Washington Post: Yes, the Biden Loan Forgiveness May Be Unconstitutional But…

The Washington Post is now admitting that President Joe Biden’s college loan forgiveness plan is unconstitutional, but it insists that the “the court shouldn’t stop him.” The reason is standing and the Post is now apparently a standing hawk forced to accept a half trillion dollar give-away to maintain a narrow view of case or controversies under Article III.  The Post previously ran opinion pieces saying that Biden clearly has this authority, but this is an opinion piece from the editors themselves on the subject.

The Post now admits with some of us that Biden “overreached” in his use of the HEROES Act to allow him to unilaterally cancel roughly 500 billion dollars in loan debts. Executive “overreach” is a common reference to exceeding the authority afforded by Article II. The Post describes the action as “bad” and without congressional approval. Of course, giving away half a trillion dollars without congressional approval was the type of unilateral action that the Framers sought to prevent in giving Congress the power of the purse. In other words, it is not just “bad.” It is unconstitutional.

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.

Various professors including Dalié Jiménez, a law professor at the University of California, Irvine, filed an amicus brief in support of the Administration and claimed that the HEROES Act “is as clear as sunlight” in authorizing the department’s action.

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.

Now, the Post appears to reject the Biden OLC opinion and calls the policy not only unconstitutional “overreach” but “a regressive and expensive mistake.”

It insists, however, that this unconstitutional, regressive and expensive overreach should stand.

I should admit that I have been described as a “standing dove” due to my more liberal view of standing requirements under Article III. I successfully argued in favor of standing for the House of Representatives as a single house and previously argued (unsuccessfully) on behalf of individual Democratic and Republican members seeking “members standing.” I view narrow standing rules as often inimical to the protection of core structural guarantees of the Constitution.

This case is precisely why I have long favored broader standing rules. This is a clearly unconstitutional action by the President that is being defended largely on the basis of, in my view, an unnecessarily narrow view of standing imposed by the courts.

I recently spoke at the University of Maryland with George Mason law professor Ilya Somin, who argues that the claims of Missouri satisfy standing.

At issue is the right of the state to argue the interests of the the Missouri Higher Education Loan Authority (MOHELA) – that services student loans. While MOHELA is an independent agency and is not a party to the lawsuit, Somin argues that detractors confuse this case with prior cases raising individual constitutional injuries: “Unlike individual rights claims, which – on this theory – can only be asserted by people who have suffered specific rights violations, structural claims can be raised by anyone, because structural restrictions on government power provide generalized protection for all Americans.” He believes that standing can be based on existing precedent.

There is a legitimate issue over standing under current case law. It ultimately turns on one’s views on the proper scope of the standing doctrine in raising these structural constitutional concerns. However, the Post, which has previously shown a tendency toward broad interpretations of constitutional provisions, may be premature in citing standing (albeit reluctantly) as a shield for this clearly unconstitutional overreach by President Biden.

125 thoughts on “Washington Post: Yes, the Biden Loan Forgiveness May Be Unconstitutional But…”

  1. So-called “loan forgiveness:”

    This issue is a clear window into the Left’s collectivist soul: Deny the existence of individual responsibility. Then compel others to pay for another person’s bad choices.

    That is a prescription for creating a culture where people are at each other’s throats. It is certainly not an ideology for creating the “social harmony” that Leftists allegedly desire.

  2. For any sentient being isn’t it hard to get past the part where Boden claims he needs to cancel student debt under the HEROES Act due to the Pandemic being an emergency while at the same time saying he needs to end Title 42 because the pandemic isn’t an emergency?

    Courts will use Congressional intent in tough cases and it is quite obvious that the HEROES Act was meant for… you know, heroes. This is such a ridiculous overreach as to be beyond argument, but the left will always argue because they always get their way. How else could some “legal scholars, or supposedly bright members of congress, argue that Trump “stacked” the Court and that we need to add 4 (the magic number) new Justices?

    1. “. . . cancel student debt . . .”

      Even that is a lie (theirs, not yours).

      The government does not have a magic wand that makes debt magically disappear. The monstrously massive debt is not being cancelled. Rather, responsibility for repaying the debt is being redistributed from those who borrowed the money to those who did not.

      It is a textbook socialist redistribution scheme.

      1. Those who borrowed are also paying for it. They are not exempt just because they are borrowers. It doesn’t work that way.

        1. I’m not sure I understand this. Unless stopped by SCOTUS, the federal government intends to pay the debt off. Where does it get the half-trillion dollars for that? Either taxes or newly printed money, which imposes inflation on everyone. Am I right so far?

          So, perhaps you’re saying the borrowers pay too because they either pay taxes or suffer the same effects of inflation as everyone else. If that’s your argument, it is a weak one. There are at least six times as many taxpayers as there are students who would be eligible under Biden’s program. Using rough numbers, that means 5/6 of the debt would be foisted onto others, and the borrowers would pay only 1/6. So Sam’s statement that “responsibility for repaying the debt is being redistributed from those who borrowed the money to those who did not” is true for about 5/6 of the money involved. If you disagree, kindly explain.

        2. Actually the ratio is probably more like 1/8 or 1/10 rather than 1/6. I was going by the number of tax returns filed versus the number of eligible student borrowers, but I neglected that many tax returns are from married couples filing jointly, so the number of taxpayers is far greater than the number of tax returns.

  3. We are told that the justification for this redistribution scheme, at the stroke of a pen, is that borrowers need “debt relief.”

    Here is how a responsible person tackles debt relief: Get a job. Pay off the loan. *Earn* relief.

    1. Sam, that would only work if the job paid enough to pay off the debt in a reasonable amount of time. That’s not always the case. When employers don’t pay their workers enough to sustain a living they can’t do what you suggest.

      You’re borrowing for everything these days. You borrow to buy a car, a house, home improvements, medical bills, education, even borrowing money to feed a family. When you have so much borrowing it means there is a serious imbalance and that’s where income inequality becomes an issue.

      The money being borrowed comes from those who pay little to no taxes, have different financial rules that benefit them more than the average consumer, and enjoy fewer regulatory “burdens” that allow for more money in their pockets and take more from those that don’t have those advantages. It becomes this vicious, but profitable, cycle of financial indentured servitude thru debt.

      1. “[T]hat would only work if the job paid enough to pay off the debt in a reasonable amount of time.”

        A *responsible* person does not assume the burden of a loan unless he is certain he can repay it. A student loan is not craps at a casino.

        1. “A *responsible* person does not assume the burden of a loan unless he is certain he can repay it. A student loan is not craps at a casino.”

          BS. It’s not all about responsibility. It’s about the fact that the only means to get get that education they need REQUIRES one to borrow money. There are scholarships, Pell grants, and other types of assistance of course. But all are there because the cost is out of reach for the majority of people who have been priced out of public universities or colleges because states have been cutting state funding for those institutions for decades.

          The reality should be that you shouldn’t need a loan to get an education in the first place. Not at a public university or college. There’s a reason why they are supposed to be PUBLIC higher education institutions. Because they were largely supported thru public funds that everyone paid thru their taxes. Students pay more of the percentage of tuition then states do these days. That’s a far cry from what grandparents paid for their education when states funded a much greater percentage of higher education.

          Middlemen don’t care whether you have the ability to repay. They only care about getting that government guarantee that they can profit from. The more they can convince to take out loans the more money get get. That’s how for-profit universities and colleges took advantage of student loan programs. That’s etc so many collapsed and left students hanging with no degrees and a mountain of debt.

          1. Coincident with the supposed “cutting” of state funding has been a great increase in college expense largely driven by an enormous expansion in “middle management” bureaucracies in higher ed. Lately a surge in all manner of “diversity” managers but it’s been going on since the 70s. (The Huffington Post once had a graphic showing the bulge in expense exceeding inflation and the growth in mid-management way faster than student numbers but it seems to have disappeared). College employees make good checkbook Democrats and subsidized political activists though, while not teaching or doing research that adds up to anything. Did you notice we’re short of health care personnel and actual scientists, not “ethnic studies” experts–while the corpocracy is suddenly hiring them to brainwash their employees? How is your CSR from China (ATT) or India (Comcast) “serving” you? (Concast keeps having breaches that produce fake discount callers, they have your acct # etc that try and get you to buy some debit card they can steal from, I’ve had them come after me twice).

            Higher ed is a left-dominated con game that is failing to meet basic tests of marketplace demand. It seems to brandish it’s denial of the market with a sneer, all while being politically protected. Exhibit A (no surprise) comes from California where the legislature passed a law to force for-profit schools to link their on-line sales pitches to verifiable hiring and salary data (good) while ABSOLVING the UC and CSU systems from any such requirement. Now go find reliable data about how many graduates are getting what jobs at what pay–good luck as while we have a Department of Labor and Department of Education NEITHER ONE seems to know anything about this!

            Biden’s scam is just another cash grab for his base. I wonder if any of these people bothered to look at the NY Times feature on child labor exploitation that followed hand-in-glove with the Open Borders policy? We’re short enforcement personnel their too.

  4. Imagine all the chinese-made crap that could be brokered by Amazon with $500B in the hands of thousands of young idiots…yummy yummy yummy

    1. …Yeah, not a direct payout….but that money is going somewhere now that it isn’t paying back loans

    1. To be be constitutional the presidents actions involving funding must comply with laws passed by congress.

      The reason that Biden’s student loan forgiveness is not constitutional, is because it does not comply with the HEROS act as he has claimed it did.

      The HEROS act requires a national emergency – Biden would have to declare a national emergency of some kind – again compliant with the laws that allow him to do so. I do not think there is a basis for any such national emergency at the moment. THEN the relief as required under the Heros act would have to be specific, individualized, and in direct response to the emergency.

      Student loan forgiveness is not unconstitutional.
      Modifying interest rates is not unconstitutional.

      The president doing those unilaterally is.

      There is the separate issue of whether any of this is wise.

      It is not. The entire Federal Guaranteed Student loan program is a giant moral hazard and mistake that we should not make worse. Even the government has found that the cost of college education has increase by 80cents for every dollar in federal loans.

      The loan programs have made college students poorer. Have made college LESS affordable.
      Without increasing its value.

      1. John Say, courts are very reluctant to look behind a Presidential determination of a national emergency. And the Act itself says that relief can be offered on a class basis rather than individualised determinations.

        1. Reluctant is not the same as will not.

          If President Biden declared a state of emergency on the basis of the threat of moon goo threatening peoples lives – i doubt one justice on the court would accept that.

          Regardless, I beleive Biden has publicly asserted the Covid emergency to be over, or over before this case will be decided,
          in which case the issue is moot.

          I would also suggest that our experiences with Covid are slowly altering that reluctance.

          In a state of emergency courts have historically given the executive broad deference and tolerated infringements on rights that they would not otherwise. As Covid demonstrates if you do so and you do not subject the declaration of an emergency itself to judicial revue you have just obliterated the entire constitution.

          Yes, the act allows for classes – classes of those who suffered actual harm from the emergency.

          Regardless, if you read the law broadly – again, you ultimately have no constitution left.

          Which is another alternative for the courts – find that Biden’s actions are within the law, but the law is too broad to be constitutional.

          Regardless, you can ALWAYS argue to most anything you want with a broad enough reading of law or constitution.
          That there is such a thing as unconstitutionally overbroad.

          PA amended their constitution in 2021 to limit the duration of executive emergencies to 90 days, after that the legislature can extend them.

          Personally I do not think an executive should be able to declare any emergency lasting longer than the few days it would takethe legislature to act if there were an actual emergency.

        2. I have not read the act, not listened to the supreme court arguments,
          But the authors of the Act – democrats and republicans, spoke out saying that the act itself as well as the legislative history made clear that there was no circumstances in which debt could be forgiven, they only provided for repayment delays. And that there had to be a clear individual harm directly attributable to the emergency itself. That can still include a class, but it has to be a class that has suffered an actual harm. As an example that is pretty much on point the president can suspend student loan payments for soldiers sent to combat while there were in combat – that is a “class”, but it is also a class made up of only people who would have significant difficulty paying while there were in combat.

      2. The pandemic was a national emergency. It was during that emergency that they program was created.

        The cost of college education has increased because state and federal funding for public universities has decreased.

        1. The HEROS act passed in 2003 it had nothing to do with covid.

          “The cost of college education has increased because state and federal funding for public universities has decreased.”

          Do those of you on the left think that you can make things true by declaration ?

          It is trivial to go back before there was any Federal funding, and find that colleges were cheap.
          The Department of education was formed in 1980, not 1787.

          There is a damning record in education since the 60’s – the more govenrment money put into it, the more expensive and worse the quality has been.

          There are very very very few things that over a long enough period of time are not cheaper in BOTH real and nominal terms.
          In fact is MUST be that way, you can not raise standard of living otherwise. The entire function of the free market is to produce more human value at lower human cost – i.e. to raise the standard of living. Nothing else in existance has ever come close to performing as well.

          Regardless the exceptions to my rule – that over long enough time periods everything always becomes cheaper, are those things that government is involved with, and proportionate to the extent that govenment is involved.

          Pick any time period longer than 2 decades. Pick any good or service – if it does not cost less on a real basis, then you can be certain that government is heavily involved.

          Go ahead – Toasters, TV’s, Cars, Milk, Dinner and a movie.

          The HUGE counter examples are Education and Medical care.
          And within each of those – the less regulated or subsidized portions of education and medical care all follow the same trend – Cheaper in real terms over time.

          There is no credible argument that can be made anywhere over anything that government spending ever makes anything cheaper more than temporarily EVER.

          That is completely at odds with ALL REALITY.

          I would note the data is not merely true for the US over the past 60 years, but through the entirety of US history for which we have data, and for the entire world for all time periods for every country that we have data.

          1. The act was passed in 2003. The student loan forgiveness program was created during the pandemic. The program was created under the authority of the act.

            1. The loan forgiveness program was created long after any actual pandemic in the lead up to the 2022 elections.
              Loan payments were suspended during the pandemic.

              Those are completely different things.

              While likely too broad to comply with the law, the payment suspension for those who actually needed it was the actual purpose of the HEROS Act.

          2. “There is no credible argument that can be made anywhere over anything that government spending ever makes anything cheaper more than temporarily EVER.”

            There is. When states paid the majority of public higher education’s budgets tuition and fees were far lower than they are today. The constant cuts to higher education from state governments have forced universities and colleges to keep raising tuition and fees.

            The standard of living is raised when you have more money to spend. Instead of spending it on student loans, car loans, etc. higher government (state) funding of universities and colleges reduces or eliminates the burden of repaying those loans and frees money to increase individual standards of living.

            European governments spend a lot of money on higher education allowing students to pay little to no tuition and be able to graduate largely free of debt. The high taxes they pay helps everyone enjoy those benefits. Which allows everyone to have a better or higher standard of living. It’s the same thing with healthcare. The idea of medical debt on European or Scandinavian countries is ludicrous except here.

            1. Your argument would be compelling – if it were true.

              I linked to charts showing education spending by states and federal govenrment for decades.
              I linked to charts showing the portion of the cost of college education paid by state and federal government over the same time period.
              I linked to charts showing the portion of the cost of Public colleges paid by state and federal government over the same time period.

              Every single one of these contradicts your claim.

              Government is paying MORE for college education – not less.
              LOTS more.
              Government is paying a larger portion of the cost of college education.

              While you are correct that the manner in which that cost is paid has changed, that does not alter the Facts above.

              I would separately note that this is not only true as an observation that goes well beyond college education.
              It is a simple application of the laws of supply and demand.

            2. “The standard of living is raised when you have more money to spend.:
              Absolutely False.
              All you are doing is proving that you are economically illiterate.

              Worse this should be obvious to you right now.
              In the past two years wages have increased more rapidly than previously – in 2022 Wages increased by 5%.
              Yet Real income has declined – Because prices have increased faster than wages.

              Standard of living is defined in terms of Value not money.

              The only way to increase standard of living on the consumption side is to kill people off(without decreasing production) – so that the average persons share of the goods produced is larger.

              Again Standard of living rises when more of what humans value is produced with less human effort.

              More Money does not Ever increase standard of living. Because too many people like you do not understand very basic economics we have to relearn this over and over.

              higher government (state) funding of universities and colleges reduces or eliminates the burden of repaying those loans and frees money to increase individual standards of living.”

              Higher government spending on education (or anything) just increases the cost of education.

              That is the evidence.

              “European governments spend a lot of money on higher education allowing students to pay little to no tuition and be able to graduate largely free of debt.”
              First There is no country of Europe and every european country is different.
              Regardless, Those European countries that have actually done as you say – have destroyed their colleges and universities.

              Despite the unarguable Declining quality of US education – it not only is still true that US colleges are the best in the world, but the U share of the best colleges in the world has INCREASED over the past 4 decades – at the expense of Europe.

              “The high taxes they pay helps everyone enjoy those benefits. Which allows everyone to have a better or higher standard of living. It’s the same thing with healthcare. The idea of medical debt on European or Scandinavian countries is ludicrous except here.”

              That would be great if it were True – but it is not. The standard of living in Europe is about 1/3 lower than the US. Only a few Tiny European countries have standards of living equal or greater than the US.
              Luxemborg, Ireland, Switzerland and Norway are the only EU countries with Higher Standards of living than the US.
              And Norway is solely because of a tiny population and massive oil revenues.
              The next best european country is Denmark with a standard of living that is 10% less than the US and it declines from there.
              Germany and sweden have Standards of living 30% lower than the US, and France has a standard of living almost 50% lower than the US.
              And it gets increasingly worse after that. It is pretty Trivial to figure this out – The US has 330M people. The EU has 540M people
              While the EU economy is about 5% smaller than the US.

              You discuss European Healthcare as if it is all entirely the British National Health Service model – which itself is fading slowly as more and more Brits have private health insurance, and more and more of british healthcare is private.
              Regardless the actual model for much of Europe is Mandated Private Health Insurance and a private healthcare system.
              There are many countries in Europe with different permutations, But the only end to end government system is the UK and even that is no longer actually true. US Healthcare today after Obama Care is MORE Socialist than most of Europe.
              In healthcare today Americans have the WORST of Both worlds.

            3. If you do not read my longer post, I would suggest you reread your own post and actually THINK.

              Throughout human history nations have constantly been seduced by the fallacy that more money would raise standard of living – the argument YOU are making.

              It should be easy to understand why that is not True, but the constant repetition of the same fallacious mistake over and over proves that people like you can not grasp the obvious.

              The impact of Student loan forgiveness WILL atleast temporarily increase the standard of living of those whose Debt is forgiven.
              But it will not and can not increase overall standard of living. Given that there will OBVIOUSLY be no net increase in standard of living, that means that the increase for those whose student loans will be forgiven will come at the expense of those without student loans.
              i.e. the WORKING CLASS. Biden is offering a 500B wealth transfer from the working class to the upper middle class.
              Is that your idea of good economic policy ?

              I would also point out what should be OBVIOUS – that the policy is massively inflationary. As you say – suddenly a large number of people will have more money to spend. Those of the left CONSTANTLY pretend that the supply side of the law of supply and demand does not exist.
              Unfortunately it does. Supply growth takes time, sometimes very significant amounts of time, therefore helicopter dropping money onto an economy is nearly always INFLATIONARY.

        2. That’s not why university costs have sky rocketed over the past 15 years. The higher institutes work for the DOD. and find out their environmental bs budgets, it’s a crime. You and I are funding everything we despise in the schools. It’s indoctrination and it produces only soulless empty vessels.

      3. The entire Federal Student Loan program is unconstitutional. Loaning money to youngsters isn’t a power given to the Federal Government in the Constitution; much less taking over the entire enterprise from legal lenders outside of government.

    2. Aside from the rule of law should the one not going to college subsidize the one that goes?

      Maybe the college should be held responsible for the loan? Would colleges offer degrees where graduates weren’t trained to earn enough to pay the loan back?

  5. I think a simply solution to student debt bubble would be to allow student loans, like most debt, to fall under bankruptcy.

    1. Nothing wrong with that. But the result would be that the interest rates for student loans would rise.

      I know those on the left do not beleive this, but there is no way to sustainably game the system – and I do not mean just student loans, I mean economics in general.

      We exchange value for value. If nearly all the time that exchange is not a win-win for all, it will cease to occur and we will starve.

      If a student loan can be disposed of in bankruptcy – then those offering them will raise interest rates to accomidate the increased risk.

      This is why Payday loans have higher interest rates than mortgages to people with excellent credit.

      College students are not a good risk.
      They do not have jobs, they do not have incomes yet, there is no certainty to the incomes they will have.
      When they graduate they will be poor, and deeply indebt – the perfect time to go bankrupt.
      At the same time they will now have a college education with better future income prospects.

      The Federal Guaranteed student loan program should go away – it was a mistake, and it accomplished nothing beyond increasing the price of college.

      It is another example of a clear government failure that we can not get rid of.

      1. “The Federal Guaranteed student loan program should go away – it was a mistake, and it accomplished nothing beyond increasing the price of college.”

        The reason why the price of college has been increasing is because states have been cutting funding for public higher education. This has forced colleges and universities to raise tuition and fees to compensate for the reductions in state funding. That’s why there’s heavy reliance on student loans. That has created an industry where middlemen profit from the loans guaranteed by the government. It’s that guarantee that pushes unscrupulous middlemen to keep those loans coming.

        If states increase funding for colleges and universities back to where they did, up to 70%. Colleges would be more affordable and lessen the reliance on student loans. Other countries which support higher education by funding them at higher levels than we do don’t have this student loan problem.

        1. Make up your mind – one of your ilk claimed it was Federal gutting of education funding.

          Which is absurdly false.

          Regardless, your argument makes no sense. State colleges remain cheaper (and typically far larger) than private colleges.

          In my state “state colleges” mostly operate without any state funding at all.

          They might as well be private for profit colleges.
          And they are doing fine. They are cheaper than private colleges because they have less staff per student, because they have larger class sizes.

          Here is a graph of the real and nominal cost of private college back to the 60’s


        2. The graphs that I provided prove beyond any doubt that your claim is complete garbage.

          The real (inflation adjusted) cost of public and private college have been increasing in near lockstep for 4 decades.
          Pretty much since the start of the federal guaranteed student loan program

          This article cites several different studies that have all found that government guaranteed student loans are responsible for nearly all the increase in college costs – public and private.


        3. Here is a graph of total federal and state education spending as a percentage of total college costs.

          NOTE that has been RISING for decades. Not only are government subsidies increasing as costs rise,
          Government college education spending is rising FASTER than education spending.

          Put simply you are full of Schiff.


        4. Do you not understand that when you lob these faux factoids that are just constructions from your addled brain or whatever bogus sources you rely on – that I am highly likely to provide the evidence to REFUTE them.

          All you have to do to avoid being embarrassed for making $hit up is Check what you post before posting.

          Google is your friend.

          A search like “total government college education spending per year”

          Will produce hundreds of articles and graphs.

        5. Aside from refuting your claims about government education spending.

          There is no reason that a college education today should cost more in real terms than it did in 1960,

          Shakespeare has not gotten any harder. Calculus has not changed in 200 years, nor has newtonian physics that is the basis of nearly all STEM education and jobs.

          What has changed ? Students have calculators and laptops, and word processors and spreadsheets and spell checkers and grammar checkers.

          There is nothing that has occured in higher education in all but a few bleeding edge science fields that has made education harder, or the cost of education higher.

          In fact there are many many many things that have changed that make education easier and less expensive.

          And yet the FACT is that college is far more expensive in real terms (inflation adjusted), and overall the quality of education is declining.

          I would note that the exact same pattern is occuring in public K-12 education.

          One actually good justification for Student Loan forgiveness is that Government has F#$Ked up education, made it needlessly more costly and it is government that should eat the cost of that – not students.

          But that is a reason for a mass torts lawsuit against Government for the harm it has caused to education.

        6. The people profiting from Student loans are perfectly scrupulous.

          They are offering a service in return for money. You are free to choose not to use that service – then you need not pay for it.
          There is no difference between them and McDonalds selling hamburgers.

          I would further note that it is the COST of college – that is the money that Harvard or FSU are collecting that is rising by leaps and bounds – not what the “middlemen” are charging.

          Banks and lenders do well – though not quite so well as lenders for homes. And they do better over time – because the total dollars borrowed keeps growing, and their profits are about 1/4 of the interest being charged. So the larger the principle the more money they make. But that is TINY – completely dwarfed by the money going to colleges themselves.

          The price of college is rising because the more they can get government to loan students the more they can charge.
          The profits of your middlemen are rounding error on the overall increase in costs.

          You really do not ever think about the nonsense you spout before spouting it.

        7. “If states increase funding for colleges and universities back to where they did, up to 70%. Colleges would be more affordable and lessen the reliance on student loans. Other countries which support higher education by funding them at higher levels than we do don’t have this student loan problem.”

          Using real data – which I provided in multiple other posts, State and Federal funding of colleges has increases by several HUNDRED Percent over time. Your argument is full of schiff.

          Further State and federal funding as a percentage of the total cost of colleges has almost doubled over time.

          Finally – other countries where government funds higher education are NOT doing “fine”.

          Free higher education has destroyed some of the best colleges in Europe.

          Half of the worlds top 100 universities are in the US, Probably less than 1/4 are in Europe – despite the fact that Europe has nearly twice the population as the US. And of those Top European colleges few – if any are actually free state paid for Colleges.

          I would note though that the cost of college elsewhere in the world is much lower than the US. Including the cost of completely private colleges

          University of Tokyo which is one of the top schools in the world, has very high tuition for Japan – $2400USD/ semester.
          While technically public, that primarly means the japanese government funds research done at UT – not tuition.

          Top Private Japanese Colleges have tuition of about $1400/semester.

      2. This is an article from 2015 pointing out the problem as plain as day.

        “It used to be that attending a public university all but guaranteed graduating with little to no debt. State governments funneled enough money into higher education that families could send their kids to a local school without worrying about taking out a second mortgage or private loans to pay their way. Not so anymore. These days students pay more of the cost of attending public universities than state governments, a shift that is making college less affordable, according to a recent Government Accountability Office report.
        Researchers found that the money public colleges collect in tuition surpassed the money they receive from state funding in 2012. Tuition accounted for 25 percent of school revenue, up from 17 percent in 2003. State funding, meanwhile, plummeted from 32 percent to 23 percent during the same period. That’s a far cry from the 1970s, when state governments supplied public colleges with nearly 75 percent of their funding, according to data from the Federal Reserve Bank of Cleveland.“


        “Although states began reducing their contributions to higher education costs a decade ago, the GAO said the collapse of the financial markets in 2008 caused a precipitous decline. State budgets were rocked by the recession and legislatures responded by slashing higher education funding by 23 percent per student, according to the Center on Budget and Policy Priorities, a think tank.
        Left in the lurch, universities raised tuition to make up for the funding shortfall. As a result, the sticker price at public colleges has increased an average 28 percent above the rate of inflation since the 2007-2008 school year, according to the budget think tank. The trouble is that federal grant aid and other free money has not kept pace with the cost of going to school.”

        States, especially when republicans are in charge. Have always slashed funding for higher education in order to be able to offer tax cuts to businesses and the wealthy. In the majority of the states education funding is the biggest expense after Medicare and Medicaid. Rather than increase taxes and have everyone pay their fair share they choose to cut taxes and leave those unable to afford college tuition to borrow and go deeper into debt.

        It would be cheaper and more effective to increase state funding of public higher learning education back up to 60% and have more people be able to graduate without debt and spend more on the economy instead of paying loans.

        1. You provided idiocy from some reporter. I did not bother to read – why should I ?
          Primary sources trump opinions.

          I provided FACTS.

          Rock, paper scissors, shoot – Facts beat opinions all the time.

          I would separately note that you quotes do not refute my claims.
          In fact they support them.

          It is trivial to demonstrate that the cost of education can skyrocket,
          The proportion of total cost of education paid by government can increase faster than the cost of education,
          AND The cost to each student can increase faster than both.

          It is called Math – it is no even calculus – it its just relatively simple algebra.
          The Problem is that Government funding and subsidies are causing the total cost to increase.

          All the quotes you have provided demostrate is that colleges are increasing costs rapidly.
          The ARGUMENT you and your reporter are making is that if Government would increase spending even faster – MUCH faster, that magic would happen and the cost would decline.

          When ever has anyone in any market refused to take more money for their product if offered ?
          You are making the problem worse not better.

          It is trivially clear that it is no more difficult to provide a college education today than 40+ years ago.
          If anything it is significantly easier. Yet the cost has skyrocketed.

          Refridgerators today are far more complex – and work much better than those 40+ years ago,
          yet not only in real dollars but in nominal dollars refrigerators cost LESS.

          You keep entirely ducking the fundimental question – why does education cost more today ?
          It is no better – in fact it is worse. It is no harder, in fact it is easier.

          Let the typical left wing nut you buy this nonsense that if you – especially government, spend more you will get more value.

          When has that ever happened ? When has more government spending EVER resulted in more value ?
          EVER ?

          Whatever amount of money government is prepared to spend for anything – you can absolutely guarantee that those receiving the government spending will consume entirely, demand more, and deliver less.

          That is NOT how the world outside o government actually works.

        2. I want to make it clear.

          I absolutely do not support increasing government funding or loans in education (or anywhere else).
          That is a mistake that will ALWAYS increase costs.

          I do not support government loan forgiveness.

          I do however support a mass tort against government for the harm they caused to students in ratcheting up the cost of college.
          This was predictable (and predicted) and always happens when government subsidizes anything.

          The end result is nearly the same – with one exception. A successful mass tort against government for the harm it caused in raising the cost of education would end the federal student loan program – and good riddance.

          But the tort claim would not likely be successful – because borrowers did so voluntarily.

    2. You can thank uncle Joe for that. I believe he was a sponsor of the legislation that prohibited student loans from being discharged in bankruptcy.
      If he was a co-sponsor, he certainly supported and voted for it.

  6. It is much easier to justify a subsidy to help pay off a loan for a truck used by a plumber than to help pay off a loan for a degree in literature or in women’s studies.

    1. Which is why a plumber can more easily get a loan at a decent interest rate to buy that truck, and therefore needs no subsidy.

  7. But there is nothing about veterans? Who always seem a justification to advance shit. Want Obama care create a entire substitute bill off veterans. Bingo Obama care the constitution be damned. For the substitute bill. Veterans be canned at 22 suicides a day…that’s just the cost of business. Now when there is a short page actually applicable to only veterans…hero’s. .they are it for every day add whomever ran a lap…And say the hero’s act…for the did permits it I loose company with rose interpruters…so devios. Makes me find company with those so argue legit about Ukraine at all. It’s a free for all really! Only because our own government ignores the ppl. Like its natural to millions self.we wouldn’t be here if our own system followed it’s own laws. But apparently it takes suicide tomorrow re powers to be…if they can be jostled. It’s a sick system. But the coach who be targeted and berated nathen…she’s not accountible.not is the principal who cut off his social network. I posit they are liable. And need to stop advancing their made in china…pouches that ultimately duck with our rule of law.

  8. Professor Turley, I think you should update your post to better source and characterize the Wapo position. 1. Link to their editorial dated March 2 and August 24 instead of opinion pieces they publish that do not represent the position of the Editorial Board. 2. In both editorials, they question the Heroes legal authority for the program so no changing of positions as you suggest. 3. Wapo in the March 2 editorial never specifically says the loan forgiveness program is unconstitutional as you imply and state and instead frames the issue as a statuary authority and interpretation problem. By the way, I think that a statutory authority framing is a better approach because the Department is relying on Heroes for the program not an inherent Article 2 Executive power.

    1. The decision of the court should be based on the law and constitution.

      SCOTUS is not there to decide if a decision is wise, only if it is legal or constituional.

      But Biden’s loan forgiveness program is both not constitutional, and very unwise.

      The fact that so many people in this country do not grasp that nothing is free casts a very dark cloud over our future.

      When you give one person something for nothing – someone else MUST pay for what is given for free.

      As individuals and as a nation we are better off when everyone is encouraged to be as productive as possible.

      Giving those who have not produced something of value without cost, comes not just at the expense of those who are productive,
      but at the expense of our overall productivity – which is the same as our standard of living.

      Again, one o fthe most fundimental economic truths is over 5000 years old

      Genesis 3:19
      By the sweat of your brow, you shall earn your daily bread.

      When you eat for free – someone else must work twice as hard.

  9. Dummies of the WPO Duma–savor yet another fail, for their damage has already been done. Our Constitution be the victim here, struck by unconstitutional false hopes raised. The Division Bell has been rung…

  10. It is said that the government can forgive the loans. It is not the government that made the loans in the first place it was you. You went along with it because you believe that a well educated society is important to the continuation of a Democracy. When you made the loans you where expecting to be paid back. If you had been aware that the borrower of your money would be allowed to renege on the debt would you have consented to the loan in the first place? It’s not someone else’s money that they are trying to take. It’s your money. Think about it when your job is hard that they are taking the fruits of your labor to give to someone else. The government does not make the money, you make the money.

    1. It’s the student’s money too. They also pay taxes. It would be as if they were forgiving their own loans to themselves. That’s just another way of looking at it. It’s not even known if your tax money went to student loans. All of it could have gone to pay for defense, social security, or Medicare.

      1. As an example, it is possible that a debtor would be released from $100k in loan debt and end up paying an extra $150 in taxes. That is a pretty good exchange. It also does not make sense to say that “It’s not even known if your tax money went to student loans”. Money is fungible. When it goes to the government it forms a general fund which can be distributed in any direction. Taxes are not earmarked for specific spending programs.

      2. Your comment is proof of the poor quality of math education today.

        It is another way of looking at it – one that could not possibly work. One that is a result of taking stupid aphorisms offered by left wing nuts litterally.

        Did you actually loan money to yourself ? If you did then you can forgive that loan.

        But the obvious reality is that you did not.

        You can not provide something to yourself that does not exist in the first place.

        Either you performed the productive effort to create something of value that you sold and loaned the money to yourself,
        Or someone else did.

        Regardless. money is merely a store of value – if nothing of value was created – there is nothing to store, and money has no value.

        In the US we have massive amounts of “money” available to lend – because OTHERS have produced enormous amounts of value AND because they have chosen to forego using that value on themselves and are loaning it to you – in the expectation that you will use it to create even more of value and return to them even more than they loaned.

        All this is just a more complicated version of Genesis 3:19
        By the sweat of your brow you shall eat your daily bread.

        You can not consume what is not produced.
        If you have not produced value – you have nothing to lend – not to yourself or others

  11. The standing issue appears to hinge on whether the State of Missouri is harmed when Mohela loses fees when loans are cancelled. That harm could arise either because Mohela is simply considered part of the state or because the state will be harmed when Mohela’s revenues are reduced. That harm to the state could arise from having to cut back on the public functions Mohela performs or from having to find other sources of funding those functions. Of the six justices usually deemed conservative, Barrett appeared to have the most difficulty on standing.

    I don’t understand why the Republicans don’t vote to have the House bring a case, to take the standing issue off the table. They should be doing that now.

    Regarding the merits, this is different from other major question doctrine cases in that there is a very clear delegation to the secretary of extremely wide powers to “waive and modify” any provisions of the student loan programs to prevent a national emergency from having an adverse effect. There are two ways of attacking this:

    1. Despite the broad grant of authority, Congress did not intend to delegate the power to cancel principal due on loans. Such a dramatic measure on this scale would require more specific indications of legislative intent.

    2. Assuming this delegation of the power to cancel principal were intended, the circumstances at the time of the order were not such as to make cancellation necessary to prevent the adverse impact.

    The oral argument focused mainly on 1. There was very little discussion I heard of the argument that the secretary has the power to cancel debt in certain circumstances, but that he abused that power by acting here.

    1. Daniel: we share similar concerns about cancellation of principal. Here is my post from three hours ago:
      lin says:
      March 3, 2023 at 1:01 PM
      JEG: You raise a good point (about accruing interest) and I am glad I saw it, because I was just about to comment to Ian Gumby’s 12:26 comment [to say] that the “basic intent” of legislation is not generally considered unless the express language is ambiguous. So if it is found to be unconstitutional and comes back as Congressional action, I think it would be reasonable compromise to waive accrued interest on ALL student loans during the [date-delineated] pandemic, -but NOT waive principal.
      Any opinion on such a compromise?

      1. Lin, while waiver of interest is less dramatic, it also amounts to a significant financial hit to the Treasury. I believe in the Cares Act Congress paused payments for six months. When that period ended Trump and Biden kept extending it. I don’t think they had the authority to do that.

  12. “Washington Post: Yes, the Biden Loan Forgiveness May Be Unconstitutional But…”

    – Professor Turley

    “[New York Times]: Yes, the [1973 Supreme Court Abortion Right] May Be Unconstitutional But…”

    [Washington Post]: Yes, the [Johnson “Great Society” Student Loan Program] May Be Unconstitutional But…”

    “[Harper’s Weekly]: Yes, the [Lincoln Secession Denial, Civil War, Suspension of Habeas Corpus, “Reconstruction Amendments”] May Be Unconstitutional But…”

    The entire communist American welfare state – compelled with a gun to America’s head – is unconstitutional.

    The singular American failure is the Supreme Court – Congress must have impeached derelict Justices.

  13. I re-read the Higher Education Relief Opportunities for Students (HEROES) Act. I am not a lawyer, so my my layman’s mind, the court has to decide to what is meaning of “waive” with respect to the forgiving of student loans.

    $500B is a large sum, but I think that is not the issue – For e.g., if there was another national emergency, say WWW III, and the US had to sent 5 million its citizens to fight a war outside of the U.S, would in this case the loan forgiveness be lawful?

    On another note, I urge Mr. Turley to give his legal and expert opinion on the Dominion Lawsuit against Fox News. This is a very important case that will have huge effects on the First Amendment.

  14. Biden is King. We really don’t have a Rule of Law applicable to all in one unison. So he can just issue proclamations. You non-liberals will come to ascertain that. You must remember; Ruth Bader Ginsberg said; “the US Constitution was evolving (means apply as socially wanted)” and told Egyptians, that the US model should not be used.

    1. His Majesty, “King Constitution The First” was assassinated by General Secretary, Dear Leader and Karl Marx’s Hatchet Man, “Crazy Abe” Lincoln (slavery must have been terminated through legal means such as advocacy, boycotts, divestiture, etc.).

      “Men never do evil so completely and cheerfully as when they do it from religious conviction.”

      – Blaise Pascal

      “The purposes of the Almighty are perfect, and must prevail.”

      – Abraham Lincoln



      “These capitalists generally act harmoniously and in concert, to fleece the people.”

      – Abraham Lincoln, from his first speech as an Illinois state legislator, 1837

      “Everyone now is more or less a Socialist.”

      – Charles Dana, managing editor of the New York Tribune, and Lincoln’s assistant secretary of war, 1848

      “The goal of Socialism is Communism.”

      – Vladimir Ilyich Lenin

      “The workingmen of Europe feel sure that, as the American War of Independence initiated a new era of ascendancy for the middle class, so the American Antislavery War will do for the working classes. They consider it an earnest of the epoch to come that it fell to the lot of Abraham Lincoln, the single-minded son of the working class, to lead his country through the matchless struggle for the rescue of an enchained race and the reconstruction of a social world.”

      – Karl Marx and the First International Workingmen’s Association to Lincoln, 1864

      “ON DECEMBER 3, 1861, a former one-term congressman, who had spent most of the past dozen years studying dissident economic theories, mounting challenges to the existing political order and proposing ever more radical responses to the American crisis, delivered his first State of the Union address as the sixteenth president of the United States.

      “Long before 1848, German radicals had begun to arrive in Illinois, where they quickly entered into the legal and political circles in which Lincoln traveled. One of them, Gustav Korner, was a student revolutionary at the University of Munich who had been imprisoned by German authorities in the early 1830s for organizing illegal demonstrations. After his release, Korner returned to his hometown of Frankfurt am Main where, according to historian Raymond Lohne, “he was one of about fifty conspirators involved in an attack upon the two main city guardhouses and the arsenal at the police facility and jail. This admixture of students and soldiers had planned to seize cannon, muskets, and ammunition; free political prisoners accused of breaking press-censorship laws, and begin ringing the great Sturmglocke (storm bell) of the Dom, the signal for the people to come in from the countryside. At that point, the democratic revolution would be announced…. Unfortunately, they were walking into a trap…. Betrayed by both a spy in their midst, and the reluctance of the common people to rise, nine students were killed, twenty-four were seriously wounded, and by August 3, 1833, Gustav Körner found himself riding into downtown Belleville, Illinois.”
      “Within a decade, Korner would pass the Illinois bar, win election to the legislature and be appointed to the state Supreme Court. Korner and Lincoln formed an alliance that would become so close that the student revolutionary from Frankfurt would eventually be one of seven personal delegates-at-large named by Lincoln to serve at the critical Republican State Convention in May 1860, which propelled the Springfield lawyer into that year’s presidential race. Through Korner, Lincoln met and befriended many of the German radicals who, after the failure of the 1848 revolution, fled to Illinois and neighboring Wisconsin. Along with Korner on Lincoln’s list of personal delegates-at-large to the 1860 convention was Friedrich Karl Franz Hecker, a lawyer from Mannheim who had served as a liberal legislator in the lower chamber of the Baden State Assembly before leading an April 1848 uprising in the region—an uprising cheered on by the newspaper Marx briefly edited during that turbulent period, Neue Rheinische Zeitung—Organ der Demokratie.

      “Even as they agreed on homesteading, Greeley and Lincoln wrangled over the timing and scope of an emancipation proclamation. The editor joined Frederick Douglass in demanding that the president take steps to make the Civil War not merely a struggle to preserve the Union, but “an Abolition war.” Even as Greeley and Lincoln exchanged sometimes pointed letters, the Tribune’s longtime managing editor Charles Dana was now working for Lincoln. Officially assigned to the War Department — where he would eventually serve as assistant secretary — Dana’s real role was as an aide and adviser to the president on questions of what the former newspaperman described as the “judicious, humane, and wise uses of executive authority.” That Lincoln spent much of his presidency reading dispatches from and welcoming the counsel of Marx’s longtime editor—like the fact that he awarded military commissions to the numerous comrades of the author of The Communist Manifesto who had come to the United States as political refugees following the failed European revolutions of 1848—is a shard of history rarely seen in the hagiographic accounts that produce a sanitized version of the sixteenth president’s story. In the years following Lincoln’s death, his law partner and political comrade, William Herndon, complained that Lincoln’s official biographers were already attempting “to make the story with the classes as against the masses,” an approach that he suggested “will result in delineating the real Lincoln about as well as does a wax figure in the museum.”

      – ISR International Socialist Review

  15. I actually think the standing issue is dispositive. At the end of the day, what the states are saying is: “Your forgiveness harms me, and the forgiveness is illegal; therefore, we have the right to a court order putting a stop to the forgiveness.” But wait–what enforceable right do the plaintiffs have to insert themselves into the arrangement between the government and each individual borrower. Or, in other words, what right do they have to ensure that what makes them whole comes out of the hide of the borrowers. Without that right, the remedy is on its face makeweight, and that doesn’t satisfy the standing requirement.

    1. But, but, but – if it’s unconstitutional, it’s unconstitutional. What right does the Executive have to insert itself between the lender and the borrower? The lending arrangement is a function of legislative action, correct? So, the Executive has no standing, either. Who do you think has standing?

      1. It probably doesn’t have the right, but has the power, and standing is a limitation on judicial power, not executive power.

      2. It should be self evident – whether you are left or right that legal doctrines used to keep courts from having to decide issues are being abused.

        TX SB8 while moot now, still successfully gamed standing – to delay or deny judicial review.

        Standing was one of the primary impediments to any election inquiry.

        As you are suggesting – if something is unconstitutional – someone must ALWAYS have standing.

        Do we really have a constitution if the government can violate that constitution but no one can get to court to challenge the violation ?

        There is a legitimate purpose for all the court created doctrines – standing, mootness, laches, ripeness….

        But the courts are abusing these to avoid deciding hard cases.

        In the end we have courts to decide the hard issues.
        And we are lawless if they refuse to do so.

      3. What right does the Executive have to insert itself between the lender and the borrower

        The executive is the lender.

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