In 1987, President Reagan took an important step by sending Congress the first trillion dollar budget. The magnitude of this has provoked an intense debate in Congress on the debt burden, but a possible “consensual” budget was reached.
What is shocking today is not just the size of the federal budget of over $4 trillion, but the fact that President Biden has just wiped out an estimated $1 trillion due. in 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 all Americans. Not only massive payment likely fuel inflation but critics objected to working-class people subsidizing the debts of college-educated citizens. Others object that it is unfair to those who have sacrificed to repay their loans or those of their children. When one such father asked Sen. Elizabeth Warren (D-Mass.) if he would get a refund after struggling to pay for his daughter’s college education, Warren dismissed him with a “Of course not.“
Some Democrats in Congress joined Republicans condemning the plan.
Biden knew he could never get Congress to agree to such a massive cancellation, so he didn’t try. Instead, he acted unilaterally, and Democrats like Warren expressed his euphoria, although warren wanted five times more debt forgiveness. The former law professor saw no problem with a president giving away hundreds of billions of dollars.
As it was under President Obama when he bypassed Congress, Warren and others celebrate their own constitutional obsolescence.
This is not supposed to happen in a constitutional system based on shared and limited powers: the Constitution gives Congress the power of the stock market, but Biden just gave the store. James Madison described the essence of our system of separation of powers in Federalist 51 as based on the belief that “ambition must be made to thwart ambition.” No branch is supposed to have enough power to rule alone. Biden just did, though.
The legal basis for this action is superficial and surprisingly cynical. Same House Speaker Nancy Pelosi (D-California) previously said that Biden could not unilaterally cancel such debt and would need a vote from Congress.
President Biden is using a law designed to help service members and their families deal with the debt accumulated fighting for this country. The terms of the Higher Education Student Relief Opportunity Act (HEROES) of 2003 allows the Secretary of Education “to waive or vary…financial aid program requirements…affected by war, other military operation, or national emergency.” Biden promised to erase the tuition debt during the campaign and simply hijacked the law for this unintended purpose. That aside, the law ties such reparation to an inability to meet those costs due to war or emergency. The Biden plan would use the law to benefit people without such a demonstration, including many of the 40 million recipients who are relatively wealthy and could repay the loans.
The Office of Legal Counsel, considered the ultimate authority on legal interpretations within the executive branch, has considered this issue under the Trump administration. His note concluded that “the Secretary has no statutory authority to provide a blanket or wholesale cancellation, compromise, discharge or remission of student loan principal balances, and/or to materially alter repayment amounts or terms of it, whether due to the COVID-19 pandemic or for any other reason”.
Biden’s Office of Legal Counsel released a new opinion to conclude otherwise, due to the ongoing pandemic – a curious argument, since the Biden administration was right in court arguing that the pandemic was effectively over, in order to allow undocumented people into the country. Citing the Centers for Disease Control and Prevention, the administration sought to stop enforcement of title 42which allowed the government to turn back migrants at the border.
While the administration may find support from a lower court judge, its argument will likely receive a cold response from the Supreme Court.
The Supreme Court has repeatedly found that President Biden had violated the Constitution and outdated in its use of unilateral executive authority. Biden has, arguably, the worst record of legal 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 companies with 100 or more employees. This followed statements by Biden chief of staff Ron Klain that the administration had found a “workaround” of the Constitution in these executive orders.
One of those losses will likely come back to haunt the president. In West Virginia vs. EPA, the Supreme Court struck down Environmental Protection Agency regulations on controlling the climate by reducing greenhouse gas emissions from coal-fired power plants. The court ruled that the “major issues” doctrine prevents Biden from circumventing Congress by taking major actions of great economic and political significance — much like a federal gift of up to a trillion dollars in the middle of a recession.
Biden is fully aware of the questionable basis for this massive giveaway. However, his administration is rushing to get the money out in October, a month before the midterm elections.
It has a certain familiarity.
Last year, Biden called on the CDC to impose a national moratorium on evicting the tenants, though his White House attorney and friendly legal experts told him the move was likely unconstitutional. It was hardly a difficult question; the Supreme Court has previously ruled that claiming such power is unconstitutional. In a stunning admission, Biden acknowledged the overwhelming view that it was unconstitutional and told the media he hoped his administration could get as much rental assistance money as possible before the moratorium on evictions was decided by the courts.
Federal courts quickly rejected his claimed authority, and the The Supreme Court ruled 6-3 that the eviction order was unconstitutional.
It looks like 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 action. In order to challenge the program, litigants must establish standing to seek redress. The court has been hostile to such requests, including rejecting taxpayer status. In 2007, the Supreme Court ruled in Hey c. 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 status.
Biden is undoubtedly hoping that, despite intense opposition to this gift, no one will be able to get a judicial review. If successful, it would make a mockery of the constitutional system. He would first unilaterally give between $500 million and $1 trillion, then show that no citizen can challenge him and no court can verify his authority.
Again, standing may be found and the courts may simply be able to stop this plan.
However, Biden can still succeed if he is able to withdraw the money before any injunction. No one in Congress would be keen to sue students for unconstitutionally canceled debt.
Ironically, while figures like Warren praise Biden for bypassing Congress, she and others are rallying voters to “stand up for democracy.” After all, nothing says “democracy” like the exercise of one-man power.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.