by Mitch Kokai
Senior Political Analyst, John Locke Foundation
As the Biden administration drops hints that it may move to cancel student loan debt with or without Congress, questions about Biden’s legal authority to do so have arisen.
President Joe Biden promised to address student loan debt on the 2020 campaign trail, but in office, he has mostly said he’s waiting on Congress to act first. Though that stance seems to have shifted in recent weeks, experts are divided on whether or not Biden can legally shift student loan debt via executive order.
“It’s a simple question, and the answer is no,” said GianCarlo Canaparo, a senior legal fellow at the conservative Heritage Foundation. “Congress hasn’t taken the first step, which is to give him the power to do this with respect to student loans generally.”
Persis Yu, policy director and managing counsel at the Student Borrower Protection Center, has a different take.
“Yes, absolutely, Biden has the legal authority under the Higher Education Act to grant widespread debt cancellation,” said Yu. “We don’t need to go through Congress. [Executive action] is the fastest and simplest way to get relief to the borrowers that need it.”
The background and laws concerning the question are complex, but both Yu and Canaparo cite language in the Higher Education Act of 1965 to back their arguments. Buried deep in the text of the act is language empowering the Secretary of Education to “enforce, pay, compromise, waive, or release any right, title, claim, lien, or demand, however acquired, including any equity or any right of redemption.”
Each interprets the wording as supporting their cause, with Yu pointing out that this text has been relied on to allow the current student loan pause, with full cancellation just a further extension of that authority. Canaparo argues the authority does not extend to canceling student loans generally.