President Biden has been finagling for the better part of his administration to find a way to forgive student loans.
The policy would cost about $400 billion over the next three decades according to the Congressional Budget Office and would predominantly favor higher-income earning Americans. Most Americans have never had a student loan (fewer than 50% even have a degree), and fewer than one in five currently have one.
Given those factors, it’s no wonder Congress has not been able to rally support for the policy, which is why Biden ultimately resorted to an executive order loophole called the Higher Education Relief Opportunities for Students Act, or the HEROES Act, to get something done. The HEROES Act is yet another remnant from the mass government expansion following the September 11th attacks, and it basically gives the Secretary of Education the power to waive or modify the terms of federal student loans as they deem necessary during a national emergency.
Even Nancy Pelosi has admitted she does not think Biden has the power to wipe student loan totals out without Congress, still, the administration decided to launch a Hail Mary before the midterms, which has inevitably ended them up in court. Two lawsuits have been taken up by the Supreme Court with oral arguments set to begin on Tuesday.
The court will first have to determine if the plaintiffs in the case have standing, a legal term meant to indicate whether the complaining parties actually have the right to sue. To do this, they’ll have to prove they’ve personally been financially (or otherwise) harmed by the action. But if the court does rule the cases can proceed, things are bound to get interesting.
The court currently has a 6-3 conservative majority and in recent years has tended to side against governmental overreach via regulation, executive action, or government agencies overstepping their constitutional bounds.
At play in this case is the Major Questions Doctrine (MQD), which was mentioned in its first opinion (EPA v West Virginia) last year. MQD is a new rule of statutory interpretation which essentially says government agencies cannot act outside the bounds of the power Congress has explicitly given to them when the issue at hand carries significant economic or political weight. Student loans bailouts and the price tag they carry certainly meet the latter part of that standard.
Should the court uphold the MQD in this case and rule against the Biden Administration’s bailout (which is really a bailout for corrupt and inefficient colleges and institutions), it would not only be the end of the argument on this specific subject, it also would represent a significant new rein on government power run amok.
Hardly anything passes through Congress these days. The legislative body has largely delegated its primary duty of making laws to unelected bureaucrats, the president, and government agencies. This means the American people have little representation and little ability to pushback on bad government policies.
If your representative or senator wanted to vote for student loan cancellation and you opposed that, you would have the ability to influence them (or work to remove them from office). But if the policy is carried out by the executive branch, the Secretary of Education, and an old loophole in the law, you as a citizen have no recourse—even though you’re the one that ultimately picks up the tab!
And thus lies one of the biggest breakdowns in our current political system. The MQD is a promising dam conservatives have been working to build to stem the flow of progressive policies and the endless cash flow they require. SCOTUS has a chance to continue to bake this standard into our law with these cases, which is exciting.