The Supreme Court on Tuesday heard arguments in two cases challenging Joe Biden’s power to spend a half-trillion to a trillion taxpayer dollars forgiving student-loan debt without the consent of Congress. The president’s abuse of “emergency” wartime powers passed in the 2002 HEROES Act is nothing less than lawless royalism. It continues his effort to use the Covid emergency to assert unprecedented powers, such as the capacity to order the compulsory vaccination of the nation’s workers and to prohibit the eviction of apartment tenants for nonpayment of rent.
At least vaccination is a Covid-specific policy, and the eviction moratorium was never designed to last forever. By contrast, student-loan-debt forgiveness was a preexisting policy demand of progressives before the pandemic, its effect would be to eliminate existing debts permanently, and it was issued at a time when Biden himself was assuring the nation that the pandemic was over and the economy was in full recovery.
If the Court cannot stop the president from raiding the Treasury to buy votes and reward friends on the most implausible of legal pretexts, what is it for? A majority of the Court appears to recognize that the HEROES Act does not grant the power in question — a reality that even Nancy Pelosi acknowledged until it became clear that Biden intended to act when he could not get such a plan through Congress.
The statute says that the secretary of education can “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs” when “necessary in connection with a war or other military operation or national emergency.” Chief Justice John Roberts set the tone for the argument by noting that Justice Antonin Scalia once observed that “modified in our view connotes moderate change. He said it might be good English to say that the French Revolution modified the status of the French nobility, but only because there’s a figure of speech called understatement and a literary device known as sarcasm.” Moreover, the chief justice observed that, even if terms such as “waive or modify” could be construed to encompass the outright cancellation of student debt, the Court’s “major question doctrine” requires more — namely, a citation to “clear congressional authorization” of the specific action taken by the administration. No one can plausibly claim that the HEROES Act even anticipated, much less green-lighted, half a trillion dollars in relief to a favored class of debtors without additional congressional input.
The notion that spending so much money during a period of runaway inflation would do no harm to anyone is nonsense, but courts of law rightly rule only on cases brought by a particular person or entity who has been directly injured. The administration’s lawyers kept rewriting the rules for the programs to include anyone who tried to sue to stop them, with the aim of depriving those challengers of legal standing to sue.
Despite their best efforts, however, Biden’s solicitor general was compelled to concede that MOHELA, a public instrumentality of the State of Missouri, would suffer a financial injury from the program because it holds interests in outstanding loans. The case is thus unlike the 2021 case in which the Court found that nobody was harmed by Obamacare’s individual mandate once its enforcement mechanism was removed.
As a result of the administration’s concession, Tuesday’s arguments focused on narrow and technical questions of Missouri law regarding the state’s ability to sue on behalf of a public entity that it has created and whose board is appointed by the governor and other state agencies — albeit one that could have sued on its own, chose not to, and declined to join or cooperate voluntarily in the state’s lawsuit. While the justices are prudent to take care not to unduly widen the courthouse door to everyone who dislikes a federal policy, it does no violence to the law of standing to allow state governments to vindicate the rights of state-government entities that have unquestionably suffered harm from an overreaching president claiming vast emergency powers over domestic politics.