Personal finance

Biden’s student loan forgiveness plan is ‘unlawful,’ two professors say, but legal challenges carry ‘dangerous implications’

Activists hold a student loan forgiveness rally near the White House on April 27, 2022.
Anna Moneymaker | Getty Images News | Getty Images

Although they call President Joe Biden’s student loan forgiveness plan “unlawful,” two university law professors are urging the Supreme Court to reject the legal challenges that have been brought against it.

“The standing theories that have been thrown at the wall in these cases are wrong, and many of them would have dangerous implications,” wrote William Baude, a law professor at the University of Chicago Law School, and Samuel Bray, a University of Notre Dame law professor, in an amici curiae brief filed on Wednesday with the nation’s highest court.

An amicus, or amici, curiae brief allows individuals or organizations other than the parties in the case to offer their information or expertise.

Biden announced in August that tens of millions of Americans would be eligible for cancellation of their education debt — up to $20,000 if while in college they received a Pell Grant, a type of aid available to low-income families, and up to $10,000 if they didn’t.

Since then, Republicans and conservative groups have filed at least six lawsuits to try to kill the policy, arguing that the president doesn’t have the power to cancel consumer debt without authorization from Congress and that the policy is harmful.

The Supreme Court has agreed to hear two of those legal challenges.

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Baude and Bray, in their brief, address the issue of so-called legal standing. The law professors say it’s supposed to be the party most affected by a policy that challenges it in the courts.

In their lawsuit against the president’s plan headed to the Supreme Court, six GOP-led states argue that companies in their states that service federal student loans, particularly the Missouri Higher Education Loan Authority, or MOHELA, would lose profits as a result of federal student loan forgiveness. But the law professors say that, in that case, MOHELA should have brought the legal challenge, not the states. The other states in the suit are Nebraska, Arkansas, Iowa, Kansas and South Carolina.

“Missouri is not the proper party to pursue relief for MOHELA’s lost loan servicing fees,” Baude and Bray wrote.

“Whether under modern doctrine or more classical terminology, the federal courts have the power to issue the requested relief only if it is being requested by the correct plaintiffs,” they wrote.

The legal challenges follow a trend that Baude and Bray say they find worrisome, in which states are too easily allowed to challenge a federal action they disagree with.

If the justices side with the states and overlook their shaky legal standing, the professors write, the Supreme Court risks sitting “in constant judgment of every major executive action — which is not its constitutional role.”

More than 10 other amici curiae briefs have been filed with the Supreme Court in support of the president’s loan forgiveness plan.

A former U.S. representative from California, George Miller, filed one of those defenses, arguing that the Heroes Act of 2003 allows the Biden administration to carry out its plan. Miller was a co-sponsor of that legislation.

“The Heroes Act gives the Secretary of Education the authority to ‘waive or modify any statutory or regulatory provision’ regarding federal student-loan programs ‘as the Secretary deems necessary in connection with a … national emergency,'” Miller wrote in his amicus curiae brief. The country has been operating under an emergency declaration due to Covid since March 2020.

The Biden administration has cited the Heroes Act of 2003 as the law that grants it permission to carry out its loan forgiveness plan, saying that the public health crisis has caused considerable financial harm to student loan borrowers and that its debt cancellation is necessary to stave off a historic rise in delinquencies and defaults.

More than 20 state attorneys general argue in their brief that “the relief offered to borrowers falls squarely within the authority Congress gave the Secretary to address such emergencies.”

“The Secretary’s action here is appropriately calibrated to ensure that the borrowers who have been hardest hit during the pandemic will not needlessly default on their student loans and suffer the attendant cascade of economic harms,” the attorneys general wrote.

The justices will hear oral arguments Feb. 28.

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