In summer time of 2022, Democratic Speaker of the home Nancy Pelosi offered the next response when inquired about the president's power to unilaterally cancel education loan debt. \”The president can't do it-so that's not even a discussion,\” she said. Obama can delay repayment, as happened following the COVID-19 pandemic, she added, but, \”it would take an act of Congress, no executive order, to cancel education loan debt.\” That will appear to be that.
Yet roughly annually later, President Joe Biden did cancel as much as $20,000 worth of student loan debt for most borrowers, and, in direct contradiction to Pelosi's pronouncement, he made it happen entirely through the executive branch. There wasn't any act of Congress.
How exactly was this legal? What, exactly, gave the president authority to unilaterally cancel student debt?
The answer, it turned out, was the pandemic. As Reason's Damon Root wrote in August, when Biden announced his debt cancellation plan last month, administration lawyers cited the Higher Education Relief Opportunities for college students, or HEROES Act, of 2003, a post 9/11 law that \”permits the Secretary of Education to waive or modify Federal student financial help program requirements to help students and their families or academic institutions affected by a war, other military operation, or national emergency.\”
The law was clearly intended as a vehicle to own president the power to forgive education loan debt for people directly involved with fighting the fight against terror. But in Biden's revisionist citation, it became an all-purpose tool for mass debt forgiveness via executive action, premised on the argument that the COVID-19 pandemic was an ongoing national emergency.
The pandemic, within this formulation, gave Biden extraordinary powers-powers that under normal circumstances obama will not have.
It was an inherently dubious justification, given the novel and expansive reading from the HEROES Act. But Biden completely undercut it on the 60 Minutes interview this weekend as he declared, flatly, that \”the pandemic has ended.\”
\”The pandemic is over. We have an issue with COVID. We're still carrying out a lot of work on it. However the pandemic has ended,\” President Biden tells An hour within an interview in Detroit. https://t.co/7SixTE3OMT pic.twitter.com/s5fyjRpYuX
— An hour (@60Minutes) September 19, 2022
If the pandemic has ended, then there's no ongoing national emergency, meaning the already shaky legal ground which the Biden administration based its action has collapsed entirely.
What's more, the administration had previously acknowledged it lacked the legal standing to enact policy with different pandemic emergency.
In an article flagging the legal implications of Biden's inconsistency, National Review's Charles Cooke notes that \”in May, the Biden administration (correctly) reported that it was obliged to finish using Title 42 from the 1944 Public Health Services Act in the border because the Covid-19 emergency had passed.\” The administration, quite simply, had already concluded that the pandemic was no longer an urgent situation that justified extraordinary action months before the student loan forgiveness announcement. But that, obviously, was a policy the Biden administration wanted to end. For legal purposes, the Biden administration's position could be that the pandemic was over if this must be over, but ongoing if this needed to be ongoing.
The Biden administration's legal ground for canceling student debt via executive action had been poorly rationalized nonsense ginned up to enact a blatantly illegal policy that served being an expensive giveaway to Biden's voters. Biden's 60 Minutes interview shows that he cannot be also bothered to keep his shoddy story straight.
