College-Loan Forgiveness Plan Reveals Biden’s Constitutional Cynicism

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.

287 thoughts on “College-Loan Forgiveness Plan Reveals Biden’s Constitutional Cynicism”

  1. The presence of some good schools does not demonstrate the system is fixable.

    We pay way too much. Quality overall is declining. Cost is rising.

    There is almost nothing that government does where there are not a few shining success stories.
    There is very little that government does well.

    I would further note that we must make things like education work with ordinary resources.

    I get tired of idiots that say we need to put more money into schools – like we have not done so over the past 50 years.
    Or pay teachers more.

    Ok so lets say you miraculously fix schools by spending more and getting the best people as teachers.

    Now you have problems elsewhere.

    We do not have a magic wand that makes more intelligent people and less stupid people.
    When we draw resources into one area – we take them from another.

    Free markets do that in a dynamic balanced way that reflects OUR wants and needs.

    Government can not do that. If you improve schools by luring better people into teachers you are going to take them from math, science, engineering, law enforcement, nursing.

    Free markets are not good at getting the best out of people – they are just better than anything else. Certainly far better than government.

  2. Joe Biden will be impeached. The list of charges will be long. Flaunting his disregard for his Oath of Office, to defend and protect the US Constitution, and to do it over and over and over again —– open borders, the clear and sheer incompetence as Commander in Chief pulling out of Afghanistan, shutting off our energy independence, selling out to Xi, and the list goes on —not to mention his brain has suffered from again, cognition is way reduced, his wife has to grab his hand and guide him when they are walking together, he commits more gaffes per week than any other national leader in the history of mankind………..and you might think I don’t like the guy — not true — back in 1988, I like Biden as a candidate, and I thought young Al Gore was pretty good too — and the Dems put Dukakis up as their standard-bearer? Really? But this Joe Biden and that Joe Biden are vastly different.

  3. RE: “”….And now you know the REST of the story……………”

  4. Mr. Turley, please explain to your readers why Congress doesn’t simply allow student loan debt to be discharged in bankruptcy? This will filter those people who cannot afford to pay from those people who do not want to pay. This is the only equitable (the Left nearly ruined that word) way out of this problem.

  5. There are people with standing. DoE and olc leave their analysis for an “affected individual” at “a disaster area IN an emergency declaration area’…. Is is? Which in August 2022 isn’t all of america…equal protection… disaster area despite no longer fed tezsting.areas…they just figure a Biden for no reason emergency is enough. Many state attorney general’s have standing for a declaratory judgement….since their states are not “in” a disaster relief area maybe not in a ‘national emergency’.either ….to them the legal question will be if category 4 of an “affected individual” is at play….there the Secretary will have to show… a direct result of the national emergency xyz ..was a direct result of a national emergency…. was directly. The doe and olc never said much about that….hanging their hat instead on “disaster area”. …which takes a governor generally. And attorney general’s have a vested interest that the law is followed. In the first instance. They also have a vested interest in ensuring their constituents don’t commit federal fraud. So and must ….make certain that the “apply” for forgiveness program dissent entail shennigans. Their people aren’t signing up unless the law is met. Ag’s definitely have standing….to get a declaratory judgement….And likely have standing to propel third parties forward……in third party standing.

    1. Especially if you consider the “law’s ” and took an oath to….they can’t be bought off by bribes good for their people. Instead they must ….as a matter of law….determine the laws are legit. Keep and enforced. They have the standing for Dec actions….especially alabama…who post 9 eleven….despite the debacle attempts of the feds ….paid kids college….And now for what….subsequent loans would be forgiven…… I’m not doing anything

  6. 65% of the people f this country never stepped foot on a college campus. Now they have to pay for those who did. All people are created equal, only some are more equal than others.

  7. I don’t think Brandon knows the difference between a president and a king.

  8. College loans are a construction racket. Every campus is building like there is no tomorrow because the have buckets of money rolling in for what amounts to a “post high school” remedial education. It is way past time for colleges to get some skin in the loan game. Maybe they should co-sign.

  9. It would be nice to know how many of those who attended college did not graduate because they were not college material but got loans anyway. Once upon a time I took out a loan on a car that didn’t last for the life of the loan. Because I made a mistake in purchasing a car that did not work for me should my loan have been forgiven. Without suffering the repercussions for our mistakes we never learn not to make the same mistakes again. It seems that accountability is not much in vogue these days.

    1. Thinkitthrough: very nice statement, deserving of a whole new thread. I also liked Karen’s comment that this represents debt transfer, not debt forgiveness, or whatever words she used (can’t find it now).

  10. This is what the left think about police. Biden is like the fiddler crab who pulls back in its shell when it senses danger. Joe looked at the national reaction to “Defund the Police” and he pulled back into his shell. You can be sure that the position of the left is to abolish the police as voiced here by the most prominent leftist magazine in the nation. Be not mistaken. The crab will reemerge from his shell when he thinks the time is right.

  11. The loan “forgiveness” debacle has little to do with actually addressing a growing problem in universities, the biggest threat is the loan scam and the bloated school costs. They load a student up with debt, happy to take their money and appear to have little care about their lives once they leave the institution. The student cannot declare bankruptcy and get out from under the burden. It is with them for life if they don’t make life changing habits and work extra shifts, two or three jobs to break the shackles of bondage and pay it back.

    Universities are like a factory. The product is the graduate and better yet, the gainfully employed graduate. The student attends with the intention of finding a career that is fulfilling and one that can pay the bills. If the university offers a degree, it must be mandatory that they transparently publish their graduation rates, employment status of the graduate and the (real) salary rates and how much money would be left over to pay off the debt to the students and to the public. There is that pesky little thing called taxes that eats away 40% or more of every dollar earned. So, if they offer a “studies” degree that has little demand in the real world, all the university is doing is taking the money and sending the naïve graduate into the meat grinder. Then there are the students who never graduate.

    If this were run like a business, many universities would fall into the dust of history such as Sears, TWA, Kodak, or Blockbuster. What some of these institutions are doing to these hopeful youth is criminal in such instances. Many have failed to innovate, so they continue this charade and business as usual. Not everyone is meant to attend college. Many are not cut out for professional schools. They don’t have the drive, will, or academic foundation necessary to compete in the rigors and demands of such programs. That is okay. What is not okay is to lure the poor student into a program that they have not hope or drive to compete. Those who fail to complete the program are hobbled for life.

    Then, there are the students who clamor to attend the big name schools, seeking the prestige of the brand, when a state university can offer as good or better educational options for much less cost. These institutions are accredited by the same body that does the Ivy League schools.

    What about the rest of folks (graduates) who lived a spartan student lifestyle, shook down the couch for enough change to treat themselves to Taco Tuesday and drove a car so ugly that they gave it a name? What about the third generation welder or person never attended college who now has to foot the bill for this giant mess?

    There is no quick and easy fix to this mess. It must change. The institutions that do not innovate, I fear, may have fail. There is a scene in Harry Potter when the goblin Griphook asks Harry how he got the sword of Godrick Griffindor. He answered, “It’s complicated.”

    University costs and the loan process is complicated, but what the WH administration bypassed our representative process and is not a fix and further divides this nation. Perhaps that is one of the administration’s goals, to divide this nation into their respective tribes. It does, however, beg the question, “Cui bono?”

    1. Well said.

      “The student attends with the intention of finding a career”

      So becoming educated has lost focus in academia. The focus appears to be on career training with lip service to “being educated”. Corporations have a nice racket going on.

      1. Prairie Rose,
        This is also occurring in traditional universities. It is quite complicated but such institutions are not immune. Building a new program is challenging and very expensive. Some view a new college or professional program within the university system a cash generator and are all too happy to take a student’s money. They walk a fine balance between filling up the program with warm bodies and having to meet the mission goals and objectives of their accreditation body that require them to produce graduates who can pass the bar, the boards, receive licensing that enable them to be employable. To do that, they must have rigorous entrance criteria. What is the industry demand? Here is where they fall short in monitoring the “product” they are producing to see how they are actually performing in the real world.

        State universities, per their whole budget, receive less and less state and federal subsidies and depend more on tuition. When the poor unsuspecting student is allowed to borrow more money than they can repay, the institutions, in many cases, look the other way. The money magically shows up in their coffers and they have nothing to do with how the student and hopefully the graduate will pay it back. It is criminal.

        The traditional university “experience” may have to fall by the way in order for the institutions to employ economy of scale to lower their per student costs, especially in the classes where the students are in a large auditorium and have little interaction with the professor. The skills portion of the classes (chemistry, biology lab, physics lab, etc. will have to be taught in person) but the classes that do not have labs and hands on learning may end up being taught in a new format. Time will tell.

        The issue of the “loan forgiveness” is a whole different matter in this last round. In the case of the ITT students, it was the accreditation organization and by proxy the Department of Education that fell short by not acting quickly to shut down the diploma mill. I did not disagree with that one. The latter is a constitutional issue that was done, in my opinion, for political purposes only and is an egregious violation of our representative government.

        1. E.M.,
          I agree with your assessment overall. I find that universities in the past 30 years or so have gone too far down the path of entertaining students or trying to “please their customer”. Too many bells and funs whistles are built up rather than focusing on the point of the whole endeavor–an education. That is not to say that everything “fun” should be stripped away, but it seems to have gotten out of hand. Martin Luther King, Jr. observed that “people pay more to be entertained than they do to be educated.” And, worse yet, this is happening at the very place people are supposed to educated!

          “What is the industry demand? Here is where they fall short in monitoring the “product” they are producing to see how they are actually performing in the real world.”

          The industry demand. Egad. So, industry is driving the outcome–no need for an education, only training. Why does industry get to “demand” so much? What of our ability to self-govern, to be a free people–that cannot happen if we are only trained for industry.

          I agree, universities should be monitoring how well students are educated before they exit. I do not want to be monitored, though, afterwards. That is too intrusive. Also, students, people, should not be thought of as products or as human capital or social capital–it is dehumanizing. I see too much of this language being casually tossed about in the world, even in education–the taint of industry is everywhere. They have practically biggered the life right of learning.

          1. RE:” universities in the past 30 years or so have gone too far down the path of entertaining students or trying to “please their customer” Ditto on that, coming from a retired Clinical Associate Professor.l

  12. Just a question about some sort of weird new paradigm emerging from the current weak, incompetent, addled president: When did wives start walking presidents out to give their speech waving and smiling as if it was some sort of co-presidency? When did “leaders” have their mommies hold their hands to walk them out for an address and then gather said “leader” in order to walk him or her out?

    Now imagine Teddy Roosevelt having his wife walk him to the podium, or FDR being wheeled out by Eleanor then having her run to the stage to make sure he knows which exit to take when leaving. Imagine Mamie walking IKE out to give his final remarks about the military industrial complex. Try to imagine Pat taking Nixon by the hand, or Nancy walking Reagan out to the Berlin Wall when he admonished Mr. Gorbachev. How about Clementine Churchill making sure Winston holds up the right fingers to signal Victory.

    On a more somber and current note, imagine Xi or Putin being hand held by a spouse on their way to the podium. I am not saying that Xi and Putin are or should be role models, but this is our enemies and weakness invites adventure and aggression. Having a weak lickspittle as leader is not only going to harm us it is already having a deleterious effect on the world, see Russia’s invasion of Ukraine. I can only imagine the feeling of our Taiwanese “allies” as they watch this feckless old fool head out to the podium being led by his wife as if they were stepping up to the hostess stand at Denny’s.

    All the red lights, marine guards and trying to yell will not make the image of Joe Biden look any more serious or forceful after his wife leads him to and from the podium as he walks with that dazed and confused look on his vacant, milky eyed face.

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