By suddenly adding so-called student loan “forgiveness” to the November elections, President Joe Biden has used politics to paper over the constitutional crisis he precipitated. Under the Constitution, paying off federally insured student loans would be a presidential usurpation not only of the legislative power but also the appropriations power, the taxing power, and the “debting” power.
Starting with his 2020 campaign, Biden’s — and the Democratic Party’s — advocacy of loan cancellation has been an independent political and economic issue, not based on the exigencies and economic stresses caused by lockdowns. A “Fact Sheet” released by the White House the day Biden announced the loan cancellations, goes on at length about “keeping college costs under control,” and it gives the history of federal student loans and the accumulated debts of so many borrowers “since 1980.” The effect of the pandemic-induced lockdowns is referenced, but the phrase “national emergency” is not used.
No Congressional Intent to Cancel
On the same date, that is, more than a year and a half after Biden had assumed office, however, the Department of Justice and Department of Education issued separate legal memoranda finding statutory justification for the massive loan cancellations in the continuing “national emergency” of the pandemic.
Both departments point to the HEROES Act, passed by Congress in 2003 as a response to the attack on the World Trade Center, which eased the student loan burdens of military service members during war, military operations, disaster area, or a “national emergency.” In their memoranda, both departments cite and repudiate a January 2021 memorandum by the deputy general counsel of the Trump Department of Education as it was going out the door that “Congress never intended the HEROES Act as authority for mass cancellation, compromise, discharge, or forgiveness of student loan principal balances, and/or to materially modify repayment amounts or terms.”
The president and his administration have now decided that by taking “national emergency” out of its military and terrorism context, they can invoke 20-year-old legislation as a justification for a massive and unparalleled executive-ordered federal expenditure. The supposedly relevant provision of the HEROES Act concerns a person who has “suffered direct economic hardship as a direct result of a war or other military operation or national emergency.” But it is more than obvious that there is nothing about the decades-long student loan problem that is a “direct result” of Covid. The HEROES Act contains no universal loan forgiveness.
As it happens, a decision of the Supreme Court handed down only two months ago is based on the constitutional principles that the Biden administration is attempting to avoid here. In West Virginia v. EPA, by a 6-3 vote, the court overturned an effort by the Environmental Protection Agency (EPA), citing a rarely used provision of the Clean Air Act, to promulgate new carbon-dioxide emissions standards.
Arguing that the EPA had exceeded its statutory authority under that act, West Virginia and 23 other states sued. The high court found that the suing states had standing because the new rule required them to “more stringently regulate power plant emissions within their borders.” “Under the major questions doctrine,” the court, citing precedents, ruled against the EPA and stated that the court “expect(s) Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.”
In 1952, President Truman, in the face of a threatened strike by steel workers, ordered the Secretary of Commerce to seize and continue the operation of America’s steel mills in order to protect military operations in Korea. In the landmark case of Youngstown Sheet & Tube v. Sawyer, the steel industry sued.
The issue was “the extent of presidential power” in Article II of the Constitution. There was neither statutory authority nor constitutional authority, “express” or “implied,” including his power as commander in chief of the Armed Forces, the court held, for the president to do what he had done. The court concluded that “[t]he Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times.”
Can Members of Congress Sue?
Since it is their exclusive constitutional authority over legislation and the purse that is at stake, the Senate and House have or ought to have the standing to file a lawsuit in federal court challenging the constitutionality of the loan cancellation. In light of the House’s “originat[ing]” authority over “raising Revenue,” it may be more appropriate for the House to do so.
A full house or a committee of Congress has the standing to sue the executive. In Department of Commerce v. House of Representatives, the standing of the House of Representatives to be heard in court concerning a dispute about how the Census Bureau’s plan to conduct the decennial census would affect re-apportionment, the constitutional basis of the makeup of the House, was obvious. (There were statutory bases for standing as well).
In Committee on the Judiciary v. Miers (2008), the federal district court in Washington, D.C., upheld the standing of the House Judiciary Committee, acting for the entire House, in a dispute with former White House counsel Harriet Miers who had refused to appear before the committee despite a subpoena.
The question, then, is whether individual members of Congress can sue. There is only one major case. It is recent, and its holding is against such suits. In Raines v. Byrd (1997), the Supreme Court ruled that the congressional plaintiffs did not have the standing to sue in federal court because they could pursue their grievances by proposing and enacting relevant new laws.
Congress had just passed the Line Item Veto Act which gave President Bill Clinton the veto over sections of new legislation while enforcing the whole law. A total of six members of Congress from both houses, all of whom voted against the new law, filed suit. The Supreme Court held that the suing members of Congress did not have standing because they had had their chances to oppose the bill with their votes, and “they simply lost that vote.” Their suit claiming a “dilution of institutional legislative power,” was too “abstract.” The court held that they had not suffered the necessary personal injury to their roles as members of Congress to qualify them for standing.
However, before Raines, prior suits in which individual-member standing was recognized had been handed down by the federal appeals court for the District of Columbia. Two of them concerned challenges to specific presidential acts. In Goldwater v. Carter (1979), the appeals court recognized Sen. Barry Goldwater’s and other individual senators’ standing to sue President Jimmy Carter for unilaterally canceling a mutual defense treaty with China. The court noted that the treaty had already been voted on and passed, and, thus, Carter’s action had nothing to do with any dispute over the language of the treaty. It was a unilateral executive act. Therefore, the votes of senators had been compromised, and they had standing.
In a dispute involving the presidential pocket-veto and President Richard Nixon’s refusal to recognize a new law enacted just before the Senate recessed, Kennedy v. Sampson, (1974). Sen. Edward Kennedy (along with 19 other senators) sued individually claiming that his vote in favor of the law had been nullified by the executive. The court of appeals found that Kennedy had standing because Nixon had denied him “the effectiveness of his vote as a member of the United States Senate.”
Will the Separation of Powers and the Purse Be Ignored?
The fundamental difference between Biden’s student loan cancellation and Raines is that members of the current Congress had no prior opportunity to vote on loan cancellation. When that fundamental fact is combined with the reality that Biden has not only used the executive power to create legislation but to fund it as well, it is difficult to understand how this is not a “major question” for the Supreme Court to decide.
The creation of an entirely new program, whether found lurking in the HEROES Act law or not, along with the possible expenditure of as much as $1 trillion, is, in the language of Raines, anything but “abstract.”
Two months ago, in West Virginia v. EPA, the court concluded that there was a larger and more important principle than the details of the administrative law of the executive branch. Here, it is the same. It is vastly more important to adjudicate the constitutional separation of powers and Congress’s “commanding” power of the “purse” than to avoid a constitutional confrontation by endorsing the Biden administration’s targeted twisting of the statutory language of the HEROES Act.
There are other considerations, the most important of which may be that this is the biggest open and direct confrontation between the executive and legislative branches since Youngstown, a case that did not even involve the appropriation power. The lack of more available precedents proves how extreme the current situation is.
In addition, we deal here with two opposite interpretations of “official” executive branch legal memoranda concerning the same federal education statute. Per Marbury v. Madison, it is the duty of the high court “to say what the law is” here. Likewise, if the Republicans should win control of the House in November, would they schedule a vote seeking to file a suit on behalf of the whole House when they take power in January?
Like the conflicting interpretations of the statute, there could be a kind of similar contradiction on the constitutional role of the House within a four-month period.
Since retiring as an Assistant U.S. Attorney, Thomas R. Ascik has written about legal and constitutional issues on a variety of websites including The Federalist, The Imaginative Conservative, and Law & Liberty.