Arlington, VA; February 3, 2023: Pacific Legal Foundation today filed an amicus brief on behalf of former lawmakers in Biden v. Nebraska and Dept. of Education v. Brown, the cases before the Supreme Court challenging the administration’s student loan cancellation. The brief shows that the HEROES Act of 2003 never authorized the Department of Education to wipe away hundreds of billions of dollars in student debt. Former Representatives Howard McKeon, John Kline, and John Boehner were instrumental in the passage of the Act and wish to emphasize the original limits of that legislation.

The Biden administration has used the HEROES Act as a pretext to justify its sweeping abuse of executive authority. But as McKeon, Kline, and Boehner argue, the HEROES Act was passed in the wake of September 11 and was intended to aid servicemembers and their families by allowing the government to modify administrative burdens associated with their student loans while they were deployed during times of war or national emergency. It was never intended to give the president the power to erase student debt en masse — a point that members of both parties acknowledged when the law was enacted.

“The Biden administration’s use of the HEROES Act as a legal pretext for its debt cancellation has always been a farce. The authors of the law confirm that fact,” said Caleb Kruckenberg, an attorney at Pacific Legal Foundation. “In the six months since President Biden announced the plan, the government has never made a plausible argument that the plan is legal. Instead, the administration worked at every turn to thwart judicial review by making sweeping changes to the program by press release.”

Less than 48 hours after Pacific Legal Foundation filed the first lawsuit against the debt cancellation program, the Department of Education made staggering changes to the program by revising the DOE website. One change excluded more than 700,000 borrowers from the program.

“It’s hard to overstate just how lawlessly the Department of Education has acted in its rush to cancel half a trillion dollars in debt,” said Michael Poon, an attorney at Pacific Legal Foundation. “Not only has Congress not authorized the cancellation program, but the department has not followed notice-and-comment rulemaking or issued any formal guidance documents. The program has effectively been implemented through DOE websites and press releases. That’s not how law is made in the United States.”

Despite the department’s efforts to avoid judicial review, the Supreme Court agreed to hear two challenges to the policy on an emergency basis.

Rep. McKeon authored the precursors to the HEROES Act in 2001 and 2002, Rep. Kline authored the HEROES Act of 2003, and Speaker Boehner served as chairman of the House Committee on Education and the Workforce at the time both laws were passed.


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About Pacific Legal Foundation

Pacific Legal Foundation is a national nonprofit law firm that defends Americans threatened by government overreach and abuse. Since our founding in 1973, we challenge the government when it violates individual liberty and constitutional rights. With active cases in 34 states plus Washington, D.C., PLF represents clients in state and federal courts, with 18 wins of 20 cases litigated at the U.S. Supreme Court.

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