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  • Sevda Mirali

SCOTUS Hears Student Debt Case in which CFJ Filed Amicus Brief

The Supreme Court hears argument today in two cases challenging the constitutionality of the Biden Administration’s mass cancellation of student debt. The Committee for Justice and the Hamilton Lincoln Law Institute jointly filed an amicus brief supporting the challengers. The brief was authored by HLLI’s Ted Frank and CFJ’s Curt Levey.



Committee for Justice president Curt Levey issued the following statement:


Today’s student debt cases provide the Supreme Court with the opportunity for a landmark ruling curtailing the increasing use of executive orders and regulations to circumvent Congress by enacting major policies grounded only thinly in statutory authorization.


In the instant case, the Biden Administration grounded its mass student debt cancellation in the HEROES Act—a wartime measure aimed at pausing loan repayment for military personnel—by tying the Act’s reference to a “national emergency” to the COVID pandemic. However, as our brief observes, the debt cancellation was motivated less by the pandemic and more by President Biden’s frustration with Congress’s refusal to enact student debt forgiveness and his desire to fulfill a campaign promise in the run-up to a challenging midterm election.


The logical stretch required by the Administration’s “national emergency” rationalization is further demonstrated by its decision to end both the COVID public health emergency and the COVID-based Title 42 immigration measures at the border.


Because the mass debt cancellation plan will cost taxpayers about $400 billion, the Supreme Court will surely evaluate it under the major-questions doctrine, assuming the Court finds that that at least one of the challengers has standing. The doctrine requires clear Congressional authorization for executive actions of great economic or political significance. As the Court has said, Congress does not “hide elephants in mouseholes.”


The Biden Administration faces an uphill battle in convincing the justices that Congress hid a $400 billion mastodon affecting tens of millions of Americans in a federal statute that was passed by voice vote because of its uncontroversial purpose of delaying loan repayment for military personnel during wartime. As our brief explains, “From the acronym title of the bill to the text of the HEROES Act itself, every aspect of the law is targeted primarily to military personnel.”


Moreover, even for military personnel, the HEROES Act does not authorize debt cancellation. The Act merely authorizes the Secretary of Education to modify student financial aid provisions such that active-duty soldiers and other “affected individuals are not placed in a worse position financially.” Unlike delays in repayment, which meet that description, debt cancellation puts holders of student loans in a better position.


Our brief quotes former House Speaker Nancy Pelosi, who said in 2021, “People think that the president of the United States has the power for debt forgiveness … He does not. He can postpone [repayment], he can delay, but he does not have that power. That has to be [accomplished through] an act of Congress.” That same year, during a CNN town hall, President Biden said “I don’t think I have the authority to [cancel student debt] by signing with a pen.”


We are confident that the Supreme Court will agree with what the President and Speaker said in 2021 and strike down the Biden Administration’s mass debt cancellation plan.



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