Will Loan Forgiveness Survive?

I’m betting that Pres. Joe Biden’s plan to forgive up to $20,000 in student loan debt won’t happen. Here’s why.

For starters it will take awhile for the bureaucratic machinery to be put in place. All kinds of detailed questions need to be worked out and processes, decision-making standards and appeal mechanisms need to be established. This is no small undertaking.

That gives time for conservative law firms, like Wisconsin’s WILL, and other organizations, like the Job Creators Network, to examine the law behind Biden’s move and plot their legal strategy.

“This executive overreach transfers taxpayer dollars from hardworking ordinary Americans and small businesses to disproportionately higher earners with college degrees,” said Alfredo Ortiz, president and CEO of Job Creators Network. “It does nothing to address the underlying issue of outrageous college costs. Indeed, it rewards colleges for making education unaffordable and entrenches the failing status quo.”

Ortiz is right on the policy, but could he also be right on the law?

There’s a strong case to be made that the President didn’t have the authority to forgive student debt.

It’s a close call, legally, though not from a common sense perspective. From that perspective it’s just a slam dunk that the President didn’t have the authority to do what he did.

Biden is hanging his hat (and your tax dollars) on the HEROES Act. That 2003 legislation, enacted while the country was deeply engaged in wars in both Afghanistan and Iraq, gave the president broad discretion to discharge debt in times of national emergency.

Two things about that. First, the act was clearly directed at veterans, enabling the president to forgive loans of those who served their country, though it may not have been explicit enough on that point. And second, we are not currently in any sort of national emergency that the average American would perceive, though legally Donald Trump’s 2020 declaration of such because of COVID is still in effect.

So, what makes this a close call is a narrow reading of the law, but on any basis of simple common sense this President does not have the authority to forgive debts of non-veterans during times that can’t legitimately be characterized as a national emergency.

The real question is whether courts can find their way to that common sense conclusion. Maybe. This Supreme Court, in a case regarding green house gas regulations, found that an administration cannot make sweeping new policy through regulations that are not expressly authorized by Congress. A president can’t drive a Mack truck over a footbridge, which is exactly what Biden is trying to do here.

Student loan forgiveness is a divisive question that Congress should wrestle with. Presidents should not have the authority to relinquish debt — and put taxpayers on the hook for it — with just a stroke of the pen. Clearly, this isn’t what Congress intended back in 2003. Let’s hope the courts understand that as well and restore some common sense here.

And to make matters worse… the White House didn’t even have an estimate on what this will cost taxpayers. They said later that it would cost at least $24 billion if only 75% of eligible borrowers took advantage of the forgiveness, but why on earth would one out of four people who had $10,000 or $20,000 coming their way fail to apply for it? A cynical person might answer that’s because they were careless enough with money to take out a loan they couldn’t afford to pay back in the first place. But we are not cynical here at YSDA.

Want to read more curiously conservative views from a liberal? Pick up a copy of Light Blue: How center-left moderates can build an enduring Democratic majority.

Published by dave cieslewicz

Madison/Upper Peninsula based writer. Mayor of Madison, WI from 2003 to 2011.

8 thoughts on “Will Loan Forgiveness Survive?

  1. I don’t think there will be legal challenges until after the midterms. Biden served up a big softball…oblige him and then tear it to shreds later.

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      1. Maybe. But three reasons they might go to court sooner: 1) There might be legal reasons to seek an injunction before this goes too far; 2) Conservative law firms have their own motivations (first among them, publicity) that might not mesh with a broader political strategy and 3) There may be pressure form their base for Republicans to be seen as doing something.

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      2. Polls show the plan is narrowly favorably viewed by the public. This continues to fade as an issue and will dwindle down to nothing. I don’t like this executive over reach but the solution is legislatures acting to pull back power. The current SCOTUS loves exceutive power and plain reading of laws.

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  2. SFGATE 8/27/2022–Nancy Pelosi was asked (July 2021) about Biden’s “power” to forgive student debt:

    “He can postpone, he can delay, but he does not have that power […] THAT HAS TO BE AN ACT OF CONGRESS.” (bolds/caps/italics added)

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