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Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Tuesday, February 28,
2023. It's a few minutes after four o'clock in the afternoon here on the east coast of the United
States. The Supreme Court of the United States spent three hours today on the same oral argument.
It was two different cases and two different sets of lawyers, but the issue was the same.
It's student loan forgiveness.
You have all heard me speak about this in the past.
The oral argument today was very telling.
There's no question in my mind that the Supreme Court is
going to rule probably by a six to three vote that the president of the United States does not have
the authority to forgive student loans. But the way the constitution affects this is what's
fascinating to me and what I want to explain to you. So a mini first year law school class
on the separation of powers. Under our system, we have what's called the separation of powers.
Congress writes the laws, Article 1 of the Constitution. The president enforces the laws,
Article 2 of the Constitution. The Supreme Court and the federal judiciary interprets the law as article
three of the Constitution. The activities of those three branches, the separation of those powers,
occasionally overlaps in little things, but what the court has not permitted is the core delegation away or the core theft of one power to another. Example,
only Congress can declare war. You've heard me rail about this many, many times. Yet President
Biden is beginning the involvement of American troops in war in the Ukraine. That is a theft of the war-making power by the president from
the Congress. If Congress looks the other way and does nothing about it, one could argue that
Congress has consented. The court will still, if it ever reviews this, find that that's a violation
of the separation of powers. It's the presidency doing what only the Congress can do. The same
argument was made today. So for 40 or 50 years, the federal government has guaranteed a certain
class of student higher education loans. You apply to a school. You can't afford to go. You ask for financial aid. Normally,
the aid doesn't come from the school. The school finds you a bank that will loan you or your
parents the money because the federal government under various programs will guarantee the
repayment of the loan. So it's a sure bet for the bank. They're going to get their money back with interest.
It's a good thing for you.
You're getting part of your tuition at school paid for.
The college or university loves it because it's getting the full amount of the tuition and fees from either you or the bank.
The problem comes, of course, when it's time for you to pay it back and you don't. Or, as we have now, you have a president that wants to give a class of young people a benefit by relieving them of the obligation to cancel all this student debt, well, where would the money come from
to pay the banks the money that they loaned? It would come from the taxpayer, or it would be
borrowed in the taxpayer's name. It would come from the federal treasury. How much money is
involved? Hold on to your chair. $440 billion, with a B, dollars. So if President Biden cancels all these student debts, there are
40 million present or former students in the United States of America that owe money under
this program. 26 million of them applied to the federal government for forgiveness when the Biden administration announced it was accepting applications for forgiveness.
None of them got forgiveness because the federal courts have said, wait a minute, this doesn't look right.
The president can't do this.
We're going to hold up on the programs until the Supreme Court looks at this.
Today, the Supreme Court looked at it.
There's two different cases. The facts are different in the two cases, but the principle is the same.
Can the President of the United States sign an executive order, the effect of which is to extract
$440 billion from the Federal Treasury? I think the answer is no, for several reasons. One, only the Congress can do
this under the Constitution. Only the Congress can spend money from the Treasury. That is clear
as day in the Constitution. Biden administration argues, wait a minute, in 2022, bipartisan 2022 bipartisan legislation called the Heroes Act. And the Heroes Act allows the president
to waive federal, waive, not cancel, waive federal obligations whenever there is an emergency. And at
the time there was an emergency. It was the tail end of the COVID pandemic. Well, that emergency
has been undeclared. It doesn't exist anymore. So the questions this morning in the Supreme Court
were, look, if Congress really wanted the president to be able to negate obligations,
not waive them. Waive them means they're put off for a little while, but they're still there.
Negate them means you no longer owe the money.
If Congress wanted the president to be able to negate these obligations, it would have said so. It didn't say that.
It said wave.
And besides, the emergency doesn't exist anymore.
The same government, the very same government that declared the emergency now says there is no longer an emergency.
Whether that's a scientific determination or a political one is irrelevant.
It is clear that the Biden administration says the CDC declared emergency under the Trump administration.
They were right to do it then, but we've conquered COVID.
Whether you believe that or not, it's another story.
The emergency doesn't exist anymore. So can the president sign an executive order, the effect of which is to force the Treasury to spend $440 billion, the conservative-leaning justices led off by the chief.
The chief justice began the oral argument as soon as he recognized the lawyers in the courtroom.
He started right away with basically what I'm asking.
How can the president possibly incur an obligation like this when the Constitution says only Congress can spend the
people's money. And there are legal arguments on both sides. The liberal justices were saying,
well, these people are going to default, and it's probably better for them and better for the banks
if the government just pays these bills and gets it over with. Well, that's not the point.
The point is these were loans, and they may have been signed by these young people when they were
students, but they're adults. They had reached maturity to the point where they can take out loans,
and they agreed to pay them back. The Chief Justice's argument is, this is a public policy
question for giving loans and spending money of this magnitude. And public policy is not set by
the courts, and it's not set by the president.
Set by those people recognized in Article 1, the Congress. The Congress sets public policy.
If the Congress wants to forgive this obligation, if the Congress wants to tell the Treasury to
borrow $440 billion and pay off all these loans. Only the Congress can do it and not
the president. Prediction President Biden loses. Or does he? Was his purpose to pay back the loans
or was his purpose to attempt to pay back the loans? Lawyer that he is and lawyers that work
for him as they are, knowing that the courts
would never allow this. President Biden himself once said, as he was signing the executive order,
this may not be constitutional, but I'm doing it anyway. He may have gotten what he wanted,
which was to retain Democratic control of the Senate and to minimize Republican takeover of the House. They minimized
it substantially. Kevin McCarthy can barely do anything because he only has an eight-vote
majority in the House. It looked like it was going to have a 30 or 40-vote majority in the House.
So President Biden may have got all these young people to vote for the Democrats by doing his best to save them this money,
knowing all along that it wouldn't work. That's the way politicians operate. They often make
proposals they know are constitutional, so they can wave to the gallery and say,
did my best for you. It's those black robe judges that stopped me. Welcome to America, 2023. More as we get it, predictions
six to three against the president. He'll rail against them. He'll talk about the poor students
and probably win some more democratic votes in the process. Judge Napolitano for judging freedom. Thank you.