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Biden’s Latest Student Loan Bailout

Posted on Monday, June 10, 2024
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by Outside Contributor
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What to President Joe Biden is an adverse legal judgment? A reminder that he has claimed more power than the law gives him? A lesson in the differences between writing law and faithfully executing it?

No. To Joe Biden, an adverse legal judgment is an opportunity to showcase his artistic side. Just as modern artists reject the old rules of perspective, proportion, and balance, Biden rejects the rule of law as an anachronistic constraint upon the freedom to fully express his creativity through the medium of law.

Biden’s latest attempt to cancel hundreds of billions of dollars of student loan debt looks at the law as through a rain-covered windowpane. It is impressionistic, at best, surrealist at worst, and doomed to be rejected by a Supreme Court that interprets the law with a distinctly realist eye.

The first time Biden tried this, he squinted at a law called the HEROES Act until he saw in its words “waive or modify” enough power to erase $430 billion dollars of student loan debt. But the Court said that those words were a “reed” too “thin” to bear that awful weight. The power to waive or modify did not give Biden the power to “draft a new section of the Education Act from scratch by ‘waiving’ provisions root and branch and then filling the empty space with radically new text.”

In other words, the Supreme Court expects the executive to take care that the law be faithfully executed, not creatively reinterpreted. But Biden has not learned that lesson. His latest debt-cancellation plan, which follows several piecemeal efforts to cancel certain debts or reduce repayment obligations, commits many of the same errors that the Court rejected the first time.

This time, Biden and Secretary of Education Miguel Cardona creatively interpret the Higher Education Act. Unlike HEROES, that law gives the Secretary the power to cancel some student loans in what the Court described as “certain limited circumstances and to a particular extent,” such as if a borrower completes 10 years of public service, becomes permanently disabled, or was defrauded by his school. 

It is, however, precisely the careful limits Congress imposed on these plans that make them unsuitable for what the President wishes to do. Biden instead looks at the HEA’s income-driven repayment plans, asserting that the limits on these programs are somehow more flexible. Although Congress specified the repayment plans’ durations, borrower qualifications, and income-contribution requirements, Secretary Cardona contends that he has nearly unlimited authority under the Higher Education Act to reshape these programs.

Under the so-called “Saving on a Valuable Education” (SAVE) Plan, the Secretary claims authority to exempt more borrower income from the repayment obligation first by raising the contribution threshold from 150 to 225 percent of the federal poverty line, and second by lowering the amount of discretionary income contributed towards repayment from 10 to 5 percent. The result is that a typical borrower “repays less than what [she] took out: only $6,121 for every $10,000 borrowed,” and “4.3 million out of 7.8 million borrowers under the income-driven repayment plan from the Final Rule have a monthly payment of $0 on their loans.”

The effect is to confound the law’s distinction between student loans and education grants at a cost of $475 billion over 10 years. This is hardly a faithful reading of Congress’s work, and the administration acknowledges no limit to this power except political expediency. Already 18 states have filed two lawsuits attempting to halt the SAVE Plan. 

As one student-loan rule lands in court, another is wending its way through the bureaucratic bowels. Under the administration’s latest proposal, the Secretary asserts an authority under the HEA to cancel loans balances for several subsets of borrowers, to the tune of $84 billion. The asserted legal basis is the HEA’s grant of power to the secretary to “waive” a “right, title, claim, lien, or demand.” This appears stronger at first glance than the administration’s previous justifications.

But the devil is, as usual, in the details. What debt is subject to the Secretary’s HEA waiver power? Loans made under the Federal Family Education Loan program. Biden is, no doubt, happy to cancel as many Family Education loans as he can. But he really wants to target the much larger Federal Direct Loan Program.

That desire faces two substantial legal problems. First, “waiver” in the Higher Education Act does not permit the wholesale erasure of any debt—only the cancellation of set amounts on certain loans. And second, the Act gives the Secretary no authority to cancel Direct loans.

Secretary Cardona assumes that the provision that gives him the “general power” to waive certain amounts of certain Family Education loans applies with equal force to all Direct loans. That conclusion is not obvious because the waiver power only applies to “this part,” that is, Part B of the Act, which governs Family Education loans. Part D, which governs Direct loans, does not include a waiver power.

That seems fatal to most of Biden’s latest plan. Aware of this problem, Cardona argues as follows: First, Part B says that Family Education loans have the same “terms, conditions, and benefits” as Direct loans. Second, the Secretary’s waiver power is a term or condition of the Family Education loans. Thus, he contends, the waiver power in Part B is imported into Part D, even though it doesn’t appear there separately.

It’s a creative argument. But a Supreme Court that does not favor impressionistic statutory interpretation is likely to reject it because “general power” is not a synonym for “term, condition, or benefit.” This point is driven home by the fact that these disparate phrases are explained in different parts of the Act.

When the Supreme Court struck down Biden’s first cancellation plan, it said that he “‘modified’ the cited provisions only in the same sense that ‘the French Revolution ‘modified’ the status of the French nobility.” At least there, Biden tried only to expand the definition of a word. Here, he’s trying to rewrite one entirely. If the Supreme Court rejected the lesser error, how likely is it that it would permit the greater one? Not likely when basic tools of statutory interpretation resolve the issue against the administration. The waiver power simply isn’t in Part D though Congress certainly knew how to put it there.

Biden and Cardona might respond by waiving every bureaucrat’s favorite get-out-of-jail-free card: statutory ambiguity. We really can’t know, they might argue, whether “terms, conditions, and benefits” of loans are synonymous with “general powers” of the Secretary, so the Court should defer to us.

Even if the much-criticized Chevron deference wasn’t on this term’s chopping block, it wouldn’t save Biden’s latest gimmick. Chevron applies only if a statute is, in fact, ambiguous, and the Court hasn’t found a statute ambiguous in nearly eight years. And even when it has found that there might be multiple possible interpretations, it has employed the Major Questions Doctrine to choose the more restrained reading, especially when the alternative is a novel expansion of a heretofore-limited agency power.

Are Biden and Cardona aware of the state of the law? They should be. The last time that the Supreme Court used the Major Questions Doctrine, it struck down the first loan bailout plan. And the parallels between the last cancellation bid and the latest efforts are clear enough to ensure that major questions will figure into the imminent legal assessments of these rules.

Apart from the sheer expense, which is every bit as large as previous major questions, the political salience of the issue of student loan debt is and remains a matter of great political import. Nothing has occurred between the Supreme Court’s decision in June 2022 and now to make that any less so. One gets the distinct impression that it is precisely the issue’s enduring political significance that has prompted the Secretary to undertake this and other impromptu executive initiatives to eliminate student debts in an election year. The Secretary cannot avoid the issue’s political valence by simply invoking a new statutory justification for the giveaway, particularly when the new statutory basis is as dubious as the last.

Here, as in Biden v. Nebraska, “[u]nder the Government’s reading of the [Higher Education] Act, the Secretary would enjoy virtually unlimited power to rewrite the Education Act.” Nothing in the Secretary’s thumbnail sketch of a legal theory would prevent future secretaries from doing the same thing as often as the officeholder deems it desirable.

What the Secretary purports to exercise in the proposed rule is no “discretionary” authority appropriate to the executive branch; it is full-blown legislative authority, treading into the appropriations domain constitutionally reserved to Congress, unmoored from any intelligible principled limit to its application.

This sort of legal surrealism likely won’t be well received by our realist Supreme Court, nor should it be.

GianCarlo Canaparo is a Senior Legal Fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.

Jack Fitzhenry is a Legal Fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.

Reprinted with Permission from The Heritage Foundation – By GianCarlo Canaparo & Jack Fitzhenry

The opinions expressed by columnists are their own and do not necessarily represent the views of AMAC or AMAC Action.

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Theresa Coughlin
Theresa Coughlin
15 days ago

What part of “You don’t have the authority to do this? ” doesn’t Biden understand? Also, can we be please be honest. stop calling Biden’s bailout “student loan forgiveness” and call it what it REALLY is? It’s an attempt by Biden to buy the youth vote with the taxpayers’ money. Speaking of the taxpayers: these constant student loan bailouts that Biden is trying to force upon the taxpayers is unfair because some taxpayers either did not take out loans or paid their loans back. Why should people who did not take these loans pay them back? Also, these people who took out the loans SIGNED A CONTRACT in which they agreed to pay the loans back. They should abide by that contract and pay the loans back.

James E Jones
James E Jones
15 days ago

Government bailouts are for free-loaders. Students and former students should get a job and pay their debts, instead of being a tax burden to honest hardworking taxpayers. If they cannot pay it with the job they have, they need to get a second job. But don’t burden us with your debt, we have our own to pay and we do it.

John
John
15 days ago

Biden and the Socialist Democrats are stealing the taxpayers money! They need to all be deported or put in jail for life!

David
David
15 days ago

If I protest and scream death to America do I get my student loan absolved too? This president was bad news from day one, I’ll be happy if Biden can end his presidency this year without starting a nuclear war literally.

Debbie Hunter
Debbie Hunter
15 days ago

Joe Biden is trying to buy votes by transferring people’s loan payments to hardworking American Taxpayers. Why do they feel they are so “entitled “. No one forced them to sign the student loan papers.
So what’s next? In five or ten years, these same people will be expecting the government to erase their Mortgage Payments or Car Payments. Ridiculous! Biden should be arrested for P!ssing on the Constitution and our laws.

Mary
Mary
15 days ago

https://www.bizpacreview.com/2024/06/05/
A Democrat mayor in Minnesota stepped on a rake when he tried to express his gratitude to President Joe Biden for canceling his student debt.
Melvin Carter, the first African-American mayor of the City of Saint Paul, was happy to share the news that he now had a zero balance on his student loan payment accarount. Carter thanked Biden in a post that included a clip of the president boasting about how he got around a Supreme Court decision that blocked his student loan bailout program.
But Carter’s celebratory post landed with a thud as social media users raked him over the coals for getting a bailout when he earned over $130,000 as mayor. 

CLIFFORD F GERACI
CLIFFORD F GERACI
15 days ago

Tapping more strategic oil reserve to lower gas prices, forgiving loans made by the taxpayers to students, and enacting executive orders for the border….must be elections season upon us where he acts like he is doing Americans a favor.

Ralph
Ralph
15 days ago

Joe and his henchmen have a new take on the old Sherwood Forest tales…
Now Robbin’ Hood Joe and his Merry Men take from the poor taxpayers and give to the rich elite.

Tony
Tony
15 days ago

Yet another example of Democrats ignoring the laws…FJB does it every day with the border crap…

Robert Zuccaro
Robert Zuccaro
15 days ago

If he wants to buy youth votes, why doesn’t he just government-subsidize their pot… that probably costs them more each month then their student loan payment!

Myrna
Myrna
15 days ago

The imagery used to make this point is excellent. One bit of history re-emphasizes what is wrong. When the Federal government began to assume primacy over student debt the sales pitch was that the interest on these loans would (help to) pay for Obamacare. Of course there is no interest if no payments are made. The whole thing is a failure.

Robert Marburger
Robert Marburger
15 days ago

Biden should be removed from office. Pandering to those that have student debt to buy votes with tax payer money should be illegal and Biden sent to prison.

Patriot E
Patriot E
15 days ago

Let me explain something to you OBiden the nit-wit …. the handful of votes you will get IF this tactic would work would be drowned out by the backlash of all the folks you are humping to get a few votes. You are done Mr. Fake pResident! Pack your bags BOY!!

Jackie
Jackie
15 days ago

Again??? Joe must be terrified of losing, he’s trying so hard to buy votes now!! Remember people, Joe is a liar so if he wins, there is no promise that he won’t be willing to break!!!

Barbara
Barbara
15 days ago

What will it take for Biden and Cardova to understand the American people, the majority, does NOT want to see the student loans dismissed in any way shape or form. The Borrows must re-pay their obligation period!

Michael
Michael
15 days ago

Joe Biden is trying to steal more of our tax dollars to buy more votes. He uses our tax dollars to fly all over creation campaigning. It is time he is arrested, put on trial, convicted, and part of his sentence should be to pay back all of the money it has cost for Air Force 1, security, fuel, and any just because funds paid for by the federal government.
He is nothing but a puppet for Obama, the communist party, and the Communist “friends” he has around the world.

Joearcher
Joearcher
15 days ago

Biden wants to “forgive” $430 Billion in student loan debt, for people who are working, in a last-ditch effort to buy votes. Wait till Americans find out about his plan to further reduce benefits in Medicare Advantage plans for retired Americans, many of whom are living on fixed incomes (like me). I’m willing to bet that he will lose more votes than he can gain by his illegal vote-buying scheme that the SCOTUS has already declared unconstitutional. FJB!

Chris
Chris
15 days ago

Time to take away the federal government access to our creditworthiness through rescinding its unlimited borrowing power.

Cher
Cher
15 days ago

I agree with ALL the comments I read below. However, what the populace may not understand (those who finished college BEFORE BO put in place ‘the Feds taking over Student Loans’ sometime around 2013, I think…) IS THAT BO’s IRS (and Deep State) conspired in UP’ing the Interest on those loans (which had been very low) to being just like the interest (or MORE) on Credit Cards!!! which meant that a Student Loan of a few thousand TURNED INTO Owing the Govt. (IRS) a whopping $40,000, that then turned into $60,000 – especially when it was difficult to find a Job that paid that much in your first years out of college. I’m not talking about about the worthless degrees they turn out, but REAL Degrees, that then ALSO require further paid Certifications and paying a Monitor (Mentor) for so many hours/months (for degrees in Health Svs.) at $hundreds/hr.! BEFORE you CAN GET a Job earning enough $$$ to pay back the ever-increasing ‘student loans’!!! THIS IS WHY WE ARE HAVING THIS STUDENT LOAN CRISIS – BUT NO ONE IS TALKING ABOUT THE MESS THAT BO CREATED WHEN HE ‘Federalized’ the Nation’s Student Loan Program, from what it WAS to THIS MESS!!! And FEW know about it. It’s NOT JUST about students being stupid and irresponsible! There ARE those. But it’s WORSE. THIS IS ABOUT WHAT -BO- DID TO OUR STUDENT LOAN PROGRAM. PLEASE HELP!!! The REAL problem is NOT with our ‘Student Loans’ (which needed overhauling… because it was too EASY to GET the Loans, and they weren’t explained to vulnerable, young people ‘how they work’ – but just ‘they were Free’). The REAL problem is HOW they’re NOW being ‘monitized’ as ‘new income’ for the Feds. that’s EASY MONEY for the Feds, who keep Up-ing the ‘Loan Amount’ by using the Interest on the Loans – SO THAT THEY CAN NEVER BE PAID OFF!!! But NONE of THIS was EVER explained to those College Students when BO DID IT!!! AND they didn’t FIND OUT how this ‘worked’ until AFTER they graduated, and were presented with ‘the Bill’ and how much a month they HAD to pay, or that their Loan Amount would INCREASE each and every month until the Loan was PAID OFF – which is now an impossibility until they first GET A HIGH-PAYING JOB where they can APPLY their newly-learned skills in their field of newly-acquired Expertise and Enlightenment! but not until they first meet the additional requirements for the Job they are now ‘degreed’ to be able to do, but there is yet MORE to DO BEFORE they can get a REAL paycheck! And that takes time… but the IRS doesn’t allow it! but just DEMANDS RE-PAYMENT!!! like a Chicago mobster loan-shark, dressed in disguise as ‘Uncle Sam’ . Won’t SOMEBODY HELP!!! Obviously, Joe’s plans are NOT the answer because they don’t SOLVE the PROBLEM, and we ALL KNOW that the only ones who will ever GET those ‘bail-outs’ are the millionaire Dem Politician’s kids!!! and grandkids!!! It will NEVER be US! or OUR kids!!!

John Riley
John Riley
15 days ago

Just another way to use our tax money to buy votes. Keep your eye on the pea and remember in November.

Jeff M
Jeff M
15 days ago

And if Biden thumbs his nose to the Supreme Court decision, what are the ramifications??? How will anyone be held accountable for disregarding the rule of law???

Morbious
Morbious
15 days ago

What could go awry? Cant we use more airheads with degrees in porn studies or lesbian dance theory? Well surely get them when college is free; a commie dream. Commies wish to cripple and retard human development. What better way than to enable kids to get unmarketable slop degrees. Their best option is to stay at school as long as possible. Adolescence till thirty.

Patty Shoults
Patty Shoults
14 days ago

If the student loan program is so corrupt that Biden wants to forgive student loans, then step 1 is stop giving out new loans. Why is the government backing all student loans? Put this back with banks and credit unions. Student loans are not discharged for those that file bankruptcy. In summary our government want to give a young adult 80-120k to go to a college that has inflated their prices. The colleges have degrees in areas where there are no jobs so the young adult can,t cover the payments. Now the government wants to just forgive the loan. Trash the whole student loan program. It’s killing the future of our young people.

Robert
Robert
15 days ago

Beijing Biden does not believe the Law will ever apply to him and if we don’t elect Trump it never will!

anna hubert
anna hubert
15 days ago

Higher education act? If it is a joke it is not funny High schools are giving diplomas to people who function on grade 8 level if they are lucky They are accepted into colleges where they learn how to protest against the system that coddles them If Boden wants to forgive the loans and repay from his own pocket I guess we can’t stop him Kind hearted man that he is If it is a bail out then he must bail out every failed business in the name of equity equality and fairness Is that not the mantra ?What about personal loans ?

Thinking
Thinking
15 days ago

Obiden creatively lies. In all he has done to this country. To its citizens who have an other outlook for America. That are caring for the citizens who are here. Not for the millions of invaders Obiden wants to make voters with one stroke of the pen. This is not how freedom in the constitution is described. The freedom is for the people. The president’s only duty is to execute what the legislative and judicial branches have come up with. The legislature is the voice of the people, at least that is how our writers of the constitution saw it. Only Obiden has usurped and misused and lied his way and decided to become a dictator. He doesn’t like any authority. He doesn’t take any responsibility for his tactic. No wonder he has a son who till this trial kept saying I don’t know whose laptop that is. It probably was stolen. His brother Jim is the same. It is a family trait, shortcoming, where others are to blame. Anyway, ole Joe would say when he runs out of brain matter. Pause.

Wanda Leyba-Gonzales
Wanda Leyba-Gonzales
14 days ago

Tax payer money should never be used for paying off student loans. This is the people’s money and we should be protected from anyone trying to use our money. The people who took these loans, signed for them, and they should be responsible for paying them back. For as long as I can remember, student loans have never been paid for any student. Why should it be different now?

Adonis
Adonis
15 days ago

Don’t expect anything other than lawlessness from certified liar and crook. No matter what this illegitimate tyrant does it will not work.

uncleferd
uncleferd
14 days ago

“President” Biden is nothing but a 2-bit punk in a job he did not earn, and, most certainly, is unable to handle or do justice to. If he had any humility, or even the most modest level of self-awareness, he would have vacated the Presidency by now.

Denise
Denise
14 days ago

I am just so very tired of this man giving away Our Country!!!! It has not his property and he has no right to treat it as such!!! Under NO circumstances would I even considerate voting for him!!! Our beloved Country cannot take 4 more years of him and his family!!!!

teresa
teresa
14 days ago

this idiot is the mater of disaster! he needs to get the hell out of this country – he is a miserable SOB, ignorant, feeble, slug, slime ball, moron, dumb and many more words i could use. nov can’t come fast enuf – TRUMP 2024 PRESIDENT TRUMP – can’t keep a good man down

USMC7
USMC7
14 days ago

I cannot understand why the old fool is still the President of the USA, surely he has done enough to be impeached, yet every day I hear something stupid he is behind. Why is Congress setting on their asses and letting this crazy communist POS get the USA engaged in a world war.

George Ruben Rivera Jr
George Ruben Rivera Jr
14 days ago

I thought trying the same thing over and over and expecting a different result was the definition of insanity, not senility!

Paul W
Paul W
15 days ago

When you think about it, this IS literally BUYING votes…while doing so in violation of a SCOTUS ruling. Those that don’t believe that we’re experiencing banana republic tyranny are not paying attention, are brainwashed by the “msm” or are just plain stupid.

JohnD
JohnD
10 days ago

Paying for student loan bailout free everything for ILLEGAL ALIENS not with my tax dollars , I’m self employed and don’t plan on paying my taxes until the government stops giving away my money to useless lazy students and dirt bags that break the laws of this country by coming across the border ILLEGALLY
YOU want a college degree great PAY FOR IT ,even if it means working 2 jobs people in my generation worked 2 , 3 or more jobs to get what they wanted
You want to come to America, Great just do it LEGALLY and start working for it once here. The rest of us don’t want to pay for you

The Hammer
The Hammer
10 days ago

Biden is a dictator, he just does what he can get away with. Legally or illegally!

scbubba
scbubba
13 days ago

Our son and daughter-in-law diligently worked and responsibly paid-off his $150K in loans from both undergraduate studies and Pharmacy School over a 9-year period, finally achieving the goal in 2021. During this time they moved multiple times, bought and sold three houses, and welcomed our grandchildren into their family. Regardless of the reason for borrowing, debt repayment is the responsibility of the borrower and/or co-signer of the loan(s). It does not reside with the taxpayer!

John Shipway
John Shipway
14 days ago

The crypt keeper should demonstrate to all the moronic youth that borrowed tens of thousands getting peculiar degrees in peculiar “studies” so as to gain a position at Burger World, that he is sincere is his desire to cut their stupidly earned debt. How one may ask? Use the unmentionably sized ill gotten gains the Brandon family embezzled from various corrupt corporations across the globe from Ukraine to Hong Kong and establish a massive account the idiotic purple haired dead beats can draw from to pay off their “educational” debts. I’m positive such an account would be massive if one can for once get the Crypt Keeper to be honest about the size of his embezzled funds and similar funds his crooked family members have amassed using dead Ukrainians as collateral.
Will the Crypt Keeper stand up and show his love for these self bankrupted former students by using his own money rather than that of the citizenry?
Hahahhahhahahhahah

Chet Zaiko
Chet Zaiko
6 days ago

Iser Ed in the Navy for 6 years and it paid for my college. My son has student loans and is against the loan payoff. What about those who have either worked to pay their loan or those who did not go to college. Their education, their dime.

Sam
Sam
10 days ago

He stood right up there and told us that the SCOTUS said this was illegal. Nutsy Pelosi, then the Speaker of the House, told us the POTUS does NOT have the authority to do this. And Ol’ Joe, scumbag that he is said he was gonna do it anydamnway. Let’s go, BRANDON! Dumbassocrats love to spend OUR $$$$, vote buying That is all this is…..

Don
Don
10 days ago

This is illegal, why are private citizens paying for any school dept. This was never approved by congress. What a need is to stop dems from buying votes with our money. Just cut off the money. The same with illegal aliens cut off the money.

TOBS
TOBS
12 days ago

BEJING BIDEN IS NOTHING BUT A F…KING LIAR PANDERING VOTES TYPICAL DEMORAT PROPAGANDA

Rich
Rich
3 days ago

Biden and the democrats are all vote wh*r*s. Nothing is beyond them. Enough said.

JOHN
JOHN
6 days ago

Supreme Court says NO JOE!!!!!!

Billy Wilson
Billy Wilson
10 days ago

Another illegal try at buying votes.

BCC
BCC
11 days ago

All this ammounts to is buying votes!

Harry Wilson
Harry Wilson
12 days ago

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Norma
Norma
13 days ago

Student Loan Forgiveness —– not and never will be a loan …….it is a bought and paid for corrupt vote!

MariaRose
MariaRose
14 days ago

The only thing that could be changed is the wording of the contract signed by the student who agreed to the loan money to ” supposedly” pay for their education. Creating a forgiveness program as currently labeled, is creating a pattern of behavior for students not to honor their contractual obligations to repay the loan. This is not only devaluating the degree earned but also creating a method for the colleges to create a false amount of debt owed that needs federally guaranteed cost coverage. Did you know that Harvard application fees now cost $3000 in non-refundable cost which doesn’t guarantee anyone reviews the application– __ Instead of holding the person who agreed to the initial loans to some liability, these “ballots” are failing to teach financial responsibility in every student, not just the ones claimed to be hurt by the debt under DEI but those who perfectly capable of paying their cost with no damage to their budget.

A.D.
A.D.
14 days ago

I know you may think this is crazy but there ARE extenuating circumstances like when the borrower leaves school and cannot finish the education or enter into the field but still has the debt particularly when they hold it for years and do not have the means to pay it down. They have to look at individual circumstances as these loans can cripple people’s lives and prevent them from doing a majority of anything else – so understand there is a need for in some cases.

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