Today’s entry: @brianmuddradio Higher Education Relief Opportunities for Students Act allows the Secretary of Education the “authority to reduce or eliminate the obligation to repay the principal balance”.
Bottom Line: Last week I covered why President Biden can’t just cancel student loan debt with a pen stroke. That included the Q&A I entitled: Why President Biden Can’t Cancel Student Loan Debt. In that story I specifically highlighted this: Article I, Section 8, Clause 1:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States
Right, so it explicitly states that The Congress shall have the power to pay the Debts... Not the Executive branch, the Congress.
Now, in response to my declarative statement that President Biden doesn’t retain the authority to carry out the plan that he articulated, multiple listeners sent me laws the administration is attempting to use to get this done. The one cited in today’s Q&A, The Higher Education Relief Opportunities for Students Act, is in fact the law the administration is attempting to use to get this done. Last week, Education Secretary Miguel Cardona issued a directive with the Subject line: The Secretary’s Legal Authority for Debt Cancellation. In that memorandum it states: For the past year and a half, the Office of General Counsel (“OGC”), in consultation with our colleagues at the Department of Justice Office of Legal Counsel, has conducted a review of the Secretary’s legal authority to cancel student debt on a categorical basis. This review has included assessing the analysis outlined in a publicly disseminated January 2021 memorandum signed by a former Principal Deputy General Counsel. As detailed below, we have determined that the Higher Education Relief Opportunities for Students (“HEROES”) Act of 2003 grants the Secretary authority that could be used to effectuate a program of targeted loan cancellation directed at addressing the financial harms of the COVID-19 pandemic.
Well, it’s interesting that Secretary Cardona states they’ve been looking at attempting to use the 2003 Heroes Act as a means of canceling student loan debt for about as long as they’ve been in office and second that they just miraculously made a determination that they’re able to use it. That memorandum came on the same day in which the Merrick Garland led Justice Department issued a 23-page explanation as to how and why the Heros Act could be legally applied to the current student loan debt cancellation plan. The summation of the DOJ: We conclude that the Secretary can exercise the waiver or modification authority granted by the HEROES Act of 2003 to reduce or cancel the principal balances of student loans, provided the Secretary deems the reduction or cancellation necessary to ensure that affected individuals are not placed in a worse position financially in relation to their financial assistance because of their status as affected individuals. We further conclude that reducing or canceling the Use of the HEROES Act of 2003 to Cancel the Principal Amounts of Student Loans 25 principal balances of student loans, including for a broad class of borrowers who the Secretary determines suffered financial harm because of COVID-19, could be a permissible response to the COVID-19 pandemic.
Now, there’s only one problem with all of this. It was never a question as to if Biden appointed officials would attempt to find excuses to try to pull off his plan. It’s a matter as to if its constitutional. Which as mentioned previously is not. And in fact, what they’re asserting isn’t just unconstitutional, it’s extraordinarily offensive to those with whom the act was passed. The 2003 law was passed as stated in the law for these reasons:
The Congress finds the following:
(1) There is no more important cause than that of our
(2) The United States will protect the freedom and secure
the safety of its citizens.
(3) The United States military is the finest in the world
and its personnel are determined to lead the world in pursuit of
(4) Hundreds of thousands of Army, Air Force, Marine Corps,
Navy, and Coast Guard reservists and members of the National
Guard have been called to active duty or active service.
(5) The men and women of the United States military put
their lives on hold, leave their families, jobs, and
postsecondary education in order to serve their country and do
so with distinction.
(6) There is no more important cause for this Congress than
to support the members of the United States military and provide
assistance with their transition into and out of active duty and
Right, so what the law authorized was the modification of student loan responsibilities for members of the military who were called to active duty and deployed as part of the war on terror which Congress authorized. The meat of the law that was cited by the Biden administration's DOJ and Education Secretary was this:
Waivers and Modifications.--
(1) In general.--Notwithstanding any other provision of law,
unless enacted with specific reference to this section, the
Secretary of Education (referred to in this Act as the
``Secretary'') may waive or modify any statutory or regulatory
provision applicable to the student financial assistance
programs under title IV of the Act as the Secretary deems
necessary in connection with a war or other military operation
or national emergency to provide the waivers or modifications
authorized by paragraph
It’s the ...as the Secretary deems necessary in connection with a war or other military operation or national emergency. What the administration is citing is that the pandemic is a national emergency, and the Education Secretary has deemed hundreds of billions of dollars' worth of student loans for those who didn’t serve this country or have even experienced a hardship should be paid for by the rest of the American tax paying public. It’s truly unconscionable, but again, it’s also not legal and it stands zero chance of surviving legal challenges.
The only thing more absurd that suggesting the President of the United States can simply spend hundreds of billions of your dollars without authorization of Congress is for the Education Secretary to do so. It’s clear that the intent of the law was for service men and women sacrificing for the country during a time of war. What’s more, the current Supreme Court has time and again refused to allow the pandemic to be used to assert broad executive authority to exceed traditional checks and balances. This has been noted by many legal experts including a sympathetic law professor at Boston University Jed Shugerman – who supports the Biden plan. Quoting Shugerman:
- It’s a loser argument with the Roberts US Supreme Court. The Roberts court has already indicated in three different decisions that it has a different approach to major questions and that it’s skeptical of COVID being invoked in a broad way to achieve policy goals.
- The problem with the HEROES Act of 2003 is it is clearly about 9/11 context. Even if it says emergencies might be broader than 9/11, the Roberts court will see COVID as a stretch.
Bingo. Yes, it’s correct that the Biden administration is attempting to do this. As I mentioned last week, it stands zero chance of becoming reality. And here’s one more by Shugerman that’s worth a mention for all of the leftists rooting for this thing:
As a progressive who was deeply disturbed by the Trump administration’s abuse of power and executive power and invoking emergency powers, like building a wall, it seems too convenient now for progressives to embrace emergency power references by a new president, when we were so troubled a few years ago. What’s good for the goose is good for the gander. We should be tired of the use of emergency powers.
That’s a dose of intellectual honesty that’s far too often lacking in today’s society. And there’s zero doubt it’s the logic which will be used by the Judiciary to stop this attempted abuse of power from happening.
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