Red State AGs Plot Legal Strategy to Overturn Biden’s Massive Student Debt Bailout

Just days after President Joe Biden announced his intent to relieve up to $20,000 of debt for millions of student borrowers, several conservative advocacy groups and attorneys general are mulling strategies to block the president’s plan in court.

Under the plan Biden announced this week, borrowers who earn under $125,000 individually or $250,000 as a household would have $10,000 in debt relieved, and those who received a Pell Grant can have up to $20,000 canceled. Critics have pushed back, branding the bailout an egregious example of executive overreach and a way to sidestep congressional approval on such massive spending.

Missouri Attorney General Eric Schmitt (R) told the Washington Examineron Friday evening that his office is “actively looking into legal options to halt the Biden administration’s abuse of power and assault on working-class Americans.” And among the conservative organizations eager to go to court is the powerful low-tax advocacy group Americans for Tax Reform, which is in the early process of staging a legal battle against the administration.

BIDEN WALKED INTO LEGAL LANDMINE WITH STUDENT LOAN CANCELLATION

Group founder Grover Norquist told the Washington Examiner that Americans for Tax Reform is looking to partner with legal think tanks to argue that there is no constitutional justification for the president or a department on its own to cancel the student debt but rather is something that would have to be done legislatively by Congress. Norquist said there is an argument to be made for members of Congress to sue the administration as they might see it as an affront to their own power to pass laws.

The reason why the Biden administration didn’t go through Congress, where Democrats have control of both chambers, is because the sweeping debt cancellation effort couldn’t get enough support from centrist Democrats to become law, Norquist said.

Americans for Tax Reform is now in talks with various lawyers to devise arguments that they think will best meet the muster of the Supreme Court.

While Norquist’s group and lawyers are trying to nail down a single overriding legal argument, he said the best case could likely center on the Supreme Court’s West Virginia v. Environmental Protection Agency ruling back in June, which in effect set precedent to make it harder for the EPA and other regulatory agencies to apply expansive interpretations on narrow provisions under federal law.

In the EPA case, the high court took the extraordinary measure of invoking the major questions doctrine, which requires Congress to speak clearly when authorizing agency action in certain cases dealing with “economic and political significance.”

West Virginia Attorney General Patrick Morrisey (R) told Fox News on Friday evening that he believes the EPA case could be “substantive to the argument against the White House’s action.”

“It’s also going to be important to determine how closely connected this decision is to any reported national emergency and whether Congress ever envisioned this would come to pass when passing the law cited as justification by Biden,” Morrisey added.

Another key question that challengers to the loan cancellation plan would have to answer is how best to have standing, according to Norquist.

“A single taxpayer? A collection of students who never went to college — is that your best client — asking, why am I going to be paying for this?” Norquist pondered, noting that in discussions with lawyers, it will be important to find the best representative client to have. “Who’s our Jane Roe?”

Norquist said pushing back on the Biden administration’s student debt move is at the top of Americans for Tax Reform’s priorities.

“If the president can do this now, he can do twice this later,” he said. “This is not water under the bridge.”

Other groups considering litigation against Biden’s debt relief plan include the conservative Job Creators Network, one of the first major groups that signaled plans to file a future lawsuit against the executive action.

Based on advice from his legal counsel, Job Creators Network CEO Alfredo Ortiz told the Washington Examiner he believes “we have found already a handful of plaintiffs that would qualify for and pass the standing test,” though he did not provide examples due to the early stages of litigation planning.

Ortiz referenced three recent Supreme Court rulings that upended major policies by federal agencies under the Biden administration.

Ortiz cited the high court striking down the Centers for Disease Control and Prevention’s second pandemic-era eviction moratorium in August of last year, the court’s January ruling against the Occupational Safety and Health Administration’s workplace vaccine-or-test-mandate, and West Virginia v. EPA.

“I think the Supreme Court has been pretty clear, right, in terms of how they feel about the kind of overreach that this administration continues to strive for,” Ortiz said.

One of the legal justifications that the White House used in arguing Biden’s authority to cancel student loan debt was the HEROES Act, which was passed in 2003 during war times. The act allows the Education Department to cancel or reduce student loan debt during a national emergency “when significant actions with potentially far-reaching consequences are often required.”

The HEROES Act was passed because the United States was in the throes of two wars at the time, but critics are panning the legal justification, which hinges on the fact that former President Donald Trump declared a national emergency at the outset of the COVID-19 pandemic more than two years ago.

Since then, deaths and hospitalizations from the virus have declined significantly, with some contending that the current steady rate of infections may indicate that the coronavirus has become endemic in the U.S. and is no longer a national emergency as it was at the start of the pandemic.

The Biden administration’s use of the HEROES Act for legal justification drew the ire of Concerned Veterans for America, an advocacy group for those who served in the armed forces. The group put out a statement saying that the administration is misusing the act for political expediency.

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“Adding insult to injury, it abuses the intent of the HEROES Act, a law intended to ease the burdens reservists and National Guardsmen face when deploying in defense of the country, to excuse these debts,” said CVA Executive Director Russ Duerstine of Biden’s order.

“It is a disservice to all Americans for this administration to stretch decades-old legislation beyond their intents to score political points without addressing the problems of the underlying issue,” he added.