The legal basis for such action was eventually justified through the Higher Education Relief Opportunities for Students (HEROES) Act of 2003, which grants the Secretary power to “waive or modify any statutory or regulatory provision applicable” to federal student loans. If related to a declared emergency, the Secretary can act as they “deem necessary” to prevent individuals with student loans from being “placed in a worse position financially,” which includes the discretion to target application to both affected individuals and to larger groups.
After this basis was asserted, the lack of clear precedent caused legal questions to arise. Prior to DeVos’ response to the pandemic, recipients of the HEROES Act were targeted “relatively narrowly” to include smaller groups “such as deployed military service members or victims of certain natural disasters.” Though the breadth of the application of the HEROES Act was arguably at its widest point, DeVos did not receive considerable backlash to these decisions, and President Joe Biden has even opted to continue with this approach as the Education Department extended relief through at least Sept. 30, 2021.
The Biden administration apparently has some trust for the new precedent set under the Trump administration. To come to this conclusion requires legal research, which may suggest that the national state of emergency has shifted the legal discussions around federal student loan debt relief.
The legal analysis of any controversial interpretation of a given statute is based in the “Chevron Deference” Doctrine, which first determines if a certain statute is “ambiguous,” and then if “the agency’s interpretation is reasonable.” Limits on the Secretary’s discretionary powers are based on judicial precedent from court cases where the term “modify” was defined as “only a ‘moderate change’ to the thing being modified”; that is, the Secretary’s changes cannot be deemed “fundamental.”
This precedent has been used to determine that “permanently eliminating” certain statutory provisions is “too fundamental a change,” but the temporary suspension of federal student loan collection has not yet been directly assessed by the courts. Following this legal framework, President Biden’s Education Secretary, Miguel Cardona, modified policy to give “full loan forgiveness” to 73,000 people who only received “partial loan forgiveness” as a result of a DeVos’ modification.
In addition to “waiv(ing) a paperwork requirement … for disabled borrowers to receive approval for loan forgiveness,” Biden also expanded the cancellation of roughly $1 billion for students “defrauded by their colleges.” Applied to the current context of the pandemic, the issue of high expenses for online courses — whose efficacy is debated — raises the question of whether this precedent can be expanded even further.
To that end, Biden has expressed that his trust for the precedent of executive action in this field is not foolproof. He is hesitant to give in to pressures to push the limits of this framework from leaders within the Democratic Party, who assert Biden’s executive power allows him to instruct his Secretary of Education to “cancel up to $50,000 of student loans for all borrowers who earn less than $125,000” at the “flick of a pen.” President Biden does not believe that the current legal framework would allow him to go this far.
Instead, Biden has hinted at taking a slow, complex and more effective approach by pursuing this issue through pressure for congressional action. With the expanses of the Trump administration regarding executive ability, Biden should continue exercising patience with the currently broad limits of his executive powers. He is right to prioritize working with the majority he has in Congress to pass additional legislation, especially before the next two-year election cycle has the chance to take that away from him.
If Biden’s goals for student debt relief do not find themselves in the form of legislation, there is nothing stopping future presidents from reversing all the executive decisions he has made. This would prove devastating to the political legacy of the Biden administration and possibly to the many Americans struggling with student debt.
Cooper Childers is an upcoming spring 2021 graduate of Westminster College in Fulton, where he studied political science, with a minor in pre-law. He plans to enroll in law school in fall 2022.