Is Mass Student Debt Cancellation Constitutional?

Almost all the 3 ½ hours of colloquy at the February 28, 2023 Supreme Court hearing on the student debt relief cases, Biden v. Nebraska, No. 22-506 and U.S. Department of Education v. Brown, No. 22-535, was devoted to two issues: (1) whether the plaintiff states and/or individuals have standing to challenge the debt cancellation program, and if they do, (2) whether the mass cancellation of more than $400 billion in student loan debt is authorized under the Higher Education Relief Opportunities for Students, or HEROES, Act and otherwise is procedurally proper.

Only Justices Clarence Thomas and Neil Gorsuch asked questions specifically focused on the most fundamental — but barely mentioned — underlying issue in these cases: Does the Biden administration’s half-trillion dollar so-called debt forgiveness giveaway to tens of millions of borrowers violate the Appropriations Clause of the U.S. Constitution?

The answer—which my former, long-time law partner Herb Fenster and I addressed in the amicus brief that we filed on behalf of the Atlantic Legal Foundation—is that the entire mass student debt cancellation is unconstitutional.

Law360 has published our Expert Analysis, which focuses on the questions that Justices Thomas and Gorsuch asked at the hearing about the Appropriations Clause issue.  As discussed in our article, U.S. Solicitor General Elizabeth Prelogar’s response was flawed, but Nebraska Solicitor General James Campbell’s answer was exactly correct:  The Executive Branch cannot usurp Congress’ “power of the purse,” which is a tenet of the separation of powers.

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