‘Biden’s side’: Blocking judicial review of a half-trillion tuition giveaway is nothing to celebrate

In a speech at Delaware State University on Friday, President Biden was positively exuberant as he announced that he had prevailed in asserting unilateral authority to forgive hundreds of billions of dollars in tuition loans. He declared that “just yesterday, a state court and the Supreme Court said, ‘No, we’re on Biden’s side.'”

Some of us immediately noted that these were actually federal judges and they did not rule that he has this authority but that the other parties in two cases did not have legal standing to challenge his authority.

Indeed, one of those Biden “supporters” was Supreme Court Justice Amy Coney Barrett, who simply denied an emergency application to the court. If it seems unlikely that Barrett is now “on Biden’s side,” it is because the claim is perfectly delusional.

No one could possibly read these decisions as even remotely supporting Biden’s claim to have virtually absolute authority to give away roughly $500 billion owed to the American people shortly before a critical midterm election.

Within a few hours of Biden’s boast, the U.S. Court of Appeals for the Eighth Circuit enjoined the lower court. However, even the Eighth Circuit will not decide whether to be “on Biden’s side” but only whether six states have the constitutional right to bring any challenge as a matter of legal standing.

Even the trial judge said the merits of the challenge raised “important and significant” concerns about Biden exceeding his authority.

Overwhelming constitutional concerns are raised by this massive election-year giveaway. Biden simply announced that he would forgive up to $10,000 in student loan debt for borrowers earning less than $125,000 annually; those who received Pell grants could receive up to $20,000 in relief; couples can qualify despite a joint annual income of $250,000. No vote of Congress — just hundreds of billions of dollars written off by Biden, as if he is an American tsar.

The legal claim behind the law is transparently opportunistic. It is based on the Higher Education Relief Opportunities for Students (HEROES) Act of 2003. As the acronym indicates, this short bill was designed for military personnel who often found themselves in arrears while serving abroad. It allows the Education Secretary to grant student loan relief during a war, military operation or national emergency. But nothing in the barely five-page act supports a sweeping and unprecedented waiver of billions of dollars in loans owed to the government.

Even for the military personnel intended to benefit from this program, the law only allowed waivers or modifications to guarantee that they were not “placed in a worse position financially in relation to that financial assistance because of their status as affected individuals.”

In other words, neither the act’s language nor these courts are necessarily on “Biden’s side.”

Yet, legal realities rarely seem to be a deterrent for this president. The Biden administration has racked up an impressive litany of losses in court, including many decisions finding that the administration has engaged in racial discrimination or simply exceeded Biden’s constitutional authority.

Biden has been remarkably open in the past about treating unconstitutionality as a mere technicality when trying to spend federal funds. When Biden called for the Centers for Disease Control and Prevention (CDC) to impose a nationwide moratorium on the eviction of renters, he admitted that his White House counsel and their chosen legal advisers told him that the move was likely unconstitutional.

Despite the overwhelming opinion of experts to the contrary, Biden suggested he could get as much money out the door as possible before being barred by the courts. But the Supreme Court ruled 6-3 that the order was unconstitutional.

The tuition forgiveness program is based on the same cynical tactic. Indeed, the Justice Department’s Office of Legal Counsel previously rejected his legal interpretation under the HEROES Act. So the Biden Office of Legal Counsel issued a new opinion concluding the opposite based on the COVID-19 pandemic — which was curious, since the Biden administration was just in court arguing that the pandemic was effectively over, in order to allow undocumented individuals to enter the country.

While the president’s legal arguments are weak, his administration is betting that arguments about legal standing will protect it from any substantive review; in the meantime, the administration will rush to forgive billions before any court can stop it.

As someone who has long argued for broader legal-standing rules, this calculation is particularly maddening. This is arguably one of the most costly unconstitutional acts in history, but the administration apparently believes no one will be able to establish legal standing to enable a court to rule in the case.

The president can then go public and declare — falsely — that federal courts “said, ‘No, we’re on Biden’s side'” on forgiving a half-trillion dollars in loans.

The Eighth Circuit could well lift the injunction, and legal standing could shield an arguably unconstitutional program from judicial review — precisely the objection of those of us who are called “standing doves” in seeking broader standing rules. While based on the constitutional requirement in Article III that courts only consider “cases and controversies,” the current standing rules are the creation of the federal courts in narrowly construing what constitutes an injury for the purposes of legal standing. The Constitution’s Framers never intended for unconstitutional acts to be insulated from judicial review, in my opinion. Indeed, I previously represented the U.S. House of Representatives and have long argued for “member standing” to allow, at a minimum, for members of Congress to challenge unconstitutional acts.

There may be other challenges to Biden’s giveaway that can establish standing, or the states may be able to prevail on the issue. However, once again, we need to address the artificially narrow standing rules that prevent review in such cases.

The Framers would have been appalled by a president’s claim to be empowered to write off such a massive amount of money owed to the government. It is precisely the type of unilateral action they sought to avoid through the system of checks and balances, including giving Congress the “power of the purse.”

We now see the literal cost of narrow standing rules. It is not the false claim of these judges being on “Biden’s side” — rather, the question becomes who is on the Constitution’s side if no court can rule on its alleged violation, even with hundreds of billions of dollars at stake?

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.