Iowa is one of six states suing the Biden administration over the president’s plan to forgive billions in student loan debt.
“Canceling student loan debt is not legal,” Iowa Attorney General Brenna Bird says. “In order for that to happen, something would have to pass the House, the Senate, [and] be signed by the president. It’s basic constitutional law.”
Last year, President Joe Biden announced plans to forgive $10,000 of debt for individual student loan borrowers who make less than $125,000 per year ($250,000 for households) and $20,000 for borrowers who received a Pell Grant.
Arkansas, Iowa, Kansas, Missouri, Nebraska, and South Carolina sued the Biden administration over the loan forgiveness plan and on Tuesday, the Supreme Court heard oral arguments on the legal challenge.
Bird, Iowa’s first Republican attorney general since 1979, was at the Supreme Court during the arguments and joins “The Daily Signal Podcast” to explain her key takeaways and how she thinks the justices will rule on the case.
Listen to the podcast below or read the lightly edited transcript:
Virginia Allen: It is my distinct honor and pleasure today to be joined by Iowa Attorney General Brenna Bird. Attorney General, thank you so much for being with us today.
Iowa Attorney General Brenna Bird: Oh, thank you. I’m glad to be here today. It was such an amazing morning this morning at the Supreme Court.
Allen: It was. Well, I’m excited to talk about an issue that’s certainly important to people in my generation and that’s student loans. And it’s important to many Americans and affecting many Americans, whether or not you have student loans. And that’s in part because last year we saw that President [Joe] Biden announced broad, sweeping plans to forgive billions of dollars in student loan debt. He said he would forgive $10,000 for all student loan borrowers and up to 20,000 for Pell Grant recipients.
Now, that was actually challenged by a number of states, including Iowa. The Supreme Court is weighing in on this. So let’s start with the question of authority. With what authority does the Biden administration say that they have to be able to forgive student loan debt? What are they pointing to?
Bird: Well, they’re making a claim that they have that authority under the HEROES Act. That is a law that’s been around for a long time. It was put into place after 9/11 to deal with that kind of situation.
They are claiming that the COVID pandemic means that even today, when the COVID pandemic is definitely over, that they have the power, without congressional authority, to just go ahead and forgive up to $20,000 per borrower of student loans, student debt cancellation. That’s, of course, not what the law says, but that’s what they were claiming today in the Supreme Court.
Allen: So a number of states, including your state, have challenged President Biden’s actions and they’ve said, “No, forgiving student loan debt is not lawful.” Why are you challenging this?
Bird: Well, right. I mean, canceling student loan debt is not legal. In order for that to happen, something would have to pass the House, the Senate, be signed by the president. It’s basic constitutional law. And instead of doing that, and because I think Biden knew that he could not get that through Congress, he instead decided to do it by executive order. That violates the Constitution.
That’s why we were here today. Nebraska argued the case, but there were a total of six states that were here today in the Supreme Court challenging this unlawful, illegal executive order.
Allen: And there were actually two cases that the Supreme Court was hearing in this challenge to Biden’s student loan forgiveness. Can you walk us through each case and what exactly the questions were that the Supreme Court was considering?
Bird: Sure. Well, the first case is one where the state was a party, so we’re very involved in that case. It’s basically what we’ve been talking about, that challenging as unlawful Biden’s basically power grab and overreach, saying that he has the authority to decide to cancel student loans. That is not what the statute says. In order for him to do that, he has to follow the rules and the Constitution for the separation of powers. It’s very straightforward. Congress has that authority, not the executive acting alone. That was basically what we were talking about in the Supreme Court this morning. Of course, there were some other legal issues like standing that also come up.
And in the second case, it was a challenge by some student borrowers. Now, the state of Iowa was not involved in that case, but we heard that argument as well.
Allen: Interesting. OK. So let’s go back and talk a little bit about the first case and what was being argued there. We saw that Justice Brett Kavanaugh, he raised some questions about the use of presidential emergency powers. Does the law grant the executive branch the power to forgive debt in an emergency situation like COVID-19?
Bird: No, it doesn’t. And the statute does not give a president the power to cancel student loan debt. Period. Certainly, in this current situation, it doesn’t give power either. The national emergency created by COVID has been over for a long time. My home state of Iowa was reopened over two years ago fully. This student debt policy that the Biden administration has applies to 95% of student borrowers, so it is definitely not even targeted at a certain group. But at the basic level, this is something that President Biden does not have the power to do. He does not have the power to cancel student loan debt.
Allen: Now, Justice Elena Kagan, she suggested the opposite in her comment. She said that “Congress has authorized the use of executive power in an emergency situation,” in which she asserted that Congress has given the executive branch this power to act in emergencies. So, is the power that Congress has given the executive branch to act in emergencies, is it encompassing enough to include student loan forgiveness? I know you’re going to say it’s not, but what would you say to Justice Elena Kagan, who seems to think it is?
Bird: Yeah. Well, I think whenever you’re looking at a statute—and that’s what we have to do here, we just have to look at the words of the statute, what they actually say. That is what the law is. This statute talks about modifying or waiving certain student loan programs. It doesn’t talk about canceling student loan debt in an emergency situation. That is not in there and that is not covered by this law.
Allen: Now, I am curious, since the Biden administration has said they are officially ending the COVID-19 emergency in May, wouldn’t this case become moot at that time?
Bird: Well, I think it goes even further than that. It’s a type of hypocrisy I think that is based on the political goals that they want to achieve. So, when we’re talking about the Title 42 situation on the border, wanting to control our border, they said the pandemic was over and didn’t apply there. But when we’re talking about student debt, and it’s the August before an election year, all of a sudden there’s an emergency in their eyes and he’s decided that he can cancel student debt. So I think it’s very hypocritical.
I also think we have to be careful when we’re looking at the exercise of emergency powers. We understand why executives have emergency powers. That makes sense. But those powers are delegated to them by the elected representatives in Congress or state legislatures. And it is important to hold executives accountable. We have three branches of government for a reason. For the separation of powers. For those checks and balances.
Allen: Justice Neil Gorsuch, he asked a question related to fairness, which I thought was interesting because in conversations that I’ve had with others, they’ve brought this up. That’s, what happens if this goes through and student loans are forgiven? But what happens to those individuals who maybe just recently finished paying off their student loans? Do they get any compensation?
Bird: Well, as I understand it, those folks who worked hard and maybe made some extra payments, no. They’re out of luck. As are those that decided to work their way through school, maybe paying as they go or saving up money before they would go to school. They are also out of luck.
But there’s a much broader group of people that are really left behind by this, and these are the people that decide to go straight to the workforce after high school, raise a family, go into the military, start a business. The pandemic was hard on them too, as we know. But they are completely left out. And even worse than that, they are now on the hook for paying for a program that costs over $400 billion so that someone else could get a college education.
Allen: Now, as you watched the arguments on Tuesday from the Supreme Court justices on both sides, were there any questions that you found particularly interesting or anything that stood out to you or struck you as unique or odd?
Bird: Well, I’ll tell you, I love it when we have separations of powers arguments because that is what the Constitution is all about at its most basic level. So as I’m sitting there, I’m thinking that this is an argument that I could have understood as a fifth grader, right? When we’re first getting our government classes. It is basic. It’s such an important part of our country. So I love those types of arguments. Then, it was also really interesting how the different justices were parsing the statute, looking at giving meaning to those words and how that statute works.
Allen: Talk about that a little bit more. What did you see in relation to the questions that they were asking related to statutes that might give us an indication of how they’re going to rule on this?
Bird: Well, I think it’s always hard to know how a court will rule, but it was heartening to see the justices really looking at the words actually in the statute rather than just talking about some of the policy considerations. Looking at the words in the statute that Congress passed and helping to give those words meaning. That is vital to the rule of law because those actual words in our law, that is what the law is, not what somebody wants it to be or hopes it is.
Allen: Now, because the justices were hearing two different cases here, is it possible that we could see them rule in favor of the Biden administration in one instance and against in another case?
Bird: Really, anything is possible when it comes to the Supreme Court’s approach to a case. They’re going to look at everything, have internal discussions and conferences among themselves. So it’s tough to say how they will ultimately decide the case and exactly how they’re going to go about it. But it’s clear to me that they’re really focused on the right issues here.
Allen: As far as timing, when can we expect a ruling, a decision on this case?
Bird: Well, it’s tough to predict when the court will issue their opinion, but a lot of times these kinds of cases come out toward the end of the term, toward June.
Allen: Attorney General, we really appreciate the work that you have done on this and you joining us today to break down what exactly is happening at the Supreme Court as we continue to watch this debate over student loans unfold.
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