In late August, the Biden administration announced its intent to cancel an estimated $500 billion in student debt held by more than 40 million borrowers. President Biden previously expressed doubts about his authority to take this very action.
Nevertheless, Biden and his Education Department located a previously untapped source of purported authority—the HEROES Act of 2003. This law, passed in the early days of the Iraq War, was meant to temporarily freeze student loans held by service members and their families during times of war or national emergency.
Now the Biden administration has stretched the meaning of “emergency” beyond recognition and attempted an end-run around Congress.
In the ordinary course, following a presidential announcement of a new policy or program, the executive agency charged with carrying out the president’s wishes would engage in the rulemaking process mandated by Congress. This includes providing notice of the draft rule, giving the public time to comment on it, addressing concerns raised by public comments that sometimes require changes to the proposed rule, and, finally, publishing a final rule that binds the public.
This student loan forgiveness plan, however, is anything but ordinary.
Instead of following the usual course, the administration issued a handful of press releases, a fact sheet, and two memos offering pretextual legal justifications. These constitute the entirety of publicly available information.
Despite assurances from the administration to Congress and the public that automatic cancellations would begin for eight million borrowers in early October, no draft rule has been released.
Compounding this disregard of the normal rulemaking process is the series of arbitrary changes the administration has made on the fly in response to legal challenges.
Pacific Legal Foundation (where we work) filed suit on behalf of Frank Garrison, an attorney enrolled in a preexisting loan forgiveness program that Congress created. Garrison faced a hefty state tax bill if his loans were automatically canceled under the new program.
Responding to a reporter’s question during a briefing, White House press secretary Karine Jean-Pierre replied that borrowers such as Garrison simply could “opt out” of the program, even though the Education Department website said otherwise.
The website was changed that same day to fit the press secretary’s claim. A federal district judge then denied Garrison’s initial motion for a temporary restraining order but made the government pinky swear not to begin cancellation of debt until the challenger has an opportunity to file an amended complaint.
A group of states also filed suit and met a similar fate: the Biden administration quickly “revised” its unwritten, seemingly ephemeral plan to exempt the affected borrowers.
The administration’s actions were an obvious attempt to end both cases without having to defend the legality of its policy, doubtless because the loan cancellation program is blatantly unlawful.
No statute gives the president carte blanche to cancel student debts. The HEROES Act authorizes the Education Department to waive or modify student loan requirements for those residing or working in a “disaster area” related to a national emergency. This was intended to ease certain bureaucratic burdens (for example, by extending grace periods and waiving documentation requirements) for service members and their families so they would not be placed in a worse financial position because of emergencies or military operations.
That’s a far cry from the broad claim of authority to cancel half a trillion dollars in student loans. Congress doesn’t hide elephants in mouseholes, as Justice Antonin Scalia once wrote, and President Biden’s student loan forgiveness is mammoth.
This is not an isolated incident of executive overreach. It is yet another example of the executive branch unreasonably stretching modest grants of power to reach policy goals Congress never approved. The Supreme Court struck down the CDC’s eviction moratorium and OSHA’s vaccine mandate as far exceeding anything Congress authorized. Likewise, here, the Education Department cannot twist the HEROES Act to make half a trillion dollars in student debt vanish.
The Biden administration knows all of this, which is why they are doing backflips to avoid a court challenge. They should not be allowed to get away with it.
That’s why we’re amending our suit to represent every borrower facing unwanted loan cancellation coupled with state tax liability. We also argue that allowing borrowers to “opt out” is not enough to save this unwritten, ever-changing plan. So far, the Education Department has simply delayed the inevitable: judicial scrutiny of its outrageous violation of the law.
The administration would have been wise to listen to House Speaker Nancy Pelosi, D-Calif., when she remarked, “People think that the president of the United States has the power for debt forgiveness. He does not. … That has to be an act of Congress.… The president can’t do it.”
Indeed. And if this president gets away with it, other presidents will too.
This op-ed was originally published at Fox News on October 10, 2022.