Last week United States Federal Judge Mark Pitman declared that the Biden Administration’s student loan forgiveness program is unlawful. The case comes as two people argued that they were denied their right the opportunity to seek the full benefit of the program and that the Department of Education cannot use the HEROES Act to justify the program. 

The student loan forgiveness program awards people who make under $125,000 a year individually, or $250,000 if married. Eligible candidates receive $10,000, and if they have a Pell Grant, $20,000. You are not eligible if you have commercial loans or have a higher income than the one outlined in the program.

This is not the first time that a president has tried to forgive student loans. In 2020, President Donald Trump tried to use the HEROES Act to forgive student loan debt during the Covid-19 outbreak. But he was denied from doing so. “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 [accomplished through] an act of Congress,” said US House Speaker Nancy Pelosi at the time.

But this year, the HEROES Act is the law the Biden Administration uses to forgive student loan debt. 

The HEROES Act (2003) “authorizes the Secretary of Education to waive or modify any requirement or regulation applicable to the student financial assistance programs under title IV of the Higher Education Act of 1965 as deemed necessary with respect to an affected individual.” The main provision that the Department of Education used was for individuals who “resides or is employed in an area that is declared a disaster area by any Federal, State, or local official in connection with a national emergency; or (4) suffered direct economic hardship as a direct result of a war or other military operation or national emergency.”

The Department of Education used the Covid-19 pandemic to justify the program, and that everywhere in America was “declared a disaster area.”

The two plaintiffs in the case, the ones suing the Department of Education, did not receive the full benefits of the program for two different reasons. One plaintiff has commercial loans and did not qualify for debt forgiveness. The other plaintiff did not receive a Pell Grant and did not get the full $20,000. 

Secretary of Education did not give a notice-and-comment period for the program. A notice-and-comment period is required by the Administrative Procedure Act (APA) when an agency administers delegated authority. This notice-and-comment period allows citizens to comment on what they think the program should do, and voice their concerns about it.

The plaintiffs argued they were denied their right to question the program and have an opportunity to receive full benefits because there was no “notice-and-comment” period. 

The Department of Education said that the program under the HEROES Act is not subjected to APA requirements. But the plaintiffs fired back and said that the HEROES Act does not support the program, the second count of the Plaintiff’s reasons for suing.

The Department of Education also argued that nobody has standing to challenge the program. Judge Pittman said that is not true and there are multiple Supreme Court cases where they recognized that someone has standing from not receiving government benefits.

Judge Pittman sided with the plaintiffs on this issue. “Their injury—no matter how many people are receiving loan forgiveness—is that they did not receive forgiveness and were denied a procedural right to comment on the Program’s eligibility requirements,” said Judge Pittman. Thus their procedural right was violated and they have a compelling interest in the benefits tens of millions of people in their position are taking.

Judge Pittman said that the program was unlawful. One of Pittman’s main points against the Department of Education was that they did not have clear congressional authorization. “The portions of the HEROES Act Defendants rely on fail to provide clear congressional authorization for the Program.”

Additionally, the Judge said, “In this case, the HEROES Act— a law to provide loan assistance to military personnel defending our nation—does not provide the executive branch clear congressional authorization to create a $400 billion student loan forgiveness program.” 

Judge Pittman also argued that using the Covid-19 pandemic as an emergency today is a bit of a stretch. “The COVID-19 pandemic was declared a national emergency almost three years ago and declared weeks before the Program by the President as ‘over’,” said Pittman

Judge Pittman concluded, “In this country, we are not ruled by an all-powerful executive with a pen and a phone. Instead, we are ruled by a Constitution that provides for three distinct and independent branches of government.”