Biden’s $300B student loan handout exposes a ‘chilling disregard’ for the law, constitutional experts say

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Biden officials don't know how much the student loan debt handout will cost

Fox News White House correspondent Peter Doocy has the latest on President Joe Biden's student loan debt write-off on 'Special Report.'

Legal experts say President Biden has a "chilling disregard" for his constitutional limitations as president with his decision to wipe out student loan debt at an estimated cost to taxpayers of $300,000,000,000. 

On Wednesday, Biden announced he would take executive action to cancel student loan debt of up to $20,000 per borrower making less than $125,000 annually. 

However, legal scholars are throwing a flag on the play by the White House, telling Fox News Digital that Biden is "stretching laws to the breaking point in order to assume a power expressly given to Congress" and that the legal basis for the president’s student loan handout maneuver is thin.

"President Biden is something of a constitutional recidivist when it comes to executive overreach," Jonathan Turley, a law professor at George Washington University and practicing criminal defense attorney, told Fox News Digital in an interview. "He has been repeatedly found to have violated the Constitution in his unilateral use of executive powers." 

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President Biden greets people after returning to the White House in Washington, Wednesday, Aug. 24, 2022. (AP Photo/Susan Walsh)

The president’s justification for his sweeping executive order comes from the Justice Department’s Office of Legal Counsel (OLC), a division of the agency routinely consulted on the legality of presidential actions. 

On Aug. 23, the OLC published a memo finding that the Higher Education Relief Opportunities for Students Act of 2003, the "HEROES Act," grants authority to the secretary of education to "address the financial hardship arising out of the COVID-19 pandemic by reducing or canceling the principal balances of student loans for a broad class of borrowers." 

Biden also rescinded a Trump-era memo that concluded the opposite – that the executive branch has no authority for mass cancellation of student debt. 

President Biden  (AP Photo/Patrick Semansky)

The HEROES Act of 2003 was adopted in response to the national emergency declaration by President George W. Bush in the wake of the 9/11 terrorist attacks with the intent to ensure military members fighting in Iraq and Afghanistan would not be penalized in repaying their federal student aid loans.

Turley calls the use of the HEROES Act for Biden’s student loan handout "transparently opportunistic" and "unlikely to pass muster with the Supreme Court."

The Biden administration seems to also be at "odds with itself" and will have to grapple with its contradictory track record, should it go to court. 

"It was not long ago the administration was telling courts that the pandemic was effectively over in order to stop the use of Title 42 at the border," Turley said. "It’s now claiming that the pandemic is raging in order to justify this massive debt cancellation."

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Mike Davis, former chief counsel for nominations to the Senate Judiciary Committee and president of the Article III Project, told Fox Digital he also has legal concerns about Biden’s use of emergency powers. 

"In order to pass constitutional muster, Congress’s delegation of emergency powers to any president must be carefully defined," Davis said. "They can't have an open-ended national emergency."

White House press secretary Karine Jean-Pierre holds the daily press briefing at the White House Aug. 25, 2022.  (Reuters)

Reed D. Rubinstein, former acting general counsel at the Department of Education and principal author of the Trump-era memo, says the Biden administration left out a major factor in its legal analysis — West Virginia v. EPA. 

The recent Supreme Court case found that Congress needs to provide clear authorization for unusual executive branch action. 

"The Supreme Court precedent is very clear on the question of whether Biden’s student loan giveaway needed clear and unmistakable permission from Congress," Rubinstein said. "And the answer is it most assuredly did." 

Harvard Law professor Laurence Tribe defended the president’s position in a tweet, saying the HEROES act gives "expansive authority to alleviate the hardship federal student loan recipients may suffer as a result of national emergencies — here, the 2020 advent of COVID-19."

White House press secretary Karine Jean-Pierre in a press briefing Thursday, said the administration used HEROES because "there are going to be some people, when we lift the pause [on loan payments], that are still going to suffer." She said while some who have been able to save money due to the moratorium on student loan payments, others are "going to have a hard time … they’re just in a different bracket." 

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"There are a number of constitutional challenges that could be brought," says Turley. The administration "could conceivably have success with some lower court judges, but I suspect they will get a rather chilly reception from the Supreme Court."