Jim Hartman
On Feb. 28, President Biden’s unilateral student loan cancellation program to erase half a trillion dollars owed to the United States by 43 million Americans faced a highly skeptical Supreme Court.
The Supreme Court was hearing one of the most consequential separation-of-powers cases in our nation’s history.
Conservative justices were incredulous that Biden’s decree to wipe out $430 billion in student-loan debt could be ordered without congressional approval.
The fundamental question raised in two cases before the Supreme Court (Biden vs. Nebraska and Department of Education vs. Brown) is whether the president can ignore Congress’ constitutional authority and act like a king.
Biden’s claim of unilateral power to cancel student debt is stunning.
A month before taking office, Biden said it was “pretty questionable,” whether he had the power to cancel student debt.
He told a CNN townhall on Feb. 16, 2021:
“I don’t think I have the authority to do it by signing the pen.”
Then House Speaker Nancy Pelosi insisted in July 2021:
“People think the President has the power of debt forgiveness. He does not. He can propose. He can delay. But he does not have that power. That has to be an act of Congress.”
Now, the Biden administration argues the opposite before the Supreme Court.
Last August, Biden invoked the COVID emergency to cancel student debt for 95% of borrowers.
Republican senators – from Josh Hawley to Mitt Romney – universally denounced the plan as a naked vote-buying ploy to energize young voters who had soured on Biden.
Several Senate Democrats also criticized Biden’s action, including Nevada Sen. Catherine Cortez Masto.
Critics argued it would contribute to already high inflation.
Former top Obama economic official Jason Furman tweeted: “Pouring roughly half a trillion dollars on the inflationary fire that is already burning is reckless.” Larry Summers, President Clinton’s Treasury secretary, said it would add to inflation and encourage college tuition increases.
Opponents say it’s unfair to those who never attended college. It’s regressive, rewarding the well-to-do at the expense of working class individuals.
It penalizes those who paid off their loans or never took a loan to attend college.
And, it fails to address increasing costs of college for future students that far outpace inflation.
Opponents see Biden’s action as contemptuous of the Constitution, which authorizes only Congress to spend money.
Legal challenges ensued.
Biden invokes emergency authority for his action based on a 2003 law, the Higher Education Relief Opportunities for Students (HEROES) Act.
President Bush signed the bill during the Iraq war to ensure active-duty military members could pause student-loan payments while serving the country. No administration until this one has used the HEROES Act to justify erasing student debt.
The current Supreme Court has been vigorous in enforcing separation of powers.
In a landmark decision last year (West Virginia vs. EPA), the court reaffirmed that executive branch actions of major political and economic significance require “clear congressional authorization.”
This “major questions doctrine” would clearly apply to the mass student-debt cancellation plan.
Biden’s forgiveness action faces a steep uphill climb in the Supreme Court based on remarks from the six conservative justices during oral argument.
However, challenges to Biden’s plan must clear a hurdle before the Supreme Court can consider the merits of the case. The Biden administration argues the two cases were brought by parties who weren’t harmed by the cancellation program and therefore lacked “standing” to sue.
In recent decades, Republican and Democratic presidents – Bush, Obama and Trump – have increased their executive powers.
If Biden gets away with his audacious debt cancellation power-play, it’s difficult to see any limits on executive rule.
The justices can make it emphatically clear that Biden isn’t “King Joe.” Only Congress under the Constitution (Article 1, Section1) has “power of the purse.”
Expect the court’s decision in June.
E-mail Jim Hartman at lawdocman1@aol.com.