Memo to those who work in the executive branch of government: You don’t get to do whatever you want.

You may do only what you have authority to do.

If something is beyond your authority, you don’t get to do it.

Even if it’s a good idea.

Even if it’s the greatest idea since sliced bread.

And even if you were certified as the winner of the most recent presidential election or work for that person.

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Whether the executive branch exceeded its authority is before the U.S. Supreme Court in Biden v. Nebraska, and in Department of Education v. Brown.

The court agreed to hear these challenges not just on a fast track but on a lightning-fast track.

The issue on the merits is not whether:

¯ Cancelling student-loan debt is a good idea.

¯ Cancelling student-loan debt that the executive-branch cancelled is a good idea.

¯ Student-loan debt can be a heavy burden.

¯ Higher education’s cost can be a heavy burden, or

¯ It can be hard for some borrowers to repay student loans.

Instead, the issue on the merits is whether the federal government’s executive branch had the authority to cancel the student-loan debt that it canceled.

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The challengers explain in their brief why, in their view, the executive branch – specifically, the secretary of education – lacks the authority that he asserts.

The law that the secretary cites for his authority is the Higher Education Relief Opportunities for Students Act of 2003, or HEROES Act.

Fasten your seat belts for the next paragraph. If you wonder what this means, or why some law is written like this, you won’t be alone.

According to the challengers, the HEROES Act authorizes the secretary to waive or modify student-financial-assistance programs when “necessary in connection with a war or other military operation or national emergency” and if the waiver or modification is necessary to meet at least one of five goals: (1) “recipients of student financial assistance … who are affected individuals are not placed in a worse position financially in relation to that financial assistance because of their status as affected individuals”; (2) minimize “administrative requirements” on “affected individuals” to avoid defaults; (3) modify various calculations for determining financial need; (4) excuse withdrawing students from returning a grant overpayment; or (5) provide “temporary relief” from requirements “rendered infeasible or unreasonable.”

The challengers’ summary of their contentions includes this: “The HEROES Act permits the Secretary to keep borrowers from a ‘worse position’ by maintaining the status quo. It does not allow the Secretary to put nearly (all) borrower(s) in a better position by reducing or eliminating their principal balances. The Act also limits the Secretary to ‘waiving or modifying’ … provisions. Yet here, the Secretary … does not … ‘waive’ the cited provisions, and his decision to rewrite those provisions to create a new loan-cancellation program goes way beyond ‘modifying’ them. Nor did the Secretary sufficiently connect the Program to the COVID-19 emergency.”

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Here’s part of the summary of the government’s response. “The plain language of the HEROES Act … empowers the Secretary to respond to a ‘national emergency’ by ‘waiv(ing) or modify(ing) any … provision’ governing the federal student loan programs … to ‘ensure’ that affected student-loan borrowers are not ‘placed in a worse position financially’ in relation to their loans because of the emergency. … Here, the Secretary responded to the devastating economic consequences of the COVID-19 pandemic by granting targeted relief to borrowers at higher risk of delinquency and default due to the pandemic – specifically, by waiving and modifying certain provisions governing student-loan cancellation and discharge.”

A decision is expected by the end of June.

Randy Elf is eager to see how the court sorts out this one.

COPYRIGHT ç 2023 BY RANDY ELF