The Supreme Court should disallow President Joe Biden’s sweeping plan to partially forgive student loans, former House Speaker John Boehner and former Reps. Howard “Buck” McKeon (R-Calif.) and John Kline (R-Minn.) told the court.
Biden introduced the plan in August 2022 in a move that critics decried as a constitutionally dubious attempt to shore up Democrats’ fortunes ahead of the November 2022 congressional elections. While the Congressional Budget Office said the plan could cost about $400 billion, the Wharton School at the University of Pennsylvania estimates the price tag could exceed $1 trillion.
About 26 million people reportedly applied under the program before courts blocked it last year. Of those 26 million, 16 million were reportedly approved before the government stopped accepting applications.
Boehner, an Ohio Republican who left Congress in 2015, said the plan is unlawful and that the Biden administration failed to follow proper procedures in its rush to finalize debt relief before last year’s elections.
The comments came in a friend-of-the-court brief in Biden v. Nebraska filed on Feb. 2 (pdf), which was joined by McKeon and Kline, who crafted the loan relief legislation the president says empowers him to grant debt relief. McKeon left Congress in 2015; Kline left in 2017.
“Despite the staggering scope of this regulatory action, it was taken with breathtaking informality and opacity,” Boehner and the other two lawmakers said.
The Department of Education “did not undertake the notice-and-comment process required for rulemaking, much less solicit any public input.”
The agency “did not even issue a formal order or directive setting out its cancellation program. Instead, it issued a press release on August 24th along with two legal memoranda providing its justifications, and, later, a hastily created [Frequently Asked Questions] section on its website.”
The Supreme Court will hear oral arguments in the case, Biden v. Nebraska, on Feb. 28. A separate but related case, known as Department of Education v. Brown, will be heard the same day. The debt relief program was already blocked by lower federal courts.
The department claims it has the authority to move forward with the debt relief proposal, which would cancel as much as $20,000 in loan principal for 40 million borrowers, under the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act).
The government put a pause on student loan payments and interest during the recent pandemic but then claimed in 2022 that the pandemic gave it emergency authority under the law to proceed with partial loan forgiveness. Republicans, who took the majority in the House of Representatives in January, say the emergencies aren’t justified and should be ended sooner.
In a move that could undermine the government’s legal arguments in the Supreme Court case, Biden’s Office of Management and Budget said on Jan. 30 that on May 11, it would end the national emergency and the public health emergency, which were declared by the Trump administration three years ago. Those two official emergencies enabled federal agencies to exercise expansive powers in managing the government’s response to the COVID-19 virus.
Biden sparked confusion on Jan. 31 when he told a reporter that the COVID-19 emergency “will end when the Supreme Court ends it.” White House officials didn’t respond by press time to a request by The Epoch Times for clarification of the president’s comment.
Boehner, McKeon, and Kline, who were all involved in the passage of the HEROES Act, said the statute was enacted after the 9/11 terror attacks to provide student loan relief to military service members and their families but was never intended to be used to cancel debts en masse.
The three former lawmakers said in the brief filed on their behalf by Pacific Legal Foundation that they “know perhaps better [than] anyone why the Department’s justification is wholly at odds with the Act’s text, the context in which it was passed, and what has always been understood to be the limits of the Act’s reach.”
“As they know, firsthand, Congress did not, and surely could not, have ever expected the Act to be misused and distorted by the Department in the policy now before this Court.”
The purpose of the HEROES Act is “to repay the brave Americans who endure great personal hardship in service to their country with a modest protection against the distractions of administrative obligations arising from their student loans,” the brief stated.
But the lawmakers said they didn’t intend “to empower the Secretary [of Education] to radically change the student loan system itself, much less absolve borrowers who haven’t suffered hardship from the responsibilities they took on as borrowers.”
U.S. Solicitor General Elizabeth Prelogar took the opposite tack in a previous court filing (pdf).
She said that “the entire purpose of the HEROES Act is to authorize the Secretary to grant student-loan-related relief to at-risk borrowers because of a national emergency–precisely what the Secretary did here.”
Other opponents of the Biden plan, including 17 states, 128 members of the House of Representatives, and 43 senators, have also filed briefs.
In January, the NAACP, as well as the American Federation of Teachers, American Association of University Professors, and American Federation of State, County, and Municipal Employees, filed briefs supporting the Biden administration’s position.