Biden, SCOTUS, student loans and the separation of powers | SLOAN

By all accounts, the Biden Administration’s arguments defending President Joe Biden’s student loan forgiveness edict before the Supreme Court are not going very well.

The Court heard arguments this week challenging the president’s unilateral decision to dismiss, with the flick of his presidential wrist, nearly half-a-trillion dollars in student loan debt, absent any authorization whatsoever from Congress. The White House, through Solicitor General Elizabeth Prelogar, argues it has the authority thanks to the emergency wartime powers gifted via the 2002 HEROES Act, which allowed forgiveness of student loan debt to certain servicemembers who had deployed to fight in the Middle East following the September 11th attacks.

I suppose one can give the solicitor general and her crew a bit of credit, as it were, for sheer audacity. Thankfully, it seems that the SCOTUS is no more persuaded by that circumlocution than anyone else.

Seeking a sliver of justification in the HEROES Act was certainly a stretch, but it was as good an argument as the Administration could possibly conjure. The Constitutional delineations are clear: the Appropriations Clause quite plainly reads: “No money shall be drawn from the Treasury, but in consequence of appropriations made by law”; Congress (and accounting logic) have made clear that waiving payments owed to the treasury is the same as an expenditure; and Congress, as once upon a time was taught in grade school, makes the laws.

Moreover, this governing principle was not a thin-air invention of our nation's framers, but built upon British experience. A.V. Dicey, the 19th century British jurist and preeminent chronicler of the rule of law, wrote in “The Law of the Constitution” that “not a penny of revenue can be legally expended except under the authority of some Act of Parliament.” And further, “What, it may be asked, is the real security that moneys paid by the taxpayers are expended by the government in accordance with the intention of Parliament? The answer is that this security is provided by an elaborate scheme of control and audit. Under this system not a penny of public money can be obtained by the government without the authority or sanction of persons (quite independent, be it remarked, of the Cabinet) whose duty it is to see that no money is paid out of the Exchequer except under legal authority.” Just so. Substitute a couple words, and we are looking at a succinct description of separation of powers, check and balances and the aforementioned Appropriations Clause.

Okay, so it’s quite clear President Biden lacked legal authority to do what he did. Nancy Pelosi even once acknowledged that. Heck, even The Washington Post Editorial Board has had to concede that fact, if begrudgingly so, saying in an editorial this week “the policy is expensive and ill-targeted, and made worse by the fact that Mr. Biden failed to get congressional approval for the $400 billion initiative.” Ouch. Of course, they make up for it by arguing the Supreme Court should let it go anyway (the editorial is brazenly titled “Biden overreached on student loans. But the court shouldn’t stop him”). They desperately try to make the argument that the states challenging the president have no standing. Well, the solicitor general herself was obliged to concede that MOHELA, a public entity created by the state of Missouri, would suffer financial injury since it holds interest in outstanding loans. So strike that argument.

SG Prelogar’s final straw was to try and argue that “major questions doctrine," crystallized by last year’s West Virginia v. EPA ruling, somehow does not apply. Nice try, but that doctrine could have been specifically written for this case.

Abuse of executive power is not new, nor unique to this president, nor to the Democratic Party. Donald Trump, of course, had little more concern for Constitutional guardrails than the average ideological leftist who wants change now. Looking back farther, there is a reason why English common law developed separation of powers as a concept, and why the Framers incorporated it into the Constitution.

The Constitution is a pretty orderly ledger specifying jurisdictions, privileges and limitations. The executive branch, over the past several years, has ran up its own authority to do as it pleases. There comes a time when, if we are to keep the Republic, as Ben Franklin cautioned at the close of the Constitutional Convention, the authority of the legislative branch needs to be reasserted by those who cherish the rule of law.

Kelly Sloan is a political and public affairs consultant and a recovering journalist based in Denver.