By Emma Tuey
Staff Writer
The Jurist in Residence program has returned for its 11th year moderated by Judge Loretta A. Preska. In the panel discussion on Oct. 26, the panelists discussed why separation of powers matters within our constitution along with a number of issues relevant to the public today, including current disagreements over the separation of powers, the environment, and student loan forgiveness.
This year’s Jurist in Residence Honorable Judge Loretta A. Preska ‘70, the Senior U.S. District Judge of the U.S. District Court for the Southern District of New York, graduated from the College of Saint Rose in 1970.
The panelists included Cinnamon P. Carlarne, Esq., President and Dean of Albany Law School; Timothy E. Corriston, Esq., Managing Partner, Connell Foley Law Firm; Matthew Glassman, Ph.D., Senior Fellow, Government Affairs Institute, Georgetown University; Danielle D. May, Esq., Associate Counsel, New York State Department of Corrections & Community Supervision, and Rex Smith, former editor of the Times Union and The (Troy) Record and host of The Media Project on Northeast Public Radio.
Preska started by discussing the basics of the separation of power in our government. “The founders ascribed our constitution to try to avoid an over accumulation of powers in any one branch or any one person,” said Preska. “The legislative, executive and judicial branch, and each one has a limited role to prevent our liberties from being restrained.”
When addressing separation of powers, she included court cases that evidently involve an imbalance within power. “The questions presented in the separation of powers questions address the propriety of who acted and how she or he acted based on separation of power principles,” said Preska.
The first case addressed was West Virginia v. Environmental Protection Agency (EPA). This is a landmark Supreme Court case that addressed how much regulation the EPA has to control carbon dioxide emissions regarding climate change. “The case involved the clean air act which allows the EPA to control air pollution created by, among other things, power plants,” said Preska.
In summary, the Supreme Court decided that the EPA does not have the authority to fix emission gaps by transitioning from high carbon dioxide emitters to lower ones like natural gas.
“We’re unlikely to witness any meaningful legislation or regulation in the federal government in the upcoming years, and so we are going to have a major regulatory gap; and just to kind of emphasize that, ‘does anybody know when the last major environmental law was passed or amended?’ the students won’t know it wasn’t in their lifetime,” said Carlarne.
Another important case discussed was Biden v. Nebraska which involves student loan debt forgiveness under the Higher Education Relief Opportunities for Students Act of 2003 (HEROES). The Secretary of Education asserted that the HEROES Act grants him the authority to cancel $480 billion of student loan debt.
The Supreme Court concluded that Secretary of Education does not have the qualifications under the HEROES Act for student loan forgiveness; it only has the power to “waive or modify existing statutory or regulatory provisions applicable to financial assistance programs under the education act, not to rewrite the statute from the ground up,” said Preska.
The audience was later able to ask the panelist questions. One of them was “How do we educate voters on the powers of each branch to ensure they are aware of how to make better changes?” Glassman responded, “You have to hope that the system itself stays in equilibrium…you have to hope you have enough people who want to protect the system in each branch that they maintain that sort of balance of power.”
Another topic brought up by Preska was allowing the states and local government more power when addressing environmental concerns. “I would argue in many ways that it is a very positive thing that states are being proactive, but it’s also problematic because it can mean depending on where you live, you may have better or worse air, you may have better or worse water and so the quality of life, the quality of your health, may be hazardous depending on where you live,” said Carlarne.
“Rex, talk to us about the public. How are these cases being reported and can the reporters help the public appreciate the importance of separation of powers to our liberties?” asked Presky to former newspaper editor, Rex Smith.
“We’re dealing with an important issue here that you cannot expect the mass media to distribute it as it is,” Glassman said. “The difficulty is that the percentage of Americans who say they follow the news only now and then or hardly ever grew by half between 2016 and 2022, from 17% to 28%, and 39% of Americans by the way say they have no trust at all in what is important,” said Glassman.
“Great news organizations understand that while broccoli is good for us, we love ice cream and so we need to deliver to the public a diet that has a great mixture and separation of powers is pure broccoli” Glassman explained. “The important thing for serious journalists is to recognize that there are enough people out there who care, who want to consume serious journalism that it is essential for journalists who wish to give people a true picture of why it’s beyond our personal experience,” said Glassman.
