Department of Justice defends Biden's loan forgiveness program

The Department of Justice invoked an act reserved for national emergencies to defend the Biden administration’s loan forgiveness program.

The program's critics say that the U.S. was not in a time of emergency shortly after the administration introduced the program, and the continued use of the act sidesteps Congress.

The Department of Justice (DOJ) recently filed a brief with the Supreme Court to defend the student loan forgiveness program against two upcoming lawsuits. 

The Supreme Court consolidated the two lawsuits against the Department of Education (DOEd) and will hear oral arguments for both cases in February, CBS reported. 

[RELATED: WATCH: Students criticize Biden's loan cancellation plan]

In its brief, the DOJ invoked the Higher Education Relief Opportunities for Students, or HEROES Act, to defend the Biden administration’s program. The act “was signed by President George W. Bush in 2003,” according to the New York Post, and former Secretary of Education Betsy DeVos used the act to pause student loan payments at the beginning of the pandemic. 

The DOJ's brief references DeVos’ administrative use of the act after former President Trump declared a national emergency in March 2020. “Congress directed the Secretary to extend those policies through September 2020,” the brief says. 

“In August 2022, Secretary of Education Miguel Cardona determined that the across-the-board pause on all payments for all borrowers should come to an end. But he also determined that despite the pause and other COVID-19 relief measures, the resumption of repayment obligations would put many lower-income borrowers ‘at heightened risk of loan delinquency and default’ due to the pandemic.”

The brief continued to argue that, like the payment pauses, Cardona relied on the act for the student loan relief plan, which “issue[d] up to $10,000 in student-loan relief to eligible borrowers” and “up to $20,000” for Pell Grant recipients. 

Analyses suggest that there is a key difference between DeVos’ and Cardona’s invocations of the HEROES Act. 

An April 2020 report from the Congressional Research Service, which “serves as shared staff to congressional committees and Members of Congress,” explains, “The HEROES Act can only be implemented, however, in connection with a war or other military action or a national emergency declared by the President.”

Campus Reform Higher Education Fellow Nicholas Giordano has argued that the U.S. was no longer in a state of emergency when DOEd introduced the loan forgiveness plan. 

He referenced a Time article quoting President Biden, who “proclaimed that ‘the pandemic is over’” shortly after introducing the program. 

“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,” Giordano continued. 

He echoed a comment from DeVos, who indicated in December 2020 that extending loan payment pauses until January 2021 “‘allows Congress to do its job and determine what measures it believes are necessary and appropriate,’” CNBC reported

[RELATED: Student loan freeze cost federal government $197 billion, report finds]

“If the President can unilaterally decide to implement whatever policy he wants, then what’s the point of even having a Congress?” Giordano asked. 

“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.”

Campus Reform contacted the Education Department and Department of Justice for comment. This article will be updated accordingly. 

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