- - Thursday, September 15, 2022

President Joe Biden’s plan to cancel student loan debt shows utter disregard for the laws that limit his powers. The plan is unconstitutional and should be determined as such by the courts.

In August, Mr. Biden announced his plan to cancel $10,000 in student loan debt for borrowers making less than $125,000. Pell Grant recipients who make less than $125,000 would be eligible for $20,000 in cancellation. For couples that file jointly, the income limit would be $250,000.

In an attempt to justify this plan on a legal basis, the White House cited the Higher Education Relief Opportunities for Students (HEROES) Act of 2003. This bill gives the Education Secretary the authority to grant student loan relief during a war, military operation, or national emergency.



Specifically, the Secretary is authorized to waive or modify student loans on behalf of those “who are affected individuals [to ensure that they] are not placed in a worse position financially in relation to that financial assistance because of their status as affected individuals.”

This bipartisan bill is six pages long and its findings make it painfully obvious that this assistance is intended for military personnel. In fact, all six of the sections that comprised Congress’s findings referenced the military. Specifically, those who were in active duty/service or transitioning out of active duty/service. Hence, those who would be “in a worse position financially in relation to that financial assistance” because they were, quite literally, overseas fighting a war.  

The White House has taken this provision and claimed that the COVID-19 pandemic, which has been declared a national emergency, allows broad cancellation of student loans for millions of Americans, regardless of whether they served in the military.

This is a dishonest interpretation of the bill, and the White House knows it. Of course, without the shameless misinterpretation of existing law granting the executive this authority, the president wouldn’t have any legs to stand on. The Property Clause and the Appropriation Clause of the Constitution give only Congress the authority to (1) dispose of and make all rules and regulations respecting property belonging to the United States and (2) appropriate funds from the Treasury.

Still, the 2003 HEROES Act is simply not a legal basis for broad loan cancellation: The bill never gave the executive this much leeway nor do student loan borrowers fit the definition of “affected individuals” under this law.

In Whitman v. American Trucking Associations Inc. (2001), Justice Scalia made clear that Congress does not hide major regulatory changes via vague changes in the law: “Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions — it does not, one might say, hide elephants in mouseholes.”

Suggesting that members of Congress in 2003 hid this sweeping executive power within a widely supported, bipartisan, military-friendly bill is precisely the kind of interpretation the Supreme Court has repeatedly rejected.

Further, the bill defines an “affected individual” as someone serving in active duty, serving in the National Guard, residing in a disaster area, or someone who “suffered direct economic hardship as a direct result of a war or other military operation or national emergency, as determined by the Secretary.” 

Certainly, there is no way to prove that each student loan borrower suffered “direct economic hardship” due to the pandemic. In fact, relative to most Americans, college graduates were quite comfortable during the pandemic.

At peak unemployment due to the pandemic – April 2020 – college graduates (bachelor’s degree or higher) had an unemployment rate of 8.4%. At the same time, high school graduates suffered a 17.6% unemployment rate and those who had not graduated high school suffered a 21.1% unemployment rate. By the end of 2021, the unemployment rate for those with college degrees had already dropped to 2.1%.  

If the White House intends to argue before the courts that this elite group of people as a whole – college graduates – suffered “direct economic hardship” during the pandemic, they will make fools of themselves.

The executive branch has no authority to forgive student loan debt in this broad of a manner. If Mr. Biden refuses to stay true to his oath to preserve and defend the Constitution, then he must be held accountable by the courts. 

• Isabelle Morales is Policy Communications Specialist at Americans for Tax Reform.

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