The Supreme Court just violated the constitution by striking down the current and totally legal student debt relief plan. As Justice Elena Kagan wrote of this disgusting act of overreach in her dissent: “In every respect, the Court today exceeds its proper, limited role in our Nation’s governance.”
The case today focused on a specific legal authority called the HEROES Act that authorizes the President to cancel student debts during national emergencies like a pandemic. Fortunately, President Joe Biden still has other authorities he can use to cancel student debt. He must use them. But he cannot make the same mistakes as he did last time, or we will end up with the exact same results. Canceling student debt under the HEROES Act was 100% legal. As Justice Kagan said in oral arguments, the law authorizing Biden’s cancellation plan is crystal clear. “Congress doesn’t get much clearer than that. We deal with congressional statutes every day that are really confusing. This one is not.”
The fatal flaw in Biden’s execution was means-testing relief—which required an application. Worse still, the Biden administration did not have the application ready to go the day cancellation was announced. They took a whopping 52 days and spent $100 million on what ended up being a glorified Google form. This gave far-right, dark-money groups ample time to file several meritless lawsuits in front of lawless Trump judges, and ultimately the partisan and corrupt Supreme Court.
There are other perfectly legal ways to cancel student debt. But how these legal tools are used matters. Biden can use them in a way that shows he is really fighting for us, or he can do so in a half-hearted way that sets all of us up for another catastrophic failure.
Biden could have fought for student debtors, but what is clear is that he only reluctantly canceled student debt and did so in a half-hearted way. The cynical read is that he always wanted cancellation to fail and deliberately sabotaged it.
Once again, there are other perfectly legal ways to cancel student debt. But how these legal tools are used matters. Biden can use them in a way that shows he is really fighting for us, or he can do so in a half-hearted way that sets all of us up for another catastrophic failure.
The most cynical thing Biden could do that would be a clear and obvious sign he is trying to stab student debtors in the back would be to open what is called a “notice and comment” period as a part of an extended rule making. It’s not necessary here to get into the technicalities of what all this means, but only to say that this is the path we are worried Biden might take because it is designed to fail. If Biden takes this path, and then campaigns that he is “fighting for student debtors,’’ don’t believe him. The technical term for this approach is “malarkey.”
The second thing to look for is whether they have learned their lesson or repeat the same mistake with the application. Biden needs to ditch the application and cancel the debt automatically.
If he announces a notice and comment and rule making and keeps the application, then we can say with certainty that this was all a scam, that Biden is bending over backwards to make sure student debt cancellation fails, and will try to gaslight voters into blaming the Republicans when it fails. We’re already seeing signs that White House staff and conservative Democrats are circling the wagons to protect Biden and try to pin the blame on Republicans and the Supreme Court. They think student debtors are stupid. The buck stops with Biden. Cancellation is easy and must be automatic.
Cancellation should have been a layup. It still can be. Biden needs to fight to win the rebound. All it takes is a signature.
