Dobbs and the Erosion of Nebraskans' Rights

June, 2022

Lincoln —  That didn't take long.  The Supreme Court issued its Dobbs decision on June 24th and three days later the Nebraska's attorney general argued in the Eighth Circuit federal appeals court that Nebraska voters have no right to vote in state initiatives under federal law, because "the federal constitution has nothing to say about initiatives."   This, despite the Dobbs proviso that the decision applies only to abortion.  Here is an excerpt from the Nebraska appeal in the case of Eggers v. Evnen:

[T]he district court incorrectly held that the federally protected fundamental right to vote attaches to all state processes for qualifying initiatives.  It did so even though the federal constitution says nothing about initiatives and the Supreme Court "has long been 'reluctant' to recognize rights that are not mentioned in the Constitution." Dobbs v. Jackson, Jun. 24, 2022.   

Which adds to the list of rights and freedoms already under attack in Nebraska by our governor, as described in a previous post a few days ago.  Which also suggests that Nebraska's attorney general will be joining with other attorneys general around the country to apply Dobbs to a wide range of existing rights, not just abortion rights.

The extent to which Dobbs will restrict reproductive choice — the more overt target — depends on if and when the governor calls the unicameral legislature into session.  If he does, state senators should be looking carefully at the language of Dobbs to determine what can be considered constitutional restrictions under a so-called "rational-basis" standard.

Although some have suggested that this is an extremely low bar for a legislature, the actual language of Dobbs is not so clear.  A federal judge in the near future could conclude what seems rather obvious, that the Dobbs court laid out its own rational-basis test in its examples of rationality, which arguably look more to balancing the interests of the mother and the state than simply making a list of a state's interest in preventing abortions.  If a state chooses not to recognize interests such as "the protection of maternal health and safety...and the prevention of discrimination on the basis of race, sex, or disability," the legislation may fail a federal court's rational-basis test.  Moreover, by citing the Glucksberg case, the Dobbs court adds more context to the value of the mother's life and health, not just that of the fetus.  From Dobbs:

A law regulating abortion, like other health and welfare laws, is entitled to a “strong presumption of validity.” Heller v. Doe, 509 U. S. 312, 319 (1993). It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests. Id., at 320; FCC v. Beach Communications, Inc., 508 U. S. 78 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION Opinion of the Court 307, 313 (1993); New Orleans v. Dukes, 427 U. S. 297, 303 (1976) (per curiam); Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 491 (1955). These legitimate interests include respect for and preservation of prenatal life at all stages of development, Gonzales, 550 U. S., at 157–158; the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability. See id., at 156– 157; Roe, 410 U. S., at 150; cf. Glucksberg, 521 U. S., at 728– 731 (identifying similar interests).  — Dobbs v. Jackson [emphasis added]

From Glucksberg: 

The risk of harm is greatest for the many individuals in our society whose autonomy and well-being are already compromised by poverty, lack of access to good medical care, advanced age, or membership in a stigmatized social group. ... The State's interest here goes beyond protecting the vulnerable from coercion; it extends to ...  prejudice, negative and inaccurate stereotypes, and "societal indifference".  — Glucksberg v. Washington [emphasis added]

A future federal district court could well fashion a rational-basis test from the Dobbs and Glucksberg list to include a demonstrated state fiscal concern for "maternal health and safety" proportionate to increases in full term pregnancies — no relying on federal taxpayers or private help.  A state escrow fund could be required to meet the test, as it would be irrational not to recognize the fiscal impact of the legislation. Likewise, the test could include access to abortion early in pregnancy, to eliminate "gruesome medical procedures" later in pregnancy in cases of fatal fetus defects, which would also satisfy the Dobbs interest of "mitigation of fetal pain."  

Another part of the test could show due deference to the "integrity of the medical profession" in making judgments as to when abortion is appropriate, to comply with the totality of interests set out in the Dobbs and Glucksberg cases.  Medical professionals must not be put in a position of having to advise a mother, in case of a pregnancy that will soon endanger her life, to wait for medical care until her life is actually in danger.  Waiting would require medical professionals to violate their oaths and their integrity.  Accordingly, it should not be surprising for a judge to require a state to provide appropriate abortion access to its population, citing Dobbs itself as the authority for the requirement.  

And then there is Glucksberg's admonition, that the state's interest "goes beyond protecting the vulnerable from coercion."  Indeed it does.  A rational-basis test must exclude coercion of the pregnant, and attention to them to preclude "societal indifference."    

The Nebraska legislature should anticipate rational-basis tests in passing any legislation prompted by the Dobbs decision, and rise to the occasion to write legislation consistent with the enunciated standards of Dobbs.  In so doing, senators would be true to the jurisprudence of Nebraska's greatest jurist, Roscoe Pound.  (See previous post.

As for Nebraska's constitutional officers, they should abide by this provision in Dobbs:  "The Court emphasizes that this decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion."  

Please, no more attempts to erode even more Nebraskans' rights and freedoms.  

Dobbs's Slap at Nebraska's History

June, 2022

Lincoln — We celebrate, with good reason, Nebraska's history and tradition in shaping our nation's laws.  The Standing Bear v. Crook and Meyer v. Nebraska cases are landmarks of civil rights.  Lincolnite Roscoe Pound, as a young University of Nebraska law professor at the beginning of the 20th Century, shook the legal world with his theories of jurisprudence.  His ecological and sociological approach to Constitutional interpretation found its way into countless federal court decisions.  When he retired as the dean of the Harvard Law School, he was among the world's most respected jurists.  Both Standing Bear and Roscoe Pound are in the Nebraska Hall of Fame.  

The Dobbs decision consigns all this to the dustbin of history.  It repeatedly slaps the face of those of us in Nebraska who still treasure our legacy.  In arguing that a civil right is not a right at all if it was not enumerated or understood to be a right at the time of the adoption of the Fourteenth Amendment in 1868, the Dobbs court suggests Standing Bear is not a man and Meyer has no right to teach a foreign language. 

The dissenting justices in Dobbs are disappointing in that they argue too much legal history and too little that the law has a greater purpose, in a Poundian sense, which is the role of law in creating a civil society.  The dissenters make a mistake in tacitly playing by the rules the Dobbs historicists are trying to impose over Constitutional interpretation.   Rather than picking at historical inconsistencies in the majority opinion, the dissenters should have frontally attacked the whole premise of so-called originalism.  Question: should the Nebraska legislature, if called into session by the governor to respond to Dobbs, exempt the indigenous population from all civil rights matters, including issues of abortion, because of how the government viewed Standing Bear in 1868?  Under the Dobbs court's logic, yes.  Standing Bear had no rights in 1868.  

Should we also recall the new Standing Bear statue in Statuary Hall in the U.S. Capitol, and rethink how we are naming state buildings and public schools?  No.  Better to dial back the originalist majority on the court than to live with its bizarre legal decisions.      

If Governor Ricketts calls the Nebraska legislature into session in reaction to Dobbs, the best thing it could do would be to make an appropriation to purchase copies of two books to be placed on the desks of each Supreme Court justice, dissenters included.  One is philosopher Karl Popper's The Poverty of Historicism.  Popper would not look kindly on the idea that the conditions of 1868 could even be determined, let alone serve as guidance in a changing world. 

The discovery of instances which confirm a theory means very little if we have not tried, and failed, to discover refutations. For if we are uncritical we shall always find what we want: we shall look for, and find, confirmation, and we shall look away from, and not see, whatever might be dangerous to our pet theories. In this way it is only too easy to obtain what appears to be overwhelming evidence in favour of a theory which, if approached critically, would have been refuted.

[T]he historicist ... firmly believes in his favorite trend, and conditions under which it would disappear to him are unthinkable. The poverty of historicism, we might say, is a poverty of imagination.  ― Karl Popper, The Poverty of Historicism

The other book is Roscoe Pound's Introduction to the Philosophy of Law, summarized here.  Pound developed his theory of ecological jurisprudence based on his scientific study of botany and ecology on Nebraska prairies, which gave him insights into life's dynamic and interactive relationships.  He would have given little weight to 1868 thinking, but every consideration to the sociological effects of the Dobbs decision in 2022.   

In studying his predecessors Pound saw that all the nineteenth century schools were subject to the common criticism of attempting to construct a science of law solely in terms of law and on the basis of law, divorced from all other phenomena of social control and civilization.  For him a legal science, in order to meet the needs of a changing society, must give up its exclusiveness and work in closer association with the other social sciences.... The social purposes of law must be stressed more than the sanctions, for law is to be regarded as a social institution which can be improved by intelligent effort. To discover the best means of directing and furthering efforts to improve the law, the jurist must be concerned with a wide range of studies, and not just of law. This requires a study of the actual effects of legal institutions and doctrines; a study of the means of making legal rules effective; a sociological legal history, which is a study not only of how doctrines have evolved and developed, considered solely as jural materials, but of what social effects the doctrines of law have produced in the past and how they produce them. ... The functional attitude, which is the study not only of what legal materials are and how they came to be, but also of what they aim to effect and how they work, is fundamental in Pound's legal theory. Also, there must necessarily be intensive study of philosophy and psychology; in order for a legal science to be valuable it must be consistent with the best of modem philosophy and psychology.  — Linus J. McManaman, O.S.B.,  The Legal Philosophy of Roscoe Pound [emphasis added]

There is one, and probably only one, point in the majority opinion with which I agree.  It is the observation that the dissenting justices did not cite any scholarly treatise to justify their position on what was in the minds of citizens in 1868.  They should have offered several, including some that challenged the very idea that the such a determination could ever be made, let alone that it could be dispositive.  

Ricketts' Attacks on Nebraskans' Freedoms

"The freedom to swing your fist ends where my nose begins."  — Old proverb

"The freedom to swing my fist ends where my money and I say it does."  — Paraphrase of the eight-year tenure of Pete Ricketts, Nebraska governor

June, 2022

Lincoln — When it comes to freedoms, Governor Pete Ricketts has bloodied many noses.  His years of mis-rule have rolled back Nebraskans' very freedoms to enjoy life, liberty, and the pursuit of happiness.  Nebraska has lost all resemblance to what we once called The Good Life.   

•  In spreading Covid by refusing to shut down infected packinghouses, then coddling the Typhoid Marys among us over the use of masks, Ricketts endangered Nebraskans' health and welfare.  He refused take the advice of University Medical Center professionals, who had to work around him to try to stop the pandemic.  As many as one-third of Nebraska's Covid deaths were avoidable.  This is the ultimate loss of freedom.

•  In refusing to acknowledge that at least some pregnancies should be terminated for moral, ethical, and medical reasons, a position supported by a wide majority of Nebraskans, Ricketts condemns many families to needless despair.  Government control over such decisions is not countenanced by the Constitution and represents a profound loss of individual freedom, including the freedom to make deeply personal choices in accordance with one's own faith and conscience.    

•  In adopting the mistaken and extreme view that the Second Amendment prohibits the regulation of weapons of war, Ricketts promotes a vision of Nebraska as a fearful, armed camp.  As this view gains currency — it was anathema not long ago, especially among those of us with military experience — it diminishes Nebraskans' freedom from fear. 

•  In aligning himself with those who covet Nebraska's lands and natural resources, Ricketts proposes to curtail landowners' freedom to protect their properties through conservation easements.  While taking away property rights from some, he would use the power of the state to exercise eminent domain over others, including takings for private interests.  

•  In attempting to dictate what can and cannot be taught in the public schools, and what public health measures can and cannot be implemented by county and city health departments, Ricketts limits speech and rolls back the freedoms associated with local self-government in matters of education and health.  

•  By refusing to accept federal funds for needy Nebraskans, Ricketts denies thousands the chance for  freedom from want, in perilous times.  These funds were intended by Congress to help struggling families with rent and food.    

•  By neglecting his duties to administer state agencies in a manner to protect public safety, public welfare, and natural resources, Ricketts has presided over a long and dismal list of procurement scandals (St. Francis), penitentiary mismanagement (all sites), drug-evidence thefts (at the State Patrol), privatization failures (state foster care system), financial audits (rebukes from the State Auditor), and an environmental catastrophe of epic proportions (Alt-En at Mead).  Rather than facing the state's problems squarely, Ricketts has established a pay-to-play approach in state government by accepting political contributions from state contractors and regulated industries.  This was perhaps to be expected from a man who had no previous experience in government or the military, but who personally knew the power of money and wealth. 

•  In making large, unprecedented political contributions himself to candidates for the state legislature, which under Nebraska law is to be nonpartisan and exercise oversight over the executive branch, Ricketts has interfered with the checks and balances that Nebraskans depend on to protect their freedoms.  

Everywhere one looks in Nebraska state government, freedoms are being lost.  It's time to bring back the old proverb and to defend freedoms from those who would swing their fists into our faces. It's time to look again at the Declaration of Independence and to the Four Freedoms enunciated by President Roosevelt — freedom of speech, freedom of worship, freedom from want, and freedom from fear.  Palpable loss of freedoms must be a central issue in all upcoming 2022 elections, but especially in the race for Nebraska governor.  





Discovered Deposition Answers Student Loan Questions

June, 2022

Washington — It's been nearly a year since PHEAA announced its departure from federal student loan servicing.  The occasion was summed up well on July 9, 2021, by consumer advocates at the Student Borrower Protection Center who celebrated the news but warned of turmoil and difficult challenges ahead for the U.S. Department of Education:

For over a decade, PHEAA made clear that it could not be counted on to deliver borrowers quality servicing or comply with the law. The organization’s exit from federal student loan servicing provides an opportunity for ED to turn the page and enter a new chapter of consumer protection on behalf of millions of student loan borrowers. But doing so will require providing borrowers justice for existing harms, preventing new errors from arising as PHEAA’s loans are passed on to new servicers, demanding transparency at every point in the transition process, and vigilantly watching for mistakes that this transfer reveals or causes. 

All this is sadly true.  To use the authors' words, let's start meeting the challenges with demanding transparency about what happened well over a decade ago as a part of the effort to enter a new chapter of consumer protection.  

The U.S. Department of Education knew as early as 2002 that PHEAA might not be a law-abiding federal contractor when an astute federal employee in Texas, Jerry Wallace, discovered approximately $50 million in what he considered to be questionable federal subsidy claims generated by PHEAA loan servicing software.*  After consulting with a colleague in the Office of Postsecondary Education in Washington, DC, who concurred, he wrote a report requiring that taxpayers be reimbursed.  

What happened next has long been a matter of conjecture, because the money was never returned.  Why not and on whose orders?  Not only was the money never returned, PHEAA and others started to grow the false claims in much larger amounts.

The answers lie in a deposition given under oath by Jerry Wallace in 2010.  I uncovered a summary of his deposition among papers released this year to me by those who conducted it.

According to the deposition, after a year of back-and-forth between Texas and Washington, the Wallace report was amended to take out any reference that the funds should be returned.  Along the way the language "went from finding, to observation, to note of interest" with "no discussion of growth in the note of interest."  

Wallace testified that this was the only report he had ever seen where this happened.  The potential for "unlimited growth" that "could add up to some real money if all the secondary markets were to start manipulating the system" was not addressed.  Texas-based federal officials "got no explanation of how it was legal."

As to who was behind quashing the original report, Wallace said "there was discussion between Sally Stroup and Kristie Hansen" in Washington.  Stroup, a former PHEAA employee whose emails show frequent exchanges with PHEAA's lobbyist, Scott Miller, was Assistant Secretary for Postsecondary Education; Hansen was an appointed official in the office of Federal Student Aid. "Conversation between Hansen and Stroup was conveyed back" to Texas officials to make the changes, Wallace stated under oath.  

So now we know, finally, after two decades, who gave the orders to look the other way.  

Dr. Earl Crisp, head of the federal regional office in Texas at the time, always declined to say from whom he was taking orders to withdraw the Wallace findings, and to explain why he did not stand up for the rule of law when pressed to violate it.  Wallace says in his deposition that he wrote the report so Crisp could understand it, and its implications, so he would know what was at stake.    

When I first saw the original Wallace report in 2004, a year after I had discovered false subsidy claims myself at other lenders, I recognized it as a model of clarity, compelling in its conclusions.  Wallace's work was later validated in subsequent audits of secondary markets by the Inspector General, which became the basis in 2007 for a determination by the Secretary that PHEAA's and others' manipulation of the loan system was, and had always been, illegal.

But PHEAA never suffered any consequences for this at the hands of the Department of Education, which helps explain why it has continued its bad behavior with calamitous outcomes for borrowers as well as taxpayers.  And no Department of Education officials have ever been investigated for their roles in this or similar scandals, to my knowledge, despite overwhelming evidence that they colluded with perpetrators, actively or passively.  

Is it a surprise that PHEAA went on to be a loan servicer (aka FedLoan and AES Servicing) that has cheated countless borrowers out of their benefits and, perhaps more than any other servicer, thrown the nation's whole student loan operation into chaos?  No.  The warning signs were apparent for years.  I have reviewed PHEAA loan servicing in the period 2013-2022 and find it likewise full of misrepresentation and deception.  

As the Department of Education in 2022 tries to make sense of how to move ahead, it must consider suspensions, debarments, and other actions against those who brought the student loan system to its knees and who continue to do so. 

* The discovery was made after a review of subsidy claims by the Iowa Student Loan Liquidity Corportation (ISLLC), which used PHEAA's software, known as COMPASS.