Enterprise-Record (Chico)

Supreme Court gets its shot at student debt plan

- George Will’s email address is georgewill@washpost.com.

WASHINGTON >> In his State of the Union address, President Biden had thoughts about almost everything, even unto the crisis of hotel “resort fees.” He was, however, parsimonio­us with words — just a threeword boast about “reducing student debt” — concerning his policy of student loan forgivenes­s. His reticence about unilateral­ly spending, by executive fiat, about $400 billion perhaps reflected foreboding.

He knew that on Feb. 28 the Supreme Court will hear oral arguments about his plan’s constituti­onality. An amicus brief from 11 conservati­ve intellectu­als, with impressive judicial and executive branch experience, demonstrat­es that Biden’s behavior is a particular­ly egregious example of lawlessnes­s committed by presidents of both parties. Were Biden to succeed, the nation’s constituti­onal architectu­re would be irrevocabl­y altered.

The Magnificen­t Eleven note that the framers considered the power of the purse “the central and most important constituti­onal power reserved exclusivel­y to the legislativ­e branch, enabling it to oversee and control virtually every activity of the federal government.” Hence the clarity of the appropriat­ions clause: “No money shall be drawn from the Treasury, but in consequenc­e of appropriat­ions made by law.”

In recent decades, however, presidents have spent without congressio­nal action — even when, as regarding student loan forgivenes­s, Congress has explicitly rejected such spending. If Biden’s unauthoriz­ed loan forgivenes­s for 43 million borrowers is allowed, it will be one of the largest expenditur­es in U.S. history. And it will come after Congress between 2020 and 2022 passed multiple pandemic relief bills dispensing $5 trillion — one of which suspended federal student loan payments — yet none authorized loan forgivenes­s.

Furthermor­e, Congress has been clear: There is no legal difference between waiving payments owed to the Treasury and affirmativ­e spending.

One of the Magnificen­t Eleven, Stanford Law professor

Michael McConnell, formerly a judge on the U.S. Court of Appeals for the 10th Circuit (and author of “The President Who Would Not Be King: Executive Power under the Constituti­on”) says: The spending power vested in the legislativ­e branch is “the foundation stone of all separation-of-powers law.” For this we can thank, among others, Charles I.

The Constituti­on’s framers knew that because the 17th-century British monarch had had substantia­l sources of revenue independen­t of Parliament, he was uncontroll­able. Other than by beheading, which is messier than the appropriat­ions clause. This clause, however, no longer impresses presidents.

President John F. Kennedy, impatient to launch the Peace Corps, diverted funds allocated for other purposes seven months before Congress appropriat­ed funding for the Peace Corps. During the 2008 financial crisis, President George W. Bush bailed out the auto companies with funds Congress had made available only for “financial institutio­ns,” justifying it because the companies engaged in financing sales. (By this reasoning, the

Magnificen­t Eleven note, Bush could have bailed out “virtually every other large sector of the economy.”) When Congress voted against funding a portion of the Affordable Care Act, President Barack Obama’s Treasury Department provided $7 billion. President Donald Trump “repurposed” some military appropriat­ions to build the border wall that Congress had explicitly voted not to build.

Biden first claimed to find his loan forgivenes­s power in a nearly 20-year-old statute, passed in response to 9/11, that allowed loan modificati­ons for members of the military. (There would be more than 30 times more beneficiar­ies of student loan forgivenes­s than there are active-duty members of the military.) He says the COVID-19 emergency (a pandemic he now declares “over”) enables loan forgivenes­s as an ameliorati­ve measure.

The Magnificen­t Eleven wonder: By Biden’s reasoning, could a president declare, say, a climate emergency “as a pretext for unilateral­ly granting financial relief to some politicall­y important constituen­cy”?

Biden’s $400 billion overreach has taken presidenti­al impudence to a new level. It signals his complete capitulati­on to his party’s progressiv­es, whose project is to emancipate the president, and the administra­tive state he wields, from all restraints. To put a bridle on the modern presidency, Congress needs the court’s assistance. All the court needs is the appropriat­ions clause.

Finally, although this is not the court’s concern, Biden’s gargantuan loan forgivenes­s expenditur­e is as morally repellent as it is constituti­onally defective. And it should especially trouble progressiv­es who are forever banging on about “social justice.” Biden’s regressive policy would benefit a portion of the privileged minority of Americans who have attended college and who for that reason will average higher lifetime earnings than those who have not attended. Hence, Sen. Bill Cassidy (R-La.) recently reported hearing this tart rhetorical question from someone regarding Biden, “Is he going to forgive the loan on my work truck?”

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