Following the crisis of 9/11, Congress did what it does best. Give its power away. It wasn’t that Congress hadn’t done so before (anyone remember the Gulf of Tonkin Resolution?), but post 9/11, the confluence of two things ramped up governance by executive bureaucracy. On the one hand, Congress was paralyzed, incapable of accomplishing much of anything because of divisive politics and the fear of being responsible for its own actions. On the other hand, executive agencies were reaching their full stride, no longer humbled by limits and expertise, but available as harbingers of change where Congress perpetually failed.
And this was the case for all executives, regardless of party or purpose.
Americans are getting used to this form of rule, though they probably shouldn’t be. After Mr. Bush declared a terrorist emergency in 2001, his administration took unseemly shortcuts in a variety of policy domains, including interrogating criminal suspects and managing aspects of the economy. Governing in the wake of another emergency, the financial crisis of 2008, Barack Obama acted without Congress to protect immigrant children from deportation in 2012 and to adjust his Affordable Care Act in 2013.
Since 2020, the Covid pandemic has created an even more tangled and undemocratic chain of accountability. Donald Trump declared a national emergency. The Centers for Disease Control and Prevention even imposed a moratorium on evictions. All without Congress weighing in.
Which EOs bother us enough to take notice tends to relate to which affects us, or has the potential to affect us. Things matter when they touch our lives.
When it comes to student loans, Mr. Biden’s people do not believe they are just lawlessly winging it. As they see matters, Mr. Bush’s Higher Education Relief Opportunities for Students Act of 2003, usually called the HEROES Act, gives them a legal basis for clearing out those loans. The law permits the secretary of education to “waive or modify” student loan provisions during a national emergency.
But claiming the vast authority Mr. Biden does is really a stretch. The point of the HEROES Act was to make sure soldiers didn’t get their school finances tangled up in red tape while fighting in Afghanistan and Iraq. It was quite specifically aimed at four classes of people: active-duty military; activated National Guard members; those serving or living in disaster areas; and those who “suffered direct economic hardship as a direct result of a war or other military operation or national emergency, as determined by the secretary.” To a layman, that last category implies war wounds or something just as grave. To the education secretary, Miguel Cardona, it is apparently vague enough to provide interpretive leeway. It cannot have been meant, however, to let him dispose of 2 percent of G.D.P. as he sees fit.
Of course, generalized loan cancellation wasn’t even a twinkle in Congress’ collective eye when the HEROES Act was passed. While the catch-all language at the end, “or national emergency,” would certainly seem to cover Covid just as it would 9/11, everybody knew that wasn’t what they meant. But if the catch-all hadn’t been included, and there was an emergency that demanded immediate action and the president was precluded from saving the nation, who would get blamed? So in it went. And there it was for Biden to use, even if it was used for a purpose and to an extent unimaginable at the time of enactment.
The loan canceling authority of 2003 was supposed to be time-limited, but Congress extended the expiration date, then made it permanent in 2007. President Obama made limited use of the HEROES Act. President Trump used it to call a student loan pause at the height of the Covid pandemic in 2020, when his term had less than a year to run.
The difference with Mr. Biden’s plan is one of scale and timing. Mr. Trump’s pause cost $5 billion per month, though the Biden administration has extended it several times, bringing the total cost beyond $100 billion. Canceling some $400 billion outright is an intervention of a different order.
At this moment in time, the issue is whether the Biden administration has abused its authority under the HEROES Act by signing away a lot more money than Trump did using the same authority a couple years earlier. That’s where the Major Questions Doctrine comes in. And having done so, what many (myself included) see as Biden using the mechanism of the Covid emergency to accomplish a wholly unrelated political goal is up for grabs at the Supreme Court. It’s not anticipated to fair well.
But much as the president may be to blame for taking advantage of the blanket authority that Congress handed over on a silver platter, the real blame belongs not to the gift receiver but the gift giver. It’s not that presidents don’t do what they can to exceed their authority to accomplish goals, testing the limits of their constitutional powers to see what they can get away with. It’s that Congress has the ability, and authority, to quash presidential and bureaucratic excesses whenever it feels like it. All it has to do is agree that the executive has acted improvidently and shut it down by taking back its authority. Yet, it hasn’t.
The investigative branch of government may thrill many of its friends and family by promising to take the other tribe to task for being the worser of the two, but that leaves us without a legislative branch. We’ve been without a legislative branch for the better part of a generation. When Congress fails to, or is unwilling, to risk being called mean names by constituent groups that disagree with its acts, and there will always be such groups, it leaves the duty to the bureaucrats in the Executive Branch to fill the gap, keep the nation running and make whatever adjustments are necessary to deal with current circumstances. It doesn’t make the executive or the bureaucracy right to exceed its power, but it does so with the tacit blessing of a bunch of cowards called Congress, who could do something about it any damn time they please.