by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Joe Biden’s order spending half a trillion dollars to forgive student debts without a congressional appropriation finally got its day in court, despite frantic efforts by the administration to evade judicial review by repeatedly changing the rules to try to deprive anyone of standing to sue in federal court. The Supreme Court heard argument today on two challenges to the edict. The first session covered Biden v. Nebraska, which is the more direct of the two challenges because state entities are claiming losses from their roles as holders and servicers of loans, whereas the second set of challengers, in Department of Education v. Brown, are people left out of the program who claim that they were injured by the failure to follow proper administrative procedures.
The initial signs are ominous for the Biden administration, whose only real chance of surviving these cases is to persuade the Court that none of these challengers have standing to sue. As to the question of the legality of the program, the post-9/11 HEROES Act — the theoretical basis for Biden’s emergency order — gives the secretary of education the power to “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.” (Emphasis added.) By contrast, various specific programs under the Higher Education Act statutorily authorize the secretary of education to “cancel” student loans. Nebraska’s solicitor general, representing the challengers, noted, among other things, not only that “waive or modify” is a more limited grant of power but also that waiving or modifying provisions is narrower than waiving or modifying the existence of the loans themselves. Under that reading, the executive branch has the power to do things such as pause payments or waive requirements for qualifying for particular programs — for example, allowing a borrower to qualify for having spent a certain number of years as a teacher without those having been consecutive years if the teaching service was interrupted by a military emergency.