AMAC Exclusive – By Daniel Berman
There once was a time when liberals worried about executive power. During the Bush years, Democrats raised concerns over the Patriot Act and arguments from the administration that wire-tapping could be done without a warrant. They contested whether the administration could escape the jurisdiction of U.S. Courts and the Constitution by conducting business off-shore in Guantanamo Bay. When Donald Trump was president, they even challenged the president’s undisputed prerogatives such as the right to hire and fire the Director of the FBI or to issue executive orders on immigration on the basis that the president needed a proper rationale for his decisions, and that courts reserved the authority to review those justifications.
When it comes to the authority of Democratic administrations and a Supreme Court they do not like, liberals sing a different tune. That was evident with the Dobbs decision, where the Court handed the power to legislate on abortion back to the states. It was on display with gun control, where the Court allowed state laws to stand. But it was rare to see the liberal justices twist themselves in knots quite as much as they did earlier this week as the U.S. Supreme Court heard oral arguments on whether the administration had the authority to simply cancel up to $400 billion in student debt.
“All this business about executive power, I mean, we worry about executive power when Congress hasn’t authorized the use of executive power.”
So wondered Justice Kagan during oral arguments over whether the administration can use theHeroesAct, a 2003 law which allows the Secretary of Education to “waive or modify any statutory or regulatory provision” related to federal student loans “as may be necessary to ensure that” borrowers “are not placed in a worse position financially” because of a national emergency, to cancel debts entirely. Kagan was almost certainly correct, insofar as if Congress were to authorize the cancellation of student debt and appropriate money toward that end, the Court would be wasting their time hearing any sort of challenge.
In this case however, Congress had appropriated no money, and if it intended for its 2003 legislation to authorize the cancelation of debt for more than 40 million Americans based on economic need, not proven impacts from any sort of emergency, the message managed to elude George W. Bush, Barack Obama, Donald Trump, and until this year, Joe Biden and Nancy Pelosi.
To justify this power grab, the administration has resorted to a level of “textualism” which tests the ability of the hardiest soul to keep a straight face.
To get around the requirement that Congress appropriate money for any expenditure, and the fact that Congress has appropriated a total of $0 for this one, the administration insists it is not actually spending any money at all. The appropriations for the federal student loan program have already been appropriated, they say, and now the federal government is merely waiving its right to future revenue, not making a financial expenditure today. Under this line of thinking, the president would have a right to implement tax cuts without congressional authorization merely by choosing to ”forgo” the revenue.
Second, the administration argues that there is no distinction between suspending the payment on debts for a period of time and cancelation, as cancelation is merely an indefinite suspension. While tautologically true, it seems dubious that Congress, when it passed the Heroes Act in 2003, authorizing the Education Department to aid borrowers in response to national emergencies, intended for that aid to be permanent. By definition, emergencies are temporary. As Justice Kavanaugh noted that historical and fictional tyrants alike have claimed that “emergency powers” can be used to justify anything, and that an emergency can be defined solely as a legal fiction.
Liberal outlets roundly mocked Kavanaugh when he made a historical comparison to President Truman’s efforts to nationalize Steel Mills during the Korean War noting, “Some of the biggest mistakes in the Court’s history were deferring to assertions of executive or emergency power. Some of the finest moments in the Court’s history were pushing back against presidential assertions of emergency power.”
Justice Kavanaugh could have chosen a more forceful analogy. The internment of Japanese-Americans during World War II by the administration of Franklin Delano Roosevelt was upheld by the Supreme Court in Korematsu v. U.S.(1944). The basis was that the Second World War qualified as an emergency, and in an emergency the administration was entitled to take actions it felt were necessary to protect the country. It was not the place of the Court, so the 1944 majority claimed, to assess whether a measure in question was in fact necessary, merely to defer to the judgement or assertions of the executive branch that it was.
Justice Sonia Sotomayor echoed this reasoning when she suggested that the problem was the Court reviewing the issue at all. “What you’re saying is now we’re going to give judges the right to decide how much aid to give them,” Sotomayor asked, apparently temporarily befuddled by the concept of judicial review. She proceeded to say that the decision should lie with “the person with the expertise and the experience, the Secretary of Education, who’s been dealing with educational issues and the problems surrounding student loans,” lamenting that the court was “going to take it upon ourselves” to evaluate these judgments.
One of the weaknesses of the Biden administration’s argument is that if this decision is truly based on an emergency, it has not even taken action to aid all of those holding federal student loans. While plenty of ink has been spilled over the unfairness of the policy—which forces those who never attended college, did so without requiring loans, or rapidly paid theirs in full, to subsidize debt forgiveness for others—less has been focused on how it does not even apply to all of those who hold federal student loans. Borrowers must have earned below $125,000 individually or $250,000 collectively to qualify for relief.
While there may be policy arguments for means-testing relief, it is unclear how selective relief can be justified on the basis of a COVID emergency. A tenuous argument might be made that if individuals could prove they lost work from COVID-19 a link could be established, but in this case, the administration is implementing loan forgiveness in the guise of emergency relief on the basis of factors unrelated to the emergency, namely, income. This is like an administration funding port improvements in Portland, Maine, using relief funds for a hurricane in Florida under the premise of temporarily reduced port capacity in Tampa.
All of this is to say that regardless of the merits of the U.S. higher education system, or whether that system is predatory (which it is), or if the federal student loan program enables that predatory behavior (which it does), the administration’s arguments are at once absurd and dangerous. Absurd, because they contradict prior positions of virtually everyone who is making them and fail basic tests of logic. Dangerous, because if accepted, they would turn the United States into Nicaragua or Venezuela, where the constitutional courts can find that any restrictions whatsoever on the president’s powers, such as limits on reelection, violate their “individual political rights as a citizen.”
It is unclear whether the administration even plans to win. Their messaging, and that of Democrats as a whole, seems geared towards turning this into yet another instance of an “out of control, activist, conservative court, overturning the will of the people,” in this case by preventing millions of them from receiving free money. This was the argument Sotomayor closed on in any event. “There’s 50 million students who … will benefit from this who today will struggle,” she declared (contradicting her own earlier declaration that “It’s not a question of money. It’s a question of Congress’ intent”).
That in short, will be Biden’s message and that of the Democrats in 2024. It was the message of the State of the Union and it was the message Sotomayor closed on in the court. Democrats stand for giving you money. Republicans exist to take it away. Democrats will promise to do a host of things. Republicans will stop them. If they do not happen, it is not because we could not afford them or because Democrats never really intended to do them in the first place, or knew they were unconstitutional. Rather, it is because Republicans stopped them. In fact, the Biden administration seems to be concluding that it is better to issue executive orders and file lawsuits that will fail, and propose legislation with zero-chance of success, precisely because it gives them the benefits of the promise without the costs of delivering.
This is not serious, principled government. It is demagogic Caesarism. The country deserves better. Those struggling with student debt deserve more than being used as political tools. At the very least, they deserve the truth.
Daniel Berman is a frequent commentator and lecturer on foreign policy and political affairs, both nationally and internationally. He holds a Ph.D. in International Relations from the London School of Economics. He also writes as Daniel Roman.
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He said it so much better than I ever could. CHRIS
This is a well written article, but what drives me nuts is nobody is talking about how this is just a short term fix and doesn’t address the root cause of the problem: the predatory model that is school loans in the country. Universities have increased their tuition fees as the federal government continues to increase the amount of $$ a student can borrow. The more the kids can borrow, the higher the tuition rates increase. See a pattern here? Stop loaning the kids so much money– limit to $10 grand per year and watch most universities suddenly find they no longer have a need for 34 deans of diversity making $150 K per year. They’ll cut their budgets mighty fast. But this isn’t even part of the discussion.
I was taught if you take out a note, it’s your fiduciary responsibility to pay it back. So, take your college education, get a job, and pay the damn debt off.
A quaint notion, but this is not the country we live in currently. I will stand with you but you should know that the folks who tell you it is time to leave the amusement park because we have to work tomorrow to pay for the next trip will never be as popular as the folks who tell you that you can stay forever, for free.
Exsqueeze me, but exactly why does this HEROES act apply to non-heroes?
H.R.1412 – 108th Congress (2003-2004): Higher Education Relief Opportunities for Students Act of 2003 | Congress.gov | Library of Congress
(1) is serving on active duty during a war or other military operation or national emergency; (2) is performing qualifying National Guard duty during a war, operation, or emergency; (3) resides or is employed in an area that is declared a disaster area by any Federal, State, or local official in connection with a national emergency; or (4) suffered direct economic hardship as a direct result of a war or other military operation or national emergency.
Passed in 2003 this was obviously aimed at those serving in Iraq and Afghanistan.
Folding in EVERYONE in the country because COVID made it an emergency, was never the bill’s intent and that is the problem here.
This generation of students apparently doesn’t understand the consequences of taking out a loan, that being you have to pay it back. So many people who believe they are entitled to the point of forcing others to pay what they agreed to pay themselves and claim we are all greedy and heartless if we don’t.
Stop whining and pay your own loans like you promised.
The usual democratic kabuki theater…it is a process of off-balance control, not a result of fixing a problem. To me, if Biden actually runs: the next process of vote buying will be 1) Social Security Bonus and 2) Student Loan Redo or Defer. Biden needs to keep 65m SS Folks happy and not anger 43m Americans, all the while the DOJ and FBI and MSM protect him and Dems until the 2024 election cycle. Buy the vote and keep himself and Hunter out of trouble until 2028 seems to be the internal plan.
Even the DemocRats are smart enough to know when to quit and not commit political suicide by running Joe Hidin’ Biden again. By know most American voters know the incompetence and/or the crookedness of Biden and his ilk family. Besides, I don’t think Biden would choose to run again.
Where do you get the idea any Democrap is capable of true logic or any knowledge of what we members of AMAC know to be true. Corruption rules as long as we do not have term limits and fair elections (Arizona being an excellent example).
Sounds like Bannon wants Fox to be just a conservative version of MSNBC and CNN- openly in the tank for a political party.
The Democrats in Congreess under the law have to appropriate money to get ride of student debt and since the Democrats have not the Supreme Court will have no choice but to tell Biden he can’t use an executive order to cancel student debt and student debt will not be canceled
the joker – he keeps deliberately making bad choices and thinks he should run again! are you kidding! he should be locked up
The article doesn’t talk about Trump it talks about how the Democrats can cancel student debt and the fact that the Democrats and Biden have not done so. All Teresa Ann d’alessandro does is refer back to Trump because she doesn’t have any facts that show the article is wrong
I thought she meant Biden. I mean, he does fit her description perfectly.
Unfortunately, the liberal minded who control the Democrat Party are Leftist Progressives who prey on the good will of average liberal minded citizens. Today’s Democrat Party is more of a cult that demands their supporters only read or listen to news that agrees with their agenda to Socialize the U.S. Also unfortunate is the fact that there are still too many D.C. Swamp dwelling career politicians in the Republican Party who too often side with Democrats only to benefit themselves. We need, in all political parties, persons who have been working in the private sector for at least as long as they intend to hold any public office.
tired of hearing that the left preys on liberals – that bull can’t people see and hear what’s happening, are they blind and deaf – their party is the downfall of anything good in this country! it’s called lack of common sense
“ their party is the downfall of anything good in this country! it’s called lack of common sense” Yep, perfectly describes the dems.
No one is talking about the predatory policies and collusion of the colleges and universities with the federal government that allows the costs to keep rising to the point of extortion! The degrees these institutions are pumping out are not worth the cost to achieve one! Just keep the indoctrination centers open, push the kids in, take all their money so they have nothing left but to beg government for help! Just where the Marxists want them!
Even if the SC says NO to student debt, Biden will do it anyway. Who is going to stop him?
The people. We shouldn’t take it anymore. What he is doing is absolutely illegal. Honestly, we shouldn’t even pay the taxes, and if we don’t. what can he use to pay anything with? Seriously?
Agree, but nothing will happen. He will print the money needed. WH mob does what they want.
i’m all for making money under the table and also hiding it – the hell with the banks, and other corrupt institutions – and that is exactly where joe schmoe should be in an institution
Jeri if the Supreme Court say that Biden cannot Cancel Student debt then there is nothing Biden can do. If He cancel student debt after the Supreme Court says no to canceling student debt then Biden has broken the law and can be prosecuted before a court for braking the law and loose his presidency
A President can not be removed from office under the criminal code while in office. A sitting President can only be removed from office via the impeachment process(Actual impeachment and then trial and conviction by the Senate).
That’s breaking, not braking, and lose, not loose
This issue has been talked to death. The simple reality is that the POTUS has no constitutional authority to unilaterally “forgive” (transfer the outstanding debt owed on student loans of individuals, who took out the loans willingly and are legally obligated to repay such loans themselves, onto the American taxpayers who will be stuck with the bill) student loans. It was a naked political stunt to garner votes for Democrats. Simple vote buying. Nothing more. The fact that Biden and the Democrats continue to push this nonsense is nothing new. Just because it is illegal and unconstitutional has never stopped the Democrats before and it certainly won’t stop them in the future as well. The Democrats are concerned with 2 things: The acquisition of money and power for themselves. They will continue to say and do anything that grants them more of either by any and all means. It’s what all Marxists do in the pursuit of their ultimate goals.
The problem is NOT with the Democrat politicians themselves, as they have not tried to hide what they are for quite some time. Rather the problem is with the portion of the American public that keeps voting for them, because they think they will get something for nothing. In reality, everything has a cost associated with it. You just have to wise enough to see how similar policies to this have played out before in other countries around the world that were foolish enough to buy into the same sort of ploys. That cost involves handing more and more of your freedom, rights, personal property and assets to a group of people, whose sole intent is to make the entire population of the country their permanent slaves. Remember, once you lose your rights and freedoms, they are nearly impossible to ever win back.
My wife and kids all had student loans and worked hard at paying them off. No-one offered to pay them for us. IF YOU CAN’T PAY THE PIPER DON’T DANCE WITH THE DEVIL!!
All seven of our children, if they used student loans, paid them all back as well. It was hard, they were urged not to take any out, but several did anyway. If so, they paid the piper and worked hard to pay them off. The problem was, in paying the interest on them.
i’m 76 and have helped family members and dontations over the years, that my credit cards are high, where is my help
Free College is the Dems just buying voters period!
In America it works. CHRIS
Quit the BS. Call it what it is. Biden is buying votes for the 2024 election from young college students and graduates using money from the taxpayers.
yeah just like he doesn’t give a fig about being in selma alabma he just wants black votes and they all fall for it. then they vote and biden goes back to being a hypocrite
Student Loan solutions:
Colleges pay on loans since students took out to attend college
Use endowments to college
More can be done
CUT college bureaucracy
Entry exams .revised curriculum graduation at the completion At least half would be eliminated