On 60 Minutes, President Biden Admits His Student-Loan Order Is Illegal

By Charles C. W. Cooke

Sunday, September 18, 2022

 

On 60 Minutes this evening, President admitted aloud that his decision to transfer up to a trillion dollars in student-loan debt to taxpayers without congressional approval is flatly unconstitutional.

 

Why does Biden’s statement matter so much? I’ll tell you: It matters because the memo that the Biden administration released to justify his order rested entirely upon there being an ongoing emergency, and because, as Biden has just confirmed, there is no ongoing emergency.

 

Back in August, Biden’s lawyers argued with half-straight faces that the 2003 HEROES Act — which, as Bloomberg Law has noted, was passed not as a generalized enabling act but “to help borrowers serving in the military in the wake of the Sept. 11 attacks” — could be twisted to apply to any national emergency, including pandemics such as Covid-19. This, of course, was nonsense. Among the specific problems with Biden’s argument was that the 2003 HEROES Act does not cover debt cancelation (i.e., transference to taxpayers); that its “direct economic hardship” language does not allow for mass relief; that the application of its “or national emergency” language clearly violates the major questions doctrine; and that the administration’s insistence that the act was designed to allow the executive branch “to act quickly should a situation arise that has not been considered” was flatly contradicted by the fact that the president waited until two-and-a-half years into the pandemic before acting, and then gave relief to the most privileged people in America. But, even if one were to ignore all that, one could still not get past the fact that the powers to which Biden laid claim can be applied only when there is an active emergency, and that the active emergency Biden is citing has now passed.

 

In May, the Biden administration (correctly) reported that it was obliged to end the use of Title 42 of the 1944 Public Health Services Act at the border because the Covid-19 emergency had passed. In a memo, the Department of Justice explained that, in 2020, “the Centers for Disease Control and Prevention (CDC) invoked its authority under Title 42 due to the unprecedented public-health dangers caused by the COVID-19 pandemic,” but that, two years later, “the CDC has now determined, in its expert opinion, that continued reliance on this authority is no longer warranted in light of the current public-health circumstances. That decision was a lawful exercise of CDC’s authority.”

 

Or, to put it more simply: Three months before Biden’s move on student loans, the CDC concluded that the pandemic was no longer enough of an emergency to justify extraordinary measures at the border.

 

That, a quarter of a year later, the same administration asked us all to believe that the same pandemic was bad enough to justify giving hundreds of billions of dollars to college students was always utterly preposterous. Tonight, on 60 Minutes, President Biden confirmed as much in public. The courts — and the voters — must take note.