The President has power to execute an Executive Order without the concurrence of Congress only if the order does not result in spending money and is otherwise within the President’s Executive Powers stated in Article II of the Constitution. For the President to spend money by an executive order, the Congress must pass an appropriation for the withdrawal of money from the Treasury (Article I, Section 9, Clause 7) and per 31 USC 1301 et seq (Anti- deficiency Act (P.L. 97-258)). Congress has the ability to kill such a spending order, and should have, but no money has been spent and the Supreme Court correctly killed it.
President Biden, and many Democrats claimed to find authority in a post 9/11 law that helped members of the military to obtain forgiveness of student financial assistance by waiver or modification on account of national emergency or military operations. Chief Justice John G. Roberts addressed this as not applicable, saying, “loan forgiveness for 43 million Americans “modifying” the term of assistance is akin to saying the French Revolution “modified” the French nobility.”
Roberts did not use the “Major Questions Doctrine” in which the Supreme Court has power to remand to Congress a law which it considers of major economic or political significance and presumes should not be delegated to executive agencie for approval, but rather to be approved only by Congress. The nondelegation doctrine dates to John Locke and holds the legislature is wholly responsible for stating the law and may not delegate responsibility elsewhere. In February, 2023 during oral argument, Chief Justice Roberts said, “If so, much money is to be spent, affecting the obligations of so many Americans, that is something for Congress to act on.”
Justice Elena Kagan in her dissent brought up the “Major Questions Doctrine.” She thinks it is just fine that the Congress appropriated in response to the Pandemic five trillion dollars in bills and suspended debt payments on student loans but said nothing about forgiveness. Suspension is temporary and will be recovered, but forgiveness means it is “gifted-away”, gone forever. Justice Kagan would have had the Court bless the Education Department’s reading of an inapplicable law from an entirely different event – the 9/11 attack. That thinking is wrong! Congress did answer the question on forgiveness of debt by leaving it out of the appropriation. This is where the interpretation of the “rule of law” takes its meaning from.
The Constitutional authority for the five trillion-dollar appropriation takes its approval in the Constitution; the general welfare clause in Article I, Section 8, Clause 1, that Congress may appropriate money for the general welfare. This clause was tested, perhaps a half-dozen times by Congress hoping the President would sign their bill to spend money that only benefitted a single state’s people. All the attempts were vetoed by the then-sitting Presidents. There were various interpretations as the reason for the veto, but the Constitution by placing the word general in front of the word welfare changes the meaning of who benefits from the welfare. General Welfare is always inclusive of all the people, and Welfare need not be for all the people. That interpretation stood strongly until the Great Depression, resulting in continuous welfare.
Returning to the duty of the officers of the national government to not spend on objects not authorized by the Constitution; the Constitution provides multiple means of the governments’ officers to be obedient to the Constitution. The Congress should not have approved an appropriation, which is what they did. The President initiated an illegal order, which he knew was dishonorable, and so advanced a huge corruption of spending, The end of the line is the Supreme Court to protect the Constitution and find the loan forgiveness scheme null and void, which it did. So, justice is fulfilled. Hopefully, Justice Kagan, who took the same oath of office that the other six Justices that signed the majority opinion gave when they were confirmed by the Senate. Justice Kagan would have singled out 43 million Americans from the 335 million Americans and enriched them by 430 billion dollars. The best reading of the Constitution has been missing for too long, and the ”Major Question Doctrine” should be an improvement for ever.
Publiustoo.com July 4, 2023
Constitutional Violations of Student-Debt Forgiveness
