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Wa-Po: Biden’s student loan overreach is illegal, but courts should let it stand, anyway

March 3, 2023 | | Print Article

The Washington Post’s editorial board is facing criticism for admitting that President Joe Biden’s student loan forgiveness executive order is patently unconstitutional while then turning around and arguing that the order should still stand.

In an editorial published Wednesday, the board started by explaining that the president’s executive order is rooted in the 2003 Heroes Act.

The law “stipulated that the executive branch could ‘waive or modify’ certain student loan provisions during an emergency to ensure borrowers are not made worse off. ”

It’s the same law that former President Donald Trump used to pause student loan repayments during the height of the COVID pandemic.

To their credit, the Post’s editorial board then admitted that the way Biden is trying to use the 2003 Heroes Act is wrong and contrary to the law’s makeup.

(Source: The Washington Post)

“Mr. Biden’s student debt forgiveness scheme is far more expansive — and a questionable reading of the two-decade-old law. When lawmakers passed it in the wake of the Sept. 11, 2001, terrorist attacks, it is unlikely they were envisioning a future president issuing audacious, across-the-board student loan relief, as opposed to, say, pausing loan payments while soldiers are deployed in a foreign war or helping hurricane survivors rebuild,” they wrote.

“The straightforward reading of the law’s purpose is that it permits aid targeted at those who would struggle to repay their loans as a direct result of a serious emergency,” they added.

The problem is there is no real current emergency. The Post’s board evidently understands this.

However, the board then turned around and suddenly claimed that one of the plaintiffs in the lawsuit against the president’s student debt forgiveness executive order, the state of Missouri (via AG Eric Schmitt) lacks standing.

They explained that the case partially revolves around MOHELA, which is short for Missouri’s Higher Education Loan Authority. It’s a loan-serving corporation reportedly created by the state of Missouri.

According to The Wall Street Journal, while MOHELA isn’t part of the lawsuit, the state of Missouri — one of the plaintiffs —  is arguing “that it is harmed because the state receives some of Mohela’s revenues to fund its education programs.”

“If its revenues decline as a result of having fewer student loans to service, that would constitute harm to the state, the Missouri attorney general argues,” the Journal notes.

The problem, the Post’s board argued, is that MOHELA isn’t a state entity.

“Missouri sued on behalf of the loan-servicer, arguing that it was effectively a state entity. In fact, the state created MOHELA to be a financially independent operation, meaning any losses it incurred under the Biden plan would not impact the state. (MOHELA itself might have had a right to sue, but it declined to do so.),” they argued.

Based on this, the board argued that the Supreme Court should rule for Biden because Missouri (i.e., Schmitt) has no standing.

The board didn’t even acknowledge the other arguments in the case, writing instead that “[t]he other challengers’ arguments for their standing are even weaker.”

The public reacted to the Post’s own argument by basically saying no:

That said, the Post’s editorial board did make one salient argument.

“Standing is no mere procedural formality. It is a core judicial principle that courts may only consider cases in which a party is harmed and objects to it,” they wrote.

“The countervailing danger is that an unconstrained court would invite waves of lawsuits from people seeking favorable rulings on disputes in which they have no stake, save for their ideological preferences, gumming up the courts and government and making the court resemble a body of nine unelected legislators,” they added.

The irony, of course, is that conservatives have been making this particular argument since forever …

Vivek Saxena
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