The Executive Pen Is Not a Checkbook — Biden's Student Loan Gambit and the Constitution's Last Line of Defense

In June 2023, the Supreme Court handed the Biden administration a decisive defeat in Biden v. Nebraska, ruling 6-3 that the Department of Education lacked the authority to cancel approximately $430 billion in federal student loan debt under the HEROES Act of 2003. Chief Justice John Roberts, writing for the majority, invoked the major questions doctrine — the principle that when an executive agency claims authority to make decisions of vast economic and political significance, Congress must have granted that authority clearly and explicitly. It had not.

The administration's response was instructive. Rather than accept the constitutional verdict and bring a legislative proposal to Congress — the constitutionally prescribed remedy — it began searching for new legal hooks on which to hang a revised forgiveness scheme. That pattern of executive persistence in the face of judicial rejection is precisely what should alarm every American who cares about the structural integrity of their government, regardless of where they stand on student debt.

What the Administration Actually Tried to Do

The original plan, announced in August 2022, would have used the HEROES Act — a post-9/11 statute granting emergency powers to waive or modify student loan provisions during national emergencies — to justify canceling up to $20,000 in debt per borrower. The administration argued that the COVID-19 pandemic constituted the requisite emergency. The Supreme Court disagreed, finding that the statute's language did not contemplate mass debt cancellation of this scale.

After that ruling, the administration pivoted to a different legal theory: the Higher Education Act of 1965, which grants the Secretary of Education authority to "compromise, waive, or release" certain loan obligations. A second, narrower forgiveness plan targeting borrowers in financial hardship was announced in 2024. That plan was also blocked by federal courts before it could take effect, with judges finding — again — that the administration was stretching statutory language far beyond what Congress had authorized.

In parallel, the administration pursued targeted cancellation through existing programs: Public Service Loan Forgiveness, income-driven repayment adjustments, and borrower defense to repayment claims. Many of these were legitimate exercises of existing statutory authority. But the administration also used accounting adjustments to these programs in ways that critics — including the nonpartisan Committee for a Responsible Federal Budget — argued effectively constituted backdoor mass cancellation, bypassing the legal scrutiny that direct forgiveness plans had attracted.

The Constitutional Stakes Are Not Subtle

Article I of the Constitution vests the power of the purse exclusively in Congress. This is not an accident of drafting. The Founders deliberately separated the power to spend public money from the power to execute policy, because they understood that a government capable of spending without legislative authorization is a government without meaningful limits.

Student loan obligations are federal assets. When those obligations are canceled, the federal government absorbs a loss — a loss that must ultimately be borne by taxpayers who did not attend college, who paid their own loans, or who chose careers and life paths based on the assumption that the rules would remain consistent. The Congressional Budget Office estimated the original Biden forgiveness plan would cost $400 billion or more over the budget window. That is not a minor administrative adjustment. That is a spending decision of the first order — precisely the kind that the Constitution assigns to the legislative branch.

The strongest counter-argument from the left is that executive agencies routinely exercise wide discretion over federal loan portfolios, and that the HEROES Act and Higher Education Act genuinely confer broad authority to modify loan terms. This is not a frivolous argument. Federal student loan administration does involve substantial executive discretion, and the statutory language in question is genuinely ambiguous in places. But ambiguity is the administration's problem, not its solution. Under the major questions doctrine — now firmly established Supreme Court precedent — ambiguous statutory language cannot serve as the foundation for decisions with hundreds of billions of dollars in consequences. The authority must be clear. It was not.

The Moral Hazard Nobody Wants to Discuss

Beyond the constitutional dimension lies a practical one that the political class consistently avoids: what message does mass loan forgiveness send to every future borrower?

If students can reasonably expect that the government will eventually cancel their debt — or that a sufficiently sympathetic administration will find a legal theory to do so — the rational response is to borrow more, not less. Colleges, understanding this dynamic, have every incentive to raise tuition further, confident that federal dollars will follow. The underlying cost spiral that made student debt a crisis in the first place is not addressed by forgiveness. It is accelerated.

A genuinely conservative solution addresses the demand side — ending the blank-check federal loan guarantee system that allows universities to charge whatever the market will bear, knowing the government will lend students whatever they need to pay it. That is a harder political argument than promising relief. It is also the honest one.

What This Signals Going Forward

The student loan saga is not primarily a story about education policy. It is a case study in executive branch behavior when it believes its policy goals justify circumventing constitutional process. The administration tried one legal theory, lost in the Supreme Court, tried a second, lost in the lower courts, and pursued administrative workarounds in parallel throughout.

This pattern — find a hook, push until the courts stop you, find another hook — is a model for how future administrations of either party will approach the limits of executive power if it is not decisively checked. The courts, to their credit, have largely held the line. But judicial resistance after the fact is a poor substitute for congressional assertion of its own authority in the first place.

When the executive branch treats a Supreme Court ruling as an obstacle to route around rather than a boundary to respect, the Constitution's architecture is not merely being tested — it is being dismantled, one creative legal theory at a time.