As expected, the Supreme Court ruled on Friday that President Biden doesn’t have the constitutional authority to “forgive” $430 billion in student loan debt. The decision, written by Chief Justice Roberts, drove the point home by quoting former House Speaker Nancy Pelosi’s 2021 statement regarding Biden’s power to do so without the consent of Congress: “People think that the President of the United States has the power for debt forgiveness. He does not.” Yet, Biden defiantly insisted Friday afternoon that the Court’s decision was wrong and that he plans to keep pushing for his massive giveaway scheme under the aegis of the Higher Education Act (HEA).
It’s likely that U.S. Solicitor Gen. Elizabeth Prelogar responded to this announcement with a head palm. The task of defending Biden’s latest brainstorm before SCOTUS will fall to her, and she knows the HEA approach has already been rejected once by the administration in order to pursue the Heroes Act strategy just struck down by the Court. If Biden were capable of learning from experience, he would stop using Executive Branch agencies like the Education Department to execute end runs around Congress. Every time he attempts to do so, it produces legal challenges, ends up before the Court, and runs afoul of the “major questions doctrine.” Legal scholars John Yoo and Robert Delahunty explain in Newsweek:
The major questions doctrine derives from the Constitution’s separation of powers. Under the Constitution, Congress, not the executive, has the responsibility for making major decisions of domestic policy. Congress can delegate some of those powers to executive agencies, but when it does, it must at least give the agencies intelligible standards to follow. The major questions doctrine does not directly limit Congress’ ability to delegate, but it requires that Congress make a “clear statement” of its intention to delegate significant, controversial policy judgments to those agencies. The doctrine presumes that Congress wishes to retain control over such matters.
The major questions doctrine was the guiding principle used by the Supreme Court to overturn the eviction ban declared by the Centers for Disease Control and Prevention (CDC) in 2021. It was also invoked by the Court in 2022 when it struck down the COVID-19 vaccination-or-testing mandate for large businesses issued by the Occupational Safety and Health Administration (OSHA). The major questions doctrine was again cited by SCOTUS in 2022 when it reined in the Environmental Protection Agency (EPA) in West Virginia v. EPA and did so again a year later in its ruling in Sackett v. EPA. Nonetheless, Biden’s Friday remarks suggest he has failed to discern any pattern in his long list of Supreme Court losses.
“People think that the President of the United States has the power for debt forgiveness. He does not.”
Nor does he acknowledge his own role in creating the student debt “crisis.” As a U.S. Senator for Delaware, Biden supported the Middle Income Student Assistance Act, which dramatically expanded the pool of eligible borrowers. He later backed the Parent Loan for Undergraduate Students and Auxiliary Loans to Assist Students programs, both of which further expanded eligibility. Then, having played such a crucial role in luring students into debt, Biden supported a bill that made it all but impossible for them to escape the trap via bankruptcy. Most notably, he voted for the 2005 Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA). As GQ reported during Biden’s nascent 2020 presidential campaign:
Biden’s camp claims now that BAPCPA was an effort to get some concessions out of a Republican bill that would have been a bigger disaster without his intervention. But to his critics, there were red flags. For example, one of the biggest credit card companies in Delaware, MBNA, hired Joe Biden’s son Hunter in 1996. Even after Hunter became a federal lobbyist in 2001, he stayed on at MBNA as a consultant at a fee of $100,000 per year, meaning he was pulling in a six-figure salary at the same time his father was pushing for the industry’s top priorities.
The reader will no doubt be shocked to find that Hunter Biden had already joined the “family business” by 1996, not long after he graduated from law school. More to the point, the elder Biden was instrumental in passing legislation that incentivized students and their parents to go deeply into debt to pay for college, and made a bad policy worse by rendering it extremely difficult to escape the resultant financial burden. This, in turn, encouraged lending practices that led to the “crisis” that Biden now blames on the GOP. Friday afternoon he accused Republican officials of “literally snatching from the hands of millions of Americans thousands of dollars in student debt relief that was about to change their lives.”
He followed this nonsense with a pledge to use the HEA to provide student debt relief, and claimed, “This new path is legally sound.” In reality, serious legal scholars such as George Mason University’s Ilya Somin have their doubts: “If the major questions doctrine applies anywhere, it surely does here.” In other words, SCOTUS will probably strike down the HEA gambit for the same reason it rejected the Heroes Act scheme. As former House Speaker Pelosi said, only Congress has the power to do this and bipartisan majorities of both houses have already said NO. That won’t stop Biden from beating this debt horse, however. Some voters still believe the old nag will get up and stagger across the finish line.
