Authors of the Law Biden Used to Wipe Out Student Debt Declare He Doesn’t Have the Authority

T he legislators who wrote the HEROES Act, the law that the Biden administration claims gives it broad authority to forgive student loans, have filed a brief with the Supreme Court — declaring in unmistakable terms that the act does not, in fact, give the Biden administration broad authority to forgive student loans.

The HEROES Act was intended to be a limited response in the aftermath of the 9/11 attacks, the former lawmakers said. The brief says that they “write separately to make clear that Congress never intended anything like the loan cancellation effort underway here.”

Former representatives Buck McKeon (R., Calif.), John Kline (R., Minn.), and John Boehner (R., Ohio) filed the amici curiae brief in Biden v. Nebraska and Department of Education v. Brown, the two cases challenging the administration’s student-loan-forgiveness plan currently before the Supreme Court. McKeon was the original author of the HEROES Act of 2001, which did not become law but served as a precursor to the HEROES Act of 2003, which Kline authored. The 2003 version did pass, and it is the one that the administration is using as legal justification for the student-loan program, having sought to turn the law’s limited loan relief for people who serve the country into cancellation for potentially millions by citing the pandemic emergency. Boehner was chairman of the House education committee when both iterations were being considered by Congress.

“As they know, firsthand, Congress did not, and surely could not, have ever expected the Act to be misused and distorted by the Department in the policy now before this Court,” the brief says.

It goes on to say that the order violates the plain text of the HEROES Act in four ways:

First, a blanket forgiveness policy that applies to every borrower below the income threshold is not limited to affected individuals who suffered “direct economic hardship as a direct result” of the pandemic. Second, the outright cancellation of a loan balance is not the same as an authorized “waiver” or “modif[ication]” of loan regulations. Third, the purported waivers violate the statutory directive that they not “impair[] the integrity of the student financial assistance programs.” Fourth, outright cancellation is hardly “necessary” to mitigate the harms associated with the pandemic, particularly since no relevant borrower has been required to make a single payment since it began.

The brief also recounts the record of congressional debates in 2001 and 2003 and concludes, “No Member of Congress thought that the Act allowed cancellation of student loan balances.” It says, “The unbroken consensus for the past 20 years was that the Act could not be used in this fashion.” The record includes quotations from Republicans and Democrats. Some Democrats at the time said that they wanted the HEROES Act to have broader provisions to allow more cancellation, but those provisions were not included in the law.

“Every Member understood the primary aim [of the law] was to pay back the sacrifices of those serving in times of emergency,” the brief says. The congressional debate was on how best to do that, not on giving the Department of Education vastly expanded authority to forgive loans for the population in general.

The law was extended in 2005 and amended in 2007. Again, the brief notes that the congressional record makes clear that it was intended for people serving the country during times of emergency. “As the past 20 years of consistent understanding prove — Congress only ever understood the Act as a limited administrative tool to be used in narrow circumstances,” the brief says.

One factor courts consider when interpreting a law is the intent of the legislature that passed it. The brief references West Virginia v. EPA, a 2022 case where the Supreme Court considered the intent of Congress in writing the Clean Air Act as it related to an EPA plan to regulate emissions. Justice Neil Gorsuch wrote in that case that the Court will “presume that Congress intends to make major policy decisions itself, not leave those decisions to agencies.”

The Biden administration’s student-loan program is estimated to cost $400 billion, according to the Congressional Budget Office, and would apply to millions of Americans.

Regardless of the question of congressional authority, the brief also notes that the Department of Education did not go through the proper regulatory processes when creating its forgiveness program, failing to solicit public input or even issue a formal order. “Instead, it issued a press release on August 24th along with two legal memoranda providing its justifications, and, later, a hastily created FAQ section on its website,” the brief says.

The executive overreach could not be clearer, and it’s a good sign that the members of Congress who wrote the law feel strongly enough to stand up for their work. The Supreme Court’s decision should be easy.