Leaving aside the sensibility of cancelling willfully agreed to student debt for college, you may have wondered how the President can constitutionally change spending/revenue without Congressional approval. Of all the lessons learned in secondary school, most of us remember that Congress, not the executive, was given the power of the purse by the Constitution.
The answer, of course, is that he cannot unless Congress had previously granted him that authority. In this case, the administration has corruptly misconstrued the obvious intent of a law that was passed originally in 2002, H.R. 1412, the Higher Education Relief Opportunities for Students Act (HEROES Act). Much research into the origin of his justification was not required because Biden’s Education Secretary was kind enough to offer the citation for his cancellation authority: “page 637 to be exact.”
The HEROES Act was passed as a direct response to the tragedy and attack of 9/11 and was signed into law about four months after 9/11 on January 15, 2002. It was amended/extended in 2003 and made permanent in 2007. The clear intent of this law was to provide aid for people called to military duty and affected by 9/11 and/or by similar potential attacks in the future as the nation adopted a war-time footing against global terror.
The introduction/”Findings” in the law itself (20 U.S. Code § 1098aa) refer only to national defense, the freedom and security of citizens, the people called to military duty who “put their lives on hold, leave their families, jobs, and postsecondary education in order to serve their country…” The law (1098aa -1098ee) consistently refers to individuals on military duty or engaged in national defense.
There is, however, an ambiguous add-on which is common when laws are passed to try to capture other unanticipated/unthinkable actions (like 9/11 itself). In this case, the law was written to include provisions applicable not only in “connection with a war or other military operation” but also to a “national emergency.” Former President Trump declared the coronavirus to be a national emergency in 2020.
Although an accidental health pandemic was not anticipated at the time of the law’s writing, it seems reasonable to include the pandemic under the HEROES Act when it occurred for those who chose to serve the nation by fighting it. It would not be reasonable to include anyone with higher education debt that is not serving the country by fighting the national emergency in question. That would be unfair to everyone else with a loan of some kind. That was the whole point of the law – providing aid to those who put their higher education aspirations on hold in order to serve the country.
The law only provides benefits to “affected individuals” which it defines as those “serving on active duty … performing qualifying National Guard duty … resides or is employed in an area that is declared a disaster area … [or] suffered direct economic hardship as a direct result of a war or other military operation or national emergency, as determined by the Secretary [of Education].”
Again, the law places the ambiguous “national emergency” reference in the language, but by including anyone with a student loan that has no relation to serving the country seems to make it illegitimate under the HEROES Act meaning and intent. It would be as illegitimate as forgiving the debt of anyone with a car loan during the pandemic. To be clear, you might like that idea, but such an action (car loan forgiveness) could be granted by Congress and the President but only if it were to be included in a new law since there is no existing law granting authority to the executive currently.
The pandemic was used by both Trump and Biden to pause student loan payments – but that was under the authority granted by the CARES Act not the HEROES Act. To keep his campaign pledge (who cares about legality?), President Biden took a huge step toward corruption by dressing up the debt cancellation program as legal and legitimate including by getting his Office of Legal Counsel to manufacture a flimsy legal justification that even the liberal The Atlantic considers a legal mess.
And for the icing on the cake, if the above were not enough, President Biden just days ago on September 13 on TV’s 60 Minutes said “The pandemic is over… We’re still doing a lot of work on it … but the pandemic is over. This admission, 25 days after his loan forgiveness announcement, was stating the obvious since most of us think the same thing. And we thought the same thing for months now. There is no emergency, therefore the HEROES Act cannot be used legitimately — at all.
I will say that I don’t think this is a 100% one-sided case – few are. Most things are gray. But in a court system that is not politicized it’s about 90+% against — more than enough to lose in a legitimate court. It’s very strong, but not as strong as the obvious illegitimacy of the 1973 Roe decision.
Unfortunately, I have had enough agreeable policy discussions with some people to know that they do not care about logic or a fair reading or application of the law. I cannot count the number of times that someone has admitted that A is greater than B and that B is greater than C only to have them just ignore or reject that A must be greater than C. This placing of self or group interest ahead of the entire country/other groups even when obviously unfair or illegal expands when these types of politically corrupt actions are applauded.
Alan Calandro is a lifelong unaffiliated voter and former Director of Connecticut’s nonpartisan legislative Office of Fiscal Analysis, former Chief of Staff at the University of Connecticut.