by Mitch Kokai
Senior Political Analyst, John Locke Foundation
The president’s abuse of “emergency” wartime powers passed in the 2002 HEROES Act is nothing less than lawless royalism. It continues his effort to use the Covid emergency to assert unprecedented powers, such as the capacity to order the compulsory vaccination of the nation’s workers and to prohibit the eviction of apartment tenants for nonpayment of rent.
At least vaccination is a Covid-specific policy, and the eviction moratorium was never designed to last forever. By contrast, student-loan-debt forgiveness was a preexisting policy demand of progressives before the pandemic, its effect would be to eliminate existing debts permanently, and it was issued at a time when Biden himself was assuring the nation that the pandemic was over and the economy was in full recovery.
If the Court cannot stop the president from raiding the Treasury to buy votes and reward friends on the most implausible of legal pretexts, what is it for? A majority of the Court appears to recognize that the HEROES Act does not grant the power in question — a reality that even Nancy Pelosi acknowledged until it became clear that Biden intended to act when he could not get such a plan through Congress.
The statute says that the secretary of education can “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs” when “necessary in connection with a war or other military operation or national emergency.” Chief Justice John Roberts set the tone for the argument by noting that Justice Antonin Scalia once observed that “modified in our view connotes moderate change. He said it might be good English to say that the French Revolution modified the status of the French nobility, but only because there’s a figure of speech called understatement and a literary device known as sarcasm.”