The cost of higher education and the burden on student borrowers are serious. But the Constitution reserves public policy choices of that magnitude to Congress.
The Supreme Court has dealt the coup de grace to the Biden Administration’s student loan forgiveness program. Consistent with the Court’s emphasis on the Constitution’s separation of powers, the Court ruled that Congress had not granted Biden the legal authority to forgive debt amounting to perhaps $980 billion over 10 years. The Administration has repeatedly tried to short-circuit the legislative process by issuing major policy initiatives with scarcely a nod to Congress. The Roberts Court has rightly stymied its unconstitutional power grab again.
Candidate Biden pledged in 2020 to cancel at least $10,000 in federal student loan debt for each borrower. In August 2022, he announced a plan that would forgive as much as $20,000 in loans for low-income Pell Grant recipients and $10,000 for all other eligible borrowers. (Eligibility was capped by the borrower’s income level.) The overall cost of Biden’s program is estimated to be between $300 and $980 billion—a massive impact on the economy.
The soaring cost of higher education, and the burden on student borrowers (student debt is estimated at $1.75 trillion) are serious problems. But the Constitution reserves public policy choices of that magnitude to Congress. The President cannot make an end run around this process, however urgent the need for action is.
Instead, Biden’s Education Department relied on a provision of the “HEROES Act,” a 2003 law passed during the Iraq War. In the event of a national emergency, it allows the government to freeze, temporarily, the student loans of soldiers and their families. The law explicitly allows DoE to waive or modify student loan regulations, but only so as to ensure that service members and their families would not suffer financially because of a deployment.
Biden’s DoE found such an “emergency” ready to hand in August 2022, in the waning COVID-19 pandemic, even though Biden announced only weeks later that the pandemic was over. Both the Trump and Biden administrations had relied on the HEROES Act to temporarily suspend student debt payments, interest accruals, and collections.
