When Solicitor General Elizabeth Prelogar appeared before the Supreme Court last week to defend the Biden administration’s ambitious plan to waive federal student loan debt, she had some explaining to do. The policy she’s defending belongs to Mr. Biden. But the system of governance it relies on is a product of the George W. Bush administration, a form of emergency rule meant to manage the post-Sept. 11 world. Abused in its day, it has, alas, been found useful by every administration since.
President Biden’s plan would forgive a quarter of the roughly $1.6 trillion in federal student debt held by some 43 million Americans — about $400 billion, or roughly 2 percent of gross domestic product. Unfortunately, for all Mr. Biden’s successes in passing infrastructure and industrial-policy legislation, this part of his agenda never got voted into law. He has simply decreed it.
Americans are getting used to this form of rule, though they probably shouldn’t be. After Mr. Bush declared a terrorist emergency in 2001, his administration took unseemly shortcuts in a variety of policy domains, including interrogating criminal suspects and managing aspects of the economy. Governing in the wake of another emergency, the financial crisis of 2008, Barack Obama acted without Congress to protect immigrant children from deportation in 2012 and to adjust his Affordable Care Act in 2013.
Since 2020, the Covid pandemic has created an even more tangled and undemocratic chain of accountability. Donald Trump declared a national emergency. The Centers for Disease Control and Prevention even imposed a moratorium on evictions. All without Congress weighing in.
When it comes to student loans, Mr. Biden’s people do not believe they are just lawlessly winging it. As they see matters, Mr. Bush’s Higher Education Relief Opportunities for Students Act of 2003, usually called the HEROES Act, gives them a legal basis for clearing out those loans. The law permits the secretary of education to “waive or modify” student loan provisions during a national emergency.
But claiming the vast authority Mr. Biden does is really a stretch. The point of the HEROES Act was to make sure soldiers didn’t get their school finances tangled up in red tape while fighting in Afghanistan and Iraq. It was quite specifically aimed at four classes of people: active-duty military; activated National Guard members; those serving or living in disaster areas; and those who “suffered direct economic hardship as a direct result of a war or other military operation or national emergency, as determined by the secretary.” To a layman, that last category implies war wounds or something just as grave. To the education secretary, Miguel Cardona, it is apparently vague enough to provide interpretive leeway. It cannot have been meant, however, to let him dispose of 2 percent of G.D.P. as he sees fit.
The loan canceling authority of 2003 was supposed to be time-limited, but Congress extended the expiration date, then made it permanent in 2007. President Obama made limited use of the HEROES Act. President Trump used it to call a student loan pause at the height of the Covid pandemic in 2020, when his term had less than a year to run.
The difference with Mr. Biden’s plan is one of scale and timing. Mr. Trump’s pause cost $5 billion per month, though the Biden administration has extended it several times, bringing the total cost beyond $100 billion. Canceling some $400 billion outright is an intervention of a different order. What’s more, Mr. Biden is claiming these special powers by invoking a pandemic emergency that is three years old — an emergency that in other contexts (like his interview with “60 Minutes” in September) he declares has passed. Mr. Trump did something similar by using terrorism to justify a 2017 “travel ban” a decade after the peak of the war on terror.
There are obvious reasons that the head of the executive branch, impatient with congressional constraints, might seek the occasion of an emergency to just start ordering people around. In a less obvious way, Congress — the branch of government that is supposedly seeing its powers usurped — has reasons to collude in emergency rule, too. Student loan relief is a hard issue for a politician to read. Ignoring millions of 20- and 30-somethings who live in debt drudgery might cost you their votes; helping them might cost you the votes of all the over-40s who feel that they paid their dues and that younger people should too.
And who are the students whose debts are being waived? If they’re newly credentialed nurses who are going to ease the crowds in emergency rooms, the country might cheer. If they’re entitled artistes with expensive degrees in postcolonial theory, the country might sour on the idea of federal aid to higher education altogether. Student loans are an issue on which a politician could easily get his message wrong, putting an otherwise safe congressional district into play. Some members of Congress might prefer having their authority usurped by the president.
A bit of executive latitude is necessary in a democracy, but emergency rule can’t be a permanent system, especially in a society as divided as this one. What’s troubling about the case now before the court is not the Biden administration’s policy, still less its ideology, but this system of governance that has grown up around emergency powers since the Sept. 11 attacks.
In 2007 the author and activist Naomi Klein used the term “disaster capitalism” to describe the way corporations laid the groundwork to take windfall profits from natural disasters and wars. It was a sharp observation, and she did not lack for evidence in the Iraq war era. But the system she described is not as allied to free-market ideologies as she implied. There is also such a thing as disaster progressivism. It, too, imposes permanent change that might otherwise not be agreed to, by imposing it at a moment when the public is too stunned or scared to object.
Almost as soon as Mr. Obama was elected in November 2008, in the midst of a financial meltdown, his incoming chief of staff, Rahm Emanuel, said, “You never want a serious crisis to go to waste.” Mr. Biden’s loan forgiveness plan is in this policymaking line. Whatever you call it, it’s not democracy but a democratic malfunction worthy of the court’s close attention.
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