Biden knew it was unlawful. Pelosi too.* But when it became good politics, both because doing it would endear him to that cohort that really wanted their student loans discharged and because the inevitable Supreme Court reversal would prove another reason to elect Biden because of these radical right-wing “unelected” judges, it was a win-win. And so it is, politically.

Serious standing issues aside, Biden v. Nebraska came down to a couplet in the HEROES Act which gave the Secretary of Education the power to “waive or modify” the terms of student debt repayment.

The issue presented in this case is whether the Secretary has authority under the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act) to depart from the existing provisions of the Education Act and establish a student loan forgiveness program that will cancel about $430 billion in debt principal and affect nearly all borrowers. Under the HEROES Act, the Secretary “may waive or modify any statutory or regulatory provision applicable to the student financial assistance programs under title IV of the [Education Act] as the Secretary deems necessary in connection with a war or other military operation or national emergency.” §1098bb(a)(1).

At Vox, Ian Millhiser makes quick work of the issue as he’s prone to do.

Let’s not beat around the bush. The Supreme Court’s decision in Biden v. Nebraska, the one canceling President Joe Biden’s student loan forgiveness program, is complete and utter nonsense. It rewrites a federal law which explicitly authorizes the loan forgiveness program, and it relies on a fake legal doctrine known as “major questions” which has no basis in any law or any provision of the Constitution.

For Ian, every outcome he desires is clear and obvious, and therefor in need of neither logic nor reason. To be fair, he’s hardly alone. For those of us who, despite whatever feelings we have about whether student debt forgiveness is a good or bad policy, or whether treating the symptoms while letting the underlying disease fester so as to fill the boil with pus as soon as it’s drained, are concerned about the law, the question is hardly so simplistic.

Writing for the majority, with the requisite 6-3 split on hot button cases, Chief Justice John Roberts parses the words of the authorizing HEROES Act.

The Secretary’s ability to add new terms “in lieu of” the old is limited to his authority to “modify” existing law. As with any other modification issued under the Act, no new term or condition reported pursuant to §1098bb(b)(2) may distort the fundamental nature of the provision it alters.

In sum, the Secretary’s comprehensive debt cancellation plan is not a waiver because it augments and expands existing provisions dramatically. It is not a modification because it constitutes “effectively the introduction of a whole new regime.” MCI, 512 U. S., at 234. And it cannot be some combination of the two, because when the Secretary seeks to add to existing law, the fact that he has “waived” certain provisions does not give him a free pass to avoid the limits inherent in the power to “modify.” However broad the meaning of “waive or modify,” that language cannot authorize the kind of exhaustive rewriting of the statute that has taken place here.

That the Constitution places the purse strings in the grubby little hands of Congress isn’t in question. But can they hand them off to the Secretary of Education? Did they?

CJ Roberts’ rationale about the limits of “waive and modify” is a morass of circular reasoning. While it’s almost certain that Congress had no intention of handing the Secretary of Education the authority to waive away student debt, whether in whole or part, the statutory language fails to make that clear. Indeed, the couplet seems to say the opposite. After all, what does “waive” mean if not “waive”? To overcome the vicissitudes of language, the Court resorts to the”major questions doctrine,” the conservative flavor of substantive due process.

On this view, the unprecedented nature of the Secretary’s debt cancellation plan is justified by the pandemic’s unparalleled scope. But the question here is not whether something should be done; it is who has the authority to do it. As in the Court’s recent decision in West Virginia v. EPA, given the “‘history and the breadth of the authority’” asserted by the Executive and the “‘economic and political significance’ of that assertion,” the Court has “ ‘reason to hesitate before concluding that Congress’ meant to confer such authority.”

Is the waiver and modification of $430 billion worth of debt, the shifting of the burden of that debt from the students who assumed it in exchange for the education and, for some, degree they received to the backs of those who had no vote in their decision and gained no benefit (provided you’re not an aficionado of chaos theory) an “unprecedented” exercise of authority by the executive branch of powers relegated to the legislative branch? Of course it is, although everything is “unprecedented” until the first time it’s done, and thereafter it isn’t. That’s the nature of precedent.

The discharge of this massive amount of debt is, indeed, a major question, but that doesn’t mean that Congress didn’t put the power in the hands of the Secretary of Education to answer such a major question. That Congress never meant to hand over $430 million in public debt to the administration is beside the point.

All this leads the Court to conclude that “[t]he basic and consequential tradeoffs” inherent in a mass debt cancellation program “are ones that Congress would likely have intended for itself.” West Virginia, 597 U. S., at ___. In such circumstances, the Court has required the Secretary to “point to ‘clear congressional authorization’ ” to justify the challenged program. Id., at ___, ___ (quoting Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324). And as explained, the HEROES Act provides no authorization for the Secretary’s plan when examined using the ordinary tools of statutory interpretation—let alone “clear congressional authorization” for such a program.

If Congress assumed its language meant one thing because who would be crazy enough to read it as meaning that during a national emergency, the Secretary could simply forgive this massive debt, a remedy that had essentially nothing to do with the emergency giving rise to the exercise of authority but rather a blatant political play seizing upon vague language, it should have been a lot more careful with the words it chose to confer authority to the Secretary of Education. The Supreme Court’s efforts to reach the conclusion that was almost certainly correct is less than convincing, not because it’s wrong but because Congress was sloppy, careless and assumptive, leaving the Court to clean up its mess.

*As noted in the majority opinion in Biden v. Nebraska, then-House speaker Nancy Pelosi said:

People think that the President of the United States has the power for debt forgiveness. He does not. He can postpone. He can delay. But he does not have that power. That has to be an act of Congress.

At the time, her job was to explain Biden’s failure to keep a campaign promise to forgive student loan debt, so it was in Biden’s best interest to state that he lacked the authority to do what many wanted and demanded he do.