Tomorrow the Supreme Court will hear oral arguments in a pair of challenges to the Biden administration’s plan to cancel up to $20,000 in federally held student debt for borrowers making less than $125,000 (or $250,000 for a household). There’s a lot at stake in Biden v. Nebraska and Department of Education v. Brown, not the least of which is the $430 billion estimated cost of the program. The case involves important constitutional questions, like whether the president may “interpret” an old law to achieve a far-reaching policy goal.
It’s a legal reckoning that the Biden administration worked hard to avoid. To evade judicial oversight, the Education Department initially implemented the program on-the-fly through online announcements.
Last Fall, for example, the Pacific Legal Foundation (where we work), filed a legal action soon after the policy was announced. Within days, the agency quietly changed the program’s details on its website — and tried to moot our lawsuit (on appeal at the Seventh Circuit). The agency performed still more stealth edits to the program after a group of states filed suit in Biden v. Nebraska, again to ward off litigation.
Why would the Biden administration try to avoid judicial scrutiny? Maybe it’s because they know their legal hand is weak. When stripped to its core, the government’s position is that the obscure 2003 HEROES Act — a law whose purpose is to relieve administrative burdens for military members and their families — is actually the most important student debt policy ever passed by Congress, even if no one knew it at the time.
And what did Congress intend with the HEROES Act? To inform the Court on this crucial question, the Pacific Legal Foundation filed an amicus brief on behalf of the primary players behind that law, including its author (Rep. John Kline), the author of precursor legislation (Rep. Howard McKeon), and the then chairman of the House Committee on Education and the Workforce_ _who ushered the bill through the legislative process (Rep. John Boehner). These three know better than anyone why the Biden administration’s reasoning is wholly at odds with what has always been understood to be the limits of the law.
As explained in the brief, the 2003 HEROES Act was supposed to be a simple effort to relax administrative burdens for borrowers, primarily servicemembers, who find themselves in the middle of military actions or burdened by real emergencies. It was not an unlimited grant of authority for the president to fundamentally remake the higher education funding system to the tune of almost half a trillion dollars.
Indeed, Congress passed the HEROES Act at the beginning of the Iraq War, and in the “findings” section — where lawmakers set forth the law’s purpose — the legislation avers that the U.S. military is “the finest in the world” and that service members “put their lives on hold, leave their families, jobs, and postsecondary education in order to serve their country and do so with distinction.”
As a matter of common sense, the government’s reading of the law doesn’t hold water. The question of whether to cancel student debt long has roiled Capitol Hill. Yet the HEROES Act passed in the House of Representatives by a vote of 421-1. It defies reason to imagine that Congress, without any deliberation, near-unanimously gave the president a free hand to forgive hundreds of billions of dollars in student debt.
To the contrary, when Congress passed the HEROES Act in 2003, every member understood the primary aim was to ensure those who served our country were not placed in a worse financial position due to their service. Prior to the Biden administration’s proposal, no lawmaker thought that the Act allowed cancellation of student loan balances.
Nor did the Education Department. Until the pandemic, the Department “generally invoked the HEROES Act relatively narrowly to grant relief to limited subsets of borrowers, such as deployed military service members or victims of certain natural disasters,” according to the Congressional Research Service. None of these rules ever contemplated wholesale cancellation of any debt.
Subsequent congressional activity confirms that no one thought the 2003 HEROES Act authorized the president to order a mass cancellation of student debt. In 2020 Congress considered, and ultimately rejected, a statute meant to enact virtually the same policy now being pushed by the Biden Administration: that is, the law would’ve cancelled up to $10,000 in federally-held student debt per borrower. Now, why would lawmakers consider — and reject — such a policy, if they’d already given away the farm with the 2003 HEROES Act?
These cases are about the Biden administration’s effort to radically change the law governing federal student loans despite the lack of authorization from Congress. The Court should turn back this brazen usurpation of Congress’s legislative prerogative.
This op-ed was originally published at Issues & Insights on February 27, 2023.