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Sean D. Reyes
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Sweet v. Cardona: Strategic Surrender Undermines the Constitution

May 9, 2023

Today, Utah Attorney General Sean D. Reyes co-led an amicus brief to the United States Court of Appeals for the Ninth Circuit in Sweet, et al., v Cardona, et al. The case involves a challenge to the Department of Education’s unconstitutional action to unilaterally absolve student loans. 

In the brief, General Reyes and the amici States detail the Secretary of Education’s most recent plan for canceling billions of dollars in student debt, thanks to the federal government’s settlement of a long-pending class-action case involving applications filed by individuals seeking the forgiveness of federally held debt that borrowers claim to have incurred because of misconduct by the schools they attended. The settlement provides that borrowers who accrued debt by attending any of 151 schools will have their debt forgiven automatically. A second group of about 68,000 borrowers may seek review of their federally held debt under a novel procedure that all but guarantees their debt will be forgiven. And a third group of borrowers (approximately 206,000 who attended approximately 4,000 schools) may seek forgiveness through yet another process. 

General Reyes issued the following statement: “Over the past two-plus years, the White House has contorted its way around the Constitution, the rule of law, and the U.S. Congress. This is not how our system of government was created to operate, and the consequences will be severe for our posterity if it is allowed to remain unchecked. I’m grateful for this coalition of attorneys general who realize the importance of pushing back against the latest attempt from the federal government to circumvent our checks and balances and I am confident that the judicial system will see through these misguided efforts.”

The amici States make three arguments in this court filing to the federal appeals court.

  • First, “the Secretary has no legal authority to do what the settlement requires.”
  • Second, “strategic surrenders permit the executive branch to undermine the Constitution’s structural protections.”
  • Finally, “the collusive settlement must be rejected because it fails to satisfy the demands of Rule 23 governing class-action settlements.” 

The States highlight the dangers of the “strategic surrender” that has come to define the federal government’s attempts to rewrite laws and policies without legislative input. The amicus brief stated the following. 

“Strategic surrender poses a serious threat to our constitutional order. Settlements like the one approved in this case permit executive agencies to exercise what amounts to legislative power since, using these settlements, agencies can assign themselves authority to take actions Congress never approved. And by acquiescing in orders vacating federal rules – by collusively dismissing cases and appeals, for example – the executive branch can change federal policy without proceeding through the rigorous notice-and-comment process that Congress has required.”

The States also urged the judiciary to correct the wrong from the Department of Education’s unlawful settlement in this class-action case, granting de-facto student loan amnesty to tens of thousands of borrowers, stating: “And when the executive branch attempts to gain new power through a settlement, courts can either refuse to approve the settlement (which is what the District Court should have done in this case) or else vacate the settlement on appeal (which is what this Court, and the Supreme Court if necessary, should do in this case).” 

Joining Ohio and Utah on this brief are the states of Alabama, Arkansas, Georgia, Kansas, Kentucky, Louisiana, Mississippi, and South Carolina. 

Read the amicus brief here.