Even before Joe Biden announced his recent plan to forgive up to $20,000 in student loans for Americans burdened by their unprecedented debt from higher education, the US president was threatened with legal action by his adversaries on the right.
Since the plan was put forward, chatter about a legal threat has grown even louder as Republicans have said they will seek to formulate opposition in the courts. But what remains unclear is how big of a threat those legal challenges actually pose.
Meanwhile, supporters of debt forgiveness are also working on challenging the political threat to the plan as Republicans have also sought to make the program a key talking point during the upcoming midterm elections.
The plan, which includes the forgiveness of federal student loans of up to $20,000 for Pell grant recipients and up to $10,000 for all others, with some exceptions, will provide a substantial amount of relief for the millions of Americans encumbered with student loan debt.
Those ineligible for student debt cancellation include individuals who make over the income limit of $125,000 annually, for example.
One of the plan’s staunchest opponents is rightwing Texas senator Ted Cruz. He laid out plans for pursuing legal action against the Biden administration in an interview on a rightwing podcast.
Cruz explained that he and others would have to actively seek out someone that makes over the income limit – and is thus ineligible for any student debt forgiveness – who would be willing to be the plaintiff in a lawsuit, illustrating how they were “harmed” by Biden’s executive action.
Cruz conceded that courts won’t accept just any plaintiff – for example, any taxpayer outraged by Biden’s student loan forgiveness plan. “Well, that may prove a real challenge. The difficulty here is finding a plaintiff whom the courts will conclude has standing to challenge this,” he said.
Loan service providers stand to lose from Biden’s plan, but whether or not companies will legally challenge the cancellation and also claim to be “harmed” remains to be seen. Since Biden’s announcement, it was reported that the websites of nearly every major loan servicer crashed or experienced severe traffic-related problems as borrowers scrambled to check the latest status of their loans or get more information.
Jim Hawkins, a law professor at the University of Houston and an expert in lending law, said Cruz is right to worry about the amount of work it will take to sue the Biden administration for student debt cancellation.
He said: “One problem is identifying a plaintiff who has standing to sue. Who got hurt from loan forgiveness? I think the Republicans will have to work to find someone who was injured in order to sue them.”
But while it’s unlikely that Republicans will find a plaintiff who has standing, Hawkins said it’s not impossible.
“There’s uncertainty until a court makes a decision interpreting a law or applying the law to the facts of the specific case,” Hawkins said. “So for a lot of people, it’s going to be up in the air until we have decisions from courts.”
Another uncertainty is how far some are willing to go to question the constitutionality of Biden’s use of executive authority to cancel the debt. Biden invoked the 2003 Heroes Act in order to cancel student loan debt, which gave the secretary of education authority to make changes to any provision of the law applicable to student aid programs in the aftermath of the September 11 attacks.
Hawkins said the Heroes Act “has broad language, giving the president power. But it might be a bit of a stretch to think that the act written in response to 9/11 applies to Covid. It applies to anyone affected by an emergency. The question is, how much authority does that give Biden?”
Hawkins said there is a chance a court could say the act is more narrow than Biden thinks. Cruz and others argue student debt cancellation is an overreach of power, despite Trump invoking the same act to pause student loan payments at the start of the pandemic.
Biden’s secretary of education, Miguel Cardona, sought to clear up confusion by publicly releasing a legal opinion from the Department of Justice that states the Covid-19 pandemic qualifies as a national emergency.
One speculative lawsuit has already been launched by an Oregon homeowner who once ran for the US Senate as a Republican. Daniel Laschober is arguing both that Biden overstepped his authority and that as a homeowner he will suffer damages because the program could stoke inflation and raise interest rates on his mortgage.
But the rightwing pushback over student loan forgiveness is also a political fight in the court of public opinion, and one where supporters of the program are also gearing up to have their say, especially when it comes to false narratives pushed by the right that the program will largely benefit an elite class of people.
That is certainly the tone of the Republican response so far. Ron DeSantis, the far-right governor of Florida, argued that Biden’s student debt cancellation plan benefits members of high society. He said: “It’s very unfair to have a truck driver have to pay back a loan for somebody that got like a PhD in gender studies. That’s not fair. That’s not right.”
DeSantis joined 21 other Republican governors across the country to publish a joint letter condemning Biden’s plan to forgive student debt. “We fundamentally oppose your plan to force American taxpayers to pay off the student loan debt of an elite few,” the letter read.
Astra Taylor, a film-maker and activist who founded Debt Collective, a union of debtors, said that those condemning people with student loans fail to take into consideration that these borrowers are in reality anything but the elite. They are usually working-class Americans, many of whom went into debt for trade school or community college rather than for a top university degree.
“I’m just not sure that they’re playing to the base the way they think they are,” Taylor said. “Obviously, [Republicans] are very invested in a kind of anti-intellectual, anti-academy politics. But people go to trade school and get student debt. People go to cosmetology school and get student debt.”
Taylor is right. Ten per cent of those with student debt received a professional certificate from institutions like trade schools, according to Upjohn Institute labor economist Aaron Sojourner.
In an interview with Axios, Sojourner said: “Many Americans understandably, but mistakenly, assume that the vast majority of student loan debtors have four-year degrees, when in fact about half do not.”
And on the whole, 90% of relief dollars will go to people making less than $75,000 annually, according to the Department of Education.
So far, polling shows Republicans may not have found the winning issue some of them might think they have. Surveys on the plan usually show majority support for it and two recent polls – by Quinnipiac and the Economist/YouGov – have registered voters backing it by 51% and 52%, respectively. That support rises among Latino and Black voters and those aged under 50.
While Taylor, like many others across the country, believes the student debt forgiveness plan doesn’t go nearly far enough, she said she understands its significance and that it is worth fighting hard for.
“My position is very clear in that I think all student debt should be lost and we should return and expand the model of higher education that was the standard in this country a few generations ago,” she said. “But on paper, it’s enormous. It’s an incredibly significant political victory for progressives.”
She added: “We’ve had all sorts of debt relief over the last decade plus, for more affluent people and corporations, so I think this is really significant in terms of showing that for working class and middle class people, debt can also be canceled. It’s just the beginning of a real reckoning with the scale and scope of the student debt crisis.”