The Last Chance Of Freedom: LAWCOMMENTARY Can Biden Cancel Student Loan Debt? Here’s Why It’s a ‘Major Question.’

Wednesday, August 31, 2022

Although the Biden administration has announced its student loan "forgiveness" program, the specifics of the plan's implementation remain murky.
What is crystal clear is House Speaker Nancy Pelosi's statement just last year that "the president can't do it."
Presidents make grandiose promises on the campaign trail to make extensive changes to policies, try working with Congress to make good on these promises once elected, then eventually give up and use the stroke of a pen to circumvent the legislative process.

Immigration, student loans, vaccine mandates... contentious issues such as these used to be addressed by our elected representatives in Congress
But Congress does not have the capacity, nor do its members have the inclination, to address these issues head-on
So now such issues are settled through a single, winner-take-all election every four years
In the last few years the federal courts have enforced limits on executive power by interpreting the laws that delegate power to the president narrowly
The president's job is to execute the law, not to make it

The famous case of FDA v. Brown and Williamson (2000) illustrates this.
In that case, existing law gave the Food and Drug Administration the authority to regulate "drugs," defined in the law as "articles (other than food) intended to affect the structure or any function of the body."
Congress would have to make such a delegation of power explicit.

Biden's plan to cancel student loan debt is vulnerable under the major questions doctrine
The administration relies on the HEROES Act of 2003
Authorizes the secretary of education to "waive or modify any statutory or regulatory provision" related to the federal student financial assistance programs, "in connection with a war or other military operation or national emergency"
However, it also limits the discretion of the education secretary
One of those limits requires the secretary to ensure that recipients of student loans "are not placed in a worse position financially because of" the emergency