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Ever since the Supreme Court ruled last year that President Biden had no authority to unilaterally write off $430 billion in student loans, he and his aides have been crowing that they intended to do it anyway.
Within hours of the court's decision, Biden truculently told reporters that the court was wrong. He declared he would "stop at nothing to find other ways" to get what he wanted. Soon the administration began generating fresh schemes to cancel student debt — or, more accurately, to transfer that debt to taxpayers. In February, announcing his intention to relieve an additional 153,000 borrowers of the obligation to pay back what they owe, Biden again stressed that he would not comply with the court's mandate. "The Supreme Court blocked it, but that didn't stop me," he boasted on Feb. 21.
Last Monday came another White House move to wipe out student loans — this time absolving some 30 million individuals of their liabilities. Once more there was an explicit assertion of resistance to the court's decision. "When the Supreme Court struck down the president's boldest student debt relief plan," Education Secretary Miguel Cardona proclaimed, "within hours we said: 'We won't be deterred.'"
It is hard to overstate how radical it is for a president to behave in this way. Biden is hardly the first president to order a highly controversial change in public policy or to unilaterally assert some other power never approved by Congress, only to be told by the Supreme Court that his action was unlawful. For more than two centuries, presidents have conceded that the court is the final arbiter in any legal dispute and obeyed its decision, even when they desperately wished it had gone the other way.
Contrast Biden's defiance with how one of his Democratic predecessors reacted to a bitterly disappointing Supreme Court decision.
As the Korean War was raging in the spring of 1952, the United Steel Workers called a nationwide strike. President Harry Truman sympathized with the union members, who had not received a raise since 1950. But 325,000 US troops were fighting in Korea, and Truman knew that a halt in steel production would cripple the nation's war effort. In a nationwide address on April 8, the night before the strike was to begin, the president warned of "grave danger" if work stopped.
"Steel is our key industry," he said. "It is vital to the defense effort. It is vital to peace."
As president, he argued, "I would not be living up to my oath of office if I failed to do whatever is required . . . to prevent a shutdown and to keep steel production rolling." Invoking his inherent powers as commander-in-chief, he ordered a government takeover of the steel plants.
Attorneys for the industry promptly sued the government. A federal district judge ruled that the president's actions were unlawful. The Supreme Court agreed to hear an appeal. On June 2, by a 6-3 majority, the justices pronounced Truman's action unlawful. "The President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself," wrote Justice Hugo Black. "There is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress . . . from which such a power can be fairly implied."
Truman was stricken by the decision, but he knew what he must do. He at once relinquished control of the steel mills to the companies. Production ground to a halt as workers walked off the job. A few days later, Truman went to Capitol Hill and implored Congress to pass legislation "authorizing the government to take over the steel plants and to operate them temporarily." But the House and Senate declined to act, and the strike dragged on for seven weeks. Military production had to be slashed by one-third. It was a grievous setback for Truman. But he bowed before the authority of the law and made no move to defy the court.
Other presidents have done likewise.
When the Supreme Court ruled in 1974 that Richard Nixon had to surrender the tapes of his Oval Office conversations to the Watergate special prosecutor, the president abandoned his claim of executive privilege and turned over the recordings. When the high court shot down George W. Bush's plan to try Guantanamo Bay detainees in special military commissions, he accepted its decision that the commissions were unlawful. Franklin D. Roosevelt accepted the demise of the National Recovery Administration — a key component of the New Deal — after the Supreme Court ruled it unconstitutional in 1935. Roosevelt was furious and later launched an unsuccessful campaign to "pack" the court with more supportive justices, but he never attempted to keep the agency alive in the face of the court's holding.
Reasonable minds can debate whether a massive cancellation of student loan debt is a sound idea or a reckless and unfair one. But the merits of debt forgiveness are unrelated to a president's constitutional duty to "take Care that the Laws be faithfully executed." A president who thumbs his nose at the Supreme Court is not faithfully executing the law of the land — he is undermining it.
A close reading of Biden's latest plan suggests that he doesn't expect it to survive. Several times it uses caveats such as "if the plan is finalized as proposed." At the earliest, it wouldn't take effect until a year from July — and that doesn't account for the lawsuits that have already been filed to block it. National Review pointed out that "while the announcement contained no cost estimate, it did contain travel plans for the president, vice president, second gentleman, and secretary of education to make appearances promoting the proposals." The administration seems more concerned with pandering to a key voter bloc during an election year than with actually trying to make 30 million unpaid loans vanish.
Either way, Biden's open snub of the Supreme Court is pushing the rule of lawlessness to a dangerous new level. As he campaigns against Trump in this year's election, the president keeps warning that America's democratic values are in jeopardy. He's right. But as his refusal to abide by an unambiguous decision of the nation's highest court shows, his opponent isn't the only candidate jeopardizing them.
Jeff Jacoby is a columnist for The Boston Globe, from which this is reprinted with permission."