In a speech at Delaware State University on Friday, President Biden sounded positively exuberant as he announced he had prevailed by asserting unilateral power to cancel hundreds of billions of dollars in tuition loans. . He said “just yesterday a state court and the Supreme Court said, ‘No, we’re on Biden’s side.'”
some of us noted immediately that they were in fact federal judges and that they did not rule that he had that authority, but that the other parties in two cases lacked standing to challenge his authority.
Indeed, one such Biden “supporter” was Supreme Court Justice Amy Coney Barrett, who simply refused an emergency request to the court. If it seems unlikely that Barrett is now “on Biden’s side,” that’s because the claim is perfectly outlandish.
No one could interpret these rulings as even remotely supporting Biden’s claim to have virtually absolute authority to hand out an estimated $500 billion owed to the American people shortly before a critical midterm election.
Hours after Biden’s boast, the United States Court of Appeals for the Eighth Circuit enjoined the lower court. However, not even the Eighth Circuit will decide whether to “side with Biden,” only whether six states have the constitutional right to sue as a matter of legal status.
Even the trial judge said the merits of the challenge raised “substantial and significant” concerns about Biden overstepping his authority.
Overwhelming constitutional concerns are raised by this massive election year giveaway. Biden simply announced that he would forgive up to $10,000 in student loan debt for borrowers earning less than $125,000 a year; those who received Pell Grants could receive up to $20,000 in relief; couples may qualify despite joint annual income of $250,000. No congressional vote – just hundreds of billions of dollars canceled by Biden, as if he were an American czar.
The legal claim behind the law is obviously opportunistic. It is based on the HEROES (Higher Education Relief Opportunities for Students) Act of 2003. As its acronym suggests, this short bill was designed for service members who often found themselves behind in payment when serving in the stranger. It allows the Secretary of Education to provide student loan relief during a war, military operation, or national emergency. But nothing in the barely five-page law supports a sweeping and unprecedented waiver of billions of dollars in loans owed to the government.
Even for service members destined to benefit from this program, the law only authorized exemptions or modifications to ensure that they were not “placed in a more unfavorable financial situation with respect to this financial assistance because of their status. of persons concerned”.
In other words, neither the language of the law nor these courts are necessarily on “Biden’s side.”
Yet legal realities rarely seem to be a deterrent to this president. The Biden administration has racked up an impressive litany of court losses, including numerous rulings finding the administration engaged in racial discrimination or simply exceeded Biden’s constitutional authority.
Biden has been remarkably open in the past about treating unconstitutionality as a mere technicality when trying to spend federal funds. When Biden called on the Centers for Disease Control and Prevention (CDC) to impose a nationwide moratorium on tenant evictions, he admitted his White House attorney and their chosen legal advisers told him the decision was likely unconstitutional. .
Despite overwhelming expert opinion to the contrary, Biden suggested he could get as much money as possible before being banned by the courts. But the Supreme Court ruled 6-3 that the order was unconstitutional.
The tuition rebate program is based on the same cynical tactic. Indeed, the Justice Department’s Office of Legal Counsel had previously rejected its legal interpretation under the HEROES Act. So Biden’s Office of Legal Counsel issued a new opinion finding the opposite based on the COVID-19 pandemic — which was curious, since the Biden administration was right in court arguing that the pandemic was effectively completed, in order to allow undocumented migrants to enter. the country.
While the president’s legal arguments are weak, his administration is betting the legal capacity arguments will shield him from substantive scrutiny; meanwhile, the administration will rush to pardon billions before a court can arrest him.
As someone who has long argued for broader legal rules, this reckoning is particularly infuriating. It is arguably one of the costliest unconstitutional acts in history, but the administration apparently thinks no one will be able to establish legal status for a court to decide the case.
The president can then go public and declare – wrongly – that the federal courts “said, ‘No, we’re on Biden’s side'” in forgiving half a trillion dollars in loans.
The Eighth Circuit may well lift the injunction, and the legal status may shield a arguably unconstitutional program from judicial review — precisely the objection of those of us who are called “standing doves” in the search for permanent rules. wider. Although based on the Constitutional requirement of Article III that courts consider only “cases and controversies”, the current statute rules are the creation of federal courts by narrowly interpreting what constitutes harm for the purposes of legal status. The framers of the Constitution never intended unconstitutional acts to be immune from judicial review, in my view. Indeed, I once represented the United States House of Representatives and have long advocated for “membership” to allow, at a minimum, members of Congress to challenge unconstitutional acts.
There may be other challenges to Biden’s gift that may establish quality, or states may be able to prevail on the issue. However, again, we need to tackle the artificially narrow rules that prevent scrutiny in such cases.
The Framers would have been appalled by a president’s claim to have the authority to write off such a sum of money owed to the government. This is precisely the type of unilateral action they have sought to avoid through the system of checks and balances, including giving Congress the “power of the stock market.”
Now we see the literal cost of narrow permanent rules. It’s not the false claim that these justices are on ‘Biden’s side’ – the question instead becomes who is on the side of the Constitution if no court can rule on its alleged violation, even with hundreds of billions dollars at stake?
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.