This week the Supreme Court is hearing arguments about Joe Biden’s school loan bailout scheme, one of the most blatantly cynical and consequential attacks on the Constitution’s separation of powers in memory.
The first question we need to ask is: what use is an “originalist” court if it allows the executive branch to flagrantly ignore one of the clearest and most fundamental instructions of American governance? Article I, Section 9, says, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law”—and there is no exemption for “instances where a president wants to unilaterally spend upwards of a trillion dollars to give some favored voting group a break.”
Of course, it’s imperative to stress that Biden isn’t really “forgiving”—or “canceling” or “giving relief,” or any other euphemisms used to describe this plan—anything. This is existing debt, money that’s been lent and spent by the borrowers on services. It isn’t cancelable. Biden has issued an edict that breaks existing contracts by fiat and transfers the responsibility of paying those loans from a bunch of relatively well-heeled Americans to other taxpayers—most of whom have either paid off their loans, avoided taking student loans, or never wanted them.
But it’s worse than all that.
Democrats, editorial boards, reporters, bureaucrats, the presidential administration: they all know it’s unconstitutional. The rickety justification for the loan plan rests on the post-9/11 HEROES Act, which empowers the president to make temporary changes when “necessary in connection with a war or other military operation or national emergency.” It is simply unfathomable that anyone with functioning cognitive ability accepts that we’re in a genuine national emergency.
Certainly, a president who incessantly brags about how we’re experiencing the “strongest economy in history” and assures Americans that the “pandemic is over” doesn’t believe it. Nor does Nancy Pelosi, who, before the Biden administration decreed a bailout, agreed with the Department of Education that the executive branch didn’t have the statutory power to “forgive” loans.
Nor does a Biden administration that goes about quietly changing the policy to delay having to explain to a court how it can spend upwards of $1 trillion without congressional approval. (Even now, Biden is focused on standing rather than the policy’s constitutionality.) All of this is just meant to keep dangling the promise of bailouts to voters as long as possible.
Nor does the Washington Post, which contends in a confusing editorial that, while Biden has “overreached” on student loans, the court “shouldn’t stop him” anyway. Why? Because overturning a“regressive and expensive” policy would make Supreme Court resemble a “body of nine unelected legislators.”
That’s the court’s job. The charge of the deliberately unelected Supreme Court is precisely to determine the constitutionality of legislation and hold the other branches of government accountable.
Do leftists ever take a second to ponder the inconsistency of feigning anger that nine “unelected” judges might stop Biden’s student loan edict, but then demand that Americans live by the edict of nine “unelected” judges who invented a right to an abortion nowhere mentioned in the Constitution? The only principle of modern leftism, it seems, is getting your way.
It is perhaps fitting that the student loan “forgiveness” scam is tethered to the Covid authoritarianism that allowed politicians to unilaterally close businesses and churches without any debate, legislation, or oversight. The point is to expand that brand of control in perpetuity—with selective breaks during Republican presidencies, no doubt.
Even if Congress passed a student loan bailout, it would be a moral hazard, counterproductive, immoral, and fundamentally unjust, but at least it wouldn’t be an assault on basic American governance. Democrats created this problem, incidentally, by guaranteeing loans, which incentivized schools to charge outrageous tuition, encouraged students to rack up massive debt (often for useless degrees,) and gave banks license to hand out money without concerning themselves over any of it.
What makes this all especially pernicious, though, is that Democrats see no political downside. If the Supreme Court finds Biden has overstepped his authority, Democrats will quickly incorporate the case into their campaign to delegitimize the court as a partisan institution.
It is mind-boggling how establishment media simply identify certain justices as “conservative,” but never “liberal.” Democrats will argue the decision means Republicans have stolen something from borrowers that they never had any right to expect, and the president never had the power to give.
Once we allow this precedent of an elastic and arbitrary use of emergency powers, it opens the floodgates to a “climate” emergency and mortgage emergency and health care emergency and border emergency and more. It is a flagrant, unconstitutional runaround.