Below is my column in the Hill on the latest controversy over President Joe Biden’s unilateral use of executive power. Despite an impressive list of court losses, Biden is now asserting such authority as the basis for the single largest debt forgiveness in history.
Here is the column:
In 1987, President Reagan reached a milestone in sending to Congress the first trillion-dollar budget. The size of it caused intense debate in Congress over the debt load, but an eventual “consensus” budget was reached.
What is shocking today is not simply the size of the more than $4 trillion federal budget but that President Biden just wiped out what is estimated to be $1 trillion owed to the country — the size of the Reagan budget — without a single vote, let alone approval, by Congress.
The idea of a president giving away such a fortune with the stroke of a pen should alarm every American. Not only will the massive payout likely fuel inflation but critics have objected to having working-class people subsidize the debts of college-educated citizens. Others object that it is unfair to those who sacrificed to pay off their loans or those of their children. When one such father asked Sen. Elizabeth Warren (D-Mass.) whether he would get a refund after struggling to pay off his daughter’s college education, Warren dismissed him with an “of course not.“
Some Democrats in Congress have joined Republicans in condemning the plan.
Biden knew he could never get Congress to agree to such a massive write-off, so he did not try. Instead, he acted unilaterally, and Democrats like Warren expressed euphoria, although Warren wanted five times more debt forgiveness. The former law professor saw little problem with a president giving away hundreds of billions of dollars.
As was the case under President Obama when he circumvented Congress, Warren and others are celebrating their own constitutional obsolescence.
This is not supposed to happen in a constitutional system based on shared, limited powers: The Constitution gives Congress the power of the purse, but Biden just gave away the store. James Madison described the essence of our system of separation of powers in Federalist 51 as premised on the belief that “Ambition must be made to counteract ambition.” No branch is supposed to have enough power to govern alone. Biden just did, however.
The legal basis for this action is superficial and strikingly cynical. Even House Speaker Nancy Pelosi (D-Calif.) previously stated that Biden could not unilaterally forgive such debt and would need a vote by Congress.
President Biden is using a law designed to help service members and their families deal with debt accrued in fighting for this country. The terms of the Higher Education Relief Opportunities for Students (HEROES) Act of 2003 allows the secretary of education “to waive or modify … financial assistance program requirements … affected by a war, other military operation, or national emergency.” Biden had promised to wipe out tuition debt in the campaign and simply hijacked the Act for that unintended purpose. Putting that aside, the Act ties such relief to an inability to cover such costs due to the war or emergency. The Biden plan would use the law to benefit individuals without such a showing, including many of the 40 million beneficiaries who are relatively wealthy and could pay off the loans.
The Office of Legal Counsel, considered the ultimate authority on legal interpretations in the Executive Branch, looked at this issue during the Trump administration. Its memo concluded that “the Secretary does not have statutory authority to provide blanket or mass cancellation, compromise, discharge, or forgiveness of student loan principal balances, and/or to materially modify the repayment amounts or terms thereof, whether due to the COVID-19 pandemic or for any other reason.”
The Biden Office of Legal Counsel issued a new opinion concluding the opposite, due to the ongoing pandemic — a curious argument, since the Biden administration was just in court arguing that the pandemic was effectively over, in order to allow undocumented individuals to enter the country. Citing the Centers for Disease Control and Prevention, the administration sought to stop the enforcement of Title 42, which allowed the government to turn away migrants at the border.
While the administration might find support from a lower-court judge, its argument likely will receive a chilly response from the Supreme Court.
The Supreme Court has repeatedly found that President Biden has violated the Constitution and overreached in his use of unilateral executive authority. Biden has, arguably, the worst record of court losses in the first two years of any recent presidential administration. This year, the Supreme Court blocked the Occupational Safety and Health Administration’s vaccination mandate for businesses with 100 or more employees. That followed statements by Biden’s chief of staff, Ron Klain, that the administration had found a “workaround” of the Constitution in such executive orders.
One of those losses is likely to come back to haunt the president. In West Virginia v. EPA, the Supreme Court struck down the Environmental Protection Agency’s climate control regulations in curtailing greenhouse gas emissions at coal-fired power plants. The court ruled that the “major questions” doctrine barred Biden from circumventing Congress in taking major action with large economic and political significance — sort of like an up-to-trillion-dollar federal giveaway in the middle of a recession.
Biden is fully aware of the dubious basis for this massive giveaway. However, his administration is rushing to get money out the door in October, a month before the midterm elections.
That has a certain familiarity to it.
Last year, Biden called for the CDC to impose a nationwide moratorium on the eviction of renters, despite being told by his White House counsel and friendly legal experts that the move was likely unconstitutional. It was hardly a difficult question; the Supreme Court previously indicated the claim of such power was unconstitutional. In an amazing admission, Biden recognized the overwhelming view that this was unconstitutional and told the media he hoped his administration could get as much rental assistance money out the door as possible before the eviction moratorium was stopped by the courts.
The federal courts quickly rejected his asserted authority, and the Supreme Court ruled 6-3 that the eviction order was unconstitutional.
It appears Biden is repeating a somewhat similar strategy on student debt, hoping to give billions in debt relief before an injunction stops him.
The reasons for his optimism may have nothing to do with the merits of his legal claim. In order to challenge the program, litigants need to establish standing to seek relief. The court has been hostile to such claims, including rejecting taxpayer standing. In 2007, the Supreme Court ruled in Hein v. Freedom From Religion Foundation that a group opposed to government funding of religious programs under the Faith-Based and Community Initiatives program did not have such standing.
Biden undoubtedly hopes that, despite intense opposition to this giveaway, no one can secure judicial review. If successful, he would make a mockery of the constitutional system. He would first unilaterally give away between $500 million and $1 trillion, then show that no citizen can challenge him, and no court can check his authority.
Then again, standing might be found and the courts just might be able to stop this plan.
However, Biden may still succeed if he is able to get the money out before any injunction. No one in Congress would be keen to pursue students for unconstitutionally forgiven debt.
Ironically, as figures like Warren praise Biden for circumventing Congress, she and others are rallying voters to “defend democracy.” After all, nothing says “democracy” like an exercise of one-man rule.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.