President Biden does not have the power to cancel student debt
Advocates of debt cancelation by executive order point out that the Higher Education Act gives the Secretary of Education power to “enforce, pay, compromise, waive, or release any right, title, claim, lien, or demand, however acquired.” This provision would seem to give the Secretary broad power to cancel student debt.
But as financial aid expert Mark Kantrowitz notes, another part of the statute limits the secretary’s authority. He only has the power to cancel obligations owed to the U.S. government “in the performance of, and with respect to, the functions, powers, and duties, vested in him by this part.”
In other words, the Secretary of Education only has the power to forgive student debt when Congress gives it to him.
When President Biden has canceled student debt, it has always been under the authority of a specific program authorized by Congress. Borrower defense is one example: Congress gives the Secretary of Education authority to cancel debt after instances of outright fraud. Congress also allows the secretary to cancel debt when borrowers experience a total and permanent disability. Borrowers who work in public service for ten years can also receive a loan discharge.
In each of these circumstances, Congress created a specific provision for loan cancelation, and required borrowers to meet certain conditions before receiving forgiveness. If the Secretary really had the broad authority to cancel student loans whenever he saw fit, Congress wouldn’t need to create specific programs such as Public Service Loan Forgiveness. The very existence of those programs proves the limits of the executive branch’s authority.....
The debate over whether the President Biden can cancel student debt with the flick of his pen is a distraction. He can’t, but there are better solutions on the table. Congress and the Department of Education should work together to put them into practice.
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