Why the law Biden is using to cancel student debt is 'highly strained,' according to a group formed by Obama lawyers aimed at protecting American democracy

• Protect Democracy, a group formed by Obama lawyers, filed an amicus brief to the Supreme Court on student debt.
• It said that Biden's usage of the HEROES Act of 2003 to cancel student debt is "highly strained."

Dozens of conservative groups, liberal organizations, advocates, and scholars have made their opinions known to the nation's highest court on whether President Joe Biden's student-loan forgiveness plan is legal.

Now, a group aimed at preserving American democracy has weighed in — and it's not a fan of the way Biden is enacting this relief.

Last week, Protect Democracy — a group cofounded by lawyers under former President Barack Obama, Ian Bassin, Justin Florence, and Emily Loeb — joined other organizations in filing amicus curiae briefs to the Supreme Court concerning Biden's plan to cancel up to $20,000 in student debt for federal borrowers.

The group, which said it's "dedicated to defeating the authoritarian threat, building more resilient democratic institutions, and protecting our freedom and liberal democracy" on its website, wrote in its brief that while it recognizes the financial harm the pandemic has placed on student-loan borrowers, the route Biden proposed to give millions of them relief is an overuse of emergency powers.

"It is important to recognize that both student debt and the pandemic have disproportionately harmed lower income and minority communities," the brief said. "But the answer to these problems is not the unchecked aggrandizement of executive power. And in this regard, Protect Democracy notes that it appears there may be other lawful ways the Biden administration could use executive action to achieve the goal of relieving student debt."

The law in question that Biden proposed is the HEROES Act of 2003, which gives the Education Secretary the ability to waive or modify student-loan balances in connection with a national emergency. But Protect Democracy argued that while using the Act was justifiable to extend the student-loan payment pause that began in March 2020, "the relationship between the Covid-19 emergency and the need permanently to relieve student loan debt is highly strained."

The Supreme Court will be considering whether the usage of the HEROES Act is legal during the February 28 arguments — along with whether the plaintiffs in the two lawsuits the blocked Biden's debt relief has standing. As Protect Democracy noted in its brief, though, it "expresses no view" on the issue of standing — its "sole purpose" is urging the Court to consider the extent to which emergency powers can be used.

What student-debt relief and a GOP-led border policy have in common

Counsel at Protect Democracy wrote in an article last week that the group filed two briefs to the Supreme Court simultaneously. One regarded Biden's student debt relief, and the other was on Arizona v. Mayorkas. The latter is a case brought on by GOP-led states to force Biden to continue using emergency powers under Title 42 — a power for the Centers for Disease Control and Prevention to mitigate a public health crisis — to restrict migration at the southern border.

As the article states, those two cases are "seemingly unrelated," but they both delve into the usage of emergency authority that "has important implications for the long-term health of democracy in the United States."

"In reviewing uses of emergency powers, courts should give effect to that approach—and should not allow the president, or the courts themselves, to use special emergency powers to address situations that do not reasonably qualify as emergencies or are untethered from a declared emergency," the article said.

The group's brief said that courts should weigh the following factors to determine when executive actions exceed the power Congress authorized: if the situation at hand is an emergency that requires immediate action; how much time has passed between the emergency and the action taken; if the executive branch's actions follow precedent on emergency power usage; and if the action leads to long-term shifting of power to the executive branch.

It said that connecting the pandemic to permanent debt relief is a stretch, and "there is little intuitive connection between a public health emergency and a program to address a long-term structural problem in higher education financing."

Biden's administration has repeatedly rejected that argument. After the president recently declared the emergency declaration for COVID-19 will end on May 11, a White House official told Insider that the change will not impact Biden's debt relief plan because nearly three years since the pandemic began, Americans are still feeling its financial impacts.

"The lower courts' orders have erroneously deprived the Secretary of his statutory authority to provide targeted student-loan debt relief to borrowers affected by national emergencies, leaving millions of economically vulnerable borrowers in limbo," Biden's Justice Department wrote in its legal defense.

Architects of the HEROES Act weigh in

Republican lawmakers and conservative groups have blasted Biden for announcing student-debt relief without Congressional approval. But one of the architects of the HEROES Act of 2003 told the Supreme Court late last year that this is just what the law intended.

Former Rep. George Miller — a top Democratic lawmaker on the House education committee who helped construct the HEROES Act of 2003 — filed an amicus brief in November saying that "the Act confers significant authority on the Secretary to ease the burdens on borrowers who have been affected by unexpected national emergencies. And that is exactly what the Secretary has done here."

"Congress used broad language in the text of the HEROES Act to make clear that the Education Secretary has extensive authority to respond to national emergencies, and the history of the law confirms that it authorizes comprehensive actions when the circumstances call for them," Miller's brief added.

Two former GOP lawmakers involved in the passage of the Act, however, also filed a brief last week opposing Biden's legal route, and the debate will continue leading up to the Supreme Court oral arguments at the end of February. While advocates — and Protect Democracy — have suggested there could be another way for Biden to cancel student debt using the Higher Education Act of 1965, which doesn't require a national emergency, Biden's administration has made clear there is no Plan B right now, and it's confident in its authority to get loan forgiveness to millions of borrowers.