PROF. GIORDANO: Student Loan Forgiveness, HEROES Act: How President Biden Undermines His Own Argument
The Chief Executive does not have the Constitutional authority to sign an order eliminating student debt, and President Biden has undermined his administration’s statutory justification for this policy.
Nicholas Giordano is a professor of Political Science, the host of The P.A.S. Report Podcast, and a fellow at Campus Reform’s Higher Education Fellowship. With 2 decades of teaching experience and over a decade of experience in the emergency management/homeland security arena, Professor Giordano is regularly called on to speak about issues related to government, politics, and international relations.
On August 24, President Biden announced that he is authorizing up to $20,000 in student loan debt cancellation for Pell Grant recipients, and up to $10,000 for non-Pell Grant recipients.
This policy is ill-conceived, doing nothing to tackle the real issues of the student debt crisis and skyrocketing tuition rates. But more importantly, the policy is a clear violation of the Constitution.
The Chief Executive does not have the Constitutional authority to sign an order eliminating student debt, and President Biden completely undermined his administration’s statutory justification for this policy in his 60 Minutes appearance on September 18.
Prior to President Biden’s appearance on 60 Minutes, the administration argued that the President has the sweeping authority to wipe out student loan debt under the HEROES Act of 2003.
Section 2, subsection A, clause 1, of the Act states, “the Secretary of Education…may waive or modify any statutory or regulatory provision applicable to the student financial assistance programs under title IV of the Act as the Secretary deems necessary in connection with a war or other military operation or national emergency to provide the waivers or modifications authorized by paragraph (2).”
The administration argues that the President has authority to forgive student loans by asserting that the coronavirus pandemic is still a “national emergency,” thus satisfying the text of the statute.
This argument, however, is textually weak. The HEROES Act was crafted following the 9/11 attacks and the ensuing wars in Afghanistan and Iraq. Hundreds of thousands of U.S. military personnel were called to active duty to serve in the theater of war. Many of these brave men and women would sustain life-altering injuries, and some gave the ultimate sacrifice only to return to the United States in a flag-draped coffin.
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The HEROES Act is unambiguous when defining the term “affected individual,” specifically referring to members of the U.S. Armed Forces. Had the President’s declaration exclusively applied to military personnel, he may have had a legal leg to stand on, but this blanket declaration goes against the intent of the Act.
On Sept. 18, however, the President proclaimed that “the pandemic is over.” He stated, “if you notice, no one’s wearing masks. Everybody seems to be in pretty good shape. And so, I think it’s changing.”
If the President is declaring the pandemic over, and “everybody seems to be in pretty good shape,” then there is no national emergency and no justification for the student loan forgiveness order.
Under the National Emergencies Act, presidential powers are temporarily enhanced so that the executive branch can immediately respond to and manage a crisis. The Act was never intended to all a president to force through their policy agenda in an effort to sidestep Congress, regardless of whether the crisis is an ongoing national emergency or one that has already passed.
This order was already going to be challenged in the federal courts on the grounds that it exceeds presidential authority. Whoever brings the challenge just got their star witness – President Biden.
For the last 235 years, the Constitution has been clear that Congress holds the power of the purse to raise revenue (Article 1, Section 8, Clause 1) and to determine how tax dollars are spent, (Article 1, Section 9, Clause 7).The founders believed that this extraordinary power must be reserved for the legislative branch – where decisions are made by the many – as opposed to allowing one person- the president- to make these critical decisions.
The power of the purse is essential to maintain a system of checks and balances, preventing one branch of government from becoming more powerful than another branch of government. If the President can unilaterally decide to implement whatever policy he wants, then what’s the point of even having a Congress?
You don’t need to be a Constitutional scholar to understand the very basics of our system of governance and the roles and responsibilities of our institutions.
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Over the last few years, many of our officials have shown little regard for the Constitution. They view the Constitution as an inconvenience rather than a safeguard that guides the United States and maintains the proper balance between coequal branches of government.
Consider how throughout the coronavirus pandemic, legislative bodies were rendered irrelevant.
Chief executives and unelected bureaucrats determined when people can leave their homes, where they can go and what they must wear. They disrupted an entire generation’s learning by forcing them into distance education. They determined when, where and how people can practice their faith. They determined what businesses were essential and which ones were not.
This is not the first time this administration has used a “national emergency” to push a political agenda. Presidents cannot do whatever they want, especially when the actual intent of the student loan forgiveness order is nothing more than an attempt to buy votes for the upcoming midterm elections.
Last year, President Biden and his administration similarly wanted to extend the eviction moratorium. The Supreme Court already put the administration on notice that only Congress had the authority to implement an eviction moratorium. Ignoring the Supreme Court and congressional authority, the President pushed through the moratorium anyway, even while acknowledging “it's not likely to pass constitutional muster”.
If a president ignores Constitutional norms, showing no respect for the separation of powers, we will continue down the path of authoritarianism. As Madison warned in Federalist 47, all powers- legislative, executive, and judicial – concentrated in the same hands or branch of government is “the very definition of tyranny.”
Editorials and op-eds reflect the opinion of the authors and not necessarily that of Campus Reform or the Leadership Institute.