Nebraska has challenged President Biden’s unilateral and illegal discharge of hundreds of billions of dollars in student loan debt. The Supreme Court will hear the case on Tuesday. At stake is more than the $430 billion hole that Biden’s plan would open in the federal budget. The case raises an important test for the separation of powers under the Constitution.
“No country can be called free if it is ruled by absolute power,” wrote Thomas Paine in 1776. The Founders realized the danger of vesting absolute power in one branch of government, so they divided power into three branches. Legislation is passed in Congress, where the elected representatives of a large and diverse nation speak. This process can slow (or even stop) the policies favored by the Republican or Democratic administrations, but it provides a clear path for change: persuade more people; win more elections.
That hasn’t stopped the Biden administration from usurping the authority of Congress. The administration has repeatedly used the pandemic as an excuse to justify acting without the authority of Congress, but the Supreme Court halted many of these efforts. In 2021, the high court ended a moratorium on tenant evictions imposed by the Centers for Disease Control and Prevention. In 2022, judges blocked a vaccination mandate that the Occupational Safety and Health Administration forced on employers.
The Biden administration is again trying to alleviate student loan debt, which has been the subject of heated debate in Congress. Dozens of loan forgiveness bills have gone nowhere. Legislatively blocked, the president tried a Hail Mary. His proposal invoked emergency authority contained in a 9/11-era bill known as the Higher Education Opportunity Relief for Students Act of 2003, or the Heroes Act.
President Bush signed that bill after the start of the Iraq war to ensure that active duty members of the military could stop student loan payments while serving the country. All of the congressional findings in support of the law focused on providing relief to individuals serving in the armed forces for “the defense of our nation.” Congress gave no indication that it intended to eliminate student loans or write off a large amount of debt. No administration until this one has used the Heroes Act to justify erasing student debt.
The law applies only when aid is needed “in connection with a war or other military operation or national emergency.” The White House says the pandemic is a national emergency, so the president has the authority to act, an argument that seems pretextual. While the administration argues in court that Covid justifies this action, the president tells the public a different story. In September he went on television and ended the pandemic. Most recently, his administration pledged to end the state of emergency on May 11. In a recent video with Sen. Bernie Sanders, Biden highlighted his plan and criticized state attorneys general for bringing the case, but made no mention of Covid.
The president cannot have it both ways. He cannot tell the country that the pandemic is over while he claims that he justifies this unilateral action.
Last year, the Supreme Court reaffirmed that when the executive branch addresses an “important issue,” which surely includes this huge debt cancellation, it needs “clear” authority from Congress. Far from the clear language needed to justify this important action, the Heroes Act cannot square with the president’s plan. The language of a bill passed primarily to help members of the military does not authorize a debt cancellation of nearly half a trillion dollars for tens of millions of Americans.
The scope of power that the president has claimed is impressive. Americans of all political persuasions should be alarmed. If Mr. Biden’s actions are found to be legal, he can bet future Republican and Democratic administrations will scrutinize old and obscure laws for dubious legal hooks to achieve their top policy preferences.
National crises are problems to be overcome, not opportunities to accumulate presidential power. Throughout the pandemic, the president has tried his luck and the Supreme Court has backed down. The pandemic is already behind us. One can only hope that the same is true of Mr. Biden’s efforts to use him to expand his powers.
Mr. Hilgers is the Attorney General for Nebraska. His office will argue the state’s case in high court on Tuesday.
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