All-Star Amicus Brief Warns of ‘Tyranny’ in Student Debt Cancellation Case

A group of leading conservative scholars and politicians is urging the Supreme Court to revisit the causes of the English Civil War — and to overturn President Biden’s student debt cancellation plan while the justices are at it.On February 28, the Supreme Court will hear arguments in Biden v. Nebraska, a case that will determine the fate of the president’s plan to cancel more than $400 billion worth of student loan debt for borrowers affected by “the financial harms of the pandemic.”The riders of the United States Court of Appeals for the Eighth Circuit enjoined the program in the fall, ruling in favor of six states that sued the president and his education secretary, Miguel Cardona, over the plan.A group of all-stars from the conservative world has submitted a brief in support of the defendants, expressing concern that Mr. Biden’s plan represents a growing trend of executive overreach and threatens the separation of powers granted the government in the Constitution. The federal Constitution, in Article I, Section 8, assigns spending powers to Congress — not the executive branch. The amici argue in their brief that this was an intentional limitation on the president’s authority: “the framers designed the power of the purse as a check on tyranny.”The amici on the brief include Attorneys General Barr and Mukasey, Governor Daniels of Indiana, and Judge Michael McConnell, as well as a former White House counsel, Boyden Grey, and the former head of the American Enterprise Institute, Christopher DeMuth, among others.The brief recounts the causes of the English Civil War. In 1629, King Charles I dissolved parliament and took it upon himself to both raise revenue and determine the state budget — a period known as the Eleven Years’ Tyranny. The unpopularity of Charles’s unilateral policymaking and the instability of the period gave way to English Civil War — and eventually to parliamentary sovereignty.The English Civil war was, the amici write, “fresh in mind” for the Framers as they devised the separation of powers. “To the Framers, the power of the purse was a ‘bulwark’ against tyranny.”The brief was conceived of originally by Judge McConnell — now a law professor at Stanford University — Mr. DeMuth of the Hudson Institute, Peter Wallison of the American Enterprise Institute, and John Cogan of the Hoover Institution. The four served in the Reagan administration in various capacities in the Office of Management and Budget, the White House, and the Department of the Treasury.Their work involved “questions of congressional appropriations, congressional spending authorizations — where Congress is delegating authority to the executive branch … defining what you can and can’t do,” Mr. DeMuth told the Sun.“There was a lot of this routine back-and-forth with Congress. So we were familiar with these general questions of Congress’s regulatory spending and borrowing authorities,” he said.Mr. DeMuth and his former colleagues have been watching with interest the “growing power and autonomy of the executive branch.” Three years ago, Judge McConnell published an award-winning book, “The President Who Would Not Be King,” on the subject of restraints on executive power. The men warn that presidents will continue their attempts to “circumvent” congressional power “absent clear guidance from this Court.” The brief draws attention to instances of executive spending with “far-fetched” justifications under Presidents Kennedy, Bush, Obama, and Trump.“President Biden’s student loan forgiveness program is the latest and most dramatic instance of what is, in practical effect, a claim to unilateral executive spending power,” the amici write. “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 accepted principles of statutory interpretation.”The brief also expresses concern about the expansion of regulatory power in the absence of congressional budgetary authority. “[I]t stands to reason that Congress has delegated broad regulatory powers only because it expected it could always use its funding powers to direct and restrain regulators,” the amici write.Several of the amici are vocal critics of the Chevron doctrine, a legal principle that has shielded administrative agencies from judicial review over the past 40 years. Without judicial review, in many cases, regulations are only curbed by lack of spending allocations from Congress.Without budgetary oversight from Congress, the brief warns of rampant executive overreach. As the Nine prepare to hear the case, the amici are not the only ones making their opinions known. A flurry of briefs have come in — including from a former education secretary, Elisabeth DeVos; 128 House Republicans; the nation’s two largest teachers’ unions; the NAACP; and 37 states.

All-Star Amicus Brief Warns of ‘Tyranny’ in Student Debt Cancellation Case

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