December 4, 2020
Many people and groups are pressuring Joe Biden to issue an executive order that would cancel some or all federal student debts shortly after he takes office. During the campaign, Biden said that he would immediately cancel $10,000 of student debt for each borrower, but some want the incoming president to go further. For example, Senator Charles Schumer, the Democratic leader in the Senate, has advocated that Biden cancel student debts up to $50,000.
Before considering whether student debt cancellation of that or any magnitude is a good idea, we should first ask whether the president in fact has the authority to cancel student debts.
The place to start is with the Constitution, which says (in Article II) that “the executive Power shall be vested in a President of the United States of America.” It says nothing about “executive orders,” but going back to George Washington, presidents have issued such orders, meant to direct subordinates in the executive branch in carrying out their duties.
They are not supposed to create new law or policy, however, since that is power exclusively given to Congress. When the president has used executive orders to make new law or break old law, courts have stepped in to stop him, as in the 1952 case Youngstown Sheet and Tube, where the Supreme Court held that President Truman could not seize a steel plant that was on strike, even during time of war.
With respect to student debt, Congress has written a vague provision into the Higher Education Act that gives the secretary of education some authority to grant relief to student debtors, so it isn’t clear that the sort of sweeping executive order envisioned by Senator Schumer and the activists would be illegal.
But neither is it clear that it would be legal.