Michael Swartz / August 31, 2022

The Coming Legal Challenge to Biden’s Student Loan Scheme

Republicans in several states are working to file lawsuits, but the political trap has been set.

Americans who work for a living and pride themselves on paying off the college debts they incurred — that is, if they went to college at all — were understandably up in arms last week when Joe Biden announced an income-based partial loan forgiveness program to take effect later this year. On the other hand, those carrying student loans, including those who have had the opportunity to take a break from making payments since early 2020 because of the COVID pandemic “pause,” were understandably thrilled with the news. That’s the group Joe Biden and the Democrats are hoping will repay them by showing up at the ballot box in November and in 2024 to save the Democrats from a well-deserved thrashing.

And while it’s true that not all Democrats are fully on board with this proposal for various reasons — critics allegedly included Jill Biden and Treasury Secretary Janet Yellen, and Joe Biden was reluctant at first — he apparently decided it was better to ask for, ahem, forgiveness than permission. Besides, the Democrats can make it appear like they’re looking out for the working people with no political cost because the chances that Congress is going to tell Biden not to do this are slim and none — and Slim just left town.

A statement by Ohio Representative Tim Ryan, who is running for the state’s open Senate seat, is typical of this attitude. “While there’s no doubt that a college education should be about opening opportunities,” said Ryan, “waiving debt for those already on a trajectory to financial security sends the wrong message to the millions of Ohioans without a degree working just as hard to make ends meet.”

It sends a wrong message to everyone, but surely Ryan knows that even if a handful of Democrats decided to buck their party, any bill to repeal the handout goes nowhere in Congress thanks to Senate Majority Leader Chuck Schumer. House Speaker Nancy Pelosi, who famously said last year that Biden had no such authority, won’t lift a finger to stop it either. Even if Republicans succeed this fall despite the windfall handed to millions of potential Democrat voters, they won’t have enough members in the next Congress to override a sure Biden veto. Therefore, populist-sounding Democrats will remain safe in their rhetoric.

With Congress at a stalemate for the foreseeable future insofar as the repeal of this student loan forgiveness goes, conservative groups and state attorneys general are contemplating the judicial route to striking down this executive overreach. However, they have two key issues with doing so, one being the leftist-fed perception of Republicans being the Grinch who stole Christmas. While GOPers are used to being portrayed as the ones who would push Grandma off the cliff, it’s worth noting that any of their criticism of the forgiveness program will likely run afoul of and be buried by the “fact-checkers” who have infested social media.

Moreover, to address a point of criticism by centrist Democrats that borrowers would be left in limbo by the courts, it’s a sure bet this program was timed to come to life just in time for the election so that any Republican judge putting a halt to it would grab headlines and drive Democrat turnout.

The second, more pressing issue is that of who could have standing in the case. As one answer, the Washington Examiner revealed, “Based on advice from his legal counsel, Job Creators Network CEO Alfredo Ortiz told the Examiner he believes ‘we have found already a handful of plaintiffs that would qualify for and pass the standing test,’ though he did not provide examples due to the early stages of litigation planning.”

Once the standing issue is resolved, though, there are more challenges. Lefty political analyst Mark Joseph Stern explains how the trap has been set:

To understand where this is going in the courts as well as the likely workaround, recall a basic fact that many critics of Biden’s program do not appear to understand: The federal government forgives student loans all the time. Multiple statutes give the Department of Education sweeping authority to cancel loans for a broad range of reasons. Before [last week], the administration had already approved $32 billion in student loan relief for more than 1.6 million borrowers. These actions did not provoke substantial controversy or litigation. Nobody raised a legal challenge when Biden canceled $5.8 billion in student loans for more than 323,000 disabled borrowers. Nobody raised a legal challenge when Biden announced rolling loan forgiveness for borrowers who entered public service — a plan that has already granted $10 billion in debt relief to more than 175,000 borrowers.

Stern goes on to cite a statute called the Heroes Act, which was passed in 2003 and states that the secretary of education has the ability to “waive or modify” provisions of student aid programs in connection with a war, military operation, or national emergency. Do you see now why we have been hanging around in a perpetual “state of emergency” over COVID?

It’s the Rahm Emanuel maxim: “You never let a serious crisis go to waste. And what I mean by that it’s an opportunity to do things you think you could not do before.” There was little chance a student loan forgiveness program of this size and scope would make it through Congress, so it was “stroke of a pen, law of the land” time for Joe Biden.

The question for this November is whether there are more people addled by the thought of being free of their college debt or more working Americans angry about the government giving yet another break to a favored constituency. We all know the Left’s end game for this is a “free college” perpetual indoctrination, courtesy of the working people of America. Joe Biden has made his move, so the best counter is to build up his opposition.

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