Tuesday, the Supreme Court will hear oral arguments in Biden v. Nebraska and United States Department of Education v. Brown, which will look at whether President Joe Biden has the authority to cancel $430 billion in federal student-loan debt. Spoiler alert: He doesn’t.
The president made what constitutes one of the largest expenditures in American history—and the law makes clear that there is no significant legal distinction between waiving payments owed to the government and affirmatively spending the treasury’s money. The Constitution’s Appropriations Clause provides that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law."
Congress, in other words, has the power of the purse. As explained in an amicus brief filed with the Court by eleven experts with extensive experience in the federal government, including a retired court of appeals judge and two former attorneys general, "The power of the purse is the central and most important constitutional power reserved exclusively to the legislative branch, enabling it to oversee and control virtually every activity of the federal government."
This separation-of-powers principle traces back to the struggle of Parliament to take the power of the purse from the Crown, as a check on tyranny.
SUPREME COURT TO HEAR GOP STATE CHALLENGE TO PANDEMIC-RELATED BIDEN STUDENT LOAN RELIEF PLAN
In 2020, Congress authorized for several months the suspension of student loan payments in response to the COVID-19 pandemic. But then and later, it failed to pass legislation that would have broadly forgiven student-loan debt. Over eighty bills were introduced in the previous Congress alone addressing loan repayment and forgiveness, but they failed to pass. In 2021, then–Speaker of the House Nancy Pelosi expressed the widespread view of leaders that the president did not have "the power for debt forgiveness."
Regardless, Biden sought a pretext for unilateral debt forgiveness, and he turned to the HEROES Act for that purpose. That is a 2003 law passed in the wake of the September 11 terrorist attacks for the purpose of providing support to members of the military. A provision of the law addressed those directly affected by "a war or other military operation or national emergency."
By any intellectually honest view of context, the term "national emergency" contemplates aiding those who were burdened by military deployments. That there are over thirty times more student borrowers than there are active members of the armed forces illustrates how much Biden’s interpretation attempts to "hide elephants in mouseholes," something the Supreme Court has repeatedly warned against.
Layered onto his flimsy statutory pretext is Biden’s sheer arbitrariness in recognizing the existence of an emergency. The president declared the pandemic "over" in a television interview and presses for loan forgiveness, but at the same time, the administration holds that the pandemic no longer constitutes an emergency of sufficient scope to continue the immigration restrictions known as Title 42 orders.
Biden’s unilateral intrusion on the power of the purse must be stopped to prevent a major assault on the separation of powers. Fortunately, the Supreme Court has recognized and halted this administration’s power grabs in the past. In Alabama Association of Realtors v. Department of Health and Human Services (2021), the Court held the administration’s nationwide eviction moratorium to be unsupported by statute, and in National Federation of Independent Business v. Department of Labor (2022), it reached the same conclusion on the sweeping vaccination and testing requirements imposed by OSHA.
In both cases, the administration cited the pandemic as an excuse to flout the laws that bound it. It should be no more successful selling the Court on its argument in this case.
While it is difficult to predict what issues will most interest the justices in oral argument, the solicitor general, arguing for the administration, is likely to argue that the parties challenging the loan cancellation lack standing. Standing is a legal doctrine that limits who can sue to those who can show they suffered a particularized harm.
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The solicitor general has an uphill battle showing that the parties lack standing. Both appeals before the Court involve cases in which lower courts found standing. In Biden v. Nebraska, which involves a challenge by six states, the Eighth Circuit noted that the administration’s plan could incur significant financial harm on a state-controlled Missouri loan servicer that would in turn cause financial harm to the state. United States Department of Education v. Brown involves individuals with outstanding loans, one of whom is ineligible for relief under the administration’s plan because her loans were commercially held, the other because he did not receive a Pell grant.
Still, we can guess that the administration will make its biggest push on the standing issue, because on the substance, the president’s actions are widely recognized by those who believe in the rule of law as a brazen breach of constitutional constraints.
