President Biden’s move to “forgive” thousands of dollars per student borrower is certainly bold. The U.S. Department of Education shared in its Tuesday memo:
For the past year and a half, the Office of General Counsel (“OGC”), in consultation with our colleagues at the Department of Justice Office of Legal Counsel, has conducted a review of the Secretary’s legal authority to cancel student debt on a categorical basis. This review has included assessing the analysis outlined in a publicly disseminated January 2021 memorandum signed by a former Principal Deputy General Counsel. As detailed below, we have determined that the Higher Education Relief Opportunities for Students (“HEROES”) Act of 2003 grants the Secretary authority that could be used to effectuate a program of targeted loan cancellation directed at addressing the financial harms of the COVID-19 pandemic. We have thus determined that the January 2021 memorandum was substantively incorrect in its conclusions.
One has to chuckle or cry at the Biden administration’s chutzpah for contorting the HEROES Act so obscenely as to claim that it supports “loan forgiveness” due to the so-called Covid emergency. The idea that a Republican congress and president thought that the 2003 law would be used for such an end is ludicrous, made all the more so by what a Democratic-controlled congress would draft and what President Bush would sign five years after HEROES with the post-9/11 GI Bill.
For those unfamiliar, the post-9/11 GI Bill pays for some or all of a service member’s schooling. It’s an extraordinary program and a testament to the generosity of the American taxpayer. But it sure don’t come free.
Service members must serve at least three years and depart the military with an Honorable Discharge — neither guaranteed upon enlistment. The GI Bill is deferred compensation for years served, making very little, and deploying to inhospitable bits of the world — at least from what I hear; being Navy, I mostly floated about and painted whatever was secured to the deck. “Once over dust, twice over rust,” as the saying goes.
Naval fine-arts programs aside, if even the Dems installed such strenuous requirements for service members to earn college monies, I find it difficult to understand how they think pivoting to, “Free college money for everyone! Just look at this 20-year-old legislation written in the wake of 9/11,” holds up to the public’s or the courts’ scrutiny.
And another point: If it takes a year and a half to find the legislation that sorta-kinda-maybe permits you to throw money at your base (this is after a previous memo said no such legislation existed), you’ve willfully accepted fiction as fact to achieve a selfish end.
Half-baked idea: Agencies should get one hour in the Library of Congress to find the legislation and precedents that support any claim or executive order they want to enact. Should the hour expire without their finding success, then it’s very likely that their claims are unsubstantiated by law and custom. Any more man-hours devoted to finding it would be a waste of taxpayer dollars and an abuse of power. Televise the search and sell it to Netflix. Viewers could gleefully watch the interns of the Department of Education throw themselves at 19th-century documents about grain prices in Austro-Hungary in a quixotic effort to overturn President Paul Ryan’s dismantling of the federal student-loan apparatus.
Federal student-loan forgiveness has no equivalent, goes beyond what Congress was willing to give veterans in the years surrounding the HEROES Act, and is a textbook example of wish-conceived law interpretation.