State AG Explains Why He Sued to Stop Biden's $400 Billion Student Loan Cancellation Program


Nebraska Attorney General Mike Hilgers argued in a piece for The Wall Street Journal published Monday that the separation of powers set forth in the U.S. Constitution means President Joe Biden does not have the authority to cancel $400 billion in student loan debt.

The U.S. Supreme Court heard oral arguments Tuesday in the case Biden v. Nebraska challenging the constitutionality of Biden’s plan announced in August to forgive up to $10,000 in federal student loan debt for those earning $125,000 a year or less. The cap is $20,000 if the borrower went to college on Pell Grants.

The Congressional Budget Office calculated in September the total cost of the program would be about $430 billion.

The Biden administration cited the Higher Education Relief Opportunities for Students Act of 2003, or HEROES Act, as its legal authority to make the sweeping move.

In addition to Nebraska, the attorneys general of Arkansas, Iowa, Kansas, Missouri, and South Carolina sued the Biden administration to block the program.

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Hilgers explained in his Journal article, former President George W. Bush signed the HEROES Act “after the start of the Iraq war to ensure that active-duty military members could pause student-loan payments while serving the country. Every congressional finding in support of the law focused on providing relief to people serving in the military for ‘our nation’s defense.'”

The law allows student loan relief when deemed necessary “in connection with a war or other military operation or national emergency.”

Education Department Secretary Miguel Cardona argued in an August memo that the COVID-19 pandemic constituted such a national emergency enabling him to cancel student debt.

At the outset of the pandemic in March 2020, then-President Donald Trump signed an executive order pausing student loan payments and the accrual of interest on the debt due to the national emergency created by COVID-19.

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Trump noted in an August 2020 order extending the moratorium until December of that year, “Currently, many Americans remain unemployed due to the COVID-19 pandemic, and many more have accepted lower wages and reduced hours while States and localities continue to impose social distancing measures.

“It is therefore appropriate to extend this policy until such time that the economy has stabilized, schools have re-opened, and the crisis brought on by the COVID-19 pandemic has subsided.”

Those conditions have changed with the COVID lockdowns, by and large, ending by 2021 and the unemployment rate is currently at a 50-year-low of 3.4 percent.

Hilgers highlighted, “In September [Biden] went on television and declared the pandemic over. More recently his administration committed to ending the state of emergency on May 11.”

“The president can’t have it both ways. He can’t tell the country the pandemic is over while claiming that it justifies this unilateral action,” he wrote.

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The Nebraska attorney general further pointed out that the Supreme Court has already blocked the Biden administration’s efforts to extend an eviction moratorium for renters in 2021 and also struck down its workplace vaccine mandate.

“Last year the Supreme Court reaffirmed that when the executive branch addresses a ‘major question,’ which surely includes this vast debt cancellation, it needs ‘clear’ authority from Congress,” Hilgers wrote.

“Far from the clear language necessary to justify this major action, the Heroes Act can’t be squared with the president’s plan. The language of a bill passed primarily to assist members of the military doesn’t authorize a nearly half-trillion-dollar discharge of debt for tens of millions of Americans,” he added.

“Throughout the pandemic, the president has pushed his luck, and the Supreme Court has pushed back,” Hilgers concluded. “The pandemic is now behind us. One can only hope the same is true of Mr. Biden’s efforts to use it to expand his powers.”

The Hill reported that during oral arguments conservatives on the bench cast doubt on the legality of Biden’s debt cancellation plan.

Chief Justice John Roberts suggested the language of the HEROES Act appears to be limited in scope in terms of student loan modifications.

“We’re talking about half-a-trillion dollars and 43 million Americans,” he said. “How does that fit under the normal understanding of modifying?”

In a Monday piece for Daily Caller, Jenny Beth Martin, honorary chairman of Tea Party Patriots Action, wrote, “The stakes in this case cannot be overstated. Our founders agonized over the deliberate separation of powers.

“The Supreme Court now has the opportunity to put the Biden Administration back in its appropriate executive lane. Madison’s arguments in Federalist 51 should still apply, even in the wake of the COVID emergency.”

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