We might sound like a broken record but it's worth repeating: Joe Biden's Education Secretary can UNILATERALLY cancel ALL student debt. It's almost as simple as her waiving a magic wand. Here's some of the legal explanation behind it.
Thread.
Thread.
The Higher Education Act grants ED the authority to “compromise, waive, or release” any claims it has against student debtors. This settlement authority has existed since congress first created student loans – the first loans were created w/ the National Defense Education Act.
The NDEA gave the Commissioner of Education the “power to agree to modification of agreements or loans made under this title and to compromise, waive, or release any right, title, claim or demand, however arising or acquired under” the National Defense Education Loan program.
On their own terms, the powers articulated in the NDEA are about as broad as can be. “Compromise,” “waive,” and “release” all refer to a legal person’s discretion to decide
not to pursue the full extent of her legal rights (or potential legal rights) against another party.
not to pursue the full extent of her legal rights (or potential legal rights) against another party.
Whereas “compromise” indicates situations in which a litigant settles a legal claim subject to an agreement with the person(s) against whom she has a claim, “waive” and “release” both indicate a unilateral decision to give up a legal claim, regardless of the reason why.
Thus, the Secretary of Education—or her delegate—
has the ability to cancel or write down claims against student debtors either unilaterally or in exchange for something else, apparently for any reason or for no reason.
has the ability to cancel or write down claims against student debtors either unilaterally or in exchange for something else, apparently for any reason or for no reason.
These grants of settlement authority contain no guidance for how the authority can or cannot be used. The only explicit limits that Congress has placed on ED’s discretion
are nominal (exceeding $1M but even this is sort of debatable).
are nominal (exceeding $1M but even this is sort of debatable).
It has concluded that such a program could be carried out (at least with respect to public student loans) through an exercise of ED’s prosecutorial discretion, though the
ambiguity of governing law makes it possible that a court would narrow or nullify it.
ambiguity of governing law makes it possible that a court would narrow or nullify it.
Administrative student debt cancellation of any ambition would be most efficiently accomplished with a President fully committed to the project because it would require
coordination across the Executive Branch...withstanding a court challenge or undermining efforts from congress.
coordination across the Executive Branch...withstanding a court challenge or undermining efforts from congress.
But that's why we need all of you + your political will + our collective pressure on Joe Biden and his Secretary of Education for her to use this authority and free tens and millions of Americans from crippling student loan debt.
Join us: debtcollective.org
Join us: debtcollective.org
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