Betsy DeVos, John Boehner, and other former GOP officials and lawmakers filed amicus briefs opposing student-debt relief.
Both briefs criticized the legal path Biden used to cancel student debt, saying relief requires Congressional approval.
The Supreme Court is hearing the two lawsuits challenging Biden's relief on February 28.
Former Republican lawmakers and government officials want the Supreme Court to know why they think student-loan forgiveness is illegal.
Over the past few days, nine conservative groups filed a series of amicus curiae briefs to the Supreme Court opposing President Joe Biden's plan to cancel up to $20,000 in student debt for federal borrowers. One of the briefs was filed on behalf of five former Republican US education secretaries — Betsy DeVos, Margaret Spellings, Roderick Paige, Lamar Alexander, and William Bennett — and another was filed on behalf of former GOP Reps. John Kline, Howard McKeon, and former House Speaker John Boehner.
After two conservative-backed lawsuits late last year paused the implementation of Biden's debt relief, the Supreme Court agreed to take up both of the cases on February 28. Since then, amicus briefs have flooded the court from advocates and scholars supporting the relief to conservative groups opposing it. The latest round of briefs in opposition delved into criticism of the education secretary's authority to enact this broad relief for millions of borrowers.
As one of the briefs noted, Kline and McKeon were both involved in constructing the HEROES Act of 2003 — the law that Biden is using to cancel student debt — which says that the Education Secretary can modify student-loan balances in connection with a national emergency. Per the brief, McKeon was the original author of the HEROES Act of 2001 in response to 9/11, and Kline authored the HEROES Act of 2003.
Their brief said that Biden's plan "obviously violates" provisions in the Act because a "blanket forgiveness policy" isn't limited to those who suffered direct pandemic hardship, cancelling a debt isn't the same as a waiver or modification, and "outright cancellation is hardly 'necessary' to mitigate the harms associated with the pandemic, particularly since no relevant borrower has been required to make a single payment since it began."
"If Congress really meant for the HEROES Act to confer this type of authority on the Secretary, it would have said so," it said.
DeVos' and the other former education secretaries' brief also questioned the authority Biden has to carry out this relief. Represented by the Defense of Freedom Institute for Policy Studies — a conservative nonprofit — the former officials argued that "such monumental debt cancellation requires clear and direct Congressional authorization."
"Though concerns about the rising costs of higher education and the amount of outstanding student loan debt have been part of the public discourse for decades (and long before COVID-19), the idea that the Executive Branch could unilaterally cancel student loan debt on a mass basis without Congressional authority was not seriously entertained," the brief continued.
It cited a comment from former House Speaker Nancy Pelosi made in 2021, in which she said that "people think that the President of the United States has the power for debt forgiveness. He does not. He can postpone. He can delay. But he does not have that power. That has to be an act of Congress."
Republican lawmakers have firmly opposed Biden's student-debt relief — but current and former Democratic lawmaker have consistently argued the HEROES Act does permit Biden to give debt relief to millions of Americans recovering from the pandemic.
Former Democratic architect of HEROES Act said debt relief falls "exactly" under Biden's authority
As expected, advocates of student-loan forgiveness, alongside Biden's administration, have staunchly vouched for the authority of the president's debt relief plan. So did former Rep. George Miller, a top Democratic lawmaker on the House education committee who helped construct the HEROES Act of 2003.
In an amicus brief Smita Ghosh, Appellate Counsel at the Constitutional Accountability Center, filed on behalf of Miller in November, it argued that the "contention that the loan forgiveness plan exceeds the Administration's authority is completely without merit."
"As our brief shows, Congress used broad language in the text of the HEROES Act to make clear that the Education Secretary has extensive authority to respond to national emergencies, and the history of the law confirms that it authorizes comprehensive actions when the circumstances call for them," the filing said.
Biden's Justice Department reiterated that argument in its full legal defense it filed in January, and after Biden announced he would end the pandemic's national emergency declaration in May, a White House official said that doesn't change things when it comes to getting millions of borrowers student-debt relief.
"There was a national emergency that impacted millions of student borrowers," the official said. "Many of those borrowers still face risk of default on their student loans due to that emergency. Congress gave the Secretary of Education the authority under the HEROES Act to take steps to prevent that harm, and he is."
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