Columns, Congress, Constitutional Law, Politics

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. Jubilees are necessary, especially in a debt-money system like ours. I’d agree with Prof Turley up to a point: why just student loans?

    I proposed an across the board jubilee via constitutional amendment – the only way it will ever happen given the current regime – more than 11 years ago. Nothing has changed since:

    https://strikelawyer.wordpress.com/2011/01/15/amending-the-constitution-the-jubilee-amendment/

    There are a few posts after that one explaining it more.

    Parenthetically, it should also be noted that the cancellation of debt is DEFLATIONARY, not inflationary.

  2. “ 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.”

    Turley forgot that this was before the HEROES act passed. The office of legal counsel under Trump didn’t have the HEROES act to consider.

    The amount of relief for those who qualify is pretty small. Most will still be paying for what’s left after the initial $10,000 is forgiven. The majority of students loans are in the $30,000 to $100,000 range. For those who spent less than $10,000 on a college education or a two year degree are the most likely beneficiaries since all of their debt will be forgiven. It may be a small number of student loans compared to the overall number of loans.

    The fact that some people will be debt free when they leave college would eventually benefit society because they will have more money to spend and actually afford to live. Kind of what the majority of people in other countries is experience, you know… normal.

  3. Standing is a real issue. Some have suggested that loan servicing companies may be able to show a financial detriment. Others have suggested Congress, or particular members of Congress, might be able to show injury under a separation of powers claim. The difficulty arises because under current standing doctrine citizens are not empowered to seek to enforce the constitution if the alleged violation is general in its impact.

    If this ever were to reach the Supreme Court it is hard to imagine its meeting the requirement that the executive can only act on a “major question” pursuant to a clear and specific delegation from Congress.

    1. Congress has the power of the purse and needs to exert its power. The executive branch cannot function without money.

      Standing is a concept that always bothered me since people can be indirectly hurt but have no standing.

  4. The use of executive power has become one of the defining features of today’s Democratic Party. Early this morning I watched CPAN’s morning call in show as two progressive professors talked about a poll predicting civil war in the US. The deck was quite stacked. Despite their abilities to identify instances of “right wing” threats, neither one of them discussed the expected practice of executive action and why people are justified in feeling threatened by a government that is free to override the legislative process.

    1. “instances of “right wing” threats, neither one of them discussed the expected practice of executive action and why people are justified in feeling threatened by a government that is free to override the legislative process.”

      That is an interesting perspective.
      Does have a rather dictatorial feel to it.

  5. It’s doubtful that Democrats will ever see what a criminal thug Biden actually is — along with his whole family. Yet, they’ll continue to focus on the “crimes” of Trump…”crimes” that, not for any want of trying, have never been established in a court of law. The Democrats have thrown everything they could at Trump, but nothing stuck. Because there’s no there there.

  6. Professor Turley: “The idea of a president giving away such a fortune with the stroke of a pen should alarm every American.”

    Are there any Americans left, Professor? What I see are warring tribes united in only one belief: the sole purpose of politics is to murder white people. If it works in Waziristan and Zimbabwe, why not here?

    Strangely, Professor, many white people agree with them. It reminds me of the Restaurant at the End of the Universe. There, a highly sentient cow suggests to diners what are the choicest cuts from his own flanks. He encourages them to relish his own slaughter. Here, groom my daughter, please! Oh, and don’t forget to poison my son with fentanyl. Thank you for coming!

    And the knock-on effect is that a demented Democrat can become dictator. That part is easy.

  7. One important point regarding Biden’s complete disdain for the Constitution as well as the left’s ignoring of it as well:
    Biden tried using the CDC to halt evictions even as EVERYONE knew it was unconstitutional, and I mean EVERYONE, and yet when it went to the COURT it was only knocked down by a 6-3 vote. There are three liberals on the COURT that voted to give the CDC the right to tell land OWNERS what they could do with their own property.

    Now we have Biden spending up to a trillion dollars without congress and I swear that if it gets to the COURT he will lose but that it will be 6-3 again.

    The right always has people vote against their party and their own self-interest, the left never does. Want a bad vote for a fake spending bill, Joe Manchin and Kristen Sinema will fold. The Dems always vote in lockstep. This is why Republicans need to point out that so-called moderates like Mark Kelly vote with Biden 96% of the time. So called moderates like Tim Ryan vote with Pelosi 98% of the time. This needs to be pointed out to the voters and this is why Democrats are always trying to defund campaign fundraising methods of Republicans. They want to ban corporations from donating but not PUBLIC unions. They want to censor conservative thought on FB, Twitter etc etc. They lose on the issues and that is why you see a speech like Biden’s Dante event last night.

    1. This is why no one other than a “progressive” should ever vote for a Democrat, no matter how moderate he or she claims to be. JD Vance appears to be doing a good job showing this in the case of Tim Ryan.

    2. Hullbobby, Republicans are too quiet, proper and refuse to fight. They compromise on the loaf of bread, giving half to the leftists. The left comes back for more and they compromise some more giving half of half the loaf to the leftists. This continues until there is no bread left to give except for the crumbs. Then the Republicans say the crumbs aren’t worth fighting for.

  8. And the democrats say conservatives are a threat to democracy. Not only does he ignore congress “again” but once again Biden threatens Americans with the military and we don’t even have lawlessness reigning over the country except in democratic cities. Remember Generals do not enforce or protect the government. They give the orders. But only rifleman on the streets and in barracks actually do the enforcing and have to “follow” such orders. I think it’s more important to know what the rifleman think than the generals and will they follow such orders. Remember that the vast majority of the people actually pulling the triggers and in combat come from the south, the midwest, the mountain states. One of the reasons the military is not filling it’s ranks with new recruits. Not exactly Joe Biden Country. There are numerous instances in the past 50 years when the military sat in their barracks and did nothing in different countries around the world, including Ukraine, Egypt and others, when the people became displeased with the government. Especially one where the president is very unpopular. Joe should tread lightly and pull back on his rhetoric. Once again, who is the threat to democracy??

    1. GEB,
      Between the Dante (h/t HullBoby) hellscape background, the inappropriate use of Marines that even left MSM called out, Biden’s speech was divisive.
      His actions and rhetoric makes me wonder if he wants to incite violence.

  9. All Americans, or at least all Americans that aren’t just partisan hacks, thought the Biden’s speech last night was horrific, autocratic, demeaning and bad politics on top of all of that, but few in our shrinking media will condemn it. Voters prefer sunny, optimism over dark, demeaning dystopian negativity and if you don’t believe me I give you Reagan’s “Morning in America” vs Carter’s “Malaise”. Last nights speech will end “Democrat momentum” and people like Fetterman, Kelley, Maggie Hassan and Matsos will pay the electoral price.

    1. Last night’s speech was no different than any other Trump rally speech. The only difference is that it focused on Trump MAGA nutties and poor deluded sops. Suddenly you have these folks turning into a whirlwind of snowflakes and whiny butt hurt Trump supporters. It’s quite funny. The idea that they can be criticized as a threat to the nation triggered these folks into apoplectic fits of rage long after Trump has done the same at his rallies accusing democrats of the same thing.

      Biden wasn’t wrong on a lot of things in his speech. The fact that he triggered so many Trump supporters shows he did hit a nerve and it hit close to the truth.

      I wonder how many of them ended up shouting at their tv screen with mouth frothing fits of rage. Hope the tv’s survived.

  10. IT IS A TRILLION $ BANKING/STREET BAILOUT
    Those Loans were Collateralized Debt Obligations (CDOs) packaged and sold to: Pension Funds, Bond Markets, and Investors.

    Think of it as the “Subprime Student Loan Crisis” for God sakes.

    1. It is Janet Yellen (US Secretary of the Treasury) and the Federal Reserve Cartel (Jerome Powell & Co.) at the Punch Bowl.

      Son of a B###ch !

      1. The Treasury is Lapping the Books and Kiting T-Bills (Kiting Checks they wrote) to counter the Federal Reserve lapping it’s Books.

        The Crooks are so Broke, that They print the Money too rob US of.

        Bottom Line: The $1 Trillion Dollar “Loan Forgiveness Program” is a FRAUD
        to cover-up the on going Theft of WE the People of the United States.

        T-Bill Kiting (Check Kiting)
        https://www.depositaccounts.com/content/photos/banks/howcheckkitingworks.png

        Lapping the Books (Robbing Peter to pay Paul)
        https://www.journalofaccountancy.com/issues/2002/feb/lappingitup.html

  11. Since Republicans have found Law & Order again, why not hold the George W. Bush Administration accountable, or at least the Bush DOJ torture attorneys? There is no statute of limitations on war crimes. Most war crime indictments worldwide happen 20-50 years after the crimes were committed. Right now is the best time to do this.

    Trump simply exploited the “Unitary Executive Theory” that Bush created. Trump voters should support this as “mitigating circumstances” for Trump. You can’t investigate Trump without also looking at the “foundation” of lawlessness that Bush created.

    If state legal bars and Congress had held Bush’s torture attorneys accountable, it would have created a “deterrent effect” to Trump’s attorneys. Bush is at the root cause of all of this.

    Reminder: Bush attorneys, educated at America’s top law schools, violated Ronald Reagan’s Torture Treaty which is the “supreme law of the United States” under Sections 1 & 2 of Article VI of the U.S. Constitution. This is also a crime for any president under federal law.

    There are also peacetime abuses by Bush DOJ attorneys. Qwest CEO, Joseph Nacchio, was illegally coerced by DOJ to perform warrantless domestic spying (a felony crime) about 6 months BEFORE 9/11 when no wartime emergency existed.

    Bush official, Monica Goodling also tried to fire and purge the U.S. Department of Justice of “political enemies”. Goodling tried to illegally remove Democrats and LGBT federal employees from DOJ, including removing federal prosecutors.

    A first year law student would know this. Bush’s attorneys simply “renamed” a torture technique derived from the Spanish Inquisition recognized as torture, by the entire world, for several centuries. Bush violated FISA and the FISA Court. Bush violated the Hatch Act.

    Trump simply walked through that door Bush created. Bush is part of this story.

  12. Another issue that is overlooked is the income cap for loan forgiveness. If a college graduate worked hard and majored in engineering, computer science, accounting, or any other course that has good job prospects, he or she will likely not receive loan forgiveness. But if the student had a great time in a soft major at some party school, and now works as a barista, the government will give him $10,000 to reward his irresponsible choices. The same is true for a student who racked up hundreds of thousands in loans for a degree such as law where the market is flooded and the job prospects are dim. Biden’s largess is a slap in the face for serious students who worked hard in challenging majors.

    1. You have it exactly right Tin . . . said another way, Biden is using our money to pay people who made bad decisions.

  13. (OT — sort of)

    Biden’s entire demagogic speech in six words: “Dissenters are enemies of the state.”

    Psychologically, that speech was textbook projection.

  14. Those that praise this now will scream when someone from the other party does the same, but nothing happens. We can hope a court issues an injunction and ultimately rules this unconstitutional. But we shouldn’t have to depend on a judge. I don’t know if we will ever get back to some bi-partisan agreement to protect our Constitutional form of government.

    1. President Biden may not remember the oath that he took, and it appears that his handlers have not reminded him.

  15. Sorry, but cynical doesn’t cut it anymore. The actual White House is making actual threats against its own citizens for wrongthink. There is nothing ok about this. Older folks tend to use their lens of experience to take things for granted. Trust me – the propaganda works on younger folks. My wife has students this year (aged 13-14) that think MLK fought for civil rights in the 1990s and that nothing came of those efforts, just a racist fire that white people have always thrown fuel on since time began. It would be cute and funny if not for the fact that they are also too deficient to Google it on the phone that is glued to their hand 24/7 and see that the very first entry debunks their misconception (ah, but it isn’t on Tik Tok!) This is *literally* a trope from the film ‘Idiocracy’, with Lincoln fighting dinosaurs on the ‘time machine’.

    THIS is what we are dealing with. Expecting them to understand the economics of loan ‘forgiveness’ is downright hilarious, let alone the intricacies of Constitutional Law. Cynical? The dems are waaaaay past cynical.

    1. PS – these kids will be voting in four years. Our current Democratic party exploits this for all it’s worth, and the other parties (yes, there is more than one alternative to not being dem than Republican) do nothing. To the outside observer with no boots on the ground (i.e. in other countries where relational points are pretty much provided by CNN or Hollywood), it would indeed appear that this is just ‘the majority’ and that we are mostly all in favor of flushing our laws down the toilet. The time to nip this in the bud is right bleeping now. Do not be cowed, and do the right thing. I honestly believe we only get one more shot at this, and that is in two months.

  16. What a disgraceful performance for an American President, anything and everything to distract from the horrible state of the nation. With the red background and the military standing behind him he looked like a mini dictator. The speech was reminiscent to a January 1939 hate filled speech attacking fellow countrymen.

    2. RE:”The speech was reminiscent to a January 1939 hate filled speech attacking fellow countrymen. “Also sprach Margot!!” I trust the similarity has not been lost among the ’76k”. Pray the unaligned have such clear vision as well.

      1. ZZDoc – “For evil to flourish, it only requires good men to do nothing.”

  17. Last night I had a dream.
    We were all Greek students learning the ways of honest debate and critical thinking.

    Socrates is our learned leader. He’s the one eating all the grapes, but the Sun is hot and sticky, and the grapes have turned into raisins. That’s because they were not grown locally; someone ponders that they might have come here illegally from Harlem. We ponder this, all the way to Broadway and back. Someone else ponders that we all like bananas and oranges but they are not grown here. We need them too. We ponder how we can get them here legally. We’re getting tired of all the figs. And olives always sink to the bottom of our drinks. We ponder how to keep them afloat during tough times and pandemics and all.
    Socrates teaches us to be polite, to listen to our fellow man, to not interrupt and to seriously consider what is said. To ponder extrapolations and applications and conspiracy theories and counter-theories of what others might opine. To be respectful in our responses. I ponder some more.

    I think I see John Belushi in the crowd and head toward him. I trip on my toga. I ponder whether it was “Made in China” and how it got all the way over here. Besides, it turns out to be George Conway, not Belushi. I ignore the little twit and ask the woman next to me where she got her sandals. I like them.

    Someone in the back is very contrary, wants to challenge everything said by others. He won’t tell us his name and wants to remain anonymous. We ponder this and decide he is just unhappy because he was cast for Ben Hur or Zorba or something but didn’t get the part. Our first consensus is formed: we all agree to ignore his nonsense and move on. But first we ponder whether it is consensus or consensae or consensi?

    Socrates appears happy with us and our ability to grasp structured logic. He encourages us to ponder, question, think about each other’s opinion some more. I am thinking about getting a gyros at Arby’s during the break.
    And then I wake up.
    Yours truly, lin.

  18. Biden is simply following the George W. Bush’s “Unitary Executive Theory”.

    If you remember, Bush unilaterally violated the FISA Act and FISA Court (felony crime for any president). Bush also violated Ronald Reagan’s Torture Treaty – the “supreme law of the United States” under Section 1 & 2 of Article VI of the U.S. Constitution and a federal crime under federal law.

    Also remember the Joseph Nacchio of Qwest Communications, attempting to coerce a private company to commit felony level warrantless domestic spying. Just thank Bush!

    1. RE:”. Just thank Bush!” Perhaps we should just thank Hitler, Mussolini, Tojo, Stalin, Mao…and all the rest of that lot, as well. Why does ‘well the other guy did it too’, always appear as justification for wrong?

  19. RE:”After all, nothing says “democracy” like an exercise of one-man rule.” Waiting for his version of ‘The Night of the Long Knives! “Wake up America, George Santayana was right!!”

    1. Unfortunately you are right. We live in bizarre and dangerous times. It is obvious that Biden reads the words he is told to read by his handlers.

      Nothing like pure unbridled power to sweep away reasonable thought and humanity. They will not relinquish power in a normal process to the will of the citizen. There will be more to come.

  20. After last nights speech, its clear Biden is ready to enforce this give away, using military force to capture and confine all that disagree.

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