Biden’s Back Door Strategies

How much power do you want a president to have?

Pres. Joe Biden knows that there are some things he just can’t get by Congress. So, like most presidents, he’s trying to get them done by executive fiat.

His first end-around is forgiving student debt. The Supreme Court, correctly, I believe, struck down his attempt to write off $430 billion in loans with the stroke of a pen. A couple weeks before the Court ruling, Biden needed to veto a bipartisan bill that passed both houses of Congress opposing this plan. That demonstrated that Congress, which is supposed to have the power of the purse, would not have approved what Biden wanted to do had he simply gone to them and asked. Now, unfortunately, he’s trying a new set of back door schemes. Let’s hope the Court knocks those down as well.

Biden’s second set of back door strategies involves reparations. That’s a highly controversial and unpopular idea that wouldn’t have a prayer in Congress if it were presented to them straight up. Because Biden knows that, he’s tried to sneak it in through the fine print in other legislation. So, for example, his $1.9 trillion COVID relief bill contained provisions forgiving the debts of only Black farmers and giving first priority for government help to women and Black owned restaurants. That would have had the effect of limiting the assistance to those groups since the money would have run out once they claimed their share. Both proposals were shot down by the courts (though neither got to the Supreme Court) for being obviously discriminatory. The Black farmer federal loan forgiveness program was especially ludicrous as its stated purpose was to make up for past discrimination that made it hard for Black farmers to get loans. So the program targeted Black farmers who did get loans — the very people who were not discriminated against.

These things are unpopular in Congress because they’re not all that popular with the American people. The public is split right down the middle on student debt forgiveness while, not surprisingly, almost 70% are opposed to reparations.

This Court has established a sensible and valuable rule called the major questions doctrine. The basic idea is that a president can’t do an end run around Congress using an authority that the other branch clearly had no intention of granting. As the Court put it, “Congress doesn’t hide elephants in mouse holes.” Liberals who don’t like this when it’s applied to student loans should consider how they’ll feel about it if President DeSantis tries to hide a conservative elephant in one of those mouse holes.

And, as a political matter, the courts are probably saving Biden from himself. If he had been successful in writing off student debt or in providing reparations, and those became major issues in the next election, it would have helped him only with people who were already going to vote for him anyway, while it would have hurt him with the voting public at large. Moreover, I doubt that the failure of these attempts will dampen enthusiasm for Biden with college grads, women or people of color. They never had any enthusiasm for him anyway. They”ll show up to vote against Trump or anybody else the GOP has on offer. They’re not voting for Biden; they’re voting against the other guys.

And if you step back and look at the big picture, it adds up to the conclusion that our system is working. A president’s power should be held in check and that’s what this Court is doing. There is no overwhelming public support for student debt forgiveness and so it isn’t happening — at least not yet on the mass scale that Biden wanted. There is overwhelmingly public opposition to reparations and reparations have been blocked. There is strong public support for pre-viability abortion rights and, while the Court struck down a constitutional right to it, the rest of our system — elections — are working to restore it in places where it has been lost, and pretty much everywhere voters are punishing the party that is on the wrong side of that issue.

In fact, if Biden should want to do anything between now and the 2024 elections it should be to keep the focus on abortion, not on these other unpopular positions.

To be clear, I’m not necessarily picking on Biden here. All presidents try this stuff and, when what they’re attempting has strong popular support and Congress is just being recalcitrant, it can be a valuable exercise, a way of providing relief to pressure for a popular cause. But that’s not the case with student debt or reparations. Biden’s back door is being slammed shut by the courts and that’s a good thing.

If you’re a liberal and you don’t like it now, just wait until the same door gets slammed on the next Republican president.