By Michael Poon
In 2003, our clients — former Speaker of the House John Boehner, former Rep. John Kline, and former Rep. Howard McKeon — wrote the HEROES Act and shepherded it through Congress. The aim of the HEROES Act is to alleviate the burden of student loans for servicemembers deployed in response to the 9/11 attacks. Little did they know that two decades later, their then-Senate colleague Joe Biden would use that statute as a pretext for one of the largest executive overreaches in American history.
But that’s exactly what he did last August when he proposed to wipe away more than half-a-trillion dollars in student loan debt held by millions of borrowers.
For 20 years, Congress has consistently acknowledged that the executive can use the HEROES Act only in very specific circumstances and that it does not authorize loan cancellation. The only member of Congress to vote against the HEROES Act did so because, as he said at the time, the act didn’t go far enough specifically because it didn’t allow for loan cancellation.
Members of both parties have always acknowledged this fact. Our clients don’t agree with former Speaker Nancy Pelosi on much, but she was right when she said in 2021, “People think that the President of the United States has the power for debt forgiveness. He does not. He can postpone. He can delay. But he does not have that power. That has to be an act of Congress.”
But the Biden administration charged ahead.
After months of the Biden administration attempting to avoid judicial review, the Supreme Court is set to rule on the loan cancellation plan in Biden v. Nebraska and Dept. of Education v. Brown. And the most important question they must answer is whether the Biden administration has the power to cancel student debt en masse under the HEROES Act of 2003.
The Court needn’t look any further than the text of the law to answer that question.
The statute permits the Secretary of Education to “waive or modify any statutory or regulatory provision applicable to” federally backed student loans “in connection with a war or other military operation or national emergency.” Moreover, the modifications must “be necessary to ensure that” borrowers “are not placed in a worse place financially” because of the emergency. And to be eligible, borrowers must have “suffered direct economic hardship as a direct result of a war or other military operation or national emergency.”
These limitations are important, and the president’s plan violates them at virtually every step.
First, a blanket policy that applies to all borrowers who make less than $125,000 a year is, by definition, not limited to those borrowers who suffered “direct economic hardship as a direct result” of the pandemic. Second, canceling loan balances is not authorized anywhere in the law — only waivers and modifications of loan regulations are. Finally, cancelation cannot be necessary to mitigate harms associated with the pandemic — especially since both repayment requirements and interest accumulation have been paused since the pandemic began.
Our clients were intimately involved with the drafting and passage of the HEROES Act and know better than anyone how it works and what it was intended to do. And this month, they joined Pacific Legal Foundation in filing an amicus brief pointing out that this law never gave the president sweeping authority to cancel a debt.
Under our Constitution, the legislative branch makes the law, and the executive branch enforces it. The president is not entitled to spelunk through the federal code in search of statutes that he can contort into sweeping grants of power that Congress never authorized. The Supreme Court ought to rebuke President Biden for this plan and send a signal to future presidents that such regulatory adventurism won’t be tolerated.
Michael Poon is an author of the amicus brief filed on behalf of former Speaker Boehner and former Reps. Kline and McKeon opposing the use of the HEROES Act to cancel student debt. Michael is an attorney at Pacific Legal Foundation, a nonprofit legal organization that defends Americans’ liberties when threatened by government overreach and abuse.