If Republicans take over the U.S. House, they will have authority to empower Speaker Kevin McCarthy to sue President Joe Biden over his illegal transfer of student debt to non-college families, because the president has no power to “cancel” those debts.
The national uproar continues over Biden’s transferring hundreds of billions of dollars of debt from adults who attended college and still owe money, to taxpayers who either (1) never attended college, (2) saved money to pay for college, or (3) borrowed money to attend college but then honored their debt contract by paying off their loans.
The public outrage primarily continues on two fronts. First is the White House’s refusal or inability to say how much this program will cost. No one disputes that it is at least $300 billion, but some analysts say the true cost could be closer to three times that amount.
Second is Biden’s lack of legal authority to do this. Even Nancy Pelosi, who when asked in 2010 which provision of the Constitution empowered Congress to impose Obamacare’s “individual mandate” to buy health insurance blew off the question with, “Are you serious?,” loudly insisted in June 2021 that Biden had no power to cancel student debt.
Prominent economists who served under previous Democrat presidents ripped Biden over his $300 billion student loan forgiveness scheme. https://t.co/Vdjsl3c3pn
— Breitbart News (@BreitbartNews) August 26, 2022
But that raises the question: If Biden lacks the power to cancel – or again to be more accurate, transfer to taxpayers – student loan debt, how would that legal limit be upheld? Who has standing to sue in federal court to restore the rule of law?
There could be various plaintiffs who would have standing to sue. It’s possible that financial institutions, adults or families that paid their own way or did not attend college, or certain nonprofit organizations could sue.
But one plaintiff who does not have standing to sue today will have standing as of January 3, 2023: Kevin McCarthy.
It is virtually certain that Republicans will take over the U.S. House of Representatives on January 3. The only question is how large the GOP margin will be. While flipping the Senate is likely but not certain, at minimum one branch of Congress will be in the hands of the opposition party.
The Supreme Court in its 1997 decision Raines v. Byrd set forth the modern doctrine for “legislative standing,” setting forth the circumstances under which the first branch of government (Congress) can drag the second branch of government (the executive) into the third branch of government (federal court).
Raines holds that if Congress believes the White House is violating legislative prerogatives under the Constitution, then either house of Congress may by majority vote authorize one of its members to file a federal lawsuit in the name of that house, asking a federal judge to rule on the legality of what the Executive Branch has done.
So once Republicans have 218 votes to put McCarthy in charge of the chamber, they will also have the requisite 218 votes to authorize Speaker McCarthy to file suit in federal court in Washington, DC, alleging that the actions of Biden and Education Secretary Miguel Cardona violate the Administrative Procedure Act (APA), because only Congress has the authority to spend money or to take on debt.
Specifically, McCarthy – or whoever McCarthy chooses as the named plaintiff to lead the charge, such as future House Judiciary Chairman Jim Jordan (R-OH) – would argue that Biden and Cardona’s actions violate the “major questions doctrine.”
Biden’s decision to transfer student debt to taxpayers is likely an inflationary, expensive mistake that will leave “American taxpayers footing the bill,” the Washington Post’s Editorial Board wrote Wednesday. https://t.co/5Uy0SDwM3T
— Breitbart News (@BreitbartNews) August 26, 2022
(Or if McCarthy wants to be innovative, he could name a Republican member from one of a number of districts in Texas, Louisiana, or Mississippi to bring suit in the judicial district that contains that member’s congressional district, directing this suit to the attention of a federal judge who is a proven originalist, and will go on appeal to a court also populated by originalists.)
When the Biden administration puts together a coherent sentence to explain this action, officials claim that the authority to “cancel” student debt is found in the HEROES Act of 2003, which was originally written to respond to the 9/11 attacks but which was also used to temporarily pause student loan obligations during Covid-19 lockdowns.
But during the Trump administration, as Education Department Deputy General Counsel Reed Rubinstein advised at the time, the HEROES Act allows for minor and temporary measures only, and does not confer power to “cancel, compromise, discharge, or forgive, [student loans] on a blanket or mass basis.”
Biden’s Office of Legal Counsel (OLC) – the Justice Department office empowered to give legal advice to the entire U.S. government – issued a contrary opinion on August 23, insisting that Biden and Cardona do indeed have the power to do this.
But this brings back memories of another OLC opinion when Biden was vice president, in which OLC advised President Barack Obama that he had authority to declare that the U.S. Senate was in recess, and then exercise power under the Constitution’s Recess Appointments Clause to fill top administration positions without Senate confirmation.
Although Democrats praised Obama’s boldness for claiming such sweeping power, the Supreme Court in 2014 unanimously rejected OLC’s opinion in NLRB v. Noel Canning.
Mark Paoletta served as general counsel of the White House Office of Management and Budget, and before that was chief investigations counsel for a top House committee. (Full disclosure: The author currently practices law with Paoletta.) He exclusively told Breitbart News:
The Obama OLC opinion on recess appointments is a lawless opinion to allow President Obama to flagrantly violate the Senate’s constitutional role to advise and consent on presidential appointments. This opinion bulldozed the checks and balances set out in the Constitution. I am unaware of any other OLC opinion that lost at the Supreme Court 9-0. That’s quite a testament to how awful this opinion was.
McCarthy can try to make this massive debt transfer the next Noel Canning. This year in West Virginia v. EPA, the Supreme Court elaborated upon the “major questions doctrine” to hold that the Executive Branch cannot claim power to take actions of vast economic or political significance unless Congress inserts clear and unambiguous language conferring such power into the statute.
Even then, the Constitution does not allow Congress to delegate its lawmaking power to executive agencies. But courts never reach that nondelegation issue if Congress never declares its intention to empower an agency to transfer potentially a trillion dollars of debt from families who borrowed money for college to those who did not. (While the current program would not exceed $1 trillion, OLC’s opinion says there is no limit to how much student debt Biden can transfer, and the major questions doctrine examines the power being claimed, not the extent to which it is being used at the moment.)
Republicans are channeling the outrage of many millions of American voters pushing back against Biden’s power grab. If those voters put Republicans in charge of Congress, the courts can undo Biden’s lawlessness.
Breitbart News senior legal contributor Ken Klukowski is a lawyer who served in the White House and Justice Department.
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