President Joe Biden announced the program on Aug. 24, and it was always seen as a way to drive turnout among younger, educated voters, but with the program on ice, perhaps permanently, some cynicism has developed among those who stood to benefit.
“They used the promise of student debt cancellation to induce young voter turn out — knowing it wasn’t going anywhere bc they relied on faulty legal authority,” former Bernie Sanders spokeswoman Briahna Joy Gray wrote in a tweet. “Hard to convince me the Biden admin didn’t do this intentionally.”
Biden spoke about student loan “forgiveness” during his 2020 presidential campaign but insisted for his first 18 months in office that Congress needed to act first. That began to change in mid-2022, and by the fall, the White House had announced $10,000 of student debt per borrower would be transferred to taxpayers for anyone earning less than $125,000 and $20,000 for those who received Pell Grants.
The total cost of the program was estimated to cost between $400 billion and $1 trillion, depending on a range of variables. Because the Constitution says that Congress has power of the purse, a flurry of lawsuits soon materialized.
The Education Department made changes to the program on the fly in an attempt to prevent plaintiffs from having standing and continued accepting millions of applications even after the program was paused.
It was finally blocked last Thursday by a Texas judge in response to a lawsuit from the conservative advocacy group Job Creators Network. The 8th U.S. Circuit Court of Appeals also blocked the program on Monday in response to a different lawsuit led by six GOP-led states.
The White House has appealed the Texas ruling and released the following statement in response to the second.
“We are confident in our legal authority for the student debt relief program and believe it is necessary to help borrowers most in need as they recover from the pandemic,” read the statement from press secretary Karine Jean-Pierre. “The administration will continue to fight these baseless lawsuits by Republican officials and special interests and will never stop fighting to support working and middle class Americans.”
But the move follows a pattern that has become familiar in the Biden White House — implementing progressive policies via executive order only to see them struck down in court.
The first time this occurred was with Biden’s extending the eviction moratorium, which the president openly admitted was probably illegal. The same thing happened with the employer vaccine mandate, federal mask mandate, Title 42 southern border expulsion policy, and now Biden’s student loan policy.
“At some point, he needs to stay in his lane,” said Karen Harned, chief legal officer of the Job Creators Network Foundation Legal Action Fund. “Biden took an oath to uphold the Constitution, so trying to find creative ways to shoehorn his policies by going around Congress is not the answer. The Supreme Court has been very clear on that, and I feel that they’ll continue to reject these attempts. I just wish he’d stop trying to do it.”
Some legal observers have raised questions about Biden’s legal strategy with student loan forgiveness. Specifically, the president could have used the Higher Education Act of 1965, which empowers the secretary of education to “enforce, pay, compromise, waive, or release any right, title, claim, lien, or demand, however acquired, including any equity or any right of redemption.”
Instead, the White House used the HEROES Act of 2003, a 9/11-era bill designed to prevent military service members from suffering financial hardship if they went to war.
Fordham University law professor Jed Shugerman made this argument recently, predicting the Biden administration could lose 9-0 if the HEROES Act-based program reaches the Supreme Court.
Biden aggressively promoted student loan forgiveness in the final weeks of the midterm elections, releasing a “by the numbers” sheet lashing out at the GOP and delivering a speech on the topic in New Mexico.
“It’s temporarily on hold — why?” Biden said at the time. “Because Republican members of the Congress and Republican governors are doing everything they can, including taking us to court, to deny relief even to their own constituents.”
As some voters worry that they’ve been betrayed by the White House with faulty promises, Shugerman argues it’s not too late to try a different tactic.
“How about trying one more time while there is still a Dem Congress to fix this legal mess with a Student Debt Relief Act,” he tweeted, “instead of executive orders that will lose?