Biden v. Nebraska, the case challenging the constitutionality of President Biden's student loan forgiveness policy. will be argued to the Supreme Court on February 28. This amicus curiae brief was recently filed in support of the challengers on behalf of Michael McConnell (Stanford) and a number of academics and political figures, taking an originalist-oriented view of the case. Here is the summary of argument (footnotes omitted):
The power of the purse is the central and most important constitutional power reserved exclusively to the legislative branch, enabling it to oversee and control virtually every activity of the federal government. So important is congressional control over spending that the Framers made the point in two different provisions of the Constitution—the only “double protected” power in the document. Article I, Section 8, Clause 1 gives Congress (not the President) the power to use tax revenues for “the common Defence and general Welfare of the United States,” and Article I, Section 9, Clause 7 provides that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” But these safeguards are for naught if the executive branch can spend money contrary to the manifest intentions of Congress based on improvised, out-of-context interpretations of spending statutes.
In recent decades, Presidents of both parties have increasingly resorted to loose constructions of congressional appropriations laws to justify spending without congressional action—even when Congress has explicitly rejected the very spending in question. This has gotten to the point that the fundamental principle of the congressional power of the purse is in peril. This case involves a unilateral decision by the President to forgive over $400 billion in student loan debt owed by 43 million borrowers who financed a college education with the benefit of taxpayer-funded loans. This represents one of the largest expenditures in the nation’s history, carried out in the face of clear congressional opposition and supported by no acceptedprinciples of statutory interpretation—let alone the “specific[] statement” that is necessary before the executive branch can spend Treasury funds. 31 U.S.C. § 1301(d).
That the expenditure here is in the form of waiving payments owed to the Treasury, instead of affirmatively expending funds, is of no legal significance. Congress has made clear that “modify[ing] outstanding direct loans (or direct loan obligations) or loan guarantees (or loan guarantee commitments) shall constitute new budget authority.” 2 U.S.C. § 661c(d)(1). For that reason, the CBO scored the “cost of debt cancellation [as] the present value of the borrowers’ projected repayments of student debt before accounting for the cancellation minus the present value of repayments after doing so.” CBO, Costs of Suspending Student Loan Payments and Cancelling Debt 2 (Sept. 26, 2022). The CBO further notes that “the costs of payment suspension and of debt cancellation will be recorded by the Office of Management and Budget in the federal budget as an increase in the deficit during the fiscal year in which the terms of the loans are modified.” CBO, supra, at 2. Forgiving a loan and making a gift or grant are functionally, legally, and economically indistinguishable—and both come under Congress’s exclusive spending power.
This case gives the Court an opportunity to uphold the structural disciplines on executive power. If the Court reaches the merits, it should make clear that spending statutes must be interpreted in accordance with Congress’s instructions. If this Court turns a blind eye, the executive will have virtually unlimited power to spend. That might befit the Stuart King Charles I, but not a President of the United States.
(Via Powerline.)
RELATED: There is also this amicus brief by Jed Shugerman (Fordham) supporting the challengers.
Posted at 6:34 AM