“The good news is there’s still time to fix it.”
That’s my reading of the statute. As long as they gave a year of negotiated rulemaking, the secretary could have still adopted a different and broader rule. It gets complicated, but that certainly was in the cards. And then there would have been a stronger statutory basis for the program that would have been announced now. We don’t know if that alternative universe would have happened, but it certainly had a better chance of working, obviously with the benefit of hindsight.
Wow. I do think that’s really cynical, but it’s hard not to have some version of that feeling just by looking at John Roberts’ opinion on student debt relief and what he said, because some of the most damning parts of it involve him quoting Democrats themselves, whether it’s the president saying the national health emergency is over or Nancy Pelosi in a press conference in 2021 saying people think the president of the United States has the power to forgive debt, but he does not.
And at the same time, whether or not this happened because they started with the wrong statute, the Roberts court has made it clear that the Higher Education Act is insufficient for this program. It doesn’t specify this kind of waiver. In fact, on Page 17 of the Roberts majority, they describe the Higher Education Act’s provisions as being limited. That was not an accident. They were firing a shot across the bow, foreseeing that the Biden administration would now try the Higher Education Act.