President Joe Biden says he is seriously considering wiping out the debts for a vast swath of college students who took out federal loans. He has no such constitutional nor statutory authority. But if past is prologue, he’ll do it anyway.
For the fourth time in his presidency, Biden recently suspended loan payments through August 31. He improbably cited the pandemic that his own chief science adviser admits has ended. Now, under increasing pressure from progressive Democrats and facing a rout in the upcoming midterm elections, Biden appears poised to cancel debts altogether for a substantial number of borrowers.
President Biden delivers remarks during an event for the 2022 National and State Teachers of the Year in the White House on April 27, 2022, in Washington, D.C. (Photo by Yasin Ozturk/Anadolu Agency via Getty Images)
(Yasin Ozturk/Anadolu Agency via Getty Images)
Doing so by executive fiat is an abuse of power by the president. Just as the Appropriations Clause of the Constitution grants spending authority to congress, the Property Clause gives our legislative body exclusive authority to “dispose” of property. Under the law, debt is considered property.
While the president does have some discretion and latitude to pause payments for a limited time during a healthcare emergency, only Congress can forgive major debts owed to the federal government.
Yet, Congress has passed no such law. Efforts on Capitol Hill to gain the necessary votes to enact a bill have fallen woefully short. This means that the president is obligated to abide by the Constitution. He must also follow the existing statute governing federal loans to students, the Higher Education Act.
On CBS’s “Face The Nation,” Senator Elizabeth Warren asserted that the president is authorized to abolish student debt “because the power of the cancellation is already in the statute.” Warren, a former law professor at Harvard, is misrepresenting what that statute says.
The Act gives the Secretary of Education (presumably, at the direction of the president) the power to waive or compromise student debt, but only under confined circumstances. Moreover, the secretary’s actions must also conform with the provisions of the Anti-deficiency statute prohibiting an executive department from spending money not appropriated by congress. Enormous costs are incurred when debts are forgiven.
While this may seem complicated and confusing, allow me to simplify.
Student debt can be ‘canceled’ or waived by the Education Department only if a borrower becomes permanently disabled, where the lender committed fraud, where the loan recipient works in public service for a stated period, or when there is a firm showing that the debt cannot possibly be repaid. Beyond these uniquely specified conditions, only congress can undertake a wide-scale termination, not Biden.
There is no evidence that Congress ever intended to transfer its constitutional power to the president by giving him plenary authority over debts. To the contrary, the above statutes make it abundantly clear that the executive branch possess only a narrowly defined administrative role. All other authority rests with congress.
House Speaker Nancy Pelosi, for all her flaws, is at least more honest about it. At a news conference several months ago she stated, “People think that the president has the power for debt forgiveness. He does not. He can postpone, he can delay, but he does not have that power. That must be an act of Congress.”
Pelosi is correct. The Framers gave the power of the purse to congress, not the president. This includes taxation, spending, loans, and disposition of debt.
None of that seems to matter to Biden. Instead, he has indicated that he will rely on the legal advice he receives in deciding how extensively he will annul student debt. This is alarming since the counsel he has accepted throughout his presidency has been dreadful.
You’ll recall that Biden and his advisers stated repeatedly that he had no authority whatsoever to order a vaccine mandate. After consulting with lawyers, he did it anyway. Inevitably, the U.S. Supreme Court struck it down.
Biden also said, “I cannot mandate people wearing masks.” Upon listening to counsel, he imposed a mask mandate that was eventually tossed out on judicial review.
His moratorium on evictions was even more brazen. He openly admitted that the law did not permit him to do it. Then, he sought out a Harvard law professor who convinced him otherwise. Predictably, it was rejected by the nation’s highest court.
Contempt for the rule of law is a consistent pattern in Biden’s lawless presidency. And so is his political pandering.
Biden knows that his tenure in the Oval Office is a raging five-alarm fire. There is little hope of dousing the flames of his own incompetency. His ratings’ deficit among young people is especially disastrous. An abysmal 21 percent of those under the age of 35 approve of the way Biden is handling his job, according to a recent Quinnipiac University poll.
Realizing that his noxious policies have caused his party to stare down the barrel of a historic loss in the November elections, Biden and Democrats are now desperately trying to bribe millennials and “Gen Z” voters by forgiving what they owe. It won’t work.
Millions of Americans who labored to dutifully pay off their college loans are understandably angry. So are millions more who elected to forego a higher education that they knew they could not responsibly afford.
And then there are the parents who scrimped and saved for years so that they could help pay for their kids’ tuition, room, and board. They poured every spare dollar into college savings accounts. They drove their cars until they were broken-down clunkers. They skipped vacations and stayed home. They took out a second mortgage on their houses or chose not to buy one at all.
Joe Biden is telling all those folks they were suckers for their sacrifices. If he acts unilaterally and without legal authority to cancel student debt, they were.
Gregg Jarrett is a Fox News legal analyst and commentator, and formerly worked as a defense attorney and adjunct law professor. He is the author of the No. 1 New York Times best-selling book “The Russia Hoax: The Illicit Scheme to Clear Hillary Clinton and Frame Donald Trump.” His latest book is the New York Times bestseller “Witch Hunt: The Story of the Greatest Mass Delusion in American Political History”