The plan is expected to face legal challenges, which would cause uncertainty for borrowers who are set to benefit from the new policy. At the same time, challenges are also expected for those planning to sue the administration over the plan. Showing standing in the case in particular is seen as a hurdle, leading some to doubt that a future challenge will be successful. The Biden administration relied on the Heroes Act of 2003 enacted after the 9/11 terrorist attacks to support its plan. He argues that because of the COVID-19 emergency, the law gives the Department of Education the power to suspend loan repayments until Dec. 31 and cancel loan debt for many borrowers. Groups like the centrist Democratic think tank Third Way opposed Biden’s plan in part because of the threat of legal challenges. “We are very concerned that it will be delayed in court and leave borrowers in the lurch,” said Lanae Erickson, senior vice president of social policy, education and policy at Third Way. The government’s legal authority to cancel student loan debt has been debated for months, as progressives increased pressure on Biden to take action. The initial expectation was that the Biden administration would use the Higher Education Act to justify enforcement actions on student loans. Biden on Wednesday announced plans to cancel up to $10,000 in federal student loan debt for borrowers making less than $125,000 a year and up to $20,000 for Pell grant recipients. The Justice Department’s Office of Legal Counsel released a memo outlining the legal rationale. The Heroes Act was passed in 2003 with bipartisan support and gives the secretary of education the power to waive debt obligations in the midst of war or a national emergency. The law was passed with veterans fighting in Iraq and Afghanistan in mind, but the administration believes the coronavirus pandemic is covered by the law because it has been declared a national emergency. “They clearly limited their decision to this very specific national emergency hook,” said Dalié Jiménez, a law professor at the University of California Irvine. “I think they did that probably to avoid a legal challenge or prevent it as much as possible.” “It’s strategically a much better thing to do and I think it greatly reduces the chance of successful challenges,” Jiménez said. Erickson, however, argued that there remains a “very strong possibility” that the action will eventually be repealed. “The language of Congress is still very vague, and I don’t think Congress thought when it passed Heroes that it was giving the department the authority to eliminate student debt,” he said. When White House press secretary Karine Jean-Pierre was asked Thursday if the administration is prepared for possible legal challenges, she declined to go into what she called a hypothetical scenario. Bharat Ramamurti, deputy director of the National Economic Council, said Friday that Biden did not want to proceed with the loan write-off unless he was sure it had a solid legal basis. “Of course people can challenge lawsuits in court, that happens all the time,” Ramamurti said. “It will be up to the courts to decide whether these are valid claims or not. But we believe we are on very strong legal ground.” There are questions about who could prove standing on a case. “It’s an obvious standing obstacle. It seems plausible to me that some plaintiffs could get away with it,” said Richard Re, a law professor at the University of Virginia. “If someone can show that this measure will cost them something financially, that would probably be the strongest way to get a challenge heard on the merits.” Re and others have suggested that loan servicers could potentially sue to stop loan forgiveness. Erickson said borrowers just outside the income bracket for loan forgiveness — such as those making $126,000 a year — may also be able to file a lawsuit. If they regain control of the House in the upcoming midterm elections, Republicans could also file a lawsuit against the student loan forgiveness plan as early as January, he said, like the lawsuit filed by then-House Speaker John Boehner (R -Ohio). over the Affordable Care Act of 2014. Conservative critics of Biden’s announcement acknowledge that there is uncertainty about who could bring a lawsuit in this case, but they largely agreed that the policy itself is unconstitutional and inconsistent. Critics pointed to comments last July by House Speaker Nancy Pelosi (Calif.) when she questioned the president’s authority to unilaterally wipe out student loan debt. “People believe that the president of the United States has the power to cancel the debt. He does not. He can postpone, he can delay, but he does not have that power. That has to be an act of Congress,” Pelosi said. Akash Chougule, vice president of government affairs at Americans for Prosperity, argued that using the Heroes Act to justify the measure is a “misreading of executive branch authority,” noting that a former Obama administration adviser on the Department of Education determined in memo earlier this year in which the executive branch likely does not have the power to cancel student debt. GOP Senator Says Biden’s Student Loan Relief Plan Is ‘Monumentally Unfair’ Warren: College Costs Should Be Addressed After Student Loan Debt Cancellation Chougule also suggested the administration was hypocritical in describing the COVID-19 pandemic as an emergency that required loan forgiveness since the White House moved to repeal Title 42 immigration policy on the grounds that the pandemic was no longer an emergency requiring the rapid deportation of immigrants. “The difficulty, I think, is that I don’t know who has standing to sue,” said Neal McCluskey, a political analyst at the CATO Institute. “So the most immediate damage seems to me to be to taxpayers because they’re not getting paid and they have to cover government spending.” Alex Gangitano contributed.
