How Biden Might Try to Cancel Student Debt Next
What does “compromise” mean? As a term of legal art, it means taking a deal. Even more clearly, “waive and releasing” means “you don’t owe this anymore.” That is what the authority says.
And what was Congress’s intent with this phrase?
As far as I can tell, there was no detailed conversation here. But I believe that what they meant was that if we’re going to have an agency that is going to manage debt — people might be resisting paying and there are all kinds of problems collecting — we should give the agency, as a wise administrator, some flexibility.
This notion that government agencies don’t get to make real big moves unless Congress has quite specifically given them permission to do so is a “major question” if I’ve ever seen one, which gets to the doctrine that the majority of Supreme Court justices now cite with fervor. This is a major question, right?
I don’t know if I can say that it isn’t. Clearly, the court is going to look askance at the breadth of any relevant authority, especially one that hasn’t been used in this way before.
How then might the administration make this less major? I’m imagining a narrowing of eligibility to certain borrowers in default , where collection is time-consuming and expensive?
I think everyone agrees that the Higher Education Act gives the secretary authority to compromise when litigating against a borrower who is already in default. And I think most people agree that in anticipation of collection actions against borrowers, that they would want to cut their losses.
So maybe we have our own doubts about the extent of the Education Department’s authority now, but perhaps we’ll focus cancellation efforts on borrowers who we think we’re going to have trouble collecting from. Maybe they’ve been paying for 25 or 30 years, or they’re above a certain age. I can imagine a number of these categories.
Has the White House asked you for advice?
No.
If they did, would you tell the people there that “I told you so” about the fact that they maybe should have tried this compromise and settlement tactic first?
I think a wiser decision would have been to start canceling debt without requiring any application from debtors, and then challenging the court to reimpose the balances.
Where I think we all agree is that the court is skeptical of any assertion of administrative authority, so you have to think around that, rather than just thinking about how to convince them.
Source: The New York Times
