Although the Biden administration has announced its student loan “forgiveness” program, the specifics of the plan’s implementation remain murky. However, what is crystal clear is House Speaker Nancy Pelosi’s statement just last year that “the president can’t do it.”

“So that’s not even a discussion,” Pelosi told reporters, adding: “The president can only postpone, delay, but not forgive” student loan debt.

That may be why President Joe Biden himself repeatedly said that he wanted Congress to pass legislation cancelling some student loan debt. The president’s legal authority to take the step announced last week was, by his own admission and the admission of his close political allies, ambiguous. 

If you’ve been paying attention to how things typically get done in Washington these days, you are probably noticing a now-predictable pattern: Presidents make grandiose promises on the campaign trail to make extensive changes to policies or create new ones, try working with Congress to make good on these promises once elected, then eventually give up and use the stroke of a pen to circumvent the legislative process. 

Presidents do this by finding the authority they want in some existing law that already grants power to the president—teaching an old law new tricks.

In 1998, Paul Begala, a political aide to President Bill Clinton, notoriously summarized the process: “Stroke of a pen. Law of the Land. Kind of Cool.” 

President Barack Obama upgraded to a “pen and a phone” to work around Congress when necessary, inspiring “Saturday Night Live” to air a skit updating “Schoolhouse Rock!” 

The COVID-19 pandemic, which President Donald Trump declared a “national emergency” that is still in effect, only intensified this process. It was an emergency power that the Biden administration used to justify the Occupational Safety and Health Administration’s vaccine mandate when Congress failed to enact one into law. 

Congress Avoids Issues

Immigration, student loans, vaccine mandates … contentious issues such as these used to be addressed by our elected representatives in Congress. These lawmakers represented the diversity of views in an extensive republic and were forced to bargain and compromise to reach consensus on such controversial matters.

But Congress does not have the capacity, nor do its members have the inclination, to address these issues head-on. So now such issues are settled through a single, winner-take-all election every four years.    

Usually when a president uses the pen or phone to make sweeping policy changes, that settles the matter. However, in the last few years the federal courts increasingly have enforced limits on executive power by interpreting the laws that delegate power to the president narrowly.

When a president claims to find authority to make sweeping changes in an existing law, rather than waiting for Congress to grant him the authority he seeks, courts have struck down these assertions of power. The eviction moratorium imposed by the Centers for Disease Control and Prevention, the vaccine mandate imposed by the Occupational Safety and Health Administration, and other major actions have been blocked in this manner. 

It is a basic principle of our constitutional system that the laws should be made by representatives elected by the people.  Article I of our Constitution opens by affirming this principle: “All legislative powers herein granted shall be vested in a Congress.” The president’s job is to execute the law, not to make it. 

This principle typically is referred to as the “nondelegation doctrine.” It forbids Congress from delegating its legislative powers. In very rare instances, the Supreme Court has determined that a statute violates this doctrine and has struck down the statute. (This happens somewhat more frequently at the state level.) 

However, the Supreme Court lately has employed a variation of this doctrine known as the “major questions doctrine.” It demands clear and explicit congressional authorization for executive actions with major political or economic significance. Rather than ruling that a statute violates the nondelegation doctrine, the major questions doctrine interprets a statute to constrain the scope of authority it gives to the executive. 

‘Elephants in Mouseholes’

The famous case of FDA v. Brown and Williamson (2000) illustrates this.

In that case, existing law gave the Food and Drug Administration the authority to regulate “drugs,” defined in the law as “articles (other than food) intended to affect the structure or any function of the body.” The FDA asserted that this regulatory authority included nicotine, so it could regulate cigarettes. 

A literalist reading of the law seemed to support the FDA’s interpretation. The phrase “affect … any function of the body” seems to include nicotine, which clearly affects how the body functions.

Yet the Supreme Court ruled against the FDA, noting that on such a major issue, Congress would have to make such an important delegation of power explicit. 

As Justice Antonin Scalia famously quipped in a similar case: Congress “does not … hide elephants in mouseholes.” 

This major questions doctrine upholds an important constitutional principle: the nation’s laws should be framed by Congress. It helps to ensure that presidents cannot perform an end run around the legislative branch.

This doctrine also changes the incentives inside Congress in necessary ways.  When members of Congress know that the executive isn’t there to bail them out for not acting, it encourages them to make the decisions that the Constitution requires them to make.

No Authorization From Congress

The Biden administration’s plan to cancel student loan debt is vulnerable under the major questions doctrine.

The administration relies on the HEROES Act of 2003, which authorizes the secretary of education to “waive or modify any statutory or regulatory provision” related to the federal student financial assistance programs, “in connection with a war or other military operation or national emergency.”

At first glance, like the law in the case of Brown and Williamson, this appears to be almost unlimited authority. However, the HEROES Act also limits the discretion of the education secretary in several ways. 

One of those limits requires the secretary, when using this authority, to ensure that recipients of student loans “are not placed in a worse position financially because of” the emergency. These limits suggest that Congress did not grant the education secretary unlimited power to waive student loan obligations.

Biden’s plan to “forgive” student loans is clearly a political issue of great significance. Politico reports that the Biden White House was inundated with letters on the question.

As the Supreme Court has made clear in recent years that when the president presumes the authority to decide such major questions, it must be pursuant only to a clear authorization from Congress to make the policy.

This safeguard helps to preserve the balance of power struck by the Constitution, as well as the republican system of self-government through elected representatives in Congress. 

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