Pestering President Biden to #CancelStudentDebt is just an excuse for members of Congress not to do THEIR jobs

The other day, a bunch of members of Congress held a combination of press conference and rally to urge President Biden to cancel up to $50,000 in student loans for every borrower who hasn't finished paying off their student loans. Curiously, the legislators - like Sens. Chuck Schumer and Elizabeth Warren and Rep. Ayanna Pressley - who could introduce and pass legislation to this effect, are asking the President to skip their own branch of government and do this with unilateral executive action. Some 14 senators and 45 House members are part of this push.

That's problematic on several levels.

First, despite what these lawmakers on the have argued, it is not at all clear that the executive branch has the power to cancel student debt on a blanket, no-criteria, across-the-board, basis. In fact, the preponderance of the evidence would appear to weigh against such a broad-based authority. President Biden, who is a veteran of the Senate and ran explicitly on honoring the Constitution and not usurping the powers of Congress, has in turn asked Congress to send legislation forgiving up to $10,000 student loans to his desk.

While the lawmakers advocating for executive action - as opposed to action amongst their own - nearly universally refer to a letter Sen. Warren obtained from the Legal Services Center of Harvard Law School with the opinion that it is permissible for the Department of Education to unilaterally cancel student debt on a broad basis, the reasoning is seriously flawed. That letter and the advocates of blanket student debt forgiveness by executive action in general take the view that because Congress authorizes the Secretary of Education through the Higher Education Act, to "enforce, pay, compromise, waive, or release any right" to student loans, it is a broad grant of authority to do anything the Secretary - who works for the president - damn well pleases. They assume that Congress's appropriation of money to make loans to students by the Department of Education could be, in essence, free money if the President wanted it to be.

A full examination of the Higher Education Act, as well as general actions of Congress, would belie this assumption, both specifically and generally.

Generally, accepting the view of Warren et. al would mean accepting that Congress writes blank checks without making it clear that it's a blank check. It strains credulity. The student loan program is, after all, a loan program, and the word 'loan' has a meaning in the English language. When Congress appropriates money to make a loan, it - on behalf of the United States and like any other lender - should be assumed to have an expectation of repayment. Certainly, if Congress wanted to grant a blanket authority to the executive branch to forgive debt regardless of circumstance, it could have done so explicitly. It did not.

In the same vein, Congressional intent that student loans, generally speaking, be paid back is made clear from the fact that Congress created programs for both student loans and student grants. The Pell Grant is the most popular and well-known of the grants, but over the years Congress has authorized several grant programs for students, including the Supplemental Opportunity Grant, the TEACH Grant, and the Iraq and Afghan Service Grant.

Given that Congress intentionally created grants and loans for students, it is safe to say that it knew the difference. It is therefore more than a stretch to argue that even though Congress explicitly separated grants from loans, it meant for the executive to be able to freely turn loan money into grant money.

Now, it's true that Congress does allow the Secretary of Education to modify or even cancel student debt for limited, specific, and targeted relief. That is both in generally in keeping with the meaning of a 'loan' and supported by legislative language and context.

The power of the Secretary of Education to forgive and adjust loans that are made (or before 2010, insured) by the Department is not an independent grant of power. It exists, in explicit legal language, "in the performance of, and with respect to, the functions, powers, and duties" that is given to the Secretary throughout the rest of the law defining the student loan programs. Seen in that light, the executive power to 'compromise' or modify and forgive student loans isn't a blanket power; it must exercised in accordance with conditions set in other parts.

And do other parts of the law - 20 U.S. Code Part B - define and confine circumstances for modification of loans? It turns out that they do.

Part B is littered with specific circumstances in which relief is to be granted and how, including some restricted forms of bankruptcy, disability, and specific professions like teaching, civil legal assistance, and service in underserved areas. Given that the same part of the US Code that grants the Secretary powers to compromise student debt also defines circumstances under which alterations are to be done, the case seems pretty clear that the Secretary does not have the power to blanketly cancel loans. If Congress wanted the executive branch to simply make up circumstances to forgive student loans, or forgive them regardless of circumstances, there would be no point to writing into law specific circumstances under which student loan is forgivable.

Congress did not just write specific circumstances for debt alterations and forgiveness when they wrote the original statutes, they continue to do so today. Congress has enacted subsequent legislation to provide additional relief, including blanket relief, most recently in the 2020 CARES Act, which specifically instructed that while payments are suspended, borrowers should continue to accrue time they would need to qualify for loan forgiveness or rehabilitation programs.

The very fact that Congress, as recently as 2020, referred and directed changes to to forgiveness and rehabilitation programs under 20 US Code Part B strongly suggests that the programs the DOE is authorized to create needs to have eligibility criteria and thus cannot be blanket.

So while language can be found in the law that, without context - including of other parts of the law - could be stretched to support the case for unilateral executive action, it is more than a little uncertain that such a decision would withstand judicial scrutiny. Even if President Biden thought it were legal and attempted to take such action, it is likely to face significant court challenges, get blocked, and ultimately, given the conservative nature of the federal judiciary, be deemed unenforceable.

A much more legally certain - and politically proper - way to provide relief on student debt would be through Congressional act. No one can challenge that Congress, holding the power of the purse, can cancel whatever debts are owed to the United States.

And it could be done on a simple majority vote in the Senate, which Democrats now control. Action by Congress to forgive debt would not have to be subject to the filibuster. How do we know this? Because it has been done before.

In 2010, as part of the reconciliation package that strengthened the marketplace subsidies in the Affordable Care Act after the framework passed through regular order, Congress delivered a major Obama campaign promise: they cut out the big banks from the federal student loan process and decided that the Department of Education should make the loans directly rather than funnel it through banks while assuming all the risk anyway.

So, if Chuck Schumer, Bernie Sanders, Elizabeth Warren could secure unanimous support of the Senate's 50 members of the Democratic caucus, they could pass student debt relief today with Vice President Kamala Harris's tie-breaking vote. In fact, they could include it in the coronavirus relief package if they wanted to.

But there's the rub. Schumer, Sanders, Warren et. al. don't have the votes. In the House, Reps. Pressley, Omar, etc. likely don't have the votes, either.

There are many probable reasons why. First, three-quarters of Americans who do not have student loan debt, either because they never took any on or because they already paid off their loans, would be left out of assistance. That is not in and of itself a great argument against debt cancellation, but it's politically problematic. Many of the people who either never took on student debt or have paid them back are struggling with other forms of debt: credit card debt, mortgage debt, and small business loans come to mind. If Congress begins to legislate on blanket debt cancellation, the question will inevitably be raised as to why student debt is the only one worthy of such mercy.

Further, within the area of student loan debt, those who fully paid back student debt, especially those taken out relatively recently, have a right to question why they too do not deserve relief. After all, if those with a current debt burden are deserve relief because they are currently suffering, can the case not be made that those who finished paying off also deserve relief as compensation for going through that trauma? Student debt forgiveness proponent Ro Khanna likes to say that the real explosion in student debt has come since 1990, in which case, why shouldn't everyone who took out and paid back student loans since 1990 be issued a refund up to $50,000?

The point is that if Congress were to take of massive debt relief, it will face demands to devise a much broader relief package that helps a much broader swath of the American people, or leave broader student loan borrowing as is and work instead on working on issues such as making student debt dischargeable in bankruptcy and actually lowering the cost of college.

That will be a more difficult process. Representatives and Senators will have to face the actual legislative process - convincing their colleagues and their constituents. They may have to compromise. They may have to help constituencies they are not thinking of. Fairness might demand that 75% of Americans who do not have student loan debt receive some form of buy-in into the process. And paradoxically, the more people that is addressed, the more forms of debt canceled, the ever higher price tag is likely to draw more opposition to the amount of the relief ($50,000).

They may have to, at the end of the day, go with President's Biden's proposal of $10,000 in blanket student debt relief, which would bring down total student debt to almost the exact level of total credit card debt, another form of debt too many Americans have to use to pay for necessities these days (both would be roughly $1 trillion).

But that is their job.

Doing the hard work, having the hard conversations, creating fair legislation the hard way is the job of our senators and representatives in Congress. That's why we elect them and pay them. They should do their job, not try to find excuses to avoid their own responsibilities.