The emergency should justify the policy, not the other way around. That’s not how the Biden administration appears to see things.
On Monday, a federal appeals court blocked the implementation of Joe Biden’s scheme to transfer the debt burden held by student-loan borrowers onto the shoulders of taxpayers. The suit against the administration, which was brought by six Republican-led states, argued that the order threatens local tax revenues and exceeds the president’s constitutional authority, and the 8th Circuit Court of Appeals agreed. This court’s decision against the Biden administration follows a similar ruling from a U.S. district court in Texas. That court also blocked Biden’s debt-transference plot on the grounds that the post-9/11 HEROES Act, which provided loan assistance to military personnel, doesn’t grant the White House statutory authority to erase the debt burdens held by civilians.
That, you might think, would be that. But the White House never gave the law its due when it crafted its patently lawless subversion of congressional authority in the first place, so why start now?
The administration is reportedly looking for ways to circumvent the courts’ rulings. The most attractive option, according to early reporting, is to further erode the public’s confidence in elected officials by abusing the emergency powers supposedly necessitated by the pandemic. White House officials are allegedly toying with the idea of extending a Covid-related moratorium on student-loan payments well past its scheduled sunset on January 1, 2023. The pandemic may be “over,” according to the president, who just recently extended the emergency around the pandemic into next year, but the social engineering it facilitated cannot be allowed to fade away along with the virus.
The abject contempt for the law displayed by the president is evident in on-the-record comments made by Michael Pierce, the deputy assistant director of another executive agency that spits in the face of congressional sovereignty, the Consumer Financial Protection Bureau. He called on the administration to “make it clear that the student loan system will remain shut off as long as these partisan legal challenges persist.” Which is to say, if the courts keep siding with Republicans, Democrats should continue to mock their authority and abuse their power.
Regardless of the merits of the student-loan moratorium, the conditions that justified this extraordinary intervention are long gone now. America’s job market fully rebounded from the pandemic months ago, as the same administration that insists the pandemic justifies its emergency authority keeps reminding us. The labor market is presently defined by shortages and workers voluntarily leaving the workforce in pursuit of more fulfilling or higher-paying vocations. The Borrowers’ “fate,” as Pierce put it, is not “in Biden’s hands” but their own. The extension of the Covid emergency for this, little more than a handout to a favored Democratic constituency, subverts the democratic process in pursuit of the cheapest, most parochial of political goals.
A moratorium on loan repayments is not precisely akin to Biden’s effort to raid the U.S. Treasury absent congressional authority. It is not, however, without constitutional implications. The moratorium has cost the government tens of billions because the Treasury Department, of course, still has to pay the debt it incurs while issuing subsidized student loans. Taxpayers are still on the hook for that bill.
Democrats shouldn’t need to be reminded of all this. They know full well what a politicized emergency declaration looks like and the dangers it presents to the good working order of government. At least, they did when Donald Trump was doing the subverting.
Trump set the stage for what the New York Times claimed was nothing short of a “constitutional clash” when he declared a national emergency along the Southern border in 2019. The actual emergency existed in the eye of the beholder, not in the statistics, which indicated that illegal border crossings and apprehensions were down at the time of Trump’s actions. But the outcome Trump sought was clear: the leverage the emergency provided the White House to circumvent the congressional appropriations process and, at long last, build his wall.
Just as Biden has given away the game by extending an emergency around the pandemic that he insists is behind us, Trump exposed his own duplicity. “I didn’t need to do this,” he told reporters in a Rose Garden address, “but I’d rather do it much faster.” The former president’s action was, according to Nancy Pelosi, “a power grab” that “does violence to the Constitution and fundamentally alters the separation of powers.” Sen. Chuck Schumer wondered aloud whether the system of checks and balances could endure an affront on this “large and vital constitutional issue.” California Gov. Gavin Newsom said Trump’s “vanity project” would be halted by the courts, which tend to have “the last word.”
Less than a month after Trump’s maneuver, 12 Senate Republicans joined their Democratic colleagues in voting to cancel the emergency declaration. It seems fanciful to imagine Democrats may engineer a similar rebuke if Joe Biden abuses his power in a similar fashion. But the Biden administration is giving its allies no cover, no plausible rationalization to justify its assault on legislative prerogatives. They’ve noticed.
According to the American Prospect’s executive editor David Dayen, a constellation of “right-wing judges” across the country are applying tortured legal theories, which, along with novel interpretations of standing, have conspired to illegitimately block Joe Biden’s fiat. But the worst part about it? The Biden administration isn’t fighting back.
“[T]he Biden administration will need to rebut charges that they conned young voters by offering debt relief before the election, only to have it taken away by the courts, as they knew it would be,” he wrote. But that’s not happening. Therefore, a necessary corollary to this indictment of the administration’s inaction is that the president’s debt scheme was, in the Prospect’s formulation, “a political stunt to attract young voters.” And in trying to keep that stunt going, Biden is abusing his authority and betraying the public trust.