Biden’s Boast: Blocking Judicial Review of a Half-Trillion Tuition Giveaway is Nothing to Celebrate

Below is my column in The Hill on the challenges to President Joe Biden’s massive loan forgiveness program.  President Biden boasted that the courts declared that they are “on Biden’s side.” It is not clear if Biden’s counsel explained the actual holdings in these cases or whether Biden simply forgot or ignored that explanation. Either way, the President’s boast was wildly off-base.

Here is the column:

In a speech at Delaware State University on Friday, President Biden was positively exuberant as he announced that he had prevailed in asserting unilateral authority to forgive hundreds of billions of dollars in tuition loans. He declared that “just yesterday, a state court and the Supreme Court said, ‘No, we’re on Biden’s side.’”

Some of us immediately noted that these were actually federal judges and they did not rule that he has this authority but that the other parties in two cases did not have legal standing to challenge his authority.

Indeed, one of those Biden “supporters” was Supreme Court Justice Amy Coney Barrett, who simply denied an emergency application to the court. If it seems unlikely that Barrett is now “on Biden’s side,” it is because the claim is perfectly delusional.

No one could possibly read these decisions as even remotely supporting Biden’s claim to have virtually absolute authority to give away roughly $500 billion owed to the American people shortly before a critical midterm election.

Within a few hours of Biden’s boast, the U.S. Court of Appeals for the Eighth Circuit enjoined the lower court. However, even the Eighth Circuit will not decide whether to be “on Biden’s side” but only whether six states have the constitutional right to bring any challenge as a matter of legal standing.

Even the trial judge said the merits of the challenge raised “important and significant” concerns about Biden exceeding his authority.

Overwhelming constitutional concerns are raised by this massive election-year giveaway. Biden simply announced that he would forgive up to $10,000 in student loan debt for borrowers earning less than $125,000 annually; those who received Pell grants could receive up to $20,000 in relief; couples can qualify despite a joint annual income of $250,000. No vote of Congress — just hundreds of billions of dollars written off by Biden, as if he is an American tsar.

The legal claim behind the law is transparently opportunistic. It is based on the Higher Education Relief Opportunities for Students (HEROES) Act of 2003. As the acronym indicates, this short bill was designed for military personnel who often found themselves in arrears while serving abroad. It allows the Education Secretary to grant student loan relief during a war, military operation or national emergency. But nothing in the barely five-page act supports a sweeping and unprecedented waiver of billions of dollars in loans owed to the government.

Even for the military personnel intended to benefit from this program, the law only allowed waivers or modifications to guarantee that they were not “placed in a worse position financially in relation to that financial assistance because of their status as affected individuals.”

In other words, neither the act’s language nor these courts are necessarily on “Biden’s side.”

Yet, legal realities rarely seem to be a deterrent for this president. The Biden administration has racked up an impressive litany of losses in court, including many decisions finding that the administration has engaged in racial discrimination or simply exceeded Biden’s constitutional authority.

Biden has been remarkably open in the past about treating unconstitutionality as a mere technicality when trying to spend federal funds. When Biden called for the Centers for Disease Control and Prevention (CDC) to impose a nationwide moratorium on the eviction of renters, he admitted that his White House counsel and their chosen legal advisers told him that the move was likely unconstitutional.

Despite the overwhelming opinion of experts to the contrary, Biden suggested he could get as much money out the door as possible before being barred by the courts. But the Supreme Court ruled 6-3 that the order was unconstitutional.

The tuition forgiveness program is based on the same cynical tactic. Indeed, the Justice Department’s Office of Legal Counsel previously rejected his legal interpretation under the HEROES Act. So the Biden Office of Legal Counsel issued a new opinion concluding the opposite based on the COVID-19 pandemic — which was curious, 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.

While the president’s legal arguments are weak, his administration is betting that arguments about legal standing will protect it from any substantive review; in the meantime, the administration will rush to forgive billions before any court can stop it.

As someone who has long argued for broader legal-standing rules, this calculation is particularly maddening. This is arguably one of the most costly unconstitutional acts in history, but the administration apparently believes no one will be able to establish legal standing to enable a court to rule in the case.

The president can then go public and declare — falsely — that federal courts “said, ‘No, we’re on Biden’s side’” on forgiving a half-trillion dollars in loans.

The Eighth Circuit could well lift the injunction, and legal standing could shield an arguably unconstitutional program from judicial review — precisely the objection of those of us who are called “standing doves” in seeking broader standing rules. While based on the constitutional requirement in Article III that courts only consider “cases and controversies,” the current standing rules are the creation of the federal courts in narrowly construing what constitutes an injury for the purposes of legal standing. The Constitution’s Framers never intended for unconstitutional acts to be insulated from judicial review, in my opinion. Indeed, I previously represented the U.S. House of Representatives and have long argued for “member standing” to allow, at a minimum, for members of Congress to challenge unconstitutional acts.

There may be other challenges to Biden’s giveaway that can establish standing, or the states may be able to prevail on the issue. However, once again, we need to address the artificially narrow standing rules that prevent review in such cases.

The Framers would have been appalled by a president’s claim to be empowered to write off such a massive amount of money owed to the government. It is precisely the type of unilateral action they sought to avoid through the system of checks and balances, including giving Congress the “power of the purse.”

We now see the literal cost of narrow standing rules. It is not the false claim of these judges being on “Biden’s side” — rather, the question becomes who is on the Constitution’s side if no court can rule on its alleged violation, even with hundreds of billions of dollars at stake?

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.

67 thoughts on “Biden’s Boast: Blocking Judicial Review of a Half-Trillion Tuition Giveaway is Nothing to Celebrate”

  1. The issue of standing has to be reenvisioned. it is used today to allow misdeeds to continue, if a single american has to finance his giveaway in any way, that american has standing to sue.

  2. If anyone should be paying off the loans, it should be the colleges and universities that have – for decades – paid out exorbitant salaries to administrators and professors, while also lining their retirement plans with fat contributions. Oh and what about the massive endowments many of those same institutions have (which have so crassly and grossly overcharged students and parents the cost of tuition for years)? Shouldn’t the institutions and their resources be tapped first to reduce this massive debt, long before the taxpayers are asked to step up? This is a stupid program and probably unconstitutional – and yet if it were legislated that because it can be demonstrated that colleges and universities have so grossly overcharged students and families for tuition for so long, then let those institutions be the first to make substantial reimbursements, rather than hapless taxpayers who had no say in incurring any such debts in the first place.

  3. Biden is not only “delusional,” he is demented. So … why should anyone be surprised that he has forgotten anything he knew about “the law.” He has spent his entire working life on the dole, paid by taxpayers – even when he did something like public defender work for a short time after law school; I don’t believe there is anything else to even suggest he practiced law.

  4. I have long thought that Biden has no ability to think or speak on his own, that his ‘handlers’ tell him what to think and what to say, since Biden is incapable of either. Which brings the question: Don’t his ‘handlers’ know the difference between an Executive Order and a bill passed into law? Perhaps the only ‘real’ comment Biden made was that it passed by “1 or two votes.” Where the heck did that come from? The dark recesses of an impaired brain? Or does he have the courage to just lie out loud and expect to be believed. I hope the former is true.

    Others have written about the Constitutionality of this EO, so I won’t repeat what they’ve said. But I do have a question: If Biden can be forced to resign because of his clear brain malady, what the heck do we do with Kamala Harris? We screwed either way. Hold onto your hats! It’s going to be a long couple of years.

  5. IF no one has standing to challenge a blatantly unconstitutional act – then the doctrine of standing itself is blatantly unconstitutional.

    Anyone should have standing to facially challenge the constitutionality of a government action or law.

    1. Yet nfib….national federation of business….did have third party standing re Obama cares mandate! Because the irs mandate was “central’ to funding the scheme. Here too….seniors have standing….because the 6.75 percent interest off federalized student loans beeping in for medicare….is huge! Meaning seniors are going to have to pay more……to prop up the system! if they don’t have student loan interest that was central!…..Because they can only bleed a turnip so much. Given fica – didn’t change. Bc no act of congress. Their fund is being drained. If ppl are not paying 6.75 interest in student loans… if you forgive a trillion dollars in priciple…..what of the billions in interest? Who makes it up! ? If that was good enough standing for nfib…’s good enough standing for any of our seniors to speculate about! Or their own x!

      1. If seniours have standing – ok.
        But that is not what I am addressing.

        I do not care whether what is being challenged is a policy of the left or right.


        If that is not the case – then the court created doctrine of standing is itself unconstitutional.

        We saw standing used as the means to block challenges to TX SB 8. That was wrong.
        We do not want executives – like Biden or legislators trying to enact laws that can not be challenged
        Not republicans, not democrats.

        In my view a facial challenge to the constitutionality of a law or act should not ever be blocked by standing.
        The existence of a constitution presumes there is harm when government acts outside it.

        Regardless constitutions are binding contracts, and the states and people are parties to them.

        We saw this nonsense with the election too. When there are questions concerning whether and election was lawfully conducted,
        those questions MUST be resolved. The courts trying to duck the issue with claims of mootness, laches, standing. …

        Is wrong. Even where there is no remedy for current lawlessness, examining the actual conduct of the election is critical for future elections.

        Those on the left are playing this stupid game that election results can not be challenged. But who expects that will last past the next narrow loss by a democrat ?

        Close elections are inevitable. We must be prepared to deal with them.

  6. Cannot agree more, Jonathan! Ranks as Biden’s most brazen and perhaps worst act as president. Just a colossally dangerous precedent to empower any president the ability to make and spend money. The Machiavellian urge to violate laws, norms and institutions appears every bit as destructive on the progressive left as the conspiracist right. As you’ve long advocated, policy prescriptions ought flow from, not compete against, the Constitution.

  7. The legislative and executive branches have no constitutional basis to provide or deny student loans.

    These branches do not cite the Constitution for support or legitimacy.

    The judicial branch and Supreme Court must fulfill their sworn-oath duty to support the clear and obvious, meaning and intent of the Constitution, and immediately strike down these unconstitutional acts through Judicial Review.

    Officials of the executive and judicial branches must be impeached and convicted for flagrant violation of the U.S. Constitution.

    Judicial Review in the United States

    The doctrine of judicial review holds that the courts are vested with the authority to determine the legitimacy of the acts of the executive and the legislative branches of government.

    – DOJ, Office of Justice Programs

  8. The funny thing is that Biden is on record saying he got it pushed through congress by one or two votes. He can’t even remember that he did this with an executive order.

  9. JT posted a higher financial cost from University of Penn State Wharton calculation

    Key Points

    •We estimate that a one-time maximum debt forgiveness of $10,000 per borrower will cost around $300 billion for borrowers with incomes less than $125,000. This cost increases to $330 billion if the program is continued over the standard 10-year budget window. Eliminating the borrower income limit threshold produces a 10-year cost of $344 billion. Increasing the maximum amount forgiven to $50,000 per borrower increases the total cost to as much as $980 billion.

    •Between 69 and 73 percent of the debt forgiven accrues to households in the top 60 percent of the income distribution.

    So it’s more like a Trillion dollars

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