Republicans may challenge student loan forgiveness. Uncertainty for borrowers is ‘considerable,’ says Harvard lawyer

Sen. Ted Cruz, R-Texas, is reportedly considering a challenge to President Biden’s student loan forgiveness effort.
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A number of Republican legislators may bring a legal challenge against President Joe Biden’s historic announcement last week that he’d forgive the student debt of tens of millions of Americans.

Although no lawsuit has been brought yet, GOP attorneys general from states such as Arizona, Missouri and Texas, as well as Sen. Ted Cruz, R-Texas, and those connected to conservative think tank the Heritage Foundation, are considering their options when it comes to trying to block loan forgiveness, according to reporting by The Washington Post.

“The uncertainty for borrowers in the meantime is, I’m afraid, considerable,” said Laurence Tribe, a Harvard law professor.

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Biden said last week that most federal student loan borrowers will be eligible for some forgiveness: up to $10,000 if they didn’t receive a Pell Grant, which is a type of aid available to low-income undergraduate students, and up to $20,000 if they did.

A debate over emergency forgiveness looms

The White House, along with its announcement, released a 25-page memo by the U.S. Department of Justice making the case that debt cancellation is “appropriate” under the Heroes Act of 2003, which grants the president broad power to revise student loan programs. That law was passed shortly after the Sept. 11 terrorist attacks and permitted the executive branch to forgive student loans during national emergencies. The Trump administration declared the Covid-19 pandemic a national emergency in March 2020.

Those trying to block the forgiveness will likely argue that the Heroes Act of 2003 doesn’t give the president the power to forgive student debt in the broad way he is trying to, said higher education expert Mark Kantrowitz.

The issue could make its way to the Supreme Court.

The news of a possible challenge from the right is unsurprising. Even before Biden rolled out his plan, some Republicans worked to stop an effort by the president to cancel the debt in national emergencies. Critics of student loan forgiveness say the policy is unfair to Americans who didn’t attend college, as well as to those who paid off their student loans already or never borrowed in the first place.

The first obstacle to those hoping to bring a legal challenge against Biden’s plan will be finding a suitable plaintiff, Tribe said. It’ll likely have to be someone who can make the case that student loan forgiveness causes them “personal injury,” and that might not be easy.

“Such injury is needed to establish what courts call ‘standing,'” Tribe said. “No individual or business or state is demonstrably injured the way private lenders would have been if, for instance, their loans to students had been canceled.”

‘Be cautiously optimistic’

The news that a challenger to loan forgiveness could come forward is sure to make anxious the tens of millions of Americans who’ve been reimagining their lives with less student debt since the president’s announcement.

The U.S. Department of Education has said its application for loan cancellation will be available by or before October, and Kantrowitz said borrowers should not change their plans for now.

“Borrowers should apply for forgiveness and be cautiously optimistic,” he said.

Neither the White House nor the Education Department immediately responded to a request for comment.

Sophie Tremblay

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