Constitutional cruelty: Democrats now oppose a democratic process on student loans

“Disappointing and cruel.” Those words from Senate Majority Leader Chuck Schumer (D-N.Y.) after the Supreme Court’s rejection of the Biden administration’s loan forgiveness program may say more than the opinion itself.

The court’s “cruelty” was in supporting Congress’s core constitutional power of the purse. Schumer’s disappointment in having to address and vote on the forgiveness of hundreds of billions of dollars in loans speaks volumes about the collapse of our constitutional values.

The court’s decision on the merits of the case was hardly a surprise. President Biden was using the Higher Education Relief Opportunities for Students (HEROES) Act of 2003 to order the largest loan forgiveness program in U.S. history. The law is only a few pages long and was intended to assist military personnel deployed abroad in combat zones. 

The idea of using that law in order to avoid getting congressional approval for such a massive expenditure was laughable. The Office of Legal Counsel considered the theory and issued a memo stating that it would be unconstitutional. 

In his response to the court, Biden declared that “the hypocrisy is stunning” and that the court had “misinterpreted the Constitution.” However, during the last presidential campaign, Biden himself acknowledged that this effort would be unconstitutional. 

Chief Justice John Roberts even cited former Speaker Nancy Pelosi (D-Calif.) in the opinion for stating the obvious: “People think that the president of the United States has the power for debt forgiveness. He does not. He can postpone. He can delay. But he does not have that power. That has to be an act of Congress.”

Biden, however, knew that there was no way Congress would approve the loan forgiveness. Many citizens objected that they decided to learn a trade rather than go to college, and no one is suggesting that they should be forgiven their debts. Others paid their student loans back and felt like they were the victims of a bait-and-switch.

While many of us could not see any plausible way that this law could be used for such a clearly unintended purpose, University of California law professor Dalié Jiménez filed an amicus brief declaring that the HEROES Act “is as clear as sunlight” as a basis for forgiving federal student debt for nearly everyone.

The justices failed to see the light. Instead, a 6-3 majority again declared that Biden was violating the Constitution and had to go to Congress. 

The same court that had just ruled overwhelmingly to support Biden’s immigration policies turned around and issued a devastating and detailed opinion as to why no such authority existed in this case.

Biden was undeterred after that ruling and promised, “I will stop at nothing to find other ways to deliver [the] relief.” Perhaps, but the Constitution has once again stopped him from becoming a government unto himself.

That brings us back to Schumer. James Madison designed a constitutional system with a frank understanding of the factional and petty impulses of politicians. Yet he believed that he had created a system of checks and balances that could rely on the institutional self-interest of members to jealously protect their powers under Article I. Madison believed that, despite party or ideological affiliations, “ambition must be made to counteract ambition.”

In all of his study of the ancient Greek and Roman states and contemporary politics, Madison never encountered the likes of Schumer and his colleagues. Their ambition runs elsewhere, and they view the support of their authority to be an act of constitutional “cruelty.” They are calling on a president to turn them into institutional nonentities — legislators who engage in a type of empty performance art as the president governs alone.

It is a curious position for those who have campaigned on protecting “democracy.” These same figures are now calling on a president to avoid presenting this major program to Congress because they know that the majority would oppose it. 

Ever accommodating, Biden is now saying that he will attempt to accomplish the same loan forgiveness by taking a “new path.” That path, of course, is not to the co-equal branch just down the street from where his lives. It is rather through a different statute, the Higher Education Act of 1965. The HEA, however, could be used only for a far more limited number of debt holders, and even this would raise new legal questions. The HEA was rejected previously because the HEROES Act was still viewed as a better avenue for the administration.

In comparison to just going to Congress down the street, the “new path” is like going from D.C. to New York by way of Los Angeles.

All of this is meant to avoid the one option left to the president — going to Congress. After all, the last thing you want in the defense of democracy is to have an outbreak of democratic process.

What is left, to paraphrase Schumer, is a cruel joke. But the ultimate joke is on the American people. Half of their representatives in Congress are struggling to make themselves (and those they represent) entirely irrelevant at this key moment. That is a constitutional debt that should not be forgiven.

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