The student-loan suspension is also illegal

The Biden administration’s attempt to forgive $400 billion in outstanding student loan debt through administrative fiat has come under richly deserved fire, with its fate now in the hands of the Supreme Court. But an equally unlawful companion giveaway has thus far avoided much controversy.

That giveaway, which began under the Trump administration and has continued ever since, is the administrative suspension of monthly payment obligations and accrual of interest on all outstanding student loans since the outset of the COVID-19 pandemic. Solicitor General Elizabeth Prelogar repeatedly pointed to this giveaway — which has cost taxpayers $150 billion — during recent Supreme Court arguments to defend the larger debt forgiveness program. According to Preloger, the Department of Education’s consistent use of the HEROES Act to suspend student-loan repayment and interest accrual since March 2020 is evidence that the same act authorizes mass debt cancellation.

But the history of the ongoing payment-and-interest suspension is far more complicated and, properly understood, provides little support for the administration’s reliance on the HEROES Act. In fact, the purported HEROES Act justification didn’t surface until months after the suspension was put in place, as it became part of the Education Department’s ever-shifting scramble to find some — any — plausible legal justification to continue the suspension without congressional authorization.

To start, it was actually Congress, not the Department of Education, that initially suspended repayment obligations and canceled accrual of interest as part of the CARES Act enacted in March 2020. Congress set a clear end date for that relief at the end of the fiscal year, on Sept. 30, 2020. But as that deadline approached, then-President Trump ignored Congress and unilaterally extended the suspension to December 2020.

The HEROES Act was not the legal basis of Trump’s extension. Rather, Trump cited the Higher Education Act’s “economic hardship” provisions, which authorize forbearance only for low-income borrowers. Those provisions do not permit relief to all borrowers nationwide, regardless of economic well-being. In other words, extending the student-loan suspension was unlawful from the start under Trump.

The Department of Education did not invoke the HEROES Act until December 2020, when it cited that act as authority to extend the CARES Act’s suspension for just one month, purportedly to “allow[] Congress to do its job and determine what measures it believes are necessary and appropriate.” But when Congress declined to enact additional student-loan relief, the incoming Biden administration extended the suspension a third, fourth, fifth, and sixth time. None was accompanied by an invocation of the HEROES Act, which requires a public explanation for why debt relief is needed to address pandemic-specific impacts. In fact, the only explanation for these extensions was a desire to give college graduates a taxpayer-funded handout, even though as a group they are economically better off than their non-college-educated peers.

It was not until the seventh extension, announced simultaneously with the $400 billion cancellation last August, that the department again cited the HEROES Act. When courts halted that cancellation program, President Biden extended the suspension an eighth time last November to “alleviate uncertainty for borrowers” during litigation, which comes nowhere near the HEROES Act’s requirements.

This history of the suspension’s legal justifications seems confusing because it is. The department first relied on “economic hardship” provisions of the Higher Education Act; then it pivoted to the HEROES Act; then it stopped citing legal authorities altogether before briefly returning to the act. The government’s assertion to the Supreme Court that the department had always relied on the HEROES Act to implement the suspension is akin to insisting that “Oceania has always been at war with Eastasia” — a fabrication of the past to control the present. The court should pay it no heed in deciding the fate of the large cancellation program.

The student-loan suspension’s messy history also makes it vulnerable to its own legal challenges. Two recent lawsuits have been filed — one in Washington, D.C. challenging the eighth and most recent extension of the suspension, and another in Michigan challenging all extensions. We all know not to trust someone who keeps changing his story to justify questionable behavior. That is precisely what the federal government has done. The government’s ever-shifting justifications for extending the student-loan suspension — only to pretend its position had always been consistent — demonstrates that none of those justifications holds water.

Sheng Li is litigation counsel for the New Civil Liberties Alliance, a nonpartisan nonprofit civil liberties group in Washington, D.C. He represents the Mackinac Center for Public Policy in one of the aforementioned lawsuits challenging the extensions of the student-loan suspension.