Joe Biden’s plan to forgive $10,000 per person in student loan debt is an executive order waiting for a lawsuit. The shaky legal ground this order is on makes any court challenge if not a slam dunk, certainly a layup — that is, if someone or some entity with legal standing that proves they would be damaged by the order could be found.
Easier said than done. In this case, a likely candidate would be the United States Congress. Congress could sue the Biden administration for stepping on its authority to administer the student loan program. But Biden based his executive action on the Higher Education Relief Opportunities for Students Act of 2003. The bill, also known as the HEROES Act, gives the secretary of education the authority to change student financial assistance programs “during a war, military operation, or ‘national emergency,'” according to Time.
Related: Biden’s Student Loan Bailout: A Trillion Dollar Clusterfark Waiting to Happen
It’s a huge stretch to use the former pandemic to get around Congress.
“It’s on shaky legal ground at best,” says Lanae Erickson, the senior vice president for social policy, education and politics at Third Way, a Washington think tank that looks for non-partisan policy solutions. Erickson is concerned that Biden’s action overreaches in its reliance on the national emergency of the pandemic and that the courts will determine such a step requires congressional action. “The connection to the pandemic is pretty exaggerated, I think.”
Congress has standing but Democrats are not going to rain on Biden’s party and sue to stop the loan forgiveness program. Any legal action taken by either the House or Senate must await the day that Republicans have a majority.
And by then, it’s likely to be too late. The program would be well underway. Try snatching $10,000 out of the hands of men and women who will weep to the media about how they planned on not paying back their debt and are now being forced by mean Republicans to fulfill their obligations.
It’s an understatement to say the optics would be horrible.
Clearly, someone else will have to be found who can claim hardship if the loan forgiveness program is allowed to go forward.
“I would expect there would be challenges—this is such a slap in the face to everybody who did what they were supposed to do,” says Reed Rubinstein, the director of oversight and investigations for the America First Legal Foundation, which was founded by Stephen Miller, a former senior adviser to former President Donald Trump.
Rubinstein says that it is too early to know if his organization, which has challenged multiple Biden administration policies, would get involved in challenging the loan forgiveness. He did think that Congress would have standing to bring a case to protect its institutional interests over the power of the purse.
The policy is wrong on many levels — morally, financially, and almost certainly legally. But in order to prove its illegality, someone is going to have to step forward.
The Job Creators Network Foundation Legal Action Fund, which successfully sued the Biden administration on behalf of small business owners over COVID-19 mandates, is “actively weighing its legal options,” says President and CEO Alfredo Ortiz in a statement.
“A student loan bailout will further exacerbate inflation, increase the deficit, and lead to higher taxes,” Ortiz continues. “It’s not fair to the untold number of Americans who paid back their college loans or never went to college and it doesn’t address the root causes of why college loans have become so expensive.”
There are going to be challenges to the executive order, that’s for sure. But will the process of loan forgiveness go forward even if the question of legal standing is unsettled? If challenges can “run out the clock” on Biden and push a decision about the legality of the debt forgiveness program until after the first of the year, and if Republicans can gain control of at least one House of Congress, it would at least give the issue a hearing in court.
