Author: Frank V. Vernuccio, Jr.

Since the pandemic was declared in early 2020, those living in the United States have been endangered, threatened, and terrorized.  But don’t misunderstand – I’m not talking about Covid-19 itself.  I’m talking about the overreaction of our local, state and federal governments to the introduction of the Wuhan Virus to our shores.

As early as March of 2020, we noted the over-the-top response of several jurisdictions to the coronavirus, including Champaign, Illinois, where the Mayor “signed a declaration of a state of emergency…among the powers…gained after signing the executive order was the power to ban the sale of guns, ammunition, alcohol, and gasoline.”  Under this order, the Mayor of Champaign “could also cut off access to individuals’ gas, water, or electricity. The city also has the ability to ‘take possession of private property’ or order the temporary closing of all bars or liquor stores.’    

“The Mayor granted herself these powers, even though (at the time) there was not a single case of Covid-19 in her town, and 32 cases in all of Illinois.”

Extreme government overreach became the norm in the years that followed. By April of 2020, “(t)he Mayor of Washington, DC…threatened criminal penalties for not obeying her ‘stay at home’ orders, including imprisonment up to 90 days, a $5,000 fine, or both…(t)he Governor of Hawaii and the Governor of Virginia…made similar threats…. Several states, including Maine, New Jersey and California, all attempted to close gun stores, claiming they were not ‘essential services.’… in Kentucky, the governor issued an order stopping all in-person gatherings, including festivals, government meetings and church services.  California also ordered the closure of their churches, deeming them to be an ‘unessential service.’  The Mayor of New York threatened to permanently close churches and synagogues that did not comply with his orders.”  

By July of 2020, “approximately 18 states...mandated wearing facial coverings in public spaces, including California, New York, Hawaii, New Jersey, Connecticut, Pennsylvania and Virginia.  Many local governments…mandated masks regardless of whatever rules their state government has promulgated.  The Mayor of Boise, Idaho…ordered the use of face masks in public, as did the Mayor of Minneapolis…”

Once “vaccines” against Covid-19 were made widely available, vaccine mandates became the order of the day throughout 2021 and 2022.  “’President Joe Biden…announced (on July 29, 2021)  sweeping new pandemic requirements…Federal workers will be required to sign forms attesting they’ve been vaccinated against the coronavirus or else comply with new rules on mandatory masking, weekly testing, distancing and more.’  This follows shortly after  ‘California Governor Gavin Newsom announced (on July 26, 2021) that his state will require all state employees and healthcare workers to provide proof of vaccination or be subject to regular COVID-19 testing…Then, on August 18, 2021, ‘Washington Governor Jay Inslee expanded his state’s vaccine mandate to include all education staff, faculty, and on-site contractors.  The mandate extends to employees working in K–12 settings, most childcare and early learning, and higher education.’”  

In particular, religious objections to the “vaccine” were roundly ignored.  “As of November, 2021, ‘The Navy has not yet approved any religious exemptions for the COVID-19 (vaccine)…There were 2,531 requests for religious exemptions, according to the Navy. However, the Navy has not adjudicated all of the request(s)…Exemptions are being handled on a case by case basis…Some sailors have already found out if their request has been denied, while others are still waiting. Those who were denied a religious exemption now have five days, from when they were notified, to start the vaccination process or they face separation.” 

But as their legislatures, mayors and President violated civil liberties wholesale, one branch of government made every effort to protect the rights of all – the Courts.

When the Navy rejected all applications for religious exemptions from the “vaccine,”  “Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas…granted an injunction against the Biden administration and the Department of Defense, preventing them from enforcing the vaccine mandate against…service members who had applied for a religious exemption. O’Connor ruled that the blanket denial of their religious waiver requests amounted to a violation of the service members’ rights under the First Amendment…” 

When the Biden Administration extended the face mask requirement on commercial airliners, even after most airlines called for the removal of the requirement, “at the beginning of May (2022), federal District Judge Kathryn Kimball Mizelle of Tampa, Florida struck down the mandate.  Her reason?  ‘The Court concludes that the Mask Mandate exceeds the (Center for Disease Controls) statutory authority and violates the procedures required for agency rulemaking.'”

“Exceeding statutory authority” has been the basis of almost every court decision striking down government-imposed coronavirus mandates.  After the 8th Circuit Court of Appeals issued a stay of the Biden Administration’s Student Loan Forgiveness Program, in a lower court case in another jurisdiction, Brown v. US Department of Education, Judge Mark Pittman of Texas ruled that “the executive branch unconstitutionally exercises ‘legislative powers’ vested in Congress” when it used the HEROES Act as the basis for its Student Loan Forgiveness Program.  As the Court stated, “the HEROES Act— a law to provide loan assistance to military personnel defending our nation—does not provide the executive branch clear congressional authorization to create a $400 billion student loan forgiveness program. The Program is thus an unconstitutional exercise of Congress’s legislative power and must be vacated.”

Judge John Wilson’s article concludes tomorrow

Illustration: Pixabay

Daria Novak

China operates more than 7,000 private security companies (PSCs) domestically. Recent estimates indicate its overseas PSC firms have expanded and are now operational in over 40 countries. One of those nations is the United States; another is Pakistan. The PSCs provide a way for the Chinese Communist Party (CCP) to project power overseas and, in some cases, protect its nationals. South Asia, including Pakistan, is not well-integrated into the global economy but economic and investment activities in Pakistan are of growing importance to China’s Belt and Road Initiative (BRI). That means more Chinese on Pakistani spoil. Early on in its economic expansion China depended on local Pakistani physical security forces to protect its assets and nationals working in country. With Islamabad unable to guarantee the safety of Chinese citizens, Beijing has, according to the Jamestown Foundation’s Sergey Sukhankin, “intensified its requests concerning the option of using its own security providers on Pakistani soil” this summer. 

China is facing increasing scrutiny from Pakistani authorities who view its de-facto semi-independent agents in a negative light. “In addition to growing anti-Chinese sentiments (in certain parts of the country that are particularly dependent on the BRI), the deployment of Chinese PSCs in Pakistan might lead toward a surge of Sinophobia in the country, which most likely will be used by Islamic radicals and underground militants for their own purposes,” says Sukhankin. Although most security experts do not believe the PSCs will be permanently deployed there, they still will be a significant tool for China resulting in increased aggravation of the security milieu, he adds, and leading toward a weakening of ties between Islamabad and its other strategic partner, the United States.

Last year there was a 5.2% year-on-year increase in China’s outbound direct investments, a large part of which is directed to Asia and BRI-related countries in Southeast Asia, Pakistan, Bangladesh, and the United Arab Emirates.  For China, South Asia serves as geopolitical curb on Indian influence in the region. The key state is Pakistan although it is not the wealthiest or most politically stable, according to the Jamestown Foundation. The country is located in a strategically important transportation and logistical artery, notes Sukhankin, but also one facing increased violence and political instability that may be constraining China’s ambitious BRI plans for the region.

Pakistan plays an outsized role due to its strategic importance since it occupies a key geopolitical position linking the Middle East, South Asia, Central Asia and the Indian Ocean. It has the second largest Muslim population after Indonesia and maintains strategic ties with both the United States and China. Pakistan in recent years has emerged as more important to China due to the improvement in US-Indian relations. After Xi Jinping assumed the presidency, he visited Pakistan to upgrade the bilateral relationship to one he labeled an “all-weather friendship” (全天候友谊). 

Earlier this year, Chinese Premier Li Qiang reinforced it calling China and Pakistan “good neighbors, friends and brothers” and an investment priority. While Pakistan benefits from some of the BRI projects, officials in Islamabad are growing increasingly concerned that the influx of Chinese could threaten Pakistan’s cultural identity. An additional concern is the external financial indebtedness its assuming that, as of 2021, topped $27.4 billion. Pakistan does not want to become too dependent on China.  

China faces two interconnected concerns. First, several radical Islamist groups are targeting Chinese nationals in Pakistan, and second, increased Sinophobia in key economic areas of the country such as Balochistan. There are a number of Muslim militants there who see China as exploiting the local populations and effectively “colonizing” the province. Recently, some Pakistani leaders in the area have called for ousting the Chinese for their failure to recognize the sovereignty of the local residents. This particular region is growing in importance, too, due to the copper and gold deposits China needs for modernizing its economy.   

A July Jamestown Foundation report says that “well-informed Pakistan experts and security analysists believe that discontent within the Chinese military-political elite over the growing number of security incidents and attacks against Chinese nationals in Pakistan is increasing.” It quotes Ejaz Haider, a  security analyst, as saying that it is “deeply disconcerting that, despite being engaged with and against Afghanistan and in Balochistan, our [Pakistani] intel capabilities are less than satisfactory.”  If security can’t be improved there are concerns in Islamabad that China will send in paramilitary to protect its nationals and resources in country. It is unlikely that Pakistan will give China permission this summer to allow the permanent deployment of PSCs. China is also concerned about its image if these paramilitary troops were left there unsupervised. Even with additional Chinese security forces in country it may not be enough to make a difference in guaranteeing Chinese nationals security while working in Pakistan. The China-Pakistan bilateral relationship is undergoing increased strains at a time when China needs the relationship to offset issues with India. It could become yet another flashpoint over the coming year.

Daria Novak served in the U.S. State Dept.

Photo: Pixabay

Last week at the NATO Summit in Lithuania, Georgia once again was not offered a formal Membership Application Plan (MAP). Tbilisi first indicated in 2002 it was willing to join NATO and then in 2008, with Ukraine, received a promise of future membership, according to Beka Chedia of the Jamestown Foundation. In subsequent years Georgia was told that the government had not yet met the reform requirements required for membership and, therefore, would not be offered a Plan which is mandatory to achieve full Membership. Last week, Ukraine which had been in the same status, was granted permission to skip this step, according to a July 11 report from NATO.

The Georgian case is complicated as several NATO Member states are concerned that should Georgia be admitted into NATO, the alliance could be drawn into a conflict if Russia attacked the country or became too intertwined in it. In late May, NATO’s Special Representative for the Caucasus and Central Asia, Javier Colomina visited Georgia and according to Amerikiskhma.com told authorities there that the alliance expects Georgia to strongly support Ukraine as well as extensive democratic reforms. Chedia adds that “NATO officials have also expressed outrage at the resumption of air traffic between Georgia and Russia.” NATO Secretary-General Jens Stoltenberg added: “We also expect non-NATO Allies to adhere to the sanctions and to not make it easier for Russia to finance and to organize the war of aggression against Ukraine.”

Georgian Prime Minister Irakli Garibashvili at the Global Security Forum in Bratislava this spring pointed out that NATO expansion and Ukraine’s intent to join helped spark the Russian invasion. Frankfurter Allgemeine, a German newspaper says it was this scandalous statement that became the reason why Garibashvili was not invited to the NATO summit, as the alliance itself explained that he was “an undesirable,” according to the Jamestown Foundation.

Last week, US ambassador to Georgia, Ian Kelly suggested that Georgia does not appear interested in joining NATO. “The Georgian government should explain why it is not at this critical summit. Reasonable people will conclude that Georgia is no longer interested in seriously promoting its Euro-Atlantic aspirations.” Georgia’s only representative at the Vilnius summit was Foreign Minister Ilia Darchiashvili.  Earlier this month, Estonia’s Prime Minister Kaja Kallas, said in an interview with Radio Free Europe/Radio Liberty, that “The leadership of Georgia right now does not really believe in [NATO membership], so they do not really push that agenda. What does the change in attitude mean? Chedia suggests that until a decade ago, Georgia was trying hard to work with NATO. At the time there was no eastward expansion of the alliance. Last year, after Russia invaded Ukraine, NATO states moved to strongly support an eastward expansion. At the time NATO also designated the Black Sea as a vital region for the alliance organization.

The current pro-Russian ruling elite of Georgia, according to Chedia has suddenly taken an indistinct position. At the same time as the Vilnius Summit, Moscow announced that it was expanding its flights into Georgia to 284 a week. Last year Garibashvili published a first-of-its-kind Facebook post covering his speech at an economic forum in Qatar, saying: “Georgia has territorial problems. We must first resolve this issue and then become a member of NATO.” Two weeks ago, the Georgian publication Netgazeti commented that it appeared to be a sign of capitulation to Moscow. Russia, says Chedia, “has been skillfully using Georgia’s occupied territories for years to prevent the country’s integration into transatlantic structures.” Given Russia’s occupation of two regions in northern Georgia, it would be ineligible for full Membership. However, some Georgian officials are trying to sidestep the issue by urging NATO partners not to follow Russia’s agenda and not to link the membership with Georgia’s territorial challenges.

It may mean that if Georgia backs away from joining NATO this year, Moscow will cut a deal to return the Georgian occupied territories of Abkhazia and South Ossetia. Four years ago, when the Georgian president offered this deal, Moscow turned him down. Chedia says Georgia has broken away from being associated with the classic trio of Ukraine, Moldova, and Georgia in the case of European Union membership. In the case of NATO, Georgia is left alone with only a vague perspective. Chedia suggests that while some see it as an unfulfilled NATO commitment, others say the pro-Russian authorities in Georgia are skillfully using NATO’s indecision to offer Georgian society its alternative geopolitical project for neutrality. This may be the best outcome from Moscow’s perspective.

Daria Novak served in the U.S. State Dept.

Photo: Secretary General Jens Stoltenberg concludes the recent summit (NATO Photo)

Recently, in the case of Missouri v. Biden, Federal Judge Terry Doughty of the Western District of Louisiana issued an injunction against various members of the Biden Administration.  Normally, such an order would not cause much of a stir outside of legal circles.  But this order, and this case, are different.

“A judge…prohibited several federal agencies and officials of the Biden administration from working with social media companies about ‘protected speech,'” is the way the Associated Press described the ruling.  “(A) White House official who was not authorized to discuss the case publicly and spoke on condition of anonymity,” said “(t)his administration has promoted responsible actions to protect public health, safety, and security when confronted by challenges like a deadly pandemic and foreign attacks on our elections.” 

Further, in opposing the injunction, “Administration lawyers said the government left it up to social media companies to decide what constituted misinformation and how to combat it. In one brief, they likened the lawsuit to an attempt to put a legal gag order on the federal government and ‘suppress the speech of federal government officials under the guise of protecting the speech rights of others…(the) proposed injunction would significantly hinder the Federal Government’s ability to combat foreign malign influence campaigns, prosecute crimes, protect the national security, and provide accurate information to the public on matters of grave public concern such as health care and election integrity.’”  

Really?  Is that what happened?  Did a federal judge in Louisiana prohibit the Biden Administration from “working with social media companies about ‘protected speech?'”  Just how was the Biden Administration “working with” these companies?  What “about” “protected speech?”  And why does the AP put the term “protected speech” in quotation marks?

For the truth, we direct the reader to Judge Doughty’s order itself.  

“This case is about the Free Speech Clause in the First Amendment to the United States Constitution,” the Court begins its opinion. “The explosion of social-media platforms has resulted in unique free speech issues – this is especially true in light of the COVID-19 pandemic. If the allegations made by Plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States history.  In their attempts to suppress alleged disinformation, the Federal Government, and particularly the Defendants named here, are alleged to have blatantly ignored the First Amendment’s right to free speech.”

The opinion is 155 pages long, and more than 80 pages of Judge Doughty’s decision details the factual basis for his injunction.  These facts are a stunning indictment of the efforts members of the Biden Administration have made to suppress free speech, calling even the truth “misinformation” if it did not suit the narrative the government wished to impose on the American public.

“(S)ince 2018,” Judge Doughty continued, “federal officials…have made public statements and demands to social-media platforms in an effort to induce them to censor disfavored speech and speakers…(federal officials) have threatened adverse consequences to social-media companies, such as reform of Section 230 immunity under the Communications Decency Act, antitrust scrutiny/enforcement, increased regulations, and other measures, if those companies refuse to increase censorship. Section 230 of the Communications Decency Act shields social-media companies from liability for actions taken on their websites…the threat of repealing Section 230 motivates the social-media companies to comply with (federal officials) censorship requests.”

It is a fair point to note that Joe Biden was not President in 2018 – Donald Trump was.  Therefore, it is fair to ask just which federal officials “induced” social media platforms “to censor disfavored speech” before Biden was sworn in as President on January 20, 2021?

“The FBI, along with Facebook, Twitter, Google/YouTube, Microsoft, Yahoo, Wikimedia Foundation, and Reddit, participate in a Cybersecurity and Infrastructure Security Agency (CISA) ‘industry working group’…at…(the Industry) meetings, social-media companies shared disinformation content, providing a strategic overview of the type of disinformation they were seeing. The FBI would then provide strategic, unclassified overviews of things they were seeing from Russian actors…in the Industry meetings, the FBI raised concerns about the possibility of ‘hack and dump’ operations during the 2020 election cycle.”

Judge Doughty’s findings of fact continue; “On September 4, 2019, Facebook, Google, Microsoft, and Twitter along with the…CISA held a meeting to discuss election issues. (FBI officials also) attended…(t)he focus of the meeting was to discuss with the social-media companies the spread of ‘disinformation’…(f)or each election cycle, during the days immediately preceding and through election days, the FBI maintains a command center around the clock to receive and forward reports of ‘disinformation’ and ‘misinformation.’ The FBI requests that social-media platforms have people available to receive and process the reports at all times…(b)efore the Hunter Biden Laptop story breaking prior to the 2020 election on October 14, 2020, the FBI and other federal officials repeatedly warned industry participants to be alert for ‘hack and dump’ or ‘hack and leak’ operations…”

“Hunter Biden was not referred to in any of the CISA Industry meetings. The mention of ‘hack-and-leak’ operations involving Hunter Biden is significant because the FBI previously received Hunter Biden’s laptop on December 9, 2019, and knew that the later-released story about Hunter Biden’s laptop was not Russian disinformation…(Mark) Zuckerberg testified before Congress on October 28, 2020, stating that the FBI conveyed a strong risk or expectation of a foreign ‘hack-and-leak’ operation shortly before the 2020 election and that the social-media companies should be on high alert. The FBI also indicated that if a trove of documents appeared, they should be viewed with suspicion…”

“After the Hunter Biden laptop story broke on October 14, 2020, (FBI officials) refused to comment on the status of the Hunter Biden laptop in response to a direct inquiry from Facebook, although the FBI had the laptop in its possession since December 2019.”

In other words, the FBI knew that Hunter Biden’s laptop was not “disinformation;”  yet that same FBI “repeatedly warned” social media outlets to beware of a potential foreign “hack and leak” operation-  thus causing social media to suppress legitimate news stories regarding that same laptop.

The findings of fact by Judge Doughty establish what many of us knew, but have repeatedly been told is not true – the Federal Bureau of Investigation, while Donald Trump was President, actively interfered in the 2020 election by suppressing and discrediting information that would have been damaging to Joe Biden.

These jaw-dropping, legally established facts are only the tip of the iceberg of the efforts made to suppress Free Speech once the Biden Administration took office. 

“On January 23, 2021, three days after President Biden took office, Clarke Humphrey who at the time was the Digital Director for the COVID-19 Response Team, emailed Twitter and requested the removal of an anti-COVID-19 vaccine tweet by Robert F. Kennedy, Jr. Humphrey sent a copy of the email to Rob Flaherty, former Deputy Assistant to the President and Director of Digital Strategy, on the email and asked if ‘we can keep an eye out for tweets that fall in this same genre.’ The email read, ‘Hey folks-Wanted to flag the below tweet and am wondering if we can get moving on the process of having it removed ASAP.’”

“On February 6, 2021, Flaherty requested Twitter to remove a parody account linked to Finnegan Biden, Hunter Biden’s daughter and President Biden’s granddaughter. The request stated, ‘Cannot stress the degree to which this needs to be resolved immediately,’ and ‘Please remove this account immediately.’ Twitter suspended the parody account within forty- five minutes of Flaherty’s request…”

“On February 9, 2021, Flaherty (contacted) Facebook in regard to its COVID- 19 policy, accusing Facebook of causing ‘political violence’ spurred by Facebook groups by failing to censor false COVID-19 claims, and suggested having an oral meeting to discuss their policies. Facebook responded the same day and stated that ‘vaccine-skeptical’ content does not violate Facebook’s policies. However, Facebook stated that it will have the content’s ‘distribution reduced’ and strong warning labels added, ‘so fewer people will see the post.’ In other words, even though ‘vaccine-skeptical’ content did not violate Facebook’s policy, the content’s distribution was still being reduced by Facebook.”

Incidents like these, as well as many, many more involving the White House, FBI and other federal agencies, led Judge Doughty to one conclusion: “The Plaintiffs are likely to succeed on the merits on their claim that the United States Government, through the White House and numerous federal agencies, pressured and encouraged social-media companies to suppress free speech. Defendants used meetings and communications with social-media companies to pressure those companies to take down, reduce, and suppress the free speech of American citizens. They flagged posts and provided information on the type of posts they wanted suppressed. They also followed up with directives to the social-media companies to provide them with information as to action the company had taken with regard to the flagged post. This seemingly unrelenting pressure by Defendants had the intended result of suppressing millions of protected free speech postings by American citizens.”

In addition to these startling findings, the Court added that “(w)hat’s really telling is that virally all of the free speech suppressed was ‘conservative’ free speech. Using the 2016 election and the COVID-19 pandemic, the Government apparently engaged in a massive effort to suppress disfavored conservative speech…as exhaustedly listed above, Defendants ‘significantly encouraged’ the social-media companies to such extent that the decisions should be deemed to be the decisions of the Government. The White House…additionally engaged in coercion of social-media companies to such extent that the decisions of the social-media companies should be deemed that of the Government. It simply makes no difference what decision the social-media companies would have made independently of government involvement, where the evidence demonstrates the wide-scale involvement seen here.”

In granting an injunction prohibiting contact between social media companies and various government officials of the Biden Administration, the Court emphasized the ongoing nature of the threat presented by the defendants to Free Speech.  “Although the COVID-19 pandemic is no longer an emergency,” Judge Doughty writes, “it is not imaginary or speculative to believe that in the event of any other real or perceived emergency event, the Defendants would once again use their power over social-media companies to suppress alternative views. And it is certainly not imaginary or speculative to predict that Defendants could use their power over millions of people to suppress alternative views or moderate content they do not agree with in the upcoming 2024 national election…Notably, a draft copy of the (Department of Homeland Security’s) ‘Quadrennial Homeland Security Review,’ which outlines the department’s strategy and priorities in upcoming years, states that the department plans to target “inaccurate information’ on a wide range of topics, including the origins of the COVID-19 pandemic, the efficacy of COVID-19 vaccines, racial justice, the U.S. withdrawal from Afghanistan, and the return of U.S. Support of Ukraine.”

Thus, the Court found that the “Plaintiffs have shown that not only have the Defendants shown willingness to coerce and/or to give significant encouragement to social-media platforms to suppress free speech with regard to the COVID-19 pandemic and national elections, they have also shown a willingness to do it with regard to other issues, such as gas prices, parody speech, calling the President a liar, climate change, gender, and abortion.”

As of this writing, the only official reaction from the Biden Administration is a statement from the Justice Department indicating their intention to appeal Judge Doughty’s order to the Fifth Circuit.   But in the face of the government’s silence on this issue, many of us can take a great degree of satisfaction in the extensive fact finding conducted by Judge Terry Doughty.

We were right.  Our voices were being silenced by a government that believed it had a monopoly on the truth, and when the oppression wasn’t coming from the Administration itself, it was coming from government agents acting against the interests and wishes of their own President and his Administration.

And now we have the evidence to support our knowledge.

Judge Wilson served on the bench in NYC

China is rapidly and diligently gearing up for war in the very near future.

In March, China’s leader Xi repeatedly called for war readiness, backed up his call for combat with a 7.2% increase in defense spending, adding to a budget that has already doubled in recent years. Having already consolidated his own powers in an effort to streamline his control over the nation, Xi has informed his top military leaders to “Dare to fight.”

He has also prepared the civilian population for imminent conflict, establishing new air-raid shelters in key locations. Official Chinese documents discuss integrating the whole of society into the war effort. Wang Shumei and Liu Hongshun, researchers at the Military Legal Research Institute of the Academy of Military Sciences emphasize that “National defense education for all should be educated and participated by all. Strengthening and improving national defense education should be taken as the common responsibility of the whole party, army and society…”

2027 appears to be the date Xi has in mind. As quoted in American Military News, he stated that “Our armed forces, with a focus on the goals for the centenary of the People’s Liberation Army (PLA) in 2027, should work to carry out military operations, boost combat preparedness and enhance military capabilities.”

Grant Newsham, writing for Asia Times writes that last October’s Communist Party Congress put China on a path to war. “The groundwork has been laid and the dirty work done. It’s not as if previous Chinese leaders had been nice guys, but Xi is the first to combine the capability to go to war with the messianic desire to do so – if he can’t get what he wants via intimidation. He sees himself as a man of destiny who will restore China to its rightful place in the world…Capabilities of the People’s Liberation Army (PLA) have developed to the point that the Communist Party leadership (and Xi in particular) believe China can conduct a short, sharp war (or maybe even a long, sharp war) near its borders and succeed.”

Some U.S. Military officials have taken note.  In January, the head of the USAF Air Mobility Command Michael Minihan circulated a memo stating: “I hope I am wrong. My gut tells me we will fight in 2025. [Chinese President Xi Jinping] secured his third term and set his war council in October 2022. Taiwan’s presidential elections are in 2024 and will offer Xi a reason. United States’ presidential elections are in 2024 and will offer Xi a distracted America. Xi’s team, reason, and opportunity are all aligned for 2025.”

Marty Reep, wrting in the Journal of Indo-Pacific Affairs has a similar conclusion. “ China has made it clear that it is working to become the world’s preeminent superpower.⁴Over the past few decades, China has been building up its armed forces, … In December 2020, China changed its maritime laws and put the Coast Guard under direct control of the People’s Liberation Navy (PLAN)—the first time ever for the PLAN. Two months later, in February 2021, China updated its maritime law and a gave its Coast Guard the authority to fire on foreign vessels.”

A Newsweek analysis notes that Russian sources also believe Beijing is set for combat. “Ikolai Vavilov, an expert on China, [states that] ‘Since coming to power, comrade Xi has been getting ready for war,” …He gave an order to prepare an army that is capable of winning war.”

While Beijing does all it can to prepare for war, the current White House continues to downplay military preparedness. It continues to propose budgets that, accounting for inflation, actually cut the Pentagon’s purchasing ability.  As China continues to add to what is already the world’s largest navy, America’s fleet is shrinking. Perhaps most fundamentally, the U.S. industrial base continues to be woefully unprepared to respond to a crisis in which a rapid buildup of military supplies would be required.

Photo: Naval vessels assigned to a destroyer flotilla with the navy under the PLA Southern Theater Command fire main guns at mock targets during a coordination training exercise in early May, 2023. (eng.chinamil.com.cn/Photo by Wang Jian)

In August of 2022, we discussed whether or not the Biden Administration has the authority to forgive outstanding student loans.  At that time, we detailed a series of instances where the Courts had determined that various Biden initiatives were in excess of the authority granted the Executive Branch by the Congress, and therefore unconstitutional.  We predicted that this measure would also be found illegal. 

We also discussed the Biden Administration’s belief that the HEROES Act of 2003 authorized the Secretary of Education to engage in a wholesale amnesty of student loan debt.  In that regard, we quoted Jonathan Turley, a Law Professor at George Washington University, who said, “President Biden has been a constitutional recidivist in executive overreach in a series of major court losses.  The authority cited is highly challengeable. To assume such a massive power to excuse as much as $500 billion, that authority should be both express and clear. It is not.”

Well, you know how much we hate to say, “I told you so.”  But…we told you so.

On June 30, 2023 the US Supreme Court decided the case of Biden v Nebraska, one of two cases brought in challenge of the government’s student loan forgiveness plan,    and as we predicted, the Supreme Court thought little of the use of the HEROES Act to justify this scheme.

But before we delve into the reasoning behind the Supreme Court’s latest effort to protect the Constitution’s separation of powers, one issue should be clarified.  

When we discussed the state of the litigation on student loan forgiveness in November of 2022, we noted that there were two cases headed to the Supreme Court; Biden v. Nebraska, brought by six states, and Department of Education v. Brown, brought by individual borrowers. Both of these cases turned on the legal issue of standing – that is, who has “suffered an injury,” and therefore has the right to bring a case.

In Biden v. Nebraska, six states complained of a loss of tax revenue as a result of student loan forgiveness.  The lower court called these losses “speculative,” and found that the states did not have standing to bring their case.  Conversely, in Department of Education v. Brown, the lower court found that two individuals who would not be eligible for benefits under the student loan forgiveness plan had standing since “‘Plaintiffs have a concrete interest in having their debts forgiven.’  Thus, these Plaintiffs ‘inability to obtain the full benefit of debt forgiveness under the Program flows directly from the Program’s eligibility requirements.’”

Ironically, the Supreme Court reversed each lower court opinion.  In Brown, Justice Alito found “that (Plaintiffs) fail to establish that any injury they suffer from not having their loans forgiven is fairly traceable to the (student loan forgiveness) Plan.”   Meanwhile, in Biden v. Nebraska, Chief Justice Roberts found that the State of Missouri, through  “the Missouri Higher Education Loan Authority (MOHELA), a public corporation that holds and services student loans,” had standing to sue.  “Under the Secretary’s plan,’ Roberts writes, “roughly half of all federal borrowers would have their loans completely discharged…MOHELA could no longer service those closed accounts, costing it, by Missouri’s estimate, $44 million a year in fees that it otherwise would have earned under its contract with the Department of Education…(t)his financial harm is an injury in fact directly traceable to the Secretary’s plan.”

In his opinion, Roberts gave some background on the HEROES Act. “Shortly after the September 11 terrorist attacks, Congress became concerned that borrowers affected by the crisis—particularly those who served in the military—would need additional assistance. As a result, it enacted the Higher Education Relief Opportunities for Students Act of 2001. That law provided the Secretary of Education, for a limited period of time, with ‘specific waiver authority to respond to conditions in the national emergency’ caused by the September 11 attacks…Rather than allow this grant of authority to expire by its terms at the end of September 2003, Congress passed the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act)…That Act extended the coverage of the 2001 statute to include any war or national emergency— not just the September 11 attacks. By its terms, the Secretary ‘may waive or modify any statutory or regulatory provision applicable to the student financial assistance programs under title IV of the [Education Act] as the Secretary deems necessary in connection with a war or other military operation or national emergency.’”

During the pandemic, “then-Secretary of Education Betsy DeVos announced that she was suspending loan repayments and interest accrual for all federally held student loans,” a necessary emergency measure, given that many borrowers were out of work and unable to make their payments.  “But in August 2022, a few weeks before President Biden stated that ‘the pandemic is over,’ the Department of Education announced that it was once again issuing ‘waivers and modifications’ under the Act—this time to reduce and eliminate student debts directly.”

Chief Justice Roberts states his ruling in clear and plain language; “The Secretary (of Education) asserts that the HEROES Act grants him the authority to cancel $430 billion of student loan principal. It does not. We hold today that the Act allows the Secretary to ‘waive or modify’ existing statutory or regulatory provisions applicable to financial assistance programs under the Education Act, not to rewrite that statute from the ground up… statutory permission to ‘modify’ does not authorize ‘basic and fundamental changes in the scheme’ designed by Congress…(t)he Secretary’s…’modifications’…were not ‘moderate’ or ‘minor.’ Instead, they created a novel and fundamentally different loan forgiveness program…(f)rom a few narrowly delineated situations specified by Congress, the Secretary has expanded forgiveness to nearly every borrower in the country.”

As Robert’s puts it bluntly, “(t)he Secretary’s plan has ‘modified’ the (HEROES Act) only in the same sense that ‘the French Revolution ‘modified’ the status of the French nobility’—it has abolished them and supplanted them with a new regime entirely…the Secretary’s plan…in essence (allows) the Secretary unfettered discretion to cancel student loans. It is ‘highly unlikely that Congress’ authorized such a sweeping loan cancellation program ‘through such a subtle device as permission to ‘modify.’”

The Biden Administration tried to justify its power grab by stating that “(t)he whole point of the HEROES Act…is to ensure that in the face of a national emergency that is causing financial harm to borrowers, the Secretary can do something,” and that “the unprecedented nature of the Secretary’s debt cancellation plan only ‘reflects the pandemic’s unparalleled scope.’”  But Roberts disposes of this argument quickly.  

“The question here is not whether something should be done; it is who has the authority to do it,” the Chief Justice writes.  “(T)he Secretary of Education claims the authority, on his own, to release 43 million borrowers from their obligations to repay $430 billion in student loans. The Secretary has never previously claimed powers of this magnitude under the HEROES Act… Under the Government’s reading of the HEROES Act, the Secretary would enjoy virtually unlimited power to rewrite the Education Act… (t)he ‘economic and political significance’ of the Secretary’s action is staggering by any measure…(a) budget model issued by the Wharton School of the University of Pennsylvania estimates that the program will cost taxpayers ‘between $469 billion and $519 billion,’ depending on the total number of borrowers ultimately covered…It amounts to nearly one-third of the Government’s $1.7 trillion in annual discretionary spending.”  

Therefore, if this use of the HEROES Act were found legal, “the Secretary (of Education could then claim) the authority to exercise control over ‘a significant portion of the American economy.’”  In essence, then “(t)he Secretary’s assertion of administrative authority has ‘conveniently enabled [him] to enact a program’ that Congress has chosen not to enact itself…Congress did not unanimously pass the HEROES Act with such power in mind. ‘A decision of such magnitude and consequence’ on a matter of ‘earnest and profound debate across the country’ must ‘res[t] with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.’”

Thus, Roberts reaches the same conclusion the Supreme Court has reached in a number of decisions involving efforts by the Biden Administration to seize power from Congress; “’The basic and consequential tradeoffs’ inherent in a mass debt cancellation program ‘are ones that Congress would likely have intended for itself’…In such circumstances, we have required the Secretary to ‘point to clear congressional authorization’ to justify the challenged program…And as we have already shown, the HEROES Act provides no authorization for the Secretary’s plan even when examined using the ordinary tools of statutory interpretation—let alone ‘clear congressional authorization’ for such a program.”

But will President Biden cease his efforts to unconstitutionally seize power from Congress?  Don’t bet on it.

According to Caleb Kruckenberg of the Pacific Legal Foundation, writing in the New York Post, “(w)hile everyone’s focus has been on the administration’s outrageous cancellation stunt, the DOE has been working tirelessly to accomplish an even more disastrous policy: a new Income-Driven Repayment rule… (u)nder the new plan, in a variety of formulations, the secretary proposes to dramatically reduce the monthly payments of most borrowers, with millions looking at payments of $0, while also reducing the time to forgiveness to as short as 10 years. In other words, while styled as a rule that simply tinkers with the details of existing income-based repayment programs, it effectively does the same work as the cancellation effort: It writes off the debts of millions of college-educated borrowers. And it does so permanently – applying to future borrowers…(t)he rule itself claims it would cost taxpayers at least $138 billion… The Penn Wharton Budget Model estimated that the actual program costs between $333 billion and $361 billion over 10 years.  Estimates that account for tuition inflation and future borrowing costs put government expenditures as high as $1 trillion. The old cancellation policy’s $500 billion price tag now almost seems quaint.”

Unfortunately, this scheme might be more successful than the effort to cancel student loans.  This measure is based on the Higher Education Act of 1965, and as we discussed last August,  “one would think the Biden Administration would argue that over the course of 50 years, Congress has granted the Secretary of Education increased power over student loans, including control over loan extensions and forgiveness, and that this latest initiative is nothing new in the increasing burden the Department of Education has placed on the American taxpayer.”

In other words, stayed tuned.  Biden v. Nebraska may prove to be a short-lived victory against executive overreach, while the real war was lost by Congress when it gave its authority away to the Secretary of Education in 1965.

Judge John Wilson (ret.) served on the bench in NYC

Illustration: Pixabay