Recently, Biden's Administration is approving $6.1 billion in student debt cancellation for 317,000 borrowers who attended the Art Institutes., but I haven't seen the Senate or House ever voted on this.

So, is it true that this is something decided solely by the U.S. President, no matter what amount of debt he wants to cancel for students, especially in the election year? On the other hand, I saw earlier that a proposed bill in Congress would ban mass student loan forgiveness, but that is something only happening afterwards.

I am confused. Since the United States is a democracy, I thought the reasonable process and logic should be that POTUS first needs an approval from the Congress before he could take such an important action, rather than the POTUS first does what he wants easily and if the Congress doesn't like it then they have to try very hard to block that act of POTUS. The same story and logic happened to Trump administration when they decided to raise tariffs and I didn't remember that decision needed the approval from the Congress beforehand.


6 Answers 6


As a legality, Biden does not have the authority to forgive student debt without authorization from Congress. As a technicality, he wants to work around that. He first tried to do so by using the HEROES Act. The Supreme court rejected that approach so he is now trying to do so by using the Higher Education Act. Some legal scholars argue that the Higher Education Act gives the Secretary of Education power to exercise his or her existing authority to cancel federal student loan debt on a broad or categorical basis.

Whether that is true or not was never argued or settled in courts. The Biden announcement of this loan forgiveness plan is careful to say “if implemented” and “if finalized as proposed” to allow for the possibility of it being struck down in court like his earlier attempts to forgive student loans without congressional approval were.

  • 5
    If I understand your answer correctly, the executive doesn't really forgave anything so far? Commented May 5 at 6:34
  • 5
    That is correct. As of this writing the loan forgiveness is not 100% certain
    – Schmerel
    Commented May 5 at 14:29
  • Has anyone challenged it yet?
    – Barmar
    Commented May 5 at 20:26
  • 1
    This answer can be improved by providing references to all relevant facts (which should be easy since I think everything here is factually correct.)
    – qwr
    Commented May 6 at 15:52
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    The actual proposed regulations detail why President Biden does in fact have the authority: federalregister.gov/documents/2024/04/17/2024-07726/… Commented May 6 at 23:36

There's another good answer talking specifics. I'd like to address this part:

Since the United States is a democracy, I thought the reasonable process and logic should be that POTUS first needs an approval from the Congress before he could take such an important action.

Congress is the legislative branch, while the Presidency is head of the executive branch. The typical legislative MO is for Congress to pass a law instituting a program, and then put some part of the Executive branch (for example, the Department of Education) in charge of actually managing the program.

So at this point the issue becomes what authority Congress gave that part of the Executive branch when they wrote that law (or often those sets of laws). Often, by design a lot of latitude is given to the Executive. For example, the US State Department is charged by Congress with keeping a list of State Sponsors of Terrorism. There are laws covering what things a country might do to get themselves put on that list, and what the repercussions are to a country that gets put on that list. However, it is up to the US State Department who actually gets put on that list. If the Executive branch (under direction of the President) doesn't want an otherwise qualifying nation on that list, they don't go on it. Its up to executive discretion.

This is actually a very helpful part of the laws, as it makes inclusion on the list a very useful bargaining chip when the State Department (or the President's administration) is negotiating with problematic foreign nations.

So the question here isn't one of "democracy", but rather exactly what latitude Congress gave the Executive branch when they wrote the laws allowing for government-backed student loans. If Congress doesn't like the answer to that question, they are of course perfectly free to change it by passing more laws.

As for the specific answer with student loan forgiveness, that's more of a legal matter, but thankfully @MichaelSeifert over on Law SE already has a good answer there for you. The relevant law Congress passed back in 1965 has this passage:

In carrying out the provisions of this part, the Secretary is authorized— ...
(2) to enforce, pay, compromise, waive, or release any right, title, claim, lien, or demand, however acquired, including any equity or any right of redemption;

So it sure looks like Congress likely already gave the executive branch (specifically the Secretary of Education, who answers to the POTUS but was confirmed by Congress) the power to "waive or release" student loan repayment obligations created under that program. If this Congress didn't want the SoE having that power any more, the surest way to prevent it would have been to change the legislation to take it away.

  • SO to @MichaelSeifert for having already written a great answer for the bit I didn't feel qualified to get into (and pointing us to it in the question comments). Even if you don't like this answer, pop over there and give them the vote they deserve.
    – T.E.D.
    Commented May 6 at 19:36

Several good answers, but let me just add: The Constitution and laws do not magically enforce themselves. If the people in power agree that they want to do X and they don't care that the Constitution says they can't, they can just ignore the Constitution, and it's not like fire will come down from Heaven to destroy them. For example, advocates of limited government have been pointing out for decades that the Constitution gives a list of "enumerated powers" of the Federal government, it says that the Federal government can only do the things on this list ... and there are many things the government does that are not on the list. Because the people in power agree that the government should do these things, regardless of what the Constitution says.

In this example, if the president declares that he will "forgive" student debt (i.e. make the taxpayers pay it), and Congress does not have the votes to oppose him and the courts reject any law suits trying to block him, then it will happen, whether the law and the Constitution authorize it or not.

  • 1
    Great point. By the same token, the fact of the powers that be agreeing to violate the Constitution does not absolve them from other consequences stemming from such violation. This prompts a question as to what possible mechanism(s) exist or can exist to form an effective counter to such abuses of power.
    – pygosceles
    Commented May 7 at 23:59
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    @pygosceles Absolutely. But that is, as they say, a whole 'nother question.
    – Jay
    Commented May 8 at 15:14
  • If we all act as if the Constitution and laws have no teeth, then any questions about what's allowed effectively become moot. This answer could be given to just about any "What stops POTUS/Congress/SCOTUS from doing X?" questions, and is pretty useless, IMHO.
    – Barmar
    Commented May 9 at 18:56
  • @barmar I'm not saying that it's a good thing for the government to ignore the Constitution. Quite the opposite, I think it's a terrible thing. But it's also political reality. And I don't think it helps any to say, "Well, they SHOULD obey the Constitution, so let's just pretend they always do."
    – Jay
    Commented May 10 at 16:32
  • I didn't think you were endorsing it. But a defeatist attitude that "They can do whatever they like" isn't really a helpful answer. There are some questions about how laws and judgements are enforced (like "what happens if Congress ignores a SCOTUS ruling?"), that's where this type of answer can be fitting.
    – Barmar
    Commented May 10 at 16:37

So, is it true that this is something decided solely by the U.S. President, no matter what amount of debt he wants to cancel for students, especially in the election year?

Not in the slightest.

The 5th Amendment forbids, among other things, that private property "be taken for public use, without just compensation." Student loan debt is the private property of those who hold the notes on that debt and depend on its repayment for income. Therefore, the debts cannot be "forgiven" or "canceled." That option simply does not exist. What the Biden Administration proposes to do, under the rhetoric of loan forgiveness, is actually burden transfer: the debts get paid off by the federal government rather than by the individual students.

But under Article I, Section 7 of the US Constitution, all federal government spending must be authorized by bills originating specifically in the House of Representatives. As Congress has not authorized the spending of funds to pay off these loans, the authority for the Biden Administration to do so is simply not there.

It's worth noting that this is a pretty well-settled question. Last year (2023), the Supreme Court struck down unauthorized student loan forgiveness attempts in Biden v. Nebraska, finding that the Biden Administration had no authority to do so, and that the tenuous attempt they made to find such authority in a largely-unrelated piece of legislature ran afoul of the well-established Whitman v. American Trucking Assns. principle that "Congress does not hide elephants in mouse-holes."

In other words, for the Administration to take actions of such large magnitude requires explicit authorization from Congress, not clever tricks of legalese. Given that no such explicit authorization has been forthcoming in the past year, it seems all but impossible for current attempts to ever survive judicial review.

  • Much of that debt is held by the Federal Government agencies. Even the debt that's not held by the agencies is underwritten by the Federal Government. So it's not an improper taking because the creditors would be compensated by the Federal Government (as the underwriter). The act of underwriting itself has already been authorized by Congress when it created the student loan programs. The fact that this would create a future debt for the Federal government (as the underwriter) maybe "bad policy", but that's not the same as illegal.
    – wrod
    Commented May 8 at 9:29


I am confused. Since the United States is a democracy, I thought the reasonable process and logic should be that POTUS first needs an approval from the Congress before he could take such an important action,

Pet peeve of mine. The United States is in fact not a democracy, it is in fact a Republic. In the case of student debt relief Congress actually did authorize the Dept of Education to oversee and even discharge Student loans. The Higher Education Relief Opportunities for Students (HEROES) Act in 2003.

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    But... HEROES act: "The provisions of this Act shall cease to be effective at the close of September 30, 2005."
    – Just Me
    Commented May 7 at 14:45
  • It was a Republic. The ratification of the 12th Amendment in 1804 changed the course of that guarantee, and the introduction of primaries and general elections let the genie out of the bottle so that we are essentially today a democracy with only a vestige of republicanism.
    – pygosceles
    Commented May 8 at 0:04
  • @pygosceles are you familiar with the pledge of allegiance every kid used to say in school written in 1892? Granted the US is more democratic than we used to be but we are still a republic. We vote for representatives who vote. Candidates win elections having lost the popular vote.
    – JMS
    Commented May 8 at 0:38
  • @JMS I am familiar with it, but lip service given in a salute does not bestow the attributes of a republic. Did you know it was written by a socialist? A gerrymandered popular vote (the modern electoral college) is not a true republic. The only republican aspects I am aware of that remain are partisan caucus-convention and unbound delegates (and even there, the Constitution does not authorize partisan control of the electoral process).
    – pygosceles
    Commented May 8 at 1:42
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    The "republic, not democracy" talking point is silly, because those two things are not mutually exclusive. The US is a representative democracy, as all democratic nations today are; "democracy" is not always "direct democracy". See also here, here, here, etc.
    – kaya3
    Commented May 8 at 1:51

Building off of Jay's answer, the question is "can": The president "can" do anything he wants as long as the powers that be let him get away with it.

What are the "powers that be"?

  1. The three branches taught in classrooms: The executive, the legislative, and the judicial branches. These have a long track record now of cooperation rather than the mythical "checks and balances" that are supposed to protect our freedoms.
  2. An increasing number of bureaucratic middlemen. These are designed to give administrations and elected officials effective incumbency and continued influence through political machinery and momentum that far outlast any term limits, to favor special interests at public expense, and have a life of their own (see for example the Federal Reserve, a QuANGO that is founded on the principle of counterfeiting the securities of the United States of America).
  3. The people themselves. By design per the Constitution, the people have power to nullify all unconstitutional acts through jury trials (governments can't fine you a cent without the assent of a jury under the Constitution), and by upholding their oaths of office and of citizenship. Officers have both a right and a duty to refuse to comply with all unconstitutional orders: It is in their oath of office. Citizens do as well: It is in our oath of citizenship. Given the choice between the combined forces of the President of the United States, Congress, and the courts against you, the Constitution always has the superior authority, and the people are the primary executors of it. Hence it is primarily the bureaucratic middlemen, funded by unconstitutional taxes, that are likely to ensure that an edict is enforced by threats of imprisonment, fines or other punishments. Navigating such edicts peacefully poses a primary challenge for law-abiding citizens, but the Constitution guarantees a jury trial in all disputes between a government and her citizens.

Of course, if we contest such taxes, we are likely to be charged in courts for some form of tax evasion. The armed fundraising mercenaries in the name of the public good will continue until the Federal Reserve is disbanded and income tax and all other direct taxes are abolished, save for the original census tax and the four indirect taxes (all basically tantamount to tariffs) allowed under the Constitution--because it is the unconstitutional forms of taxation that are funding the army of middlemen who typically enforce such edicts. The process of strangling freedom is an indelicate dance of determining just how much tyranny people are willing to tolerate or even blindly promote. Of course all tyrants are cowards and they can be hushed, stymied and slowed by the united voice of conscientious people.

In short, whether or not he gets away with it is likely at least in part a function of how you choose to spend your money and your time, how much you educate yourself in constitutional matters, and how courageously and judiciously you pursue what is right in such matters, seeking the greatest alliance with the greatest number of your peers on the things that matter most. Since our freedoms have been lost iteratively in process of time, it will require prolonged effort and iteration to get them back. A sure way to fail is to demand all things be restored at once. On the other hand, what is necessary is at first to slow and stop such encroachments, and ultimately reverse them.

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