It had to come to this. The U.S. Supreme Court had no choice but to hear a case regarding the arguably staggering constitutional overreach that exists in this one.
Let’s put aside for a moment the fundamental unfairness, which is enormous, of cancelling student loans in this fashion. It is deeply unfair to those who have either not chosen a typical educational path such as college or professional school—or did choose that path but paid their own way.
The U.S. Supreme Court this past week heard oral arguments in what will likely amount to one of the most dramatic violations of our Separation of Powers, perhaps in our nation’s history.
The case, Biden v. Nebraska, involves the unilateral action by Pres. Biden—through the use of an executive order—to cancel up to $1 trillion in student loan debt that borrowers have legally and morally promised to repay. In fact, the Penn Wharton Budget Model concludes that the burden unfairly imposed on American taxpayers by the Biden Administration’s reckless, inflationary student loan bailout proposal could exceed $1 trillion.
There is simply no precedent for such an action and no legal basis supporting it.
In truth, I think Pres. Biden, and certainly the very sharp lawyers around him, know that. However, at the time Biden made this un-constitutional commitment—prior to last fall’s congressional elections—he was desperate to engage a naked political ploy to essentially buy the votes of young people. And Forbes points out that polls of young people since the election suggest the success of this strategy.
The highly doubtful legal basis the Biden Administration used was the 2003 Higher Education Relief Opportunities for Students (The HEROES Act) as its authority. The law allows the Education Secretary to waive or modify any statutory or regulatory provision related to federal student aid when “necessary in connection with a war or other military operation or national emergency.” Well, Pres. Biden mis-used the China Virus emergency to seek to cancel student debt for the large majority of borrowers.
The constitutional defect here is that the U.S. House of Representatives alone—not the president—possesses the “power of the purse” and the only way to do something like this is to have a bill originate in the House, pass both the U.S. House and U.S. Senate and be signed by the president. Otherwise, a president, any president, simply has no constitutional authority to do this.
If the U.S. Supreme Court invalidates this executive order as I think it will, I think it will do so based upon the “major questions” doctrine which simply stands for the legal principle that if Congress intends to create a law of vast “economic and political significance” it must clearly and explicitly say so.
Well, the Higher Education Act says nothing of the kind. The purpose of the Higher Education Act is to allow active-duty military members to halt their student loan payments while fighting for their country.
Perhaps the Wall Street Journal has characterized this case the best: “It’s hard to overstate the stakes in this case. If a President can get away with this power-play, it’s hard to see what limit would be left on executive rule. Find a statute that offers power in an “emergency,” declare such an emergency, and then do whatever you want or spend whatever you want. The Founders would be appalled.” (WSJ, 2-25-23).
In fact, what could be less ‘HEROIC’ than manipulating the HEROES Act in this way?
As the Heritage Foundation has pointed out,
“Those who are most deeply harmed by inflation are those who didn’t go to college. While most Americans – 87 percent of which do not have federal student loans – are living paycheck to paycheck, they must now subsidize the hasty financial decisions of those with college degrees and high earning potential.”
In addition to being unconstitutional, this mocking misuse of the HEROES Act is cruel and callous and demonstrates that Pres. Biden simply does not care about leading, to borrow from President Lincoln, “a government of the people, by the people, and for the people.”
We should recall that the Justices have decisively ruled in other recent decisions that Pres. Biden has exceeded his constitutional authority on the vaccine mandate and rental eviction moratorium. It looks as though another legal rebuke is coming in this case.