A few months after 9/11, when US military action was underway in Afghanistan and an extensive war on terrorism loomed, Congress passed the Higher Education Relief Opportunities for Students, or HEROES, Act. Signed by President George W. Bush in 2002 and amended in 2003, it authorized the president (through the secretary of education) to grant waivers to recipients of student loans “in connection with a war or other military operation or national emergency.” According to President Biden’s lawyers, it is the HEROES Act that gives him the authority to single-handedly wipe out hundreds of billions of dollars of college debt. That’s a claim so brazen it seems torn from Donald Trump’s playbook — and stands a good chance of being struck down if it’s challenged in court.
The HEROES Act’s purpose was not obscure. The legislation, replete with references to US military personnel, expresses concern for the burdens faced by those who “put their lives on hold . . . in order to serve their country.” There is also a sentence covering individuals who live “in areas that are declared disaster areas.” The law was plainly intended to help borrowers confronting the urgent upheaval of military service in wartime or the unexpected mayhem of a natural disaster. The idea that it was passed so a Democratic president 20 years later could implement an item on the progressive wishlist by unilaterally canceling debts owed by up to 43 million borrowers is outlandish.
President Biden himself said as much last year. Asked on CNN in February 2021 about forgiving student debt by decree, he demurred: “I don’t think I have the authority to do it.” House Speaker Nancy Pelosi agreed. “People think the president of the United States has the power for debt forgiveness,” she said. “He does not. He can postpone. He can delay. But he does not have that power. That has to be an act of Congress.”
In March 2020, responding to the COVID-19 pandemic, Trump exercised that authority to temporarily postpone student loan repayments. Six times that suspension has been extended, most recently last month by Biden, and it will expire at the end of the year. As well it should, since the public health crisis invoked to justify it has run its course and employment in the United States is now higher than it was before the pandemic. The federal government’s formal state of emergency is to be lifted on Oct. 13. The nation, according to the president, is not at war.
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By any common sense reading, nothing in the HEROES Act authorizes a sweeping write-off of student debt by presidential decree. If the law permitted what Biden now claims the right to do, the administration’s legal eagles wouldn’t need 25 pages of tortured analysis to prove it. The emergency powers being asserted by Biden, as Elizabeth Goitein of the liberal Brennan Center for Justice observes in The Washington Post, is not “a temporary exercise of power to address a sudden, fast-moving crisis.” It is a way “to get around Congress, when Congress has considered a course of action and rejected it.”
That’s what Trump did three years ago. After Congress refused to fund a massive wall on the southern border, he announced that a national emergency empowered him to spend the money needed to build one anyway. Trump’s “emergency” was a shameless pretext to ram through a goal championed by his hard-right base. Biden’s is a shameless pretext to ram through a goal championed by his hard-left base. The House of Representatives sued Trump in federal court for violating the Constitution’s Appropriations Clause, which bars the president from spending public funds without congressional approval. The House and/or Senate should sue Biden in federal court on the same grounds.
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There has been considerable speculation about what parties might have the required legal standing to fight Biden’s plan in court. Under current Supreme Court doctrine, potential plaintiffs seeking to challenge a policy must first demonstrate that they have been harmed in some concrete way — experienced an “injury in fact.” Merely objecting to the unfairness of a policy doesn’t constitute an injury. One suggestion is that banks or other loan servicers might have standing, since they will lose fees they would otherwise have collected from the canceled debts.
But surely the best party to challenge Biden’s wrongful diversion of public funds — which is likely to cost taxpayers at least $600 billion and perhaps $1 trillion or more — is the one that challenged Trump’s: Congress.
When the House of Representatives went to court to argue that the Trump administration had no authority to spend money on a border wall that Congress had refused to appropriate, the district court dismissed the case, believing the House lacked standing to sue. But it was overruled by the US Court of Appeals for the DC Circuit. In his opinion, Judge David Sentelle explained that the House was “suing to remedy an institutional injury to its own institutional power to prevent the expenditure of funds not authorized.” At issue, the court held, was not just politics but “an express constitutional prohibition” that blocks the president from spending money without congressional permission.
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“To put it simply,” wrote Sentelle, “the Appropriations Clause requires two keys to unlock the Treasury, and the House holds one of those keys. The Executive Branch has, in a word, snatched the House’s key out of its hands. That is the injury over which the House is suing.”
The identical reasoning applies to Biden’s loan-forgiveness scheme.
Realistically, such a lawsuit won’t be filed unless Republicans win control of at least one chamber in November. But this shouldn’t be cast as a case of Republicans vs. Democrats, argues Jed Shugerman, a visiting law professor at Boston University.
“As a progressive who was deeply disturbed by the Trump administration’s abuse of power and executive power and invoking emergency powers, like building a wall,” Shugerman told BU Today, “it seems too convenient now for progressives to embrace emergency power references by a new president, when we were so troubled a few years ago.”
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Of course he’s right. At a time when presidents of both parties keep resorting to autocratic means to accomplish desired ends, honest liberals and conservatives alike should be alarmed by the erosion of constitutional safeguards. Biden has no more right to unilaterally erase debts than Trump had to unilaterally build a wall. The sooner a court says so, the better.
Jeff Jacoby can be reached at jeff.jacoby@globe.com. Follow him on Twitter @jeff_jacoby. To subscribe to Arguable, his weekly newsletter, visit bitly.com/Arguable.
