What Would James Madison Do?

March, 2025

Washington —  Some of our nation's leaders see our country in a constitutional crisis with no way out because the founders did not provide necessary checks and balances against an executive who believes he is not bound by the rule of law, a legislative branch fearful of checking him, and a judicial branch with no power to enforce its decisions.    

How might James Madison react to this assertion?  I think he would push back and say the checks are there, just waiting to be used.  

Take, for example, illegal impoundment of funds appropriated through the legislature's power of the purse.  A judge orders the funds to be used as directed, but the executive does not comply in good faith, creating an impasse.  A next step that Madison might recommend?  The plaintiff could ask the court for a finding of civil contempt.  After a hearing, the judge can impose fines or take other actions against executive officials not as punishment but to force compliance, with steep and perhaps escalating prices for refusal.* 

Note that in the Madisonian system, the executive has the power to pardon criminal convictions, but not civil judgments. And the pardon power does not extend to civil or criminal convictions in state courts.  (Also note: a judge can make a finding of civil contempt without a complaint from the plaintiff, but may be reluctant to do so for fear of personal safety or political attacks from the executive.  Hence empowering the plaintiff with initiating this check makes it more practical and effective.)  

So far, in the first two months of the current constitutional crisis, it's not clear how many plaintiffs have asked courts to deploy this check on the executive, and no judge has exercised the check.  It's overdue, at a time when life-saving medicines are being withheld from suffering populations all over the world, food produced by American farmers is rotting rather than being delivered to the hungry, not to mention the possible collapse of federal agency systems on which we rely for food safety, tax administration, weather forecasting, student loans, aviation safety, air and water quality, and Social Security.  

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*Civil judgments can be enforced by fines, imprisonment, and liens against private property.  Federal judges can deputize state law enforcement to carry out the judgments.  In the D.C./Maryland area, state and local officials must be ready to enforce, as required, federal district judges' decision in cases where  the U.S. Marshals Service is unavailing.     

The Power to Remove is the Power to Destroy

March, 2025

Washington — A federal district court has determined that President Trump's attempted firing of a member of the Federal Labor Relations Board, Susan Grundmann, was illegal.  Judge Sparkle L. Sooknanan gives us a lesson in constitutional checks and balances along the way in her full-throated opinion in Grundmann v. Trump.  

She bases much of her analysis on the precedent of Humphrey's Executor, but in so doing shreds the concept of an all-powerful executive that can dominate the other branches of government on a whim (or, she hints, in an overthrow).  

Let's carry that thought further.  The analysis applies even to checks and balances within the executive branch.  Our constitutional system of separation of powers relies not only checks and balances between the three branches, but also within each branch itself.  Our founders created two separate houses in the legislative branch to check each other; they created different levels of courts for the same purpose in the judicial branch.  So why would they set up the executive branch with no internal checks, as the Trump administration argues?  

They didn't.  We have long-standing plural executive system that serves as an internal check on the president. 

One of the checks in this system is a limitation on the president's power to remove.  The power to remove is the power to destroy and must be limited, just as the power to tax is the power to destroy and must have boundaries, as Chief Justice John Marshall determined in McCullough.  

Viewed in this context, it is a needless exercise to count the number of commissioners on the head of whichever plural executive pin is at issue in removal cases, as some have unwisely proposed. One, three, five; the power to remove is still the power to destroy.  If anything, an individual agency director, like Hampton Dellinger at the Office of Special Counsel, could have had an especially compelling removal case, if only he had pursued it.

Susan Grundmann fought her illegal removal, Judge Sooknanan decided in her favor, the Constitution survives, and at least temporarily the country is the better for it.     

Paving the Way Back to Corruption in Student Loans

March, 2025

Washington — After two decades of efforts by many public-spirited citizens and officials to wring fraud, waste, and abuse out of federal student loan programs, the Trump administration is paving the way for corruption's return.  

First, the new administration fired the Department of Education's inspector general, wiped out the Consumer Financial Protection Bureau, and terminated research contracts essential to identifying corruption.  (Does anyone believe these choices were made to balance the federal budget?)

Now the new administration proposes (if Project 2025 is any indication) to return all student lending to many of the very entities that failed so spectacularly when loans were made with private capital and guaranteed by federal taxpayers.  Several of these organizations were once caught making false claims, creating illegal back-door deals with schools, and invading loan databases to exploit unwitting borrowers to their disadvantage if not ruin.  

When the Great Recession hit in 2008, the system of private capital, guaranty agencies, and secondary markets froze up and had to be bailed out by the federal treasury through Congressional legislation known as ECASLA.  In 2010,  Congress asked itself why this corrupt system should continue on taxpayer subsidies and ended it for all federal loans thereafter.

Unfortunately, Congress left a vestige of the old system in place for servicing the Department of Education's Direct Loans.  Two of the largest servicers have since either been debarred (Navient) or quit (PHEAA) for abuse of borrowers.    

If you're the Trump administration in 2025, looking for ways to dismantle the Department of Education, what's not to like about bringing back the old system?  Many of the channels of corruption still exist, just waiting to be reactivated.  The old transactional relationships — federal subsidies returned through big political contributions — never went away.  

And who's going to catch you?  

How bad was the old system?  Here is a short, annotated bibliography to re-inform public policy. Click on the authors.

1. Department of Education. Misuse of the NSLDS data siystem by lenders, marketers, and collection agencies was so alarming the system had to be shut down and restarted with new controls. 
2. Stephen Burd.  Explains how the author of the NSLDS letter above was corrupt himself. 
3. Stephen Burd.  Reveals details of school/lender corruption. 
4. Amit Paley.  Must reading in view of DOGE attempts to invade databases.
5. Dan E. Moldea.  The formidable investigative journalist turns his attention to lender false claims using primary sources to expose corruption, focusing on PHEAA and SLFC.  
6. Ryann Liebenthal. Perhaps the most comprehensive book yet on the failures of the federal guaranteed student loan system. 
7. Washington Monthly.  Provides examples of corruption. 
8. Jonathan D. Glater and Karen W.Arenson.  An insightful look at multiple entanglements. 
9. Danielle Douglas-Gabriel. Recounts the 9.5% scandal through 2015.  [Full Disclosure: I brought the suit in question.]
10. Public domain.  Previously sealed primary source documents, dealing with several lenders' false claims, were released into the public domain in November, 2024, pursuant to a landmark First Amendment decision by the Fourth Circuit Court of Appeals.  None of the lenders is a sole interested party in these documents, nor are the documents necessarily representative of all lenders, but the documents provide a level of detail essential to understanding the relationship between lenders and federal agencies.    

Replace D.E.I. with a Humanitarian Code

February, 2025

Washington — The Trump administration is freezing funds, firing people, and cutting off institutions based on association with something called D.E.I., which stands for diversity, equity, and inclusion.  But D.E.I.'s definition is slippery and is sowing confusion across the country not only in federal agencies, but in state and local governments, colleges and universities, non-profit organizations, and even contractors.  

Rather than trying to define D.E.I., it would be better to state clearly what organizations stand for.  That could be done in a simple code that comports with current law and would terminate any past associations, real or imagined. 

This would allow us to move forward rather than bicker and litigate endlessly about what D.E.I. was or was not.  Take note, party leaders and elected officials.

 Suggested code: 

 I.  In our organization, as a matter of policy, we base human resource and human development decisions on individual dignity and decency, not on a person's membership in any group defined by race, religion, sex, national origin, sexual orientation, physical characteristics, or ancestry.  

II.  Our decisions are based on humanitarian ideals of improving individual lives and reducing suffering, as informed by moral and ethical codes of antiquity, such as the Ten Commandments and the Golden Rule, and of the Enlightenment, such as the Declaration of Independence, as well as many decades of American experience under the rule of law.  

III. Nothing in this code precludes geographical or economic classifications employed to improve individual lives, such as grants, tax preferences, and programs that may be targeted toward broad categories such as the Working Class, or consideration of individual circumstances that give rise to humanitarian action.

IV.  This code replaces any previous policies or administrative practices that could be interpreted otherwise.    

Nebraskans: Were You Born Yesterday?

February, 2025

Lincoln — On top of firing seventeen federal inspectors general in January, President Trump and his DOGE team have now moved to end much of the work of the Institute of Education Sciences (IES, an independent component of the Department of Education), and to eliminate the Consumer Financial Protection Bureau (CFPB).  

If the pronouncements of Nebraska's congressional delegation and top state elected officials are to be believed, my fellow Nebraskans are widely supportive of this "move-fast-and-break-things" approach to end federal fraud, waste, and abuse.  But is that support justified?

I worked at IES for over four years, 2001-2005.  I'll share my actual experiences working there, then revisit the question of what is going on with the Trump and DOGE purges.  My conclusions are much different from what Nebraskans are being told by their information sources and elected officials. 

As an independent researcher at IES, with a strong anti-fraud ethic, I wrote one of my first papers on the behavior of higher education institutions in response to federal student aid programs, to see if the programs were effective and that they were not being exploited.  I used IES's NPSAS database in a natural experiment methodology.  One of the findings was that schools too often put private loans into low and middle income students' financial aid packages, rather than federal Stafford loans with their better terms.  This was the era of close relations between schools and private lenders, often with kickbacks and favors.  I brought the findings to the attention of professional associations and consumer groups which worked to end the practices.  

Another finding from the paper was that Pell grants were being wastefully packaged by many schools in a way that undermined their intended benefits for the lower-income.   I circulated these findings within the academic research community; they have since been used to inform many subsequent papers.  

I would not have been able to do this work without the NPSAS database, which Trump has now targeted for elimination.  

In another research effort begun at IES, which wound up on the front page of the New York Times, I used financial statements and SEC filings of federal and state student loan secondary markets to identify a scheme to defraud the government of billions of dollars in illegal subsidies.  Among my first partners in this effort was the agency's inspector general.  I would not have been able to complete this research without the outstanding work of Patrick Howard, Helen Lew, and Howard Sorensen at the IG's office.

After the CFPB was created, its staff investigated one of these student loan entities with a history of fraud and abuse, discovering new schemes against veterans, borrowers in forbearance, and taxpayers. In 2024, CFPB debarred the company from further federal loan servicing contracts and required it to repay $120 million.*  

The point of recounting these examples is to illustrate how IES, NPSAS, CFPB, and the IGs fight fraud, waste, and abuse.

Why would anyone want them out of the way?  Would it be to make plundering the trillions in loan assets controlled by the Department of Education easier?   Well, yes.  Eliminating watchdogs and their tools is not about saving money, it's about paving the way for even greater exploitation of federal taxpayers. 

I can identify billions at the Department of Education that should be cut, but they won't be touched by Trump and DOGE because they are eyeing them for themselves and collaborators.  

Nebraskans: were you born yesterday?  If not, contact your elected officials and protest.   

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* Whether borrowers and taxpayers have actually received relief as of February, 2025, is not clear, because DOGE has frozen CFPB activities.  

Nebraska Oaths and the U.S. Constitution

February, 2025

Lincoln — If I were a public official in Nebraska, registered as a Republican, I'd be following events in Washington very closely in case any of President Trump's actions use force or violence to dismantle or replace the U.S. constitutional structure of checks and balances.  

This would be with an eye to an oath taken upon assuming office under Nebraska law:  

I, .........., do solemnly swear that I will support and defend the Constitution of the United States and the Constitution of the State of Nebraska, against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or for purpose of evasion; and that I will faithfully and impartially perform the duties of the office of .......... according to law, and to the best of my ability. And I do further swear that I do not advocate, nor am I a member of any political party or organization that advocates the overthrow of the government of the United States or of this state by force or violence; and that during such time as I am in this position I will not advocate nor become a member of any political party or organization that advocates the overthrow of the government of the United States or of this state by force or violence. So help me God. [Emphasis added]

This past week we have witnessed several Trump actions that violate the rule of law, some of which have been stayed by federal judges. If those stays are violated by force or violence, such as preventing federal employees from protecting sensitive personal and national security databases, a line will have been crossed.  A legal review service provides this analysis: "In essence, dismantling or replacing the U.S. constitutional structure outside its prescribed legal mechanisms would likely be viewed as an overthrow of the government’s foundational framework."  

If we have a constitutional crisis, as seems inevitable, Republican elected officials in Nebraska (and in seven other states with similar laws) may want to change their registration to independent to indicate that they did not sign up for overthrow of this kind, and at the same time remove any question as to whether public actions taken in violation of their oaths are lawful.  

When I was a Nebraska state fiscal official, I took the above oath at least twice.  If I were still in office and my party registration raised doubts, I'd change it in a heartbeat to be faithful to my oath, or leave my position.  So help me God.

Dangerous Data Breaches Must be Stopped

February, 2025

Washington — Within the past few days, federal departments like Treasury and USAID have been coerced by individuals reporting to Elon Musk to divulge huge databases of financial, organizational, and personal information, previously considered to be protected from potential misuse.  Will the Department of Education's massive databases on student financial aid programs, including its $1.5 trillion student loan portfolio, be next?

If departmental inspectors general might have stood in the way of such colossal data breaches — likely the largest in history — they won't now, as they have been fired.

Can you imagine what could happen with a breach of FAFSA data? The information could be used to identify whole families for deportation.  

Can you imagine what could happen with the student loan portfolio?  Borrowers could be notified that their forbearances and deferrals are being ended.  Loan cancellations under Public Service Loan Forgiveness and Borrower Defense could be eliminated, via email.  The Secretary's powers of loan modifications under 20 U.S.C. 1082 could be applied viciously in the service of Musk's dubiously established Department of Government Efficiency.  Borrowers could be coerced into either paying up immediately or seeking a private lender to take over their loans, a move that would doubtless please those in the private loan business.  

A large data breach happened once before, at a cost of billions to federal taxpayers before it was finally shut down.  I recounted the occasion in a previous blog post at 

https://viewfromthreecapitals.blogspot.com/2022/02/loan-servicer-victims.html

The Senate will soon take up the nomination of Linda McMahon to be Secretary of Education.  At the top of the list of questions for her would be whether she will consent to these data breaches.  Of course, the breaches might happen before she is confirmed. 

A possible remedy for this would be a federal district court stay against DOGE access.  Another would be for Congress to exercise its power of the purse to cut off all funding for these dangerous misadventures.  The latter might be combined with a move by Congress to cut off all support for the misguided External Revenue Service and reassert congressional authority over tariffs and trade.  In a few days, citizens all over the country — especially from the heartland — may be reeling from both DOGE and tariffs, and start to demand congressional action.

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UPDATE:  Within a day after the above was posted, several news reports confirmed that DOGE has gained access to ED's student financial aid databases.  And in a development that will reverberate in the heartland, DOGE is cutting off payments to Lutheran Social Services of South Dakota, citing allegations that Lutherans are money-launderers, not a religious faith.  Senate Majority Leader John Thune of South Dakota: Musk has directly challenged you.  Will you stand up to his dangerous nonsense?  Same question for my Nebraska congressional delegation, as LSS of Nebraska was also cited by DOGE.  

Checks and Balances in Dire Jeopardy

January, 2025

Washington — Many thanks are owed to the several plaintiffs who challenged the president's confusing and misguided budget-freeze order of January 27, 2025, and to the federal district judges who quickly stayed it, causing it to be withdrawn.  This renews confidence that our judicial branch can still be an effective check on the executive branch.  

My previous post expressed the hope that the Inspectors General fired by emails on January 25, 2025, would also seek judicial relief, because the firings are clearly illegal under legislation passed by Congress in 2022 to protect IGs.  So far, the IGs have not acted. 

One reason is offered by reporter Charlie Savage of the NYT, who in a front-page article suggests that the 2022 legislation is unconstitutional and that the president is eager to get the issue into a friendly court, increasing his executive power.  

Jack Goldsmith, writing in Lawfare, explores these constitutional issues cogently, concluding that part of the 2022 act dealing with the removal power may be unconstitutional, but that the other part dealing with whom the president may appoint, when an IG is removed, is not.  In a nutshell, the president may not appoint a lackey.  

What neither author addresses, however, is the possibility that the president will be happy not to appoint anyone, leaving the IG offices in the hands of acting officials whose terms are short and whose powers are much weaker than those of an office headed by a Senate-confirmed IG.    

In my experience, when confirmed IGs lead investigations and audits, their findings and recommendations have a good chance to stick, even in the face of hostility from cabinet secretaries who tolerate or even participate in fraud, waste, and abuse.  If the quality of an IG's work is compelling, and the IG persists over time, the IG can prevail.  

Take, for example, the Education IG's audit of excessive federal subsidies for a New Mexico student loan lender in 2005, which was overruled by Secretary Margaret Spellings.  We know from subsequent litigation and discovery involving other such entities why it was overruled: Congressman John Boehner's PAC was benefiting from huge contributions from the loan industry.  His former staff was even strategically placed in the Education department to tip off lenders before the IG arrived to audit them.*  

This cozy transactional arrangement was broken up by subsequent IG audits written by experienced staff, who also came down hard on the department's office of Federal Student Aid.  The audits cut off literally billions of dollars otherwise destined to be lost to fraud, waste, and abuse.  

This happy outcome could never have happened under an acting IG.  

Given such history, why would the ultimate transactionalist Donald Trump want to make any IG appointments when he can effectively sideline IG offices through firings and subsequent inaction, leaving the offices with weak and temporary leadership? Neither the legislative nor judicial branches can force him to make appointments.  I agree with Jack Goldsmith that our current legislators do not have the fortitude to protect IG offices, whatever the situation.  And they are hardly up to using the Take Care Clause against the executive, although the Constitution provides it.  

Which throws it back to the IGs to look to the judicial branch, where it is possible and even likely to find a judge who will stay their dismissals without trying to guess how the Supreme Court might rule on the constitutionality of the various parts of the 2022 IG act. Lacking clear direction from higher level courts, that's not the job of a federal district judge. 

For all we know, a stay might not result in the president's compliance with current law to give notice along with sufficiently substantive explanations for the IG firings — that's not his style.  And even if he were to go through the procedural steps of compliance, a judge might insist on following the letter of the law on substance.  

In the year or two a case might take to get to the Supreme Court, our jurisprudence might evolve ways to deal with an executive bent on destroying our nation's checks and balances.  It's a little too much to believe that courts would willingly write opinions sealing their own demise.  

But if the IGs do not bring a case, we'll never know.  

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* Dan E. Moldea, Money, Politics, and Corruption in U.S. Higher Education, 2020, p. 129.

"Fired" IGs Must Show Up for Work

January, 2025

Washington — With the President's January 24th attempt to fire many federal agencies' inspectors general — without notice as required by law — an early opportunity presents itself to determine whether we will remain a country governed by the rule of law.

I encourage the IGs to show up for work this week and, if necessary, seek court injunctions to require enforcement of the law, even if it precipitates a constitutional showdown among the executive, legislative, and judicial branches. Better sooner than later. 

IGs are duty-bound to identify and eliminate waste, fraud, and abuse in federal agencies.  If they cave in to illegal demands, they are violating their oaths.  

IGs can be effective even in the face of intense political and interest-group pressures.  At the U.S. Department of Education in 2005-2007, I witnessed courageous IG staff refuse to buckle under in the face of an outrageous false claims scheme to bilk taxpayers out of billions of dollars in the student loan program.  The IG held firm and eventually the Secretary and the White House had to back off.

This is not ancient history.  Details of how the scheme worked were released only three months ago, after a decision by the 4th Circuit Court of Appeals that the public has a right to see them.  Many who follow these issues suspect that other such schemes are now afoot to raid the department's $1.5 trillion student loan portfolio, awaiting a complaisant IG.

So, my plea to IGs is not to fold in the face of illegal acts.  Many of us are counting on you to abide by your oaths.

Urgent Focus Needed on German Elections

January, 2025

Berlin — Blasts and explosions rocked Berlin on New Years Eve, blowing out windows and doors.  It was not from war, but fireworks.  Many residents blamed city officials for not taking stronger legal measures against such fireworks, while wasting funds for the occasion on hundreds of additional but demonstrably helpless police. It is a sore point with residents who simultaneously see funds squeezed out of city budgets, cutting infrastructure needs, cultural affairs, and education.  

But the dissatisfaction won't topple Berlin's local red-black governing coalition, unlike the 2024 budget impasse that brought down the red-yellow-green coaliton at the national level, precipitating a call for German national elections on February 23rd.  

The way it is shaping up, the results of the new German election are likely to do more damage than shattering windows in Berlin.  The right-wing Alternative für Deutschland party is poised to make even stronger showings than it has in recent elections, due to the rapidly changing immigrant situation in Germany and the election-meddling of Elon Musk and Donald Trump in favor of the AfD.

The fall of Bashar al-Assad in Syria has emboldened the AfD to push for return of Syrians in Germany to their native country.  The appeal of this proposal across party and ideological lines — understandably some Syrians are eager to go — will attract voters to the AfD, making it appear more mainstream.

Musk and Trump, in endorsing the AfD, are seizing an opportunity to jump out in front of any strong AfD showing, to be able to claim that they are leading it and henceforth must be afforded a role in German national decisions through the AfD, such as the level of future support for Ukraine in its war against the aggressor Russia.  

The AfD is pro-Russia.  Its leader, Alice Weidel, is also close to Russia'a ally China, having lived several years in China and speaking Mandarin. 

Will German voters see through this audacious attempt by an American president-elect and his oligarch advisor to re-shape the world order through promotion of the AfD?  Or will the voters be distracted by local issues?  There is not much time before the national elections next month.  

And what about Americans?  Will my congressional delegation, which campaigns endlessly against the threat of China, and once supported Ukraine, take note?  Apparently not, so far.