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Former Obama lawyer says Biden 'likely does not' have the legal standing to cancel student debt broadly: WSJ

·3 min read
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  • The Wall Street Journal obtained a legal analysis from a former Obama lawyer on student-debt relief.

  • The analysis said mass student-loan forgiveness has the potential to be overruled in court.

  • The debate on broad loan forgiveness within the Higher Education Act has remained ongoing.

As President Joe Biden is getting closer to canceling student debt, a newly released analysis throws into question how doing so might hold up in court.

On Wednesday, a Wall Street Journal exclusive found that Charlie Rose — a top lawyer in former President Barack Obama's Education Department — is not confident in the legality of broad student-loan forgiveness. According to a legal analysis the Journal obtained, Rose said canceling student debt for every borrower without gearing the relief toward each borrower's individual needs could be overruled in court and leave the administration at risk of being sued by student-loan companies.

"If the issue is litigated, the more persuasive analyses tend to support the conclusion that the Executive Branch likely does not have the unilateral authority to engage in mass student debt cancellation," Rose wrote.

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The Journal said that Rose confirmed to the publication the analysis was intended for a private client, not for public release.

The legal debate surrounding broad student-loan forgiveness remains ongoing. Last April, Biden asked the Education Department to prepare a memo examining his legal authority to cancel student debt broadly. While the memo's findings have yet to be publicly released, the Debt Collective — the nation's first debtors union — obtained the redacted memo via the Freedom of Information Act in October, revealing that Biden is aware of what type of legality he has to act on student debt but is not making it publicly known.

Still, it's looking likely the president will cancel student debt broadly. Biden said in a speech last week a decision on loan forgiveness will be made "in a couple of weeks," and the relief will likely be close to his $10,000 forgiveness campaign pledge, subject to income limits. White House Press Secretary Jen Psaki told reporters this week relief is being considered for those making under $125,000 a year.

While Democrats have argued Biden has the authority under the Higher Education Act to forgive student debt using executive action, many Republican lawmakers have said that authority does not exist. Five Republican lawmakers recently introduced a bill to resume student-loan payments and block Biden from canceling student debt as part of pandemic relief.

"As Americans continue to return to the workforce more than two years since the pandemic began, it is time for borrowers to resume repayment of student debt obligations," Sen. John Thune said in a statement.

Republicans have frequently slammed the notion of broad forgiveness, saying it will cost taxpayers and the economy, with some of them arguing Biden is only considering the relief to win votes at the midterms. But many Democrats have long been saying the authority to cancel student debt is there, and Biden just needs to sign an executive action.

Legal experts at the Harvard Law School Legal Services Center prepared an analysis for Massachusetts Sen. Elizabeth Warren in 2020 that found that her proposal to cancel $50,000 in student debt for every federal borrower "calls for a lawful and permissible use of the authority Congress has conferred on the Secretary of Education, which is anticipated and allowed for in the budgetary and accounting treatment of federal student loan programs."

Read the original article on Business Insider