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I’ve previously written about how much I dislike student loan forgiveness policies and framing college education as a public good. Now that the Biden administration is attempting to implement the policy, the discourse has shifted away from whether it’s a good idea to whether it’s a legally valid policy, with two challenges currently going to the Supreme Court. For a defense of the policy that extends all the way to declaring that the challenges are completely illegitimate, we can look to a Voxsplainer from Ian Millheiser:
I suggest a full readthrough, but that does get to the heart of the matter. The full text of the Heros Act is here and is about as clear as Milheiser suggest above. After some initial throatclearing, the act says:
I don’t see anything in the ensuing paragraphs that would narrow this meaningfully, although I welcome input from anyone with a sharper legal eye than I have. Nonetheless, I find myself looking at this as an utterly dishonest exploitation of a law that was written with a clear purpose in mind. The Heros Act was created to handle soldiers being sent abroad to fight the War on Terror; whether this was good or bad policy, it had a clear purpose and a somewhat defined cost cap based on how many people are actually affiliated with the military or meaningfully economically impacted. The Biden student debt cancellation takes advantage of the “or national emergency” provision by declaring that everyone was impacted by the declared Covid emergency and therefore all student debt was subject to cancellation per this bill.
This, I suppose, is where I rediscover that whatever judicial philosophy I adhere to looks more like originalism than textualism, but really looks even more like I adhere to my own You Must Be Kidding Doctrine. I don’t buy for a moment that the people that drafted this legislation intended to empower the executive branch to declare an emergency that affects all Americans and that this would grant the power to cancel as much student debt for as large of a group of people as they like. Had they intended to do so, they probably would have just done that explicitly rather than spending a page clearing their throats about the importance of the United States military.
I see many speculating that the ostensibly conservative Supreme Court will use the Major Questions Doctrine to overturn the policy:
I have to confess that I personally despise student loan “forgiveness” so much that I would be enthusiastic about nearly any convoluted reasoning that the Supreme Court comes up with to reject it as a legitimate policy. I am further bolstered in that attitude by what I perceive as decades of utterly ridiculous, lawless rulings that build on the time honored principle of deciding what I want and figuring out why the law agrees with me later. In this particular case, I think it’s actually fairly reasonable to say that this $400 billion policy and license for trillions more is not a legitimate use of executive authority delegated by Heros act, but I don’t think I can actually prove that through looking at the language in the text.
What say you?
Textualism isn’t giving a strict reading of a text but a fair reading of the text which requires using context and seeking not what Congress “meant but the true meaning of what they said.” Scalia and Garner, Reading Law, P 394.
So the question is whether the true meaning of waive or modify any provision really means the ability to forgive debt?
I would say no.
The first clue is the preamble. The entire thing is about military personal. Moreover, there is a notion that they can be called in short order which can upset among other things their post secondary education. Given that, these “heroes” should be supported. This also suggests a relatively small class of people (even if it is expanded in the text but this gives a clue as to whether this rule can really be fairly read to enact policy writ large).
The next clue is that there appears to be a very large grant of authority for the education secretary to change the statutory or regulatory requirements solely at the discretion of the secretary and outside of normal APA requirements. This is truly an extraordinary grant of authority. The APA notice and comment requirement acts as a check on the administrative state by requiring them to listen to the public and responsibly respond. But here the secretary claims the ability to re-write law sans any oversight whatsoever. Query whether that violates non-delegation principles. Are we sure that is what these words really mean here?
Third clue, related to the above, is the inclusion of emergency and the requirement that the secretary explain him or herself after the fact to congress. . Taken together, this seems to address situations where because time is short (there is a war or an emergency) the change to student loans cannot occur through normal processes (either congress or APA). Thus, the secretary can make changes in the short term but explain those changes to congress (who presumably at such time can make reasoned decisions outside the course of an emergency).
The fourth clue is that multiple places the waiver states it is designed to make the relevant person no worse off while at the same time not requiring a case-by-case determination. Presumably because again this covers emergency situations by attempting to preserve the status quo ante; not legislation.
Taking all of those clues together it seems impossible this bill can be fairly read to give to the secretary the ability to uniformly cancel student loans of every in the US two years after an emergency has been declared (a 500b undertaking here but principally not limited to that number) without any oversight (ie not preserving the status quo ante but changing it). If it did, it raises serious non-delegation questions (which means Major Questions doctrine likely applies).
Moreover, we have the Scalia “no elephants in any hills” to fall back on as well as for others the “dog that didn’t bark” canon.
To me, this statute either doesn’t give the secretary the authority to do this or it is probably an unconstitutional statute.
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