA to crack down

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Speaker 1: on a tech giant. So do you feel a sort

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Speaker 1: of momentum going your way?

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Speaker 2: Well, we feel the momentum is that we have the

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Speaker 2: facts in the law on our side. We brought a

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Speaker 2: case that we believe was the right case to bring,

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Speaker 2: and we made sure to prove that to a court,

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Speaker 2: and we did that. We did that successfully. But we've

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Speaker 2: had a number of successes, and so if you look

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Speaker 2: at the back of our basebook card, you'll see a

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Speaker 2: lot of wins of late, including in merger cases, including

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Speaker 2: on summary judgment motions, including on motions to dismiss. We've

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Speaker 2: had a very significant run of success and I think

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Speaker 2: that's because we're picking our cases carefully and we were

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Speaker 2: litigating them skillfully.

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Speaker 1: So then do you think that the antitrust laws are

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Speaker 1: flexible enough to address the tech giants that you have the.

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Speaker 2: Tools you need, the anti trust laws are flexible enough

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Speaker 2: to address any company in today's modern markets. The anti

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Speaker 2: trust laws have been able to stand the test of

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Speaker 2: time because they address a principle that remains core to

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Speaker 2: our free market system, which is that competition drives companies

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Speaker 2: do better. Competition drives prices down, competition drives wages up,

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Speaker 2: competition drives companies to innovate, and so anti trust protects

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Speaker 2: competition the competitive process, and that's something that continues to apply,

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Speaker 2: and it continues to be central to one of the

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Speaker 2: things that makes our economy so great and so powerful

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Speaker 2: and so significant, not just in this country but world over.

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Speaker 2: And so I do yes, I believe that's the case. Now.

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Speaker 2: At the same time, there are always opportunities to clarify

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Speaker 2: the ani trust laws. The anti trust laws are written

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Speaker 2: by Congress. We enforce them, we don't write them. And

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Speaker 2: it's always the progative Congress to write new laws and

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Speaker 2: to update laws. And we've weighed in, for example, in

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Speaker 2: love of Congress on some updates relating to technology and

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Speaker 2: competition and anti trust. But in the interim, at least

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Speaker 2: until we see anything additional from Congress. Our job is

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Speaker 2: to enforced law faithfully and when we believe it's meritorious.

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Speaker 1: Was there one moment at trial or one piece of

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Speaker 1: evidence that you considered the most important?

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Speaker 2: So listen, these cases are not built on any one

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Speaker 2: witness or any one document, right, good anti trust cases

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Speaker 2: are built on a body of evidence and a wide

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Speaker 2: range of facts. But one of the things that I

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Speaker 2: will point out that I think is significant and innovative

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Speaker 2: is on the first day of trial, we put on

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Speaker 2: the stand a behavioral scientist, and to my knowledge, this

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Speaker 2: is the first time in the US government and an

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Speaker 2: anti trust case has put on the standard behavioral scientists,

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Speaker 2: somebody who is not talking necessarily about dollars and cents,

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Speaker 2: but talking about how people in the real world react

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Speaker 2: to real information, how people behave when they see something

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Speaker 2: on a screen. This is a new important area of science.

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Speaker 2: It's a rigorous area of study that focuses on the

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Speaker 2: realities of how users function in a world where we

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Speaker 2: have screens, and we have prompts, and we have stimuli

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Speaker 2: that may or may not cause us to behave certain ways.

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Speaker 2: And I think, you know, consumers behave often in idiosyncratic

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Speaker 2: ways that might not necessarily be rational according to a

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Speaker 2: standard economic model, but nonetheless it happens because people are

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Speaker 2: again idiosyncratic, they're human. And I think that it was

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Speaker 2: an important aspect of our case in USB Google, but

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Speaker 2: it's an important aspect of our program going forward, which

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Speaker 2: is to say that if we want to be relevant

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Speaker 2: in a modern economy, we have to make sure that

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Speaker 2: we are putting the expertise that we can bring to

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Speaker 2: bear to understand not just how humans behave in theory,

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Speaker 2: but how they.

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Speaker 3: Behave in practice.

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Speaker 1: So does that mean you'll be introducing that kind of

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Speaker 1: evidence at other anti trust trials if.

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Speaker 2: It's relevant, if it helps us in a court understand

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Speaker 2: how markets function and how consumers actually behave in the wild.

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Speaker 1: And absolutely well, thanks so much for joining me on

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Speaker 1: the show. That's Jonathan Canter, Assistant Attorney General for the

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Speaker 1: Department of Justice Antitrust Division, coming up next on the

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Speaker 1: Bloomberg Law Show. The Eighth Circuit has blocked the Save program,

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Speaker 1: a student loan repayment program that ties how much someone

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Speaker 1: pays each month to their income, leaving eight million borrowers

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Speaker 1: with more questions than answers. This is Bloomberg.

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Speaker 2: Starting a day.

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Speaker 1: We're canceling student debts for borrowers who are enrolled in

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Speaker 1: the Save plan and have been paying student loans for

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Speaker 1: as little as ten years. Back in February, President Joe

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Speaker 1: Biden unveiled the Save program, a student loan repayment program

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Speaker 1: that ties how much someone pays each month to their income.

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Speaker 1: But the eight million borrowers currently enrolled in Save have

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Speaker 1: endured up and down legal decisions on the program since June.

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Speaker 1: That's because two lawsuits filed by Republican states, one in

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Speaker 1: Kansas and the other in Missouri, claimed that the Biden

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Speaker 1: administration didn't have authority from Congress to enact the save plan,

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Speaker 1: and on Friday, a panel of Republican judges on the

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Speaker 1: Eighth Circuit blocked the plan. The borrowers already enrolled in

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Speaker 1: the plan don't have to worry at this point because

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Speaker 1: the Education Department is placing all the borrowers in an

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Speaker 1: interest free forbearance while the Biden administration continues to defend

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Speaker 1: the plan in court. Joining me is constitutional law? Professor

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Speaker 1: Harold Krant of the Chicago Kent College of Law. Why

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Speaker 1: this continuing litigation over every Biden administration attempt to reduce

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Speaker 1: student loan debt.

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Speaker 3: I think the courts are the opinion that the Biden

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Speaker 3: administration is trying to circumvent the Supreme Court's decision limiting

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Speaker 3: the range of options that the administration has to either

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Speaker 3: forgive debts or to in essence, to practically limit the

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Speaker 3: amount of payment that needs to be made on student loans.

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Speaker 3: And in the current case, which is technical but based

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Speaker 3: upon this income contingent payment plan, the Biden administration altered

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Speaker 3: threshold which payments can be lessened and they lessen the

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Speaker 3: number of years which individuals would have to pay before

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Speaker 3: the loans could be forgiven, and in essence, the amount

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Speaker 3: that could be forgiven was very equivalent to the same

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Speaker 3: amount that the Supreme Court struck down in the student

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Speaker 3: loans case of last year. And so the courts there

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Speaker 3: was a split right now in the circuits. But some

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Speaker 3: of the courts are saying, wait, the Supreme Court told

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Speaker 3: you can't do that, and you basically tried to do

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Speaker 3: it in another way, But the tools you use aren't

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Speaker 3: going to clearly allow you, the administration to accomplish that goal.

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Speaker 3: It seems to me, and indeed clearly from reading at

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Speaker 3: least the most recently circuit decision, that the courts want

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Speaker 3: to limit the flexibility of the administration has in order

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Speaker 3: to limit student loan debt.

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Speaker 1: Just review for a moment for us the Supreme Court

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Speaker 1: decision the parameters of it.

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Speaker 3: So the Supreme Court rule that a statutory directive to

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Speaker 3: the Education Secretary basically to postpone or to minimize debt

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Speaker 3: was not equivalent to cancelation, and so the cancelation that

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Speaker 3: the administration tried to do did not fall within the

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Speaker 3: terms of the statute. The statute wasn't clear enough, and

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Speaker 3: the Court then use the kind of so called major

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Speaker 3: questions presumption to say that if we aren't clear that

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Speaker 3: Congress intended that an agency to make such a dramatic change,

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Speaker 3: we will read the statute narrowly. And so the Court said,

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Speaker 3: no power to or give loans in that particular satutory scheme,

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Speaker 3: which is slightly different than the one the administration tried

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Speaker 3: to accomplish. Here, there wasn't income based repayment, but it

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Speaker 3: was a contingent repayment system eliminitating the amounts that individuals

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Speaker 3: would have to pay depending upon how much money they

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Speaker 3: earned in the year, and their loans would be forgiven

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Speaker 3: after a period of time. So the question that the

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Speaker 3: Court had to and the Supreme Court likely to rule

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Speaker 3: on this is whether this is really similar to the

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Speaker 3: first case, even though there's slightly different types of plans

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Speaker 3: that basically no administration has ever used this plan to

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Speaker 3: such an extent. It has to an effect to forgive

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Speaker 3: something like four hundred and fifty billion dollars, and that's

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Speaker 3: not what Congress had mine by saying that the Secretary

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Speaker 3: could decide the length of time and the terms upon

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Speaker 3: which the contingent payments should be made to the administration.

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Speaker 3: And yes, there was an open ended delegation. But the

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Speaker 3: question is whether the Supreme Court, if it decides the case,

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Speaker 3: will say that the open ended delegation has to be

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Speaker 3: read in context and meaning like twenty to fifteen years

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Speaker 3: or two hundred and twenty five percent of above the

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Speaker 3: poverty line versus two hundred and fifty percent above the

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Speaker 3: poverty line, and not make such a dramatic change. And

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Speaker 3: what I think that this case reveals is a great

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Speaker 3: administrative conundrum in that Congress often is flexibility to agencies

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Speaker 3: because Congress doesn't know the details itself, and Congress doesn't

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Speaker 3: know what kind of situation the agency will find itself in.

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Speaker 3: And what's the court going to do then, with all

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Speaker 3: of these open ended delegations, Well, piecemeal decide that agencies

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Speaker 3: can't regulate under these open ended delegations when Congress itself

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Speaker 3: hasn't been more clear. And that's the issue that's going

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Speaker 3: to I think, cut across court term after court term,

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Speaker 3: because we simply are in a situation we don't know

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Speaker 3: when Congress is allowed to get away with that kind

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Speaker 3: of open ended delegation. And when it can't.

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Speaker 1: Just going back to the Supreme Court decision for a

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Speaker 1: minute before we move forward, do you think that that

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Speaker 1: was a decision where they knew what they wanted to

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Speaker 1: accomplish and they just worked their way backwards to accomplish that,

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Speaker 1: or do you think that was a fair reading of

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Speaker 1: the statute because I believe that was a six to

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Speaker 1: three decision right with the conservatives and the majority and

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Speaker 1: the liberals and the minority.

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Speaker 3: Yeah, it was. And I think that the Supreme Court

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Speaker 3: read into this idea of deference to agencies a limitation

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Speaker 3: called a major questions limitation, and that is suggesting that

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Speaker 3: if the agency does something unexpected or it seems to

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Speaker 3: exercise more power than was intended, that's a reason to

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Speaker 3: read the delegation narrowly. It's a way, according to the Court,

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Speaker 3: to preserve majoritarian rule and limit the power of administrative agencies.

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Speaker 3: But fast forward, after the student loans decision, the Supreme

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Speaker 3: Court held that this kind of Chevron difference or difference

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Speaker 3: to agency's interpretation of statutes no longer exists as a

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Speaker 3: special function. So the question that is raised by the

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Speaker 3: current Eighth Circuit decision is should this so called major

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Speaker 3: questions limitation Should that be applied to a statute even

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Speaker 3: when there is no question about deference to the agency's interpretation,

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Speaker 3: because now it's the court responsibility to interpret the statute.

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Speaker 3: And so if the statute is open ended, shouldn't the

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Speaker 3: Court read it in a fair way and make a

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Speaker 3: determination that Congress intended a statue to be open ended

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Speaker 3: and flexible, which would mean that they intended to give

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Speaker 3: the agency the flexibility to do what the agency thinks

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Speaker 3: it needs to do. So one of the open ended

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Speaker 3: questions left over the Supreme Court's term this year is

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Speaker 3: whether this so called major questions limitations on delegated authority,

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Speaker 3: should that still be a operative principle given that Chubron

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Speaker 3: deference has been jettisoned. And I think this case illustrates

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Speaker 3: it well because technically you may have a similar type

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Speaker 3: of interpretive canon to use understanding what Congress means want

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Speaker 3: to give such broad delegations to the agencies. But it's

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Speaker 3: not the major Questions doctor anymore, because that should have

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Speaker 3: been thrown to the dustbin of history when the Court

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Speaker 3: got rid of shock.

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Speaker 1: This is extremely conservative court, a panel of three Republican

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Speaker 1: appointed judges, not a surprise since the Circuit only has

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Speaker 1: one Democratic appointee. Explain their reasoning here.

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Speaker 3: Well, the first question was was there standing to challenge

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Speaker 3: this new interpretation by the administration. I think the court

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Speaker 3: correctly held that there was because the same kind of

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Speaker 3: loan handler that had standing in the earlier Supreme Court

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Speaker 3: case for Missouri was a plaintiff in this case as well.

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Speaker 3: The theory is that if there's fewer loans to process,

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Speaker 3: they will lose money. Not the best standing case, but

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Speaker 3: the Supreme Court earlier said it meets the Article three threshold.

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Speaker 3: And then the question is what about this is an

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Speaker 3: injunction case, so what's the likelihood of success? And they're

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Speaker 3: the court, because of the statutory interpretation issue that we raised,

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Speaker 3: held that they didn't believe Congress intended in this Contingent

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Speaker 3: Repayment Plan delegation to the Secretary of Education, that Congress

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Speaker 3: didn't intend for the Secretary to adjust the program so

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Speaker 3: dramatically as to result in four hundred and fifty billion

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Speaker 3: dollars of forgiven loans. And so they said that it's

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Speaker 3: at least a fair not for sure, but least that

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Speaker 3: fair reading would be that Congress did not intend to

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Speaker 3: delegate that much authoritiy agency. And then the third part

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Speaker 3: of the decision is, well, what about the balance of hardships?

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Speaker 3: And the court is mysterious as to the balance of hardships.

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Speaker 3: It seems to say that there's no real hardship to

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Speaker 3: the plaintiff from waiting till the Supreme Court takes the case.

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Speaker 3: The only harm that I think really discern from reading

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Speaker 3: the decision is to the Eighth Circuit itself. The Court

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Speaker 3: said that because the administration is doing a run around

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Speaker 3: its earlier opinion, that itself constituted a harm. That's not

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Speaker 3: a harm to the plaintiff, that's a harm to the

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Speaker 3: self respect of the court. And so that to me

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Speaker 3: was a real head scratcher. At the end of the opinion.

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Speaker 1: What kind of loan forgiveness plans are allowed under the

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Speaker 1: Supreme Court decision? What kind are absolutely allowed?

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Speaker 3: Any So, yeah, sure, the administration is continuing to apply

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Speaker 3: both in this case, the income contingent re payment plan

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Speaker 3: is continuing to apply in the prior case, the income

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Speaker 3: based repayment plan. There was slightly slightly different plans and

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Speaker 3: there's no problem with that. The question is how dramatically

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Speaker 3: they can change the terms under which those student loan

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Speaker 3: programs are administered so as to minimize the amount of

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Speaker 3: and obviously the administration by tinkering with a number of

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Speaker 3: years that someone has to pay on a contingent based program,

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Speaker 3: or by changing at what level of income you want

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Speaker 3: qualifies for these plans, it can make a huge impact

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Speaker 3: upon how much repayment will be made across the board.

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Speaker 3: And so the issue isn't whether the administration can implement

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Speaker 3: the programs. The issues whether the administration can make such

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Speaker 3: changes to the programs as will dramatically change the amount

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Speaker 3: of student debt that needs.

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Speaker 1: To be repaid. Coming up next on the Bloomberg Alaun Show,

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Speaker 1: I'll continue this conversation with Professor Harold Krant to the

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Speaker 1: Chicago Kent College of Law. There's a split in the circuits.

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Speaker 1: Will the Supreme Court take this case? Student loan borrowers

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Speaker 1: could get dizzy from all the sea sawing decisions by

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Speaker 1: the courts. Just last Friday, a Biden administration debt relief

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Speaker 1: plan that could cancel billions in student loans was halted

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Speaker 1: by a federal appeals court in Missouri. The Eighth Circuit

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Speaker 1: granted a Republican led state coalition's request for the court

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Speaker 1: to temporarily block the program while the US Education Department

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Speaker 1: appeals al lower court ruling against the plan. I've been

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Speaker 1: talking to constitutional law professor Harold Krant of the Chicago

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Speaker 1: Kent College of Law. Is this a conservative liberal issue

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Speaker 1: or is this a question of Republican judges not wanting

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Speaker 1: Biden's forgiveness plan to go through.

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Speaker 3: I think the loan forgiveness programs really sort of reveals

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Speaker 3: the sort of sea change we're having now about not

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Speaker 3: trusting administrative agencies, because in these cases, the judges can

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Speaker 3: see the impact of the Ministry of agency's actions so clearly.

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Speaker 3: In the first case, the Supreme Court case, there was

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Speaker 3: something like four hundred and fifty billion dollar estimate of

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Speaker 3: the impact on the economy, and in this case, according

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Speaker 3: to one estimate, the estimate was a four hundred and

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Speaker 3: seventy five billion impact on the economy. And the sea

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Speaker 3: change then, is that the judge are saying, why should

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Speaker 3: agencies be making decisions with such an impact on the economy.

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Speaker 3: Isn't that what Congress is for? And so they're finding

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Speaker 3: ways to limit agency action when there's such a huge

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Speaker 3: impact upon the economy and that stems from distrust of

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Speaker 3: administrative agencies and theoretically from a greater insistence that Congresses

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Speaker 3: do more than posture and actually make hard decisions and

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Speaker 3: give clearer guidance to agencies.

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Speaker 1: So two different sets of Republican states brought lawsuits against

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Speaker 1: the safe Plan arguing that the Biden administration didn't have

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Speaker 1: authority from Congress to enact it, one filed in Kansas

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Speaker 1: and one filed in Missouri. The Eighth Circuit, which handles Missouri,

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Speaker 1: put the injunction in place, but the tenth Circuit, which

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Speaker 1: handles Kansas, did not put an injunction in place, so

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Speaker 1: split in the circuits. Why bring these lawsuits in two

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Speaker 1: different jurisdictions knowing that it could lead to conflicting decisions.

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Speaker 3: No, I think that the states often tried to file

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Speaker 3: broad based actions against the administration in different jurisdictions in

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Speaker 3: the hope that they will get at least one jurisdiction

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Speaker 3: go their way, knowing that if they have one, then

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Speaker 3: there's likely to be at least they split in the circuits,

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Speaker 3: which would then elevate the case to the Supreme Court.

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Speaker 3: And they of course have good reason to believe that

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Speaker 3: if the case goes to the Supreme Court, the Supreme

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Speaker 3: Court will be friendly to their side of the case.

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Speaker 3: So as a strategic matter, it makes a great deal

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Speaker 3: of sense to me, and I would advise the Republican

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Speaker 3: Attorney's General to do the same thing. Is not to

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Speaker 3: bet on just one jurisdiction unless you're in the Eastern

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Speaker 3: District of Texas the Western District detection storry, but instead

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Speaker 3: to fly.

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Speaker 1: The District of Texas it goes to the Fifth Circuit, right.

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Speaker 3: Right, That's true to file in a variety of districts.

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Speaker 3: I mean in this case they were somewhat limited, of course,

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Speaker 3: because they had to find at least one plaintiff with

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Speaker 3: conventional Article three standing. And that's why the mos every

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Speaker 3: planeff was so critical in this particular case, but in

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Speaker 3: other related cases. Again, as a strategy, it makes sense

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Speaker 3: to a file and hope for the best, because if

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Speaker 3: you get explored the circuits, then you have a much

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Speaker 3: better chance of getting Supreme Court review.

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Speaker 1: Do you have one circuit, the eighth Circuit, putting the

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Speaker 1: plan on hold, then you have the tenth Circuit saying

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Speaker 1: it could go forward. I mean, the federal government is

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Speaker 1: just going to follow what the Eighth Circuit said, or

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Speaker 1: why couldn't the federal government just say, well, the Tenth

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Speaker 1: Circuit said, it's okay.

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Speaker 3: If there are those issues. It has to do with

439
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Speaker 3: the scope of the injunction that is placed. And in

440
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Speaker 3: a circuit's context, the court issued a injunction that was

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Speaker 3: quite broad, and so that really overlapped with the decision

442
00:25:47,080 --> 00:25:51,400
Speaker 3: of the Tenth Circuit. So theoretically the Eighth Circuit can't,

443
00:25:51,440 --> 00:25:55,760
Speaker 3: of course rebut what the Tenth Circuit has said, so

444
00:25:55,840 --> 00:26:01,879
Speaker 3: that the administration could in fact apply different rules in

445
00:26:01,960 --> 00:26:04,600
Speaker 3: different circuits. It doesn't like doing that because of the

446
00:26:05,080 --> 00:26:09,480
Speaker 3: ideal of uniformity. Theoretically, it's possible in those kinds of situations.

447
00:26:10,000 --> 00:26:13,200
Speaker 3: That's happened many times in the past that different regulatory

448
00:26:13,240 --> 00:26:16,480
Speaker 3: programs are ministered differently in different circuits. In this case, however,

449
00:26:16,560 --> 00:26:19,639
Speaker 3: the Education Secretary said that they'll put everything on hold

450
00:26:19,760 --> 00:26:22,520
Speaker 3: pending for the review. So I think that's probably a

451
00:26:22,640 --> 00:26:27,120
Speaker 3: rational response and that the administration will join in asking

452
00:26:27,200 --> 00:26:30,479
Speaker 3: for my guests is joined in asking for a plennary

453
00:26:30,480 --> 00:26:31,560
Speaker 3: review by the Supreme Court.

454
00:26:32,080 --> 00:26:38,320
Speaker 1: Yeah, because student borrowers are just confused about all these

455
00:26:38,359 --> 00:26:42,280
Speaker 1: different court decisions and there are all kinds of different

456
00:26:42,840 --> 00:26:47,200
Speaker 1: loan forgiveness plans out there, and I'm sure it's mind

457
00:26:47,240 --> 00:26:50,280
Speaker 1: boggling to try to figure out what's going on.

458
00:26:50,960 --> 00:26:53,520
Speaker 3: Yeah, there are a guide to the perplexed, and there

459
00:26:53,520 --> 00:26:56,960
Speaker 3: are certain kinds of sites which try to give help

460
00:26:57,000 --> 00:26:59,320
Speaker 3: to people. But even to understand the difference between the

461
00:27:00,400 --> 00:27:05,000
Speaker 3: back forgiveness program as opposed to a contingent income program

462
00:27:05,040 --> 00:27:07,919
Speaker 3: as in this case, it can be somewhat daunting for

463
00:27:07,960 --> 00:27:11,719
Speaker 3: the average student loan person to follow in there. So

464
00:27:12,000 --> 00:27:15,520
Speaker 3: there are hotlines that have sprung up to give advice

465
00:27:15,600 --> 00:27:18,240
Speaker 3: to students so they know which way to apply in

466
00:27:18,359 --> 00:27:20,760
Speaker 3: order to either extend the amount of time they have

467
00:27:20,840 --> 00:27:23,040
Speaker 3: to pay back or limit the amount of money that

468
00:27:23,359 --> 00:27:25,960
Speaker 3: has to be paid back each term. I'm sure there's

469
00:27:25,960 --> 00:27:27,600
Speaker 3: some people that get tripped up, but I think the

470
00:27:28,000 --> 00:27:31,400
Speaker 3: administration and some public interstcruture are doing a great job

471
00:27:31,440 --> 00:27:35,520
Speaker 3: and trying to help students understand their rights, particularly in

472
00:27:35,600 --> 00:27:38,080
Speaker 3: light of these conflicting of polic court decisions.

473
00:27:38,359 --> 00:27:40,520
Speaker 1: I know that it's daunting because I went on some

474
00:27:40,600 --> 00:27:43,879
Speaker 1: of those websites today to try to see what was

475
00:27:43,960 --> 00:27:47,000
Speaker 1: going on, and it's very confusing. I mean, it starts

476
00:27:47,040 --> 00:27:50,240
Speaker 1: out with the safe program is on hold, but then

477
00:27:50,359 --> 00:27:53,919
Speaker 1: talking about what you can do, so I feel sorry

478
00:27:54,000 --> 00:27:57,960
Speaker 1: for anyone who's trying to find alternatives. So do you

479
00:27:58,000 --> 00:28:01,520
Speaker 1: think that the Supreme Court would this split in the circuits,

480
00:28:02,280 --> 00:28:04,600
Speaker 1: is going to almost have to take the case.

481
00:28:04,720 --> 00:28:07,440
Speaker 3: Yeah, I think it extremely alctly that the Supreme Court

482
00:28:07,480 --> 00:28:09,879
Speaker 3: will take up the circuit. There's a lot of money

483
00:28:09,880 --> 00:28:14,480
Speaker 3: at to take. There's confusion, as you mentioned, and obviously

484
00:28:14,480 --> 00:28:17,200
Speaker 3: there's a split in the circuits, and that's a great

485
00:28:17,280 --> 00:28:19,840
Speaker 3: recipe for a CIRT grant.

486
00:28:20,720 --> 00:28:25,680
Speaker 1: The Education Department is moving forward with a broader student

487
00:28:25,840 --> 00:28:29,480
Speaker 1: loan forgiveness plan. It's going to send out emails about it.

488
00:28:30,359 --> 00:28:32,720
Speaker 1: I mean, do you think it's time that they took

489
00:28:32,720 --> 00:28:36,000
Speaker 1: a breath instead of going forward with these plans that

490
00:28:36,359 --> 00:28:38,800
Speaker 1: seem to get stuck in the courts.

491
00:28:39,400 --> 00:28:43,880
Speaker 3: I mean, obviously the Education departments dot asked for my advice,

492
00:28:43,920 --> 00:28:47,040
Speaker 3: but I think a pause is probably in order to

493
00:28:47,840 --> 00:28:51,080
Speaker 3: allow the court to give parameters and just give some

494
00:28:51,120 --> 00:28:54,240
Speaker 3: guidance in the next decision. But on the other hand,

495
00:28:54,320 --> 00:28:58,200
Speaker 3: the Congress has given the Education Department of a wide

496
00:28:58,280 --> 00:29:01,480
Speaker 3: variety of tools in terms of what kind of programs

497
00:29:01,520 --> 00:29:04,280
Speaker 3: exist and what kind of turns to impose on these

498
00:29:04,280 --> 00:29:07,400
Speaker 3: different student loan programs, and with how choices then students

499
00:29:07,360 --> 00:29:10,320
Speaker 3: should make in order to limit the amount that they

500
00:29:10,320 --> 00:29:13,040
Speaker 3: have to pay back. And so the administration is trying

501
00:29:13,080 --> 00:29:17,280
Speaker 3: to be aggressive in trying to help lift the burden

502
00:29:17,320 --> 00:29:19,520
Speaker 3: of student debts upon so many people in our country.

503
00:29:19,640 --> 00:29:22,239
Speaker 3: They're being aggressive. I mean, it's interesting how unaggressive they

504
00:29:22,240 --> 00:29:25,080
Speaker 3: were at the beginning, right, and now they guess they've

505
00:29:25,120 --> 00:29:27,640
Speaker 3: seen that they may only have six months left, they're

506
00:29:27,680 --> 00:29:30,760
Speaker 3: being incredibly aggressive. Yeah, and what tends again, maybe I've

507
00:29:30,800 --> 00:29:34,200
Speaker 3: missed something, But where is the irreparable harm here? The

508
00:29:34,280 --> 00:29:37,720
Speaker 3: court doesn't even really talk about it. It's so weird, right,

509
00:29:37,760 --> 00:29:39,680
Speaker 3: That's one of the standard things in any kind of

510
00:29:40,000 --> 00:29:45,360
Speaker 3: injunction situation is irreparable harm, and they're just really, isn't

511
00:29:45,400 --> 00:29:49,800
Speaker 3: any because you know, before a final judgment can come up,

512
00:29:49,840 --> 00:29:53,120
Speaker 3: there'll be a delay, sure, but that delay isn't going

513
00:29:53,200 --> 00:29:57,040
Speaker 3: to cause the student loan processor or not going to

514
00:29:57,040 --> 00:30:00,000
Speaker 3: even cause the taxpayer any kind of a reparable harm.

515
00:30:00,400 --> 00:30:05,760
Speaker 3: So it's a very I think politically motivated assessment of

516
00:30:06,040 --> 00:30:08,040
Speaker 3: the standards of women in junction issue.

517
00:30:08,240 --> 00:30:10,120
Speaker 1: Well, I don't even know. I don't even think the

518
00:30:10,160 --> 00:30:12,400
Speaker 1: standing is solid.

519
00:30:12,480 --> 00:30:14,160
Speaker 3: Well already held it.

520
00:30:14,760 --> 00:30:17,120
Speaker 1: I know they did, but I mean they were reaching.

521
00:30:17,520 --> 00:30:20,240
Speaker 1: So they won't have as many loans to process.

522
00:30:21,200 --> 00:30:23,360
Speaker 3: Yeah, so, and they get paid for each loan that

523
00:30:23,400 --> 00:30:25,280
Speaker 3: they process. That was the first decision.

524
00:30:25,800 --> 00:30:28,000
Speaker 1: Well, we'll see what happens next. Hel Thanks so much.

525
00:30:28,440 --> 00:30:31,680
Speaker 1: That's Professor Harold Krent of the Chicago Kent College of Law.

526
00:30:32,560 --> 00:30:34,880
Speaker 1: And that's it for this edition of the Bloomberg Law Show.

527
00:30:35,200 --> 00:30:37,560
Speaker 1: Remember you can always get the latest legal news on

528
00:30:37,600 --> 00:30:41,880
Speaker 1: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

529
00:30:42,080 --> 00:30:47,120
Speaker 1: and at www dot Bloomberg dot com, slash podcast, Slash Law,

530
00:30:47,520 --> 00:30:50,120
Speaker 1: and remember to tune into The Bloomberg Law Show every

531
00:30:50,160 --> 00:30:54,040
Speaker 1: week night at ten pm Wall Street Time. I'm June Grosso,

532
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