In August of last year, the Biden administration announced, by executive order, that some $400 billion in outstanding student debt would be forgiven. There was no statutory basis for this order, and many assumed that it was an election-year Hail Mary that ultimately would lose in the courts, but would garner Democrat votes in the midterms. That appears to be what happened.
The legality of Biden’s purported debt forgiveness has now made its way to the Supreme Court in Biden v. Nebraska. The case will be argued at the end of this month.
On Friday, a group of amici filed a brief urging the Court to invalidate Biden’s order. It is probably the most impressive group of amici I have ever seen, including top constitutional scholars like Michael McConnell and political figures including William Barr, Mitch Daniels, Mick Mulvaney, and others. These amici are represented by Sidley and Austin, a major law firm.
Their brief is embedded below. I encourage you to read it. The issue is the power of the purse–the most fundamental power that the Constitution gives to Congress, and the most important bulwark against executive abuse of power. The brief recounts the relevant British history, which the Founders had in mind when they made appropriations of money the sole prerogative of Congress.
In recent years, as the brief documents, presidents of both parties have used strained interpretations of broadly-worded statutes to justify unconstitutional usurpations of power, sometimes spending money that Congress had specifically refused to appropriate. Biden’s debt forgiveness continues this trend under particularly absurd pretenses, and on an unprecedented scale. As the brief argues, if the Biden administration can get away with this, there is really no check on executive power, going forward.
This is the brief. It isn’t very long, and makes interesting reading:
As a condition precedent to the merits, the case also raises a standing issue. I have not studied that issue, and have no idea whether it has merit under current law. I would only say that if a president acts unconstitutionally to deprive the taxpayers of $400 billion in revenue, there had better be someone who has standing to challenge his illegal action.
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