Freedom

By Adam Carrington

The adage goes, “If at first you don’t succeed, try, try again.” President Joe Biden seems to take this point to heart regardless of whether what he tries is legal. 

This Monday, Biden announced a new plan to cancel student loan debt. Those following this story likely will remember his efforts a couple of years ago to eliminate $430 billion in such loans. The Supreme Court rebuffed him, pointing out that the plan went well beyond the powers granted to the president by law. 

Biden claimed this new effort does comport with existing law and thus will not suffer the same judicial end. The just-announced cancellation plan does base its efforts on a different law than the last effort. It also targets its relief to fewer persons and for lesser amounts. 

Yet it is far from clear that Monday’s executive action won’t end in judicial defeat come June 2025. The essential question the Supreme Court asked last year and will ask again concerns the intersection of the rule of law and separation of powers. 

The rule of law demands that our government only act according to prescribed rules made by legitimate authority and implemented through fair and clearly established procedures. Separation of powers divides up how the laws rule according to who makes them, who enforces them, and who interprets them in resolving disputes. 

Last time, the Supreme Court said Biden violated the rule of law by violating separation of powers. Congress makes law. The executive, except for signing or vetoing bills, does not. Instead, the president’s essential task is that he “shall take Care that the Laws be faithfully executed.” To execute the laws faithfully requires that he follow them as written and not go beyond the powers those laws give the government. 

Yet the court found that the Biden administration, in its earlier student debt cancellation, went well beyond the powers the law gave the president. He and his officials engaged in legislative activity, rewriting the laws to suit their policy desires. They usurped congressional powers and acted as if they, not the laws, ruled. 

There is good reason to believe that history now repeats itself. Despite any differences the Biden administration claims between the last plan and this one, a core problem remains. In the end, significant changes in how government student loan programs run should be made by Congress. The president and all other executive officers only should be implementing those decisions. 

The Supreme Court has policed this division of labor by using the “Major Questions Doctrine.” This judicial standard says that while executive officers and governmental agencies might have discretion to fill in details about a law, the significant matters having a large impact on people’s lives must be made by the people’s representatives in the Constitution’s legislative branch. This view already resulted in a Supreme Court curbing of the Environmental Protection Agency in 2022 in West Virginia v. EPA. There is good reason to think that this new student debt plan, though more modest than Biden’s last attempt, still runs afoul of the Supreme Court’s standard here. 

These comprise the stormy judicial waters the new plan likely will face. But those matters do not exhaust the debate about canceling student loans. On the policy side, the matter of justice remains a powerful and important one. Those supporting the cancellations claim that college students were preyed upon and otherwise treated unfairly in the processes that led to the significant debts many incurred. Others oppose cancellation, seeing it as an unjust transfer of wealth and responsibility. Those getting their debt relieved get an infusion of economic opportunity and power. The taxpayers, many of whom didn’t go to college or who paid off their student loan debts, take on the responsibility, if not the loss. 

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We should not ignore these claims even as we consider the legal challenges to the new Biden plan. Particular circumstances of bad dealing and even outright misleading have occurred for former college students. Yet the massive demand being asked of taxpayers goes too far, making what at most should be very narrowly targeted remedies into broad redistributions of economic power. 

Biden’s plan should fail, both as a matter of legality and of justice. Perhaps after this round, he should quit trying.