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Well, move over sausage-making.
It turns out that presidential diktat is just as prone to arbitrary and poorly-designed policy, at least judging by President Joe Biden's unilateral move to implement a massive program of student-loan forgiveness of up to $20,000.
What the policy lacks in fairness and coherence, it makes up for in dubious constitutionality.
The legal analysis justifying it owes much to the sentiment of Teddy Roosevelt's long-suffering attorney general Philander Knox. Asked for his opinion on one impending matter, he replied, "Ah, Mr. President, why have such a beautiful action marred by any taint of legality?"
If our constitutional system is going to retain its vitality over the long term, the legality of presidential actions must — obviously — be an indispensable threshold question.
Biden's student loan forgiveness flagrantly fails it.
It's always a good sign that a president is exceeding his lawful authority if he spent a long time saying — or acting like — he knew he didn't have the authority in question. Initially, Biden wanted Congress to pass debt forgiveness — understandably. Congress controls the purse strings and created the student loan programs in the first place. Prior to the last few years, when an influential sub-set of progressives including Sen. Elizabeth Warren (D-Mass.) began pushing the idea, no one would have imagined that the president could wave a magic debt-forgiveness wand.
Just last year, House Speaker Nancy Pelosi poured scorn on this notion. "People think that 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."
"The President can't do it," she continued, quite categorically. "So that's not even a discussion."
Actually, the search for some whisper of a justification was on, and the Biden administration has purported to find one in the 2003 HEROES Act. That legislation gives the secretary of education the authority to waive or modify rules related to student financial assistance during a war or other military operation or national emergency. The secretary can act "as may be necessary to ensure that affected individuals are not placed in a worse position financially in relation to that financial assistance because of their status as affected individuals."
It is telling that when Congress passed this act nearly 20 years ago after the 9/11 attacks and George W. Bush signed it into law, no one thought Washington had created the predicate for a sweeping imposition of debt forgiveness by the executive branch. The act passed the Republican House 421-1 and the Republican Senate by unanimous consent, not the usual legislative path for measures allowing for a student-debt jubilee.
Who are the "affected individuals" under the HEROES Act? It is clear they are not supposed to be the entire population. As a summary of the legislation at Congress.gov notes, they are active-duty military personnel, National Guard troops, someone residing in a disaster area or someone who "suffered direct economic hardship as a direct result of a war or other military action or national emergency."
Congress was clearly seeking to hold harmless the Marine with student loans who might in the years ahead be spending significant time overseas in combat zones.
The war or national emergency that Biden is using as a justification for his forgiveness is the pandemic. There is no doubt that it has caused considerable hardship and disruption. It simply can't be true that everyone covered by the Biden program was a loser from the pandemic, though.
What with the cascade of spending from Washington amounting to trillions of dollars, including direct checks and supplemental unemployment benefits, some people were better off during the pandemic. And what about students whose parents worked as executives for the big winners during the pandemic, say, Moderna, Netflix or Zoom? Their families might have experienced windfalls.
If there's no effort to distinguish winners from losers, then there's no real effect to abide by the HEROEs act. Plus, the beneficiaries aren't being prevented from finding themselves in a worse position, as the text of the legislation states; they are affirmatively being put in a better position.
Furthermore, what justification is there under the HEROES act for having a completely arbitrary income cap of $125,000 for individuals and $250,000 for couples? Did no one making $125,001 suffer direct harm from the pandemic?
If the Biden forgiveness ever goes up to the Supreme Court, it would run afoul of the Court's admonition that Congress doesn't hide "elephants in mouseholes," or create massive changes via small, vague changes in the law.
According to the Biden team, an overwhelming bipartisan majority in Congress wrestled a bull elephant — executive authority to forgive all student debt — into the tiniest of spaces without anyone knowing or even noticing itself.
In sum, the legal justification for Biden's move is so brazenly pretextual that it might make even Saul Goodman blush.
Still, Biden's gamble here could succeed. There is real doubt that anyone could establish direct harm from the policy sufficient to have standing in court to challenge it. Even if a party did get standing, the Biden forgiveness will have served its political purpose if it survives through the midterms and, even better, through 2024.
Acting without obvious legal authority in the hopes that as a technical legal matter no one will be able to stop you isn't a good way to govern. President Biden should leave the sausage-making to Congress, where it properly belongs.
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