Student Loans

Biden Inadvertently Declares His Student Loan Forgiveness Program Illegal

If the pandemic is over, then how is the supposed emergency move justified?

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President Joe Biden | Kyle Mazza/ZUMAPRESS/Newscom
(Kyle Mazza/ZUMAPRESS/Newscom)

In the summer of 2021, Democratic Speaker of the House Nancy Pelosi offered the following response when asked about the president's power to unilaterally cancel student loan debt. "The president can't do it—so that's not even a discussion," she said. The president can delay repayment, as happened following the COVID-19 pandemic, she added, but, "it would take an act of Congress, not an executive order, to cancel student loan debt." That would seem to be that. 

Yet roughly a year later, President Joe Biden did cancel up to $20,000 worth of student loan debt for most borrowers, and, in direct contradiction to Pelosi's pronouncement, he did it entirely via the executive branch. There was no act of Congress. 

How exactly was this legal? What, exactly, gave the president authority to unilaterally cancel student debt? 

The answer, it turned out, was the pandemic. As Reason's Damon Root wrote in August, when Biden announced his debt cancellation plan last month, administration lawyers cited the Higher Education Relief Opportunities for Students, or HEROES Act, of 2003, a post 9/11 law that "permits the Secretary of Education to waive or modify Federal student financial assistance program requirements to help students and their families or academic institutions affected by a war, other military operation, or national emergency." 

The law was clearly intended as a vehicle to give the president the power to forgive student loan debt for individuals directly involved in fighting the war on terror. But in Biden's revisionist citation, it became an all-purpose tool for mass debt forgiveness via executive action, premised on the argument that the COVID-19 pandemic was an ongoing national emergency. 

The pandemic, in this formulation, gave Biden extraordinary powers—powers that under normal circumstances the president would not have. 

It was an inherently dubious justification, given the novel and expansive reading of the HEROES Act. But Biden completely undercut it on a 60 Minutes interview this weekend when he declared, flatly, that "the pandemic is over." 

If the pandemic is over, then there is no ongoing national emergency, which means that the already shaky legal ground on which the Biden administration based its action has now collapsed entirely. 

What's more, the administration had previously acknowledged that it lacked the legal standing to enact policy based on a pandemic emergency.

In a post flagging the legal implications of Biden's inconsistency, National Review's Charles Cooke notes that "in May, the Biden administration (correctly) reported that it was obliged to end the use of Title 42 of the 1944 Public Health Services Act at the border because the Covid-19 emergency had passed." The administration, in other words, had already concluded that the pandemic was no longer an emergency that justified extraordinary action months prior to the student loan forgiveness announcement. But that, of course, was a policy the Biden administration wanted to end. For legal purposes, the Biden administration's position was that the pandemic was over when it needed to be over, but ongoing when it needed to be ongoing. 

The Biden administration's legal ground for canceling student debt via executive action was already poorly rationalized nonsense ginned up to enact a blatantly illegal policy that served as an expensive giveaway to Biden's voters. Biden's 60 Minutes interview shows that he cannot even be bothered to keep his shoddy story straight.